Steady As She Goes The 2016-17 Term of The U.S. Supreme Court, 1117 SCBJ, SC Lawyer, November 2017, #31

AuthorMiller W. Shealy Jr., J.

Steady As She Goes The 2016-17 Term of the U.S. Supreme Court

Vol. 29 Issue 3 Pg. 31

South Carolina Bar Journal

November, 2017

Miller W. Shealy Jr., J.

"Steady As She Goes" is the title of a popular song and album of the same name by The Raconteurs. While the title of this article is meant as a nautical reference to the U.S. Supreme Court's steady helmsmanship during the 2016-17 term, it could apply to Judge Neil Gorsuch's Senate hearings, and the Court itself, in a very different way. One line from the song surely describes how the Court must often feel, as well as how Judge Gorsuch must have felt during the hearings on his nomination: "But no matter what you do, You'll always feel as though you tripped and fell, So steady as she goes." Indeed, despite a maelstrom of tough questioning, Judge Gorsuch ably piloted his nomination through the confirmation storm. In the end, he was approved by a Senate vote of 54-45. Likewise, the Court demonstrated a steady hand on the wheel throughout most of this term. As others have noticed, there has been less rancor in dissents, fewer 5-4 decisions, and what is certainly a tendency to decide cases on narrower grounds and avoid directly addressing the big issues. This, however, will surely not last. Some contentious issues will have to be addressed next term. The Court cannot pirouette around them indefinitely I would note that Justice Gorsuch arrived too late to participate in many of the decisions. Thus, the total votes on many cases is less than nine.

In any discussion of the Court's term, reasonable people will disagree on which cases deserve top billing. Nevertheless, these are the cases that seem most noteworthy.

The big cases this term: immigration, jury verdicts and religion

It is hard to say that any one case is the most important this term. I think we have a three way tie for the top spot: Trump v. International Refugee and Assistance Project, Pena-Rodriguez v. Colorado and Trinity Lutheran Church of Columbia v. Comer.

Trump v. International Refugee and Assistance Project dominated the media and is surely one of many cases to deal with President Trump's executive orders on immigration. It did not resolve all issues; however, the President gained some ground in the Supreme Court that he lost in lower court rulings. The Court ruled that the Trump administration could enforce part of an executive order that "suspends" for 90 days the entry of persons from six Muslim-majority nations. In a 9-0 decision, the high Court reversed lower court orders that blocked the executive order in toto. However, the Court held that the travel ban "may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in t he United States," such as student enrolled at a university or a close relative.1

Pena-Rodriguez v. Colorado is the dark horse candidate for the most important case of the term.2 The Court held 5-3 that "where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee."3 Why is this case so important? It may not seem obvious because there is no assertion that jurors should consider race in deciding whether a criminal defendant is guilty of a crime. However, the real problem is with setting aside the "no-impeachment" rule and the consequences this may have.

The case raises as many questions as it answered. What exactly is a "clear statement" indicating "racial stereotypes"? What about stereotypes of other kinds, like sex, transgender, sexual orientation, religion, national origin and so on? No one approves of these things. However, the problem is the can of worms they open up for a kind of after-the-fact jury tampering. Do defense attorneys who lose a case have a duty to investigate the jury after the verdict? What about civil cases? The rule cannot in principle be limited to criminal cases. Do attorneys in civil cases now have a duty to investigate jurors if they lose their case? No one thinks race should play a part in a jury's decision, but this may unwind jury verdicts across the board. Thus, its importance cannot be underestimated. The ruling seeks to encourage confidence in jury verdicts; however, it is very possible that it will have the opposite effect. The Court will, no doubt, revisit Pena-Rodriguez in the future to modify and refine its application.

The big religion case this term is Trinity Lutheran Church of Columbia u Comer.4 Religion cases are always important, as they contribute the most to our ongoing "culture wars" and ignite the most intense passions. In a 7-2 decision, the Court ruled that a church was entitled to a state grant to enhance (rubberize) its playground area. The Court ruled that the state's refusal to treat the church like other non-religious organizations and provide state tax money to the church in the context of a state grant system violated the Free Exercise Clause. The Free Exercise Clause "protect[s] religious observers against unequal treatment" and subjects to the strictest scrutiny laws that target the religious for "special disabilities" based on their "religious status." [citation omitted] Applying that basic principle, this Court has repeatedly confirmed that denying a generally available benefit solely on account of...

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