Big Cases Still Waiting for Supreme Court Decisions in 2017
This column by ACRU General Counsel Ken Klukowski was published June 18, 2017 by Breitbart.
WASHINGTON, DC —- Seventeen cases from this year’s Supreme Court term are still pending, with decisions expected in the next eight days. Religious liberty, the constitutional rights of illegal aliens, and free-speech rights to express messages some people find offensive are several of the high-profile issues raised in the remaining cases.
Some notable cases include:
In Jennings v. Rodriguez, the Supreme Court is considering whether the Fifth Amendment Due Process Clause entitles aliens being held in federal facilities to a bond hearing, such that if they post bond they could be released into the U.S. civilian population. Justices asked hard questions of both sides during oral argument in November.
In Sessions v. Dimaya, another case involving aliens, the Court will decide whether a key provision in the Immigration and Nationality Act (INA) governing the deportation of certain aliens is so vague that it violates the Due Process Clause.
In Lee v. Tam, the justices will decide whether the provision of federal law that authorizes denying trademark protection because of content some consider disparaging violates the First Amendment. The Federal Circuit invalidated the restriction, which has direct application to the Washington Redskins and billboards expressing views critical of militant Islam.
In Ziglar v. Abbasi, the High Court will determine whether a plaintiff can directly sue individual FBI agents for detaining illegal aliens after the 9/11 attacks.
In Hernandez v. Mesa, the Court will decide whether Fourth Amendment protections apply to a cross-border shooting involving U.S. agents on the American side and a Mexican across the border, where the Mexican died and his family is suing the American agents. During oral argument, the justices focused heavily on the foreign-affairs aspect of this situation and whether the U.S. State Department should be in the lead, rather than courts.
In Packingham v. North Carolina, the justices will consider whether registered sex offenders can be banned from social network platforms like Facebook, given the number of children the offender could have contact with.
In Murr v. Wisconsin, the Supreme Court will consider aspects of when government so completely regulates a piece of property that the land becomes unusable by the owner, such that this triggers the Fifth Amendment’s Takings Clause requiring the government to pay the owner. The question here is how much of the land the government must compensate the owner for.
In Lee v. United States, a legal alien allowed to stay permanently in the United States pleaded guilty to a nonviolent drug crime involving ecstasy, not knowing that his plea deal would automatically result in his deportation. The case is about whether his rejecting the deal was irrational, such that it was ineffective counsel for his lawyer to fail to explain the deportation consequences of the deal. Judge Alice Batchelder of the Sixth Circuit wrote for her appeals court that his rejection was rational. However, after explaining that binding precedent required her to do so, she flagged several problematic aspects of those precedents so persuasively that the Supreme Court decided to reconsider them.
In Trinity Lutheran Church v. Comer, the Supreme Court is considering whether Blaine Amendments —- which forbid state funds from going to providers of public service programs only when those providers have a religious mission —- violates the First Amendment Free Exercise Clause and the Fourteenth Amendment Equal Protection Clause.
In Bristol-Myers Squibb v. Superior Court of San Francisco County, the justices are exploring how far the Fourteenth Amendment permits state courts to have jurisdiction over out-of-state businesses.
The justices are currently scheduled to hand down all remaining decisions this year on the next two Mondays, June 19 and June 26. However, the Thursday in between, June 22, is often converted into another daily session for handing down decisions. If there are still undecided cases after June 26, the Court could also announce one final session later that week.
One uncommon wild card in play this year is that, for most of the term, there was a vacant seat on the Supreme Court. Now that Justice Neil Gorsuch has been confirmed to the seat formerly held by the iconic Justice Antonin Scalia, cases that were originally 4-4 tie votes might be rescheduled for a new hearing next year, with Gorsuch as the tiebreaking vote.