Taylor Elicegui ‘20
Features Editor
Last week, the Student Legal Forum hosted its annual Supreme Court Roundup, where professors gather to discuss important cases from the last term. Professor Dick Howard has been moderating the panel for a long time—so long that he can’t remember when the tradition started. This year, Professor Howard was joined by Professors Leslie Kendrick and Rich Schragger and, for the first time, an election law expert non-faculty member, Brian Cannon. Cannon, a William & Mary School of Law graduate, is the executive director of One Virginia 2021, a non-profit dedicated to ending gerrymandering in Virginia.
Professor Howard began the panel with a discussion of the patterns and personalities that shaped the last term. Professor Howard noted that the term was not a “blockbuster” because the Court did not decide many hot button issues and decided cases on narrow grounds. It was also a particularly divided term. The Court only issued twenty-nine unanimous decisions, about 38 percent of its total decisions. Professor Howard thinks the term represented the Court in transition and can be identified as the term where Chief Justice Roberts truly took charge, serving as the ideological center of the Court and casting the deciding vote in two of the most important cases—Dep’t of Commerce v. New York (the census case) and Rucho v. Common Cause (the gerrymandering case)—one decision with the liberals and one decision with the conservatives. Surprisingly, Justice Kavanaugh played an unexpected role in the balance of power and voted with Chief Justice Roberts in 94 percent of cases, putting him closer to the ideological center of the Court. Additionally, Justice Thomas wrote the most (337 pages) and Justice Ginsburg worked the fastest (producing decisions in seventy-one days, on average).
Professor Howard also mentioned other particularly important cases and offered his predictions on the upcoming term. Along with the census and gerrymandering cases, Professor Howard identified Flowers v. Mississippi (overturning the sixth conviction of Curtis Flowers when the prosecution used its peremptory strikes to discriminate on the basis of race)[1] and Apple, Inc. v. Pepper, where Justices Breyer, Ginsburg, Kagan, Kavanaugh, and Sotomayor allowed an antitrust action against Apple to proceed. In this upcoming term, Professor Howard identified the consolidated cases on whether Title VII of the Civil Rights Act prohibits discrimination on the basis of sexual orientation, New York State Rifle and Gun Ass’n v. New York (the first Second Amendment case in over a decade), and the Deferred Action for Childhood Arrivals (DACA) case, as the most important cases of this upcoming term. Finally, Professor Howard predicted that Roe v. Wade will not be overturned this term, and any cases changing the precedent will occur slowly and incrementally.
Professor Kendrick took the microphone next and discussed Iancu v. Brunetti, which gave her several opportunities to say the word “FUCT.” The petitioner challenged a portion of the Lanham Act, which prohibits the government from granting trademark protection to “immoral or scandalous trademarks” and the denial of his application for a trademark over FUCT. The petitioner alleged that the prohibition was viewpoint discrimination in violation of the First Amendment, and a majority of the Court agreed. The dissenting members of the Court criticized the decision for opening the floodgates to immoral or scandalous trademarks without any sort of limiting principle. Professor Kendrick also discussed the decision within the context of First Amendment jurisprudence, which has been expanding, and questioned if it’s necessary for the First Amendment to reach this far.
Continuing the First Amendment theme, Professor Schragger discussed American Legion v. American Humanist Assn., also known as the Bladensburg Cross case. The Court ruled that the government could continue to maintain a 40-foot cross in Bladensburg, Maryland without violating the Establishment Clause. After American Legion, it’s unclear how the Establishment Clause limits what the government can say. The case cast doubt on any purpose-based test under the Establishment Clause, because the Court found that the meaning of the cross had become “secularized” over time and associated with honoring the deceased in World War One rather than religion. Professor Schragger concluded that American Legion raises the possibility that the Supreme Court will revisit settled Establishment Clause issues, like prayer in school. He also questioned how the Court will handle these cases, where the prayer in question was once a part of civic society and a long-standing tradition until the Court found it unconstitutional.
Cannon concluded the panel with a discussion of Rucho v. Common Cause, where the Court held that partisan gerrymandering claims are non-justiciable within federal courts. The decision was a blow to academics and lawyers who spent the last fifteen years trying to come up with tests to measure partisan gerrymandering after Justice Kennedy requested a test in the 2004 decision Vieth v. Jubelirer. While the case was a loss for anti-gerrymandering advocates, Canon noted that the case wouldn’t have created the precedent necessary to end partisan gerrymandering because it only would have outlawed partisan gerrymandering where the legislators specifically admitted that they drew districts for partisan advantage. Legislators could simply stop admitting their partisan goals, and gerrymandering could continue unabated. After Rucho, the gerrymandering fight will continue at the state level, where advocates have made significant progress. Cannon noted that the 2023 House of Representatives will be the first House where more than half of the members come from states that have outlawed partisan gerrymandering under their state constitutions. Cannon is hopeful that Virginia will join that list.
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tke3ge@virginia.edu
[1] If you haven’t, please listen to In the Dark and learn about the absolute injustice the prosecution has perpetuated against Flowers.