What to watch for as Supreme Court term ends

Most politically charged cases still to come

By Ariane de Vogue, CNN Supreme Court Reporter
Kelly Marshall Smoot/CNN

WASHINGTON, D.C. - In its final couple of days of the term, the Supreme Court will consider two of the most politically charged cases of the term and issue opinions that will give the public the first full glimpse of the impact of the newly solidified conservative majority.

The justices will also send signals about the shape of the docket next term as they decide whether to take up DACA as well as a restrictive abortion law out of Alabama.

Here's a look at the key remaining opinions:

 

2020 Census citizenship question (Dept. of Commerce v. New York)

 

The court is wading into a bitter controversy over whether the Trump administration can ask all recipients a citizenship question on the 2020 census for the first time since 1950, a case that has also seen a flood of potentially new key evidence.

The administration claims that the question is necessary to better comply with federal voting rights law, while critics say it represents a veiled attempt to intimidate noncitizens and Hispanic households and will lead to a decrease in response rates.

Every lower court to consider the issue has so far blocked the administration from adding a question about citizenship status to the census questionnaire, holding that Commerce Secretary Wilbur Ross, who has jurisdiction, exceeded his authority under federal law or the Constitution by doing so. After arguments, the challengers informed the court they had obtained "new evidence" that the decision was politically motivated.

They have told the justices that if they are inclined to rule in favor of the government, the opinion should be delayed until next fall to give lower courts the opportunity to review a trove of new documents from the files of a deceased republican redistricting expert. The Justice Department sent a fiery brief to the court accusing the challengers of bringing an 11th hour attempt to derail the case and calling the allegation a "conspiracy theory." Solicitor General Noel Francisco urged the justices not to stray from the record at hand.

Meanwhile, a federal judge in Maryland issued an opinion on Monday suggesting the new evidence was significant because it "potentially connects the dots between a discriminatory purpose -- diluting Hispanics' political power -- and Ross's decision" to add the question.

Why it matters: With the 2020 census fast approaching, how the justices rule in this case about political representation could impact the critical data derived from the census, which is used for issues such as the allocation of congressional seats and the distribution of billions of federal dollars to states and localities over the next decade.

 

Partisan gerrymandering (Rucho v. Common Cause and Lamone v. Benisek)

 

The court is considering when politicians go too far in drawing lines for partisan gain in a set of cases arising from North Carolina and Maryland that could fundamentally impact the balance of power in legislatures and Congress. Similar cases out of Ohio and Michigan have been put on hold pending the Supreme Court's decision.

Although the court has a standard to weed out extreme racial gerrymanders, it has never been able to settle on a standard for partisan gerrymandering.

With the retirement of Justice Anthony Kennedy, critics of extreme partisan gerrymandering fear they may have lost the last chance at a meaningful test.

They say that with sophisticated new redistricting technology, map drawers are able to manipulate the system more than ever, and entrench the governing party in power. States argue that there is no manageable standard and that the Constitution gives them broad authority to regulate redistricting.

The North Carolina case is brought by Democrats challenging Republican-drawn districts, the Maryland case is Republicans challenging a Democratic district. The lower courts struck the districts and provided the justices with several potential tests grounded in the First Amendment, the Equal Protection Clause and other parts of the Constitution to establish a new standard.

Why it matters: On the eve of the next census, this case could change how maps are drawn. The justices could, for the first time, establish a test to determine when partisan motivation is too much, or they could slam the door shut on such claims, holding that it is an issue better left to the political branches of government.

 

Indian territory jurisdiction (Carpenter v. Murphy)

 

Patrick Murphy, a member of the Creek Nation, was convicted of murdering a fellow tribe member, George Jacobs, and sentenced to death by Oklahoma in 2000.

But Murphy argued he was tried in the wrong court. He said his crime occurred on Indian territory, and that the federal government, not the state, had jurisdiction.

His case raises a question that could have broad repercussions and could impact at a minimum 2,000 other prisoners in state court and self-identify as Native American.

The 10th US Circuit Court of Appeals ruled in Murphy's favor holding that the state lacked the jurisdiction because Congress had never "disestablished" the 1866 boundaries of the Creek nation that encompasses 3,079,095 acres. Currently 1.8 million Oklahomans live on the land.

Under federal law, major crimes committed by Indians on Indian country must be tried in federal court.

Murphy's death penalty case opened a hornet's nest for the court. Lisa Blatt, a lawyer for Oklahoma, warned if the Supreme Court were to uphold the lower court opinion it would be a blow to the State's power to prosecute and burden federal authorities forcing them to investigate and prosecute hundreds of new cases each year.

Justice Neil Gorsuch recused himself from the case as he dealt with the case previously when it came before the 10th Circuit.

Why it matters: if the court were to affirm the lower court's ruling, the government says it would impact pending and past convictions and broaden the government's authority.

 

Veteran disability benefits (Kisor v. Wilkie)

 

At issue is a dispute between Marine veteran James L. Kisor, who is seeking disability benefits for his service-related post-traumatic stress disorder, and the Department of Veterans Affairs that had declined to award him retroactive benefits.

But lurking behind the case is a much bigger legal dispute over whether courts should defer to an agency's interpretation of its own regulations when there is ambiguity. In legalese it's called "Auer deference."

Why it matters: Conservatives -- like former White House Counsel Don McGahn, who attended oral arguments -- argue that agencies have become too powerful, upsetting the balance of power. But progressives argue that agency deference is important for the regulation of big business and the protection of consumers, the environment and workers.

 

DACA

 

The Trump administration is asking the Supreme Court to take up a case concerning the government's decision to phase out DACA, an Obama-era initiative that protects young undocumented immigrants -- who came to the United States as children -- from deportation.

Plaintiffs, including the University of California, a handful of states and DACA recipients argued that the phase-out violated the Administrative Procedure Act, a federal law that governs how agencies can establish regulations. Courts agreed and issued nationwide injunctions that allowed renewals in the program to continue.

"We conclude," wrote a panel of the 9th Circuit Court of Appeals, that the rescission of DACA "is arbitrary, capricious or otherwise not in accordance with law."

The Trump administration appealed the decision to the Supreme Court. At the time, the President predicted success: "We want to be in the Supreme Court on DACA," he said.

At issue before the justices is not the legality of the program, but how the administration decided to wind it down.

Why it matters: At issue are protections for nearly 700,000 undocumented immigrants who came to the U.S. as children. The case has become a focal point in the debate over Trump's proposed US-Mexico border wall and efforts to crack down on immigration.

 

Alabama abortion law

 

The justices are also considering whether to take up the "Unborn Child Protection from Dismemberment Abortion Act" that was passed in Alabama in 2016, but blocked from going into effect by the lower courts.

A lower court held that the law presents an undue burden to a woman's right to abortion in violation of Supreme Court precedent.

Lawyers for Alabama asked the Supreme Court to take up the case and decide whether the state ban was unconstitutional even if there is a "reasonable medical debate" that alternatives to the banned procedure are safe. The law has an exception for the health of the woman. They argue that the ban affects a "very small number of abortions" because 2014 statistics show that "approximately 93% of abortions in the state were performed before 15 weeks, and that the procedure at issue is only used after 15 weeks."

The West Alabama Women's Center, represented by the ACLU, argues the law prohibits physicians from performing an abortion using "the most commonly used method for performing pre-viability second trimester abortions." In court briefs they argue that "starting around 15 weeks" D&E is the "only abortion method that can be performed outside a hospital; it accounts for 95% of second-trimester abortions nationally and 99% of abortions after 15 weeks in Alabama." They also dispute the robustness of the health exception for women.

The law is separate from a different Alabama law that was most recently in the news that is a flat out ban on abortion.

Why it matters: The petition comes as supporters of abortion rights fear the newly solidified conservative majority is poised to cut back in the area of abortion rights. Already this term, the justices said that one provision of an Indiana law which said that the state may prohibit abortions motivated solely by race, sex or disability should remain blocked. The court , however, did allow part of the law that requires clinics to bury or cremate fetal remains to take effect.

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