M. Eleanor Schmalzl ‘20
Editor-in-Chief
This past Monday, Professors Julia Mahoney and Michael Gilbert sat in a panel alongside Ms. Elizabeth Slattery of the Heritage Foundation to discuss influential opinions from the Supreme Court’s latest term.
Slattery opened the panel, discussing general observations about the last term. She noted that last term will likely be remembered more for Justice Kavanaugh’s hearing and confirmation than any of cases decided. She also noted that twenty-one cases, 29%, were decided five to four, the highest percentage of five-four decisions in a term since 2012. Slattery focused on cases that she deemed “missed opportunities” for conservatives and how they, in her eyes, may negatively impact the country in the future.
First, American Legion v. American Humanist Assn., was an Establishment Clause case about a forty-foot cross in Maryland. While the cross was originally built on private land, the government purchased this land in the 1960s and, in recent years, citizens protested for its removal. In a seven to two decision, the Supreme Court upheld the cross’s constitutionality. The big debate was about the continuing validity of the Lemon test and what test should be used to decide whether structures like this should be allowed to stay standing on public land. No majority was reached, and instead a plurality with five concurrences resulted. Justices Ginsburg and Sotomayor dissented, suggesting that the cross could be relocated instead of torn down.
Slattery also discussed Kiser v. Wilkie and Gundy v. United States, two administrative law cases with big implications for the field. In Kiser, a veteran sought retroactive post-combat benefits after being initially denied but then later approved for these benefits. The Court refused to overturn Auer v. Seminole Rock, a divisive case in administrative law. Auer stands for the notion that courts should defer to an agency’s reasonable interpretation of its own ambiguous regulations unless clearly erroneous. While the precedent is highly criticized, Justice Kagan wrote for the five-person majority, reinforcing the decision on stare decisis grounds.
Gundy, questioning Congress’s ability to delegate its legislative power to other branches of government so long as an “intelligible principle” is stated by Congress to guide those receiving the power, was decided before Justice Kavanaugh was confirmed. The Court split five to three affirming that Congress could delegate power to the U.S. Attorney General to decide whether to apply a statute retroactively. Slattery found this decision rocky but expects that the non-delegation doctrine will be questioned again soon once the newly confirmed justices are more established in their roles on the Court.
Professor Gilbert spoke next about districting cases the Court heard this past term, namely Virginia House of Delegates v. Bethune-Hill and Rucho v. Common Cause. The Bethune-Hill case dealt with the Virginia legislature redrawing district lines, which were allegedly drawn in pursuit of unconstitutional racial gerrymandering. The lower courts struck down these districts as unconstitutional, and the Virginia Attorney General eventually stopped appealing the decision. Instead, the Virginia House of Delegates picked up the fight, and the Court addressed the question if this new group of plaintiffs had standing. The majority, in a five to four decision, said no. Ginsburg, writing for the majority, says that the Virginia House of Delegates’ argument for why they were harmed and therefore had standing was not sufficient. The group claimed that, if new lines were drawn, certain people already in office would not be reelected, harming the House of Delegates in being able to push forward with their duties. In dissent, Alito found this argument persuasive, but this was not enough to convince a majority of the Court to join in favor of the plaintiffs.
Rucho concerned partisan gerrymandering, where redistricting is aimed at weakening one political party’s chances of winning and strengthening another. Cases from Maryland and North Carolina were merged together in this single case, where the redistricting was challenged all the way up to the Supreme Court. The Court reached another five-four decision, with Chief Justice Roberts writing in the majority and finding that the case was nonjusticiable. Roberts found that judicially manageable standards weren’t feasible here and, as a result, the Court could not decide on challenges to these types of gerrymandering cases. Kagan dissented, believing that we are better off having the Court pursue an imperfect attempt to resolve the issue than not giving any attempt at all.
Professor Mahoney concluded the panel with a discussion of cases involving government interests in private property. While her time was limited, she focused her discussion on Knick v. Township of Scott, Pennsylvania. Knick involved an aggrieved property owner who was upset about the township signing an ordinance saying she had to provide access for the public to a small graveyard contained within her property. A major issue in the case involved whether the property owner could file in federal court––two prior cases, working in conjunction, seemed to bar her from doing so. These prior cases established that 1) a state court must deny a private property owner’s compensation of a government taking before the owner can come to federal court and 2) if the property owner goes to state court and loses, then the federal claim will be barred in federal court because of the Full Faith and Credit Clause (which respects a state court final decision and bars a federal court to redecide on the same issue). Roberts, for the majority, overturned this precedent, deeming it similar to a catch-22 and felt this was an appropriate time to overrule these past decisions.
All the panelists showed an extreme depth of knowledge that I unfortunately can’t articulate as well here as they did on Monday, but their insights into the Court showed that there is a lot of excitement to come and a lot of close decisions to continue to be made.
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editor@lawweekly.org