First Monday in October, last Monday in June. What's left for Supreme Court?

by Sharon McCloskey, NC Policy Watch, June 18, 2015.

Just as the first Monday in October marks the opening of the U.S. Supreme Court’s new term, the last days of June signal the announcement of opinions in the court’s most high-profile cases.

That’s true again this year. With just 12 days to go till term end, the high court still has 17 cases awaiting decision – most of those raising questions of significant public interest.

Why the late June rush?

In part it’s due to timing. Historically, thirty percent more cases argued during the term are decided in June than in any other preceding month, and most of those were argued in March or April.

There’s more to it though, say authors of a recent article in the Duke Law Journal.

The justices have legacy and reputational concerns. The more controversial the case, the more likely several of them will write dissenting and concurring opinions that are carefully crafted, given historical import and impact.

But they also have pragmatic and personal concerns.

Releasing several controversial decisions over a period of a few days can diffuse media coverage and reduce criticism of the justices as they leave for summer recess.

Rulings on the fate of the Affordable Care Act in King v. Burwell and the viability of state same-sex marriage bans in Obergfell v. Hodges are the most anticipated, but decisions are pending in other big cases that have received far less attention.

Here are five to watch.

Fair Housing It’s illegal under the federal Fair Housing Act to refuse to sell or rent to a person because of race. In Texas Dep’t of Housing v. Inclusive Communities Project, argued in January, the question for the high court is whether it’s enough for a person claiming a violation to show

that a practice had a discriminatory effect, or is proof of discriminatory purpose required. The latter is more difficult to establish.

A Texas non-profit filed the case in 2008, alleging that the state housing agency distributed affordable housing tax credits in a way that thwarted integration efforts — disproportionately granting them to minority areas while denying them in white areas of Dallas.

This is a high-stakes case in the fair housing world. In the past few years, the Supreme Court has twice agreed to take cases asking the same question, only to see them settle before a ruling issued – both sides appreciating the risk associated with a ruling against their interests.

For more about what’s at stake, read here.

Redistricting The fate of independent redistricting commissions – at least those created to draw congressional maps – could rest with a decision in Arizona State Legislature v. Arizona Independent Redistricting Commission.

Arizona voters amended their state constitution in 2000 to create an independent commission and gave its five members the power to draw both congressional and state legislative districts.

After the second round of redistricting in 2010, Republican lawmakers there sued, contending that the commission’s authority to draw Congressional maps violated the U.S. Constitution. A panel of federal judges rejected their argument in February.

In its appeal to the high court, the lawmakers argued that the Constitution’s Elections Clause prohibits a state from taking the role of drawing congressional districts out of the hands of its legislature.

Efforts to do just that in North Carolina gained some bipartisan support this year, with bills filed to create redistricting commissions, though none moved far enough ahead to be considered this session.

License plates Remember North Carolina’s “Choose Life” license plates? They’re not directly before the high court in Walker v. Texas Division, Sons of Confederate Veterans  – a Texas plate bearing the image of a confederate flag is – but the question is the same.

Are specialty license plates government speech, such that the state can pick and choose the message displayed, or are they a form of private speech in which the state cannot discriminate?

In the Texas case, the state is defending the refusal by a state agency to allow plates displaying the confederate flag as offensive to some people. The 5^th U.S. Circuit Court of Appeals said that specialty plate messages are a form of private speech and ruled that the state agency had engaged in forbidden viewpoint discrimination.

In North Carolina’s license plate case – which is on hold at the Supreme Court pending a decision in the Texas case — the 4^th U.S. Circuit Court of Appeals likewise ruled that by offering a “Choose Life” plate but not a similar pro-choice one the state had engaged in viewpoint discrimination.

Read more about the “Choose Life” case here.

Lethal Injection Does Oklahoma’s continued use of a three-drug lethal injection cocktail – the same one that led to the botched execution of inmate Clayton Lockett in 2014 — amount to cruel and unusual punishment?

That’s the question the justices are considering in Glossip v. Gross.

The case highlights states’ increasing use of experimental drugs for executions as drug manufacturers have bailed on making and selling those known to be used for that purpose.

North Carolina switched from a three-drug cocktail to a single drug protocol in late 2013, but the rulemaking process leading up to that change has been challenged in court. And like other execution drugs, the state’s drug of choice, pentobarbital, has grown scarce.

Just as the high court heard argument in Glossip in April, state lawmakers renewed a push to jump start executions in North Carolina, passing a bill in the House that would eliminate the requirement that doctors be present, eliminate specific drugs to be used and keep secret the names of the companies making the drugs used.

For more on Glossip, read here.

Clean Air Act The viability of one of the Obama administration’s chief environmental goals — reducing emissions of mercury and other air pollutants – is at stake in Michigan v. EPA.

The Environmental Protection Agency finalized a rule in 2012 requiring coal burning power plants to sharply reduce such emissions, prompting outcries from industry groups and states like Michigan who claimed that the agency failed to take into account the exorbitant costs they’d incur in order to comply.

The specific issue before the court is whether the EPA should have taken those costs into account during the first stage of its rulemaking process – when it was deciding whether reducing mercury emissions was worth doing from a health perspective.

Interestingly, North Carolina is one of 20 states that opposed the request for review by the Supreme Court, saying that the EPA was well within its prerogative in prioritizing emissions impact over industry costs. Those states also argue that several of them have passed even stricter regulations and that companies have adapted.

“These nationally-applicable reductions have been long-awaited by the undersigned states and local governments to stem the cross-border movement of toxins that are emitted by power plants in other states and that harm our residents and natural resources,” the states said in papers filed in the Supreme Court.

- See more at: http://www.ncpolicywatch.com/2015/06/18/first-monday-in-october-last-monday-in-june-whats-left-at-the-u-s-supreme-court/#sthash.Wh2W8Zt7.dpuf