A Crippled Supreme Court Awaits an Election in Which Hillary Clinton Is the Lesser Evil
Posted on Sep 28, 2016
By Bill Blum
As the Supreme Court begins its new term on Oct. 3, an old adage comes to mind. It was first penned by the satirist Finley Peter Dunne in 1901. Purged of its original Irish brogue, the saying admonishes: “The Supreme Court follows the election returns.”
Never has Mr. Dunne’s observation seemed more on target than today. Since the death of Justice Antonin Scalia last February, the court has been evenly divided, 4-4, between its conservative and liberal members. The division has brought about a stasis in the court’s work, trimming the sheer number of new cases it has agreed to hear and causing it to avoid taking on the usual number of high-profile constitutional challenges.
To put it bluntly, the court is crippled, and it won’t be healed until the next president is elected. Exactly how it is repaired—in a manner that sets it on a hard right-wing or a moderately liberal path—depends on whether Donald John Trump or Hillary Rodham Clinton succeeds Barack Obama as commander in chief. Regrettably, third-party hopefuls Jill Stein and Gary Johnson have no realistic chances.
Although Trump and Clinton didn’t discuss the court during the first presidential debate, they hold sharply divergent visions of the institution’s future. For anyone to the left of the tea party, Clinton—with all of her family scandals, policy faults and personal flaws (many of which I have cataloged in this column)—is the lesser electoral evil when it comes to the court and constitutional law. It’s not even a close call.
I’ll explain why in a moment, but first, let’s preview the sparse roster of cases that have been added thus far to the court’s docket for the upcoming term.
The first thing you’ll notice is that the total number of pending cases is significantly down. Last term, even with Scalia’s passing, the court issued 69 decisions on the merits. The justices deadlocked 4-4 in four of those cases, including major lawsuits involving public employee unions (Friedrichs v. California Teachers Association) and President Obama’s deferred deportation programs(United States v. Texas). By contrast, during this term, the court has granted review in just 31 cases as of this writing.
The court undoubtedly will agree to accept additional appeals in the next month or two—it has to, if for no other reason, than to allow the justices to fill out their timecards and collect their paychecks. But the institution is a shadow of its former vigorous self.
As Dean Erwin Chemerinsky and professor Joan Biskupic—both of the University of California, Irvine School of Law—noted in a September academic podcast, the court is embarking on a new term without Scalia for the first time in 30 years. Chemerinsky and Biskupic asserted that Scalia’s demise has left the court in a “holding pattern” until the election, forcing it to look for “compromise” and “easy solutions.” Missing, they explained, are the legal blockbusters that marked past sessions on such issues as gun rights, campaign finance, abortion, Obamacare, affirmative action and same-sex marriage.
Still, there are some weighty matters on the present docket that deserve attention.
In a pair of lawsuits that have been consolidated for decision and oral argument—Bank of America Corp. v. City of Miami and Wells Fargo & Co. v. City of Miami—the court will examine the practice of “reverse redlining” by two of the country’s biggest banks.
The suits arose from the financial crisis of the last decade, when lenders enticed poor and minority customers to buy homes with subprime mortgages the buyers could not afford to repay. When massive numbers defaulted on their loans, cities such as Miami suffered drastic reductions in property tax revenue. The cases will establish whether municipalities (and not just individuals) have legal standing under the federal Fair Housing Act to bring discrimination claims for money damages against predatory lenders involved in malfeasance.
In Trinity Lutheran Church v. Pauley, the court will tackle a combined First Amendment establishment clause and 14th Amendment equal-protection question, deciding whether a religiously affiliated Missouri school is eligible to receive state grant funds, just as nonreligious schools are. In an unusual alliance, the state of Missouri and the American Civil Liberties Union (which has filed an amicus, or friend-of-the-court, brief) maintain that the establishment clause prohibits any use of taxpayer funds to support houses of worship.
Another pair of cases that are related but likely will be treated separately—McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections—will determine whether North Carolina and Virginia, respectively, engaged in “racial gerrymandering” when they redrew their voting districts after the last census. Under current law, gerrymandering is unconstitutional if the predominant factor in the configuration of legislative maps is race and the dilution of minority voting power.
Capital punishment also will be on the court’s agenda in two cases from the Lone Star State—Moore v. Texas and Buck v. Davis. In Moore, the court will debate the medical standards Texas uses to determine whether death-row inmates are intellectually disabled. The justices will decide whether those standards are so outdated they violate a 2002 precedent, Atkins v. Virginia, which held that the Eighth Amendment bars the execution of “mentally retarded” inmates.
In the other Texas case, the court will be asked to reverse the death sentence of Duane Buck, a black man who committed a double murder in 1995.
Texas is one of two states—Oregon is the other—that requires capital juries to determine whether defendants convicted of murder pose a risk of “future dangerousness” if they are given life sentences instead of death verdicts. At Buck’s trial, his defense counsel unwittingly elicited testimony from a psychologist who opined that, statistically speaking, black men are more apt to commit crimes of violence than men of other races. The jury returned a death sentence, which Buck has been appealing for years in federal court via successive habeas corpus petitions.
Although consideration of a defendant’s race in death-penalty jury deliberations is clearly unconstitutional, and while Buck’s lawyer undoubtedly rendered inadequate assistance of counsel in violation of the Sixth Amendment, the state argues that his current Supreme Court appeal should be dismissed because he failed to raise the issue of his lawyer’s competence at an earlier stage.
The problem for Buck is that the Anti-Terrorism and Effective Death Penalty Act of 1996, sponsored by former President Bill Clinton, makes it extremely difficult for state death-row inmates to obtain federal habeas corpus relief. The criteria and procedures set up by the act basically limit inmates to one federal petition, unless they obtain a “certificate of appealability” (COA) from a federal court. To get a COA, an inmate has to make a “substantial showing” that he was denied a constitutional right at his trial. Last year, the Fifth Circuit Court of Appeals ruled that Buck had failed the test.
Hillary Clinton, as first lady, gave her full-throated support to the 1996 act. To this day, she continues to support the death penalty for what she has said are “limited purposes,” such as terrorist attacks.