Chemerinsky's Preview Of New SCOTUS Term

Erwin Chemerinsky recently reported to the ABA Journal his preview of the new SCOTUS term. SCOTUS will review many familiar issues this term like executive power, bankruptcy, religious freedom, voting rights, employment discrimination, and the Fourth Amendment. There is one novel issue on the docket this term: "true threats" and the First Amendment.

As Chemerinsky noted, "[t]he U.S. Supreme Court’s summer recess is over and the justices will return to the bench for oral arguments. The court traditionally sets half the docket for the coming year before it adjourns in early July, and grants the remaining cases between late September and mid-January."

The cases on the docket this term include:

• Executive power: Zivotofsky v. Kerry is back before the court for a second time. Earlier the court ruled the case did not pose a political question and now the court will consider whether Congress impermissibly intruded upon executive powers by enacting a law that directs the U.S. secretary of state, on request, to record the birthplace of an American citizen born in Jerusalem as having “Israel” as a birthplace.

• Bankruptcy: In Wellness Intern. Network Ltd. v. Sharif the court will again face an issue of enormous importance to the federal courts that it ducked last year: May a bankruptcy court issue a final judgment as to a state law claim with consent of the parties? In Stern v. Marshall the court held that bankruptcy courts cannot issue final judgments over state law claims unless they stem from the bankruptcy itself. The circuits have split, though, as to whether consent can cure this.

• Religious freedom: Having ended last term with a major issue about religious freedom, the court will return to it in Holt v. Hobbs. The court granted review to decide whether the Arkansas Department of Corrections grooming policy violates the federal Religious Land Use and Institutionalized Persons Act in prohibiting a prisoner from growing a half-inch beard in accordance with his religious beliefs.

• Voting rights: Once more, the court will have a voting rights case on its docket. In Alabama Legislative Black Caucus v. Alabama and Alabama Democratic Conference v. Alabama the court will return to the issue of when the government may use race in drawing election districts. The challengers argued that Alabama “packed” minority voters into districts where they already were in political control, thus reducing their chance of having influence elsewhere in the state. The question is whether this denied minority voters equal protection.

• Employment discrimination: Although last term there were no employment discrimination cases, in Young v. United Parcel Service the court will consider whether it violates the federal Pregnancy Discrimination Act when an employer provides accommodations to non-pregnant employees with work limitations, but refuses to accord the same accommodations to pregnant employees. 

• Fourth Amendment: And, of course, as always, there is a major Fourth Amendment case. In Heien v. North Carolina the court will consider whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires for a traffic stop. 

• First Amendment: The Supreme Court long has held that “true threats” are not protected by the First Amendment. But the court never has developed a standard for determining what is a true threat. It is an issue that has come up with ever greater frequency because of the Internet and social media. In Elonis v. United States the court will consider whether a conviction for threatening another person requires proof of the defendant’s subjective intent to threaten, or whether it is enough to show that the reasonable person would regard the statement as threatening.

Thanks to Dean Chemerinsky for this comprehensive preview of the issues facing SCOTUS this term.