Things To Worry About for the Upcoming SCOTUS Term, Part 1

Posted: October 3, 2016 by beguide in Uncategorized


On October 3, 2016, the Supreme Court will begin the 2016/2017 term, ushering in a new year of arguments, decisions and Constitutional law. While one would hope that this venerable institution could serve as a bright spot compared to the on-going incompetence of the other two branches of government, it is important to note that not a year goes by where the Supreme Court doesn’t take some action that leaves jurists, criminal defendants, police officers, politicians, and commentators scratching their heads.   Just last year, the Supreme Court weakened liberal causes like immigration reform, fourth amendment rights, and civil class actions.  The Court did not spare those of the conservative persuasion either, as the Court strengthened Roe v. Wade and affirmative action in lieu of commenting on gun control and the Affordable Care Act.    Overall, there was plenty of bad medicine to go around, and there are likely more decisions worth fretting over around the corner.

To help prepare for the months to come, the following statements are possible reasons to be worried about the upcoming term, and the appropriate level of fear you should have regarding each issue.  Because different political leanings are afraid of different things, both liberal and conservative concerns are addressed.  For the benefit of those unfamiliar with the law, your level of concern will be represented with situations from popular 1980’s movies.

  1. The Supreme Court Will Make A Terrible Civil Rights Decision.

Every year, the Supreme Court commonly takes up one civil rights issue that deals with privacy under the Constitution.  By way of background, the right to privacy is not stated specifically within the Constitution, but is inferred within our Due Process right to life, liberty and the pursuit of happiness.   Belief in the Constitution’s protection of privacy is not shared by all justices however, as many feel an open-ended privacy clause allows the Court to create rights under the Constitution where none actually exist.  The breadth of our Constitutional right of privacy is usually the basis for most civil rights issues as opposed to the merits of the specific activity, although justices commonly confuse moral beliefs with constitutional interpretation when deciding who you can have sex with.

The likely case this term regarding privacy involves transgender rights and the use of public restrooms.  This case centers on a Virginia school district that instituted a policy requiring transgender students to use alternative private restroom facilities as opposed to communal public bathrooms.  A student challenged these procedures under Title IX and the 14th Amendment, which state that the law cannot treat people different based on gender without important reasons supporting the classification.  Although the Supreme Court was encouraged to not take this case on appeal from the ACLU, the case will likely be ruled on this upcoming term.

There are certainly grounds to believe that the Court will rule in favor of the student and issue a well-balanced decision in favor of transgender rights, but past examples of the Supreme Court dealing with new issues of sexuality and privacy are not exactly sparkling.   More often than not, the Court usually makes a tragic decision at first blush, and then has to clean up its mess decades later.  For example, the Supreme Court held in 1986 (Bowers v. Hardwick) that States were permitted to ban homosexual sex on grounds that citizens did not have a fundamental right to engage in sexual activity of their choosing.  Within his concurring opinion, Chief Justice Burger wrote that homosexual sex was an “infamous crime against nature” and that finding sex to be a fundamental right would “cast aside millennia of moral teaching”.  The Court would overrule Bowers, but not until 2003 when Lawrence v. Texas held that States could not criminalize homosexual sex.  By way of context, that decision came out five years after Will and Grace debuted on NBC.  Another example of the Court’s clumsy approach can be found with interracial marriage, as the 1883 case of Pace v. Alabama held that statutes banning interracial marriage did not violate the Equal Protection Clause of the Constitution because both whites and non-whites punished equally under the law.  The Court is often praised for overruling Pace in Loving v. Virginia, but it is once again important to note that Loving was issued eighty years later in 1967.

While one could argue that the recent rulings regarding same-sex marriage signal a change in mind-set from the older days of the Supreme Court, there is evidence to suggest that the rights created in those specific decisions will not carry over into cases concerning transgender rights.   For one, the cases on their face deal with two different aspects of privacy and sexuality.   The gay marriage cases, at their most fundamental legal level, addressed the government’s recognition of a marital union and whether denying the rights that flow from marriage to same-sex couples has a compelling purpose.  In the most recent cases, the Court held that there was no justification for treating both unions differently, and that the government’s reasons were instead based on outdated fears and prejudices regarding same-sex individuals. For reference, the case of Goodridge v. Department of Public Health is a Massachusetts Supreme Court opinion that outlines why there is no actual government purpose furthered by banning same sex marriage.  This opinion, which is far superior to the two Superior Court decisions, makes specific reference of how the government’s stated purposes for banning same sex marriage serve only as pretext for moral objections to same sex unions.

The Virginia transgender case, by contrast, implicates a different set of rights and therefore will likely receive different treatment under the test for Equal Protection.   In regard to the rights involved, this case is will effect a wider range of people in its immediate application.  This is not to say there are more individuals who identify as transgender than gay, but rather that this case implicates the rights of more disinterested parties who are affected by the bathroom law in general.  While one could argue that same sex marriage “doesn’t-affect-you-so-why-do-you-care-who-gets-married”, the transgender case involves the privacy rights of students, transgender or otherwise, who use the restroom at a public school.  This last point is important, as the Constitution often takes a backseat when dealing with children and public education.  One recent example is the Supreme Court’s 2007 holding in the “Bong Hitz 4 Jesus” case (Morse v. Frederick), which said that students are subject to less Constitutional First Amendment rights during school hours than the average citizens.   Ultimately, this case will likely come down to whether the Court finds that government’s interests in the transgender case (i.e. privacy, public health, security) less attenuated than the interests in the gay marriage cases, thus making the pretext referenced above less apparent.

These differences may seem nominal, but it is important to note that the gay marriage cases survived on the slightest of margins, winning by a vote of 5-4.  With Scalia no longer on the conservative side, the conservative wing of the Court would need to bring in Kennedy and another liberal Justice to overturn the lower court’s decision in favor of the student.  While that may seem unlikely, the Supreme Court recently made a ruling against the transgender student, granted a stay that kept the school policy in effect until the Court can make a final resolution.  This vote was 5 to 3, with Kennedy and Breyer joining the conservatives.  While you could certainly argue that this vote was limited to the procedural aspects to this case, one could just as easily assume that this vote is a harbinger for things to come.

Level of Fear as Displayed Through Classic 80’s Movies

You are the Back to the Future’s George McFly in the original iteration of 1955.  You’ve left the Enchantment Under the Sea dance with Lorraine, but your future is a bleak prospects of an unhappy family, an unfulfilling career, and more dealings with school bully Biff in the years to come.   Lucky for you, thirty years later an international plutonium smuggler and the World’s biggest Huey Lewis fan will defy all laws of physics and travel back in time to right the wrongs of the past, giving you a fulfilling life where you are a successful author, your kids love you, and Biff washes your car for a living.  So things are a drag now, but there’s a good chance the past, present and future will fix itself thirty years from now.

  1. The Court Will Overrule the Second Amendment.

Some context on the Second Amendment is warranted here before getting into how likely the Court is to change their current stance on gun rights this term.  Between the years of 1776 and 2008, the Supreme Court addressed the interpretation of the Second Amendment only once in 1958.  By way of contrast, the Supreme Court regularly hears approximately one First Amendment case every year, one Fifth Amendment case every year, two to three Eighth Amendment cases every year and three to four Fourth Amendment cases every year.

The singular case in question was United States v. Miller, which dealt with a Second Amendment challenge to the registration of automatic weapons and short-barreled shotguns under the National Firearms Act of 1934.  The Court in Miller denied Second Amendment arguments on grounds that the weapons were not reasonably related to the preservation or efficiency of a well-regulated militia; and therefore, the Second Amendment did not preserve the right to keep and bear such an instrument for daily use.  In addition to upholding the validity of the underlying law, the presumptive effect of this case was to infer that the Second Amendment’s primary focus was the “well-regulated militia” section of the Second Amendment, meaning that a citizen’s right to possess weapons was only protected within that prism.

That decision stood relatively un-cited and unchallenged until 2008, when the Supreme Court issued D.C. v. Heller, a landmark opinion that expanded the Second Amendment to protect a citizen’s right to possess handguns for purposes of self-defense.  Heller overturned a D.C. law that, among other things, increased the standards under which a person could obtain a license to possess handguns and required that handgun owners disassemble the gun in the home.  The Court found that this law violated the individual’s right to self-defense, which signaled the Court’s movement away from the focus on a “militia” and toward a focus on the individual person who warrants Constitutional protection.  Although this appears to be just a semantic difference, this change greatly expanded how the Second Amendment could be applied in future cases, as citizens could more easily assert the Second Amendment to make a reasonable self-defense argument, as opposed to the less reasonable I-need-these-guns-for-my-well-regulated-militia argument.

Immediately following Heller, things were looking pretty good for gun-rights.  Because Heller involved Washington, D.C., the Court’s interpretation on the Second Amendment was only binding on Federal law; however, the Supreme Court expanded this interpretation to State governments in a case known as McDonald v. City of Chicago.   In essence, the holding in McDonald states that the Second Amendment is so fundamental to the rights of citizens that the Supreme Court’s 2008 interpretation of that Amendment, made more than two hundred years after its original drafting mind you, took precedence over any individual States’ intentions, motivations, or circumstances regarding gun control.  If you like guns, that’s so far, so good.

Since McDonald though, things haven’t been as rosy.  In addition to the monthly shooting occurring around the Country, the Court seems less interested in expanding the Second Amendment, and more interested in sitting idly by while others chip away at Heller’s essential holding.   In U.S. v. Voisine, the Court held that a misdemeanor conviction for domestic violence was grounds for taking away someone’s right to possess any gun, making the Second Amendment one of, if not the only, Constitutional rights you can lose via a misdemeanor conviction.  Outside of the Supreme Court, State restrictions on automatic weapons have passed Second Amendment challenges in lower courts, who also seem more inclined to isolate Heller to just the private use of handguns.  Not only has the Supreme Court refused to overturn those decisions, but the Court has refused to take those cases on their docket, thus giving the lesser Courts and individual States more autonomy with gun control.  So while the Second Amendment seems unlikely to be overturned, the Supreme Court’s inaction on this topic is rendering Heller less as a gateway to expanded gun rights, and more like an isolated opinion that Court doesn’t want anything to do with.

Level of Fear as Displayed Through Classic 80’s Movies

You are Daniel LaRusso immediately following Karate Kid 1 and at the beginning Karate Kid 2.  You’ve just defeated the Cobra Kai at All-Valley Karate tournament and won the hearts of bullied underdogs everywhere.  Instead of celebrating in your local town, or going on a few dates with Elizabeth Shue, or even kicking Billy Zabka in the face again, you hop on a plane to Okinawa with Mr. Miyagi and end up in a life or death battle with far superior fighters who are not fooled by your crane kick.  You end up winning whatever fight you felt necessary to create for yourself, but life would have probably been easier had you just rested on laurels and enjoyed local Southern California fame in peace.


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