Program on Law & Government Presents 18th Annual Preview of Supreme Court Cases

Cynthia Jones, William Yeomans, Brianne Gorod and Steve Wermiel
Professors Cynthia Jones, William Yeomans, and Steve Wermiel along with Brianne Gorod of the Constitutional Accountability Center.

American University Washington College of Law's Program on Law & Government presented the 18th Annual "Looking Ahead at the New Supreme Court Term” event on Thursday, Sept. 29. The panelists included Brianne Gorod, Chief Counsel of the Constitutional Accountability Center, as well as Professors Cynthia Jones, William Yeomans, and Steve Wermiel. The speakers not only discussed several important cases that are on the U.S. Supreme Court’s docket for the new term, but also elaborated on the impact of beginning the term with only eight justices.

The event was held on the 197th day since Merrick Garland’s nomination, and while each of the panelists had views on what this would mean, they each agreed that it would have a strong impact on the upcoming term. Professor Wermiel noted that the Court accepted only eight cases for this term, down from the 13 they accepted last term with all nine justices.

Each of the speakers expressed their concerns about not having a full nine justices for this term, and the many problems that arise regarding the ability to make good law with 4-4 ties. Professor Yeomans called the lack of an appointment simply “good Republican politics,” stating that none of the Republican senators wants to be the one that gives up Justice Scalia’s seat to a Democrat. Professor Jones also pointed out that it is important to note the age of the justices, who will potentially resign in the coming years, as well as the many open positions on the critically important lower courts. She stressed that this will lead to the next President’s ability to shape the future of all the federal courts.

Buck v. Davis & Pena-Rodriguez v. Colorado
Professor Jones began with two important cases on the issue of race. The first, a death penalty case, involves an expert witness at the penalty stage who testified that Buck was more likely to be dangerous in the future because he was African American. The court was trying to decide on the element of future dangerousness under the Texas Statute, and per the testimony Buck received the death penalty. It will be interesting to see if the Court simply resolves the narrow issue here, or the broader issue of the death penalty with this case, she said.

She then turned to the case of Pena-Rodriguez, where a man was charged with low level sex offenses.  While the strong issue was regarding identity because it was dark at the time of the incident, Professor Jones explained that the crucial issue was truly regarding jury members’ racial bias. She explained that despite determining no racial bias in the jury before trial, one juror claimed that Pena-Rodriguez must have been guilty simply because he is Mexican. Professor Jones then discussed the potential broad effects of this case, and whether courts should be able to reach out to jury members to determine if there was racial animus in a case by asking how and why they got to their decision. She enforced the idea that this may create various problems where courts open the door to too many exceptions, and that our jury system may not be able to withstand that type of interrogation. 

Moore v. Texas
In Moore, the Court will deal with the ability to impose a sentence of death on someone with a mental or intellectual disability. The current rule is that the states must determine the standard for establishing a mental disability, and the lower court in this case used standards from 1992. This bears the question of whether you can impose the death penalty when a person would not meet the 1992 standards for a mental disability, but would meet the current ones.

Voting Cases – Virginia & North Carolina
Professor Yeomans then turned the discussion to voting cases, discussing two suits alleging that state congressional districts pack African Americans into more Democratic districts so they are taken out of others that can become stronger Republican districts. The States claim they are simply complying with the Voting Rights Act. In a different case, Alabama maintained the same percentage of African Americans from a previous redistricting. Virginia had a similar situation as Alabama, but the court held that court held that race did not predominate in 11 of 12 districts and there had must be a conflict between race predominating and neutral criteria violated. In North Carolina, the court found the state violated the Constitution because they increased African Americans in certain districts to ensure the African American-supported candidates would win.

Fair Housing Act – Bank of America v. Miami/Wells Fargo v. Miami
Ms. Gorod from the Constitutional Accountability Center focused on a case of statutory interpretation regarding fair housing. This case raises the meaning of aggrieved person, and was originally filed by city of Miami. The city alleges that predatory lending processes targeted minorities and when many went bad in 2008 it led to foreseeable foreclosures and other problems. The city is therefore seeking damages, saying it is an aggrieved person in this scenario. Ms. Gorod said the main issue is whether the language of the Fair Housing Act will encompass these claims, noting that it is not clear at this time. However, she also added that there is a big question of whether there is even proximate cause between the discrimination and the decline in the city of Miami.  

Trinity Lutheran Church of Columbia v. Pauley
Professor Wermiel concluded the event by discussing a case regarding whether a state must use funds from a generally neutral public-funding program to pay for religious organizations. In the case, Missouri adopted a plan where non-profits that operated anyplace that had a playground could get state funding to re-surface their playgrounds with old tires. When Trinity Lutheran Church said they wanted the grant for their playground, the State refused the Church as a religious organization. Professor Wermiel discussed how the Establishment Clause of the First Amendment says a state is free to make those funds available to religious organizations, but Missouri says they are not required to. He said the Church is using the Equal Protection Clause and the Free Exercise Clause to say that a state cannot exclude public funds to them because it is discrimination.