The Supreme Court will sit for its first argument of the term this morning. I suppose given how few cases the high court accepts each year, they could all be considered important. But let’s not kid ourselves. So far, the high court has few cases on its docket that are likely to grab front page headlines—no same-sex marriage, no Obamacare, no right to bear arms. That could change, as I’ll discuss below, but first let’s look at my choices for the cases you should keep an eye on.
1. Heien v. North Carolina, to be heard today.
The issue in the first case to be heard this term is whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop. A police officer pulled Heien and a friend over for driving with only one working brake light, which, contrary to the police officer’s belief, wasn’t unlawful in North Carolina. During the unauthorized-by-law traffic stop, the police officer asked if he could search Heien’s car. Heien agreed (which makes us 2 for 2 when it comes to people behaving questionably in this case), and the search turned up a little plastic baggy of cocaine. At trial, Heien wanted to suppress the cocaine since the police officer had no lawful basis for the traffic stop in the first place.
The Supreme Court of North Carolina, in a split decision, held that the cocaine did not have to be suppressed because the police officer’s mistake of law was “reasonable.” Heien argues that this was error, relying in part on the contention that the police must at least be held to the same standard as ordinary citizens: “ignorance of the law is no excuse.”
2. Holt v. Hobbs, to be heard Oct. 7.
This is the first of a couple cases on the docket that touch on religious liberty. Holt is a Muslim inmate in Arkansas who believes his religion requires him to grow a half-inch beard. The Arkansas Department of Correction prohibits inmates from having beards for anything other than medical reasons. The prison asserts that preventing even a half-inch beard is a necessary security precaution. Holt points out that forty-four other prison systems in America do not prohibit half-inch beards as a security precaution.
Similar to the Hobby Lobby case last year, this one won’t be decided on First Amendment grounds. Congress has set in the Religious Land Use and Institutionalized Persons Act (RLUIPA, pronounced AR-LOO-pa) even greater religious protections than that provided by the First Amendment. Arkansas will have to show that its absolute prohibition on Holt’s beard is the least restrictive means of furthering a compelling government interest.
3. Zivotofsky v. Kerry, to be heard Nov. 3.
You may recall that a few years ago the high court was asked to weigh in on whether the judiciary gets a say in deciding whether Congress or the Executive Branch gets to decide whether American citizens born in Jerusalem could have Israel listed on their passports as their place of birth. The State Department had refused, citing longstanding department policy and foreign relations concerns. Congress, however, had passed a law requiring State to list Israel on passports at the request of Jerusalem-born Americans. Back then, the Supreme Court held this was not a political question outside of the reach of the judiciary and kicked it down to the lower courts to hash out. Now the case is back for a final resolution.
4 & 5. The Alabama Redistricting cases, to be heard Nov. 12.
These are two cases brought by the Alabama Democratic Conference and the Alabama Legislative Black Caucus arguing that the state’s redistricting in 2012 amounted to a racial quota and racial gerrymandering in violation of the equal protection clause of the Fourteenth Amendment. The state argued that its redistricting plan, which keeps the same number of majority black districts as the previous plan, was appropriate as an attempt to comply with the federal Voting Rights Act. A special three-judge district court panel agreed with the state.
Of note, the Obama Department of Justice precleared the Alabama redistricting plan, which was at the time covered by section 5 of the Voting Rights Act. The Supreme Court invalidated section 5 preclearance last year in Shelby County, but I suspect Alabama will lean hard on the fact that its plan passed muster once already. The Department of Justice has officially taken no position on the ultimate issue in these cases, instead arguing that the district court should have performed a different analysis.
6. Young v. UPS, to be heard Dec. 3.
In this employment law case, the Supreme Court will have to decide whether federal law requires that an employer who provides work accommodations to non-pregnant employees with work limitations must also provide work accommodations to pregnant employees who are “similar in their ability or inability to work.” Young worked as a driver for UPS when, in 2006, she became pregnant. Her OB gave her a note saying that she should not lift more than twenty pounds at a time for the first twenty weeks of her pregnancy and then no more than ten pounds at a time for the rest of her pregnancy. Young brought the note to her supervisor, who terminated her since she could not meet the general lifting requirements for her driver job. Young contends that this was pregnancy discrimination prohibited by the law because UPS offers other work accommodations for injury or disability. UPS, and the Fourth Circuit, disagreed.
This case, I am sorry to report, could very well be the next Ledbetter. A decision going against Young will certainly lead to a torrent of “War on Women” commentary with congressional proposals for more anti-discrimination legislation likely to follow.
7. EEOC v. Abercrombie & Fitch Stores, argument date not set.
This is another employment case that touches a bit on religious liberty. It arises out of my home state of Oklahoma and an Abercrombie & Fitch store that I have actually been in. A&F has a “Look Policy” for its store salespeople and that policy does not include head scarves (or any head covering). A woman applied for a sales position and interviewed for it while wearing a black headscarf. She did not get the job after her interviewer rated her low in the “appearance and sense of style” category. At no time during the interview did the woman or her interviewer mention religion, nor did the woman explain that, as a Muslim, she wore the headscarf out of a sincere religious belief.
The EEOC sued, arguing that A&F had failed to accommodate the woman’s religious practice of wearing a headscarf. A&F argues that it had no duty to accommodate because the woman never asked for a religious accommodation and A&F had no way of knowing that she wore the headscarf out of religious obligation. Interestingly, the EEOC’s own regulations prohibit employers from asking prospective employees about their religious beliefs, which puts A&F in a rather impossible position.
Cert petitions to watch for
The Supreme Court is still filling its docket, but there some things we can be fairly confident of seeing at some point.
First, there are at least seven petitions for certiorari pending on the issue of whether the due process or equal protection clauses of the Fourteenth Amendment require states to legalize same-sex marriage or recognize same-sex marriages lawfully performed in other jurisdictions. This is the most-hyped Supreme Court issue this year and it isn’t even on the docket yet. In fact, every circuit courts of appeals that has reached this issue post-Windsor has agreed that states must legalize and recognize same-sex marriages. All of those decisions are on hold, however, while the Supreme Court decides if it wants to take up the issue. On the one hand, there is no circuit split requiring the Supreme Court to intervene. On the other hand, few think Justice Kennedy is going to pass up the opportunity to put the final touches on decades of work in this area.
Second, the Halbig/King/Pruitt line of cases challenging the IRS’ decision to provide Obamacare subsidies to individuals on the federal health exchange is bound to end up at the Supreme Court at some point. Halbig is still pending en banc at the D.C. Circuit. Pruitt is headed for its first round at the Tenth Circuit. But the King plaintiffs already filed for cert after their loss at the Fourth Circuit. Sen. Reid’s unseemly public chortling that his court-packing plan for the D.C. Circuit nullified the circuit split on this issue makes it more likely, I think, the justices that dissented in NFIB just skip to the chase and take King without waiting for the other circuit courts to weigh in.
Another case I’d dearly love to see the Supreme Court take up, just for the jokes alone, is a commerce clause case, Association des Éleveurs de Canards et d’Oies du Québec v. Harris. It’s about foie gras and whether California can ban the sale of foie gras from out-of-state farmers who force-feed their birds.
Finally, the Fifth Circuit has largely upheld Texas’ abortion clinic reform law, commonly known as HB2, which will result in the closure of all but eight abortion clinics in the state. That case is almost certainly headed to the Supreme Court, which will have to tussle over whether the hospital admitting privilege and ambulatory surgery center standards requirements constitute an undue burden on the right to an abortion.