We are now two weeks into the 2019-20 Supreme Court term, and the court has already heard several important cases. One of them, from Kansas, will decide whether that state’s abolition of the insanity defense is constitutional. Another will determine the validity of a Louisiana law that abolishes the requirement of juror unanimity and allows 10 out of 12 jurors to convict in non-capital felony cases.
These two cases have one thing in common — longevity. Until the 1970s, the insanity defense was available in every state. Similarly, juror unanimity in criminal cases goes back to English common law. During the 1890s post-Reconstruction Jim Crow era, however, states such as Louisiana came up with a way to eliminate any impact the occasional black juror might have on a verdict. Justice Kavanaugh commented at the recent hearing that one argument against the law is that it is “rooted in racism.”
The next day the court returned to the culture wars — whether the 1964 Civil Rights Act prohibition against employment discrimination “because of sex” covers gay and transgender employees. New Hampshire law protects such employees, but the majority of states do not.
Justice Gorsuch may be the swing vote. “It’s close, very close” he said during the transgender employee case, then adding,” it might be better to leave this up to Congress.” I predict they will do just that, although one possible outcome is ruling the act protects transgender, but not gay, employees. It all depends on the meaning of the word “sex.”
These are just the beginning of what shapes up to be a blockbuster year for American law. The Second Amendment will return to the court in December. Gun rights proponents have challenged a New York law prohibiting New York City residents from transporting their licensed handguns to a home or shooting range outside city limits. Justice Scalia’s opinion in the 2008 Heller case upheld an individual’s Second Amendment right to “keep and bear arms,” but it did not forbid all local firearms regulation. I’m no fan of the Heller ruling, but I don’t quite understand why a New York City gun owner should be forbidden from taking a locked, unloaded handgun to his or her home upstate.
Another contentious case, June Medical Services v. Gee, challenges a Louisiana law requiring abortion providers to be affiliated with a nearby hospital. The court of appeals upheld the law despite the fact that just three years ago the Supreme Court struck down a similar Texas law for imposing an undue burden on a woman’s right to choose.
You may recall that in 1992, Justices Kennedy, O’Connor and Souter came up with the “undue burden” standard in Planned Parenthood v. Casey, thereby saving Roe v. Wade. But those justices are gone, and it may turn out that what was deemed an undue burden on a woman’s right to choose in Texas will be found not so burdensome in Louisiana. All eyes will be on Kennedy’s successor, Justice Kavanaugh.
On Nov. 12, the court will hear Department of Homeland Security v. Regents of the University of California. It deals with whether the Department of Homeland Security violated the law when it rescinded the Deferred Action for Childhood Arrivals program, known as DACA.
Established during the Obama administration, DACA allows undocumented immigrants brought here at a young age to remain “lawfully present” and to obtain work permits. One such “Dreamer,” now a lawyer for poor people in California, won in the lower courts, which upheld DACA as “a permissible exercise of executive discretion.”
Instead of trying to terminate DACA as a discretionary matter, the Trump administration has challenged the Obama administration’s right to create it in the first place. There is a certain irony here. When it comes to the exercise of executive power, the current administration has taken the position that pretty much anything goes. In the DACA case, however, its argument is just the opposite. Well, to quote Emerson during this Halloween season, “A foolish consistency is the hobgoblin of little minds.”
According to the government, the court has no business poking its nose into the how DHS conducts its business. Justices Thomas and Gorsuch will likely agree, as they did last term when they dissented from the court’s willingness to review the legality of the Commerce Department’s 2020 census “Citizenship Question.”
But the Administrative Procedure Act says federal agencies may not act in an arbitrary or capricious manner. In a country that believes in the rule of law, such questions must be justiciable. Commerce Secretary Ross did not pass that test, which is why he lost the Citizenship Question case.
As for DACA, look to Chief Justice Roberts to cast the key vote and, most likely, write the court’s opinion. If the Ninth Circuit’s ruling is upheld, then 800,000 “Dreamers” can breathe a collective sigh of relief. If the Supreme Court overturns that ruling, then their dreams will become nightmares.