Big Cases, No Decisions


Readers of this blog will surely have noticed that none of the "big" cases argued this term have been decided, and if you have taken a look at the argument calendar there are two more major cases (Wayfair (sales tax on internet sales) and Trump v. Hawai'i (the "travel ban" case)) that have yet to be argued.  And the travel ban cases is the last on the list (April 25).  It is sure to be a very busy end of the term--April, May, and June.

As Steve Vladek, professor of law at Texas put it, "Something very strange is going on behind the scenes at One First Street" (the actual address of the Supreme Court).  The questions, of course, are "What?" and "Why?'  The "what?' is not only the slow pace of decisions in cases that have already been argued but also the slow pace of grants for the next term (October 2018) and the lack of movement on big pending orders (for example, the North Carolina gerrymandering case).  The "why" is, of course, a guessing game: the Supreme Court does not leak.  Some guesses are educated, some are not.  Many of the educated guesses that I have seen (from Vladek and Rick Hasen, professor of law at UC-Irvine and one of the leading experts on election law) focus on Gill (the Wisconsin gerrymandering case that I focused on back in September) as the "why".  Gill along with the North Carolina case and the Maryland gerrymandering case (Benisek v. Lamone argued on March 28 (you can read a quick summary of that case here) could totally reshape election law by redefining what is constitutionally allowed in the creation of legislative districts.  

It is hard to overstate what is at stake here, and the justices know it.  The reason why Gill may be the hold up is that the Justices want a uniform view on gerrymandering, not a case-by-case determination, and certainly not decisions that look purely partisan: Gill was a Republican gerrymander (as was North Carolina); Benisek was a Democratic one.  Gill provided a system (developed by two professors from the University of Chicago) that may be the manageable standard Justice Kennedy was looking for in his concurring opinion in Vieth v. Jubelirer.  Even the constitutional standard is in play: is it the Fourteenth Amendment's equal protection standard, the First Amendment's association protections, or both? 

On the other hand, some of the justices, particularly the conservative ones who think that political gerrymandering cases (and remember, these are political, not racial gerrymandering cases, though that distinction is not nearly as clean as you might think) are matters for the legislatures, not the courts, so they are not even looking for a standard.  And one justice, Justice Breyer, asked during the Maryland oral argument if all three cases should be argued, together, during the next term.  While no one thinks that will happen--it would delay the cases till after the mid-term elections--the question points to the desire, at least for Justice Breyer, to fashion a comprehensive, non-partisan answer to this question that has vexed the Court for well over 50 years.

As we say, watch this space.


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