Supreme Court Watch: Buckle Up

Canary. Photo by 4028mdk09.

CNN – “With a deadline for nearly 30 cases looming and weighty issues of religion, gerrymandering and the 2020 census pending, Chief Justice John Roberts took his black leather chair at the bench this week and said three decisions were ready to be announced.”

It was a paltry total for a week in June, the final month of the annual session. What’s more, two of the three were by unanimous votes and none made big headlines.

But the term won’t end this way. And much of the weight of this momentous session is on Roberts’ shoulders.

This is the first time in Roberts’ 14 years as chief justice that he will likely be the deciding vote on several final, tense cases — a total of 24 over the next two weeks. Roberts landed in the ideological center of the court last year when Justice Anthony Kennedy retired after a three-decade tenure. And because Roberts has long been to the right of centrist conservative Kennedy, the court is primed to make a sharp conservative turn.

Who is Justice Roberts? “Is he the a-political caller of balls and strikes” he claimed he was or is he a “dyed in the wool conservative appointed by George W. Bush” or “is he a budding moderate voting with the courts’ liberal justices to uphold the Affordable Care Act in 2012?”

We’ve already been warned “the court may be sharply divided over final decisions,” Justice Ginsburg said in comments to the Second Circuit Judicial Conference in New York last Friday, CNN reported.

“Shortly after our meeting a year ago, Justice Kennedy announced his retirement. It was, I would say, the event of greatest consequence for the current Term, and perhaps for many Terms ahead.”

According to Ginsberg, the court saw “some 6000 petitions for review” this term.

“We heard argument in 70 cases,” she said, “to that number add five summary per curiam decisions – opinions rendered without full briefing or oral argument.”

That brings to a total of 75 decisions already rendered plus those remaining to be released before the Court recesses. As of today, we have announced 43 decisions in argued cases. That leaves a large number (27) to be announced in the remaining June days. Of the 43 argued cases resolved so far, only 11, or just over 25%, were decided by a vote of 5 to 4 or 5 to 3. Given the number of most watched cases still unannounced, I cannot predict that the relatively low sharp divisions ratio will hold.

Ginsberg goes on to highlight some of those most watched cases with a breakdown from which districts they came from, saying that of the 70 cases “fully briefed and argued,” twelve came from the Ninth Circuit, seven from the Sixth Circuit, five from the Second Circuit.

In the Census case, one that we’ve been following since last September, Ginsburg likened it to a “case of huge importance,” and noted that “some have compared it to the travel ban case…where the court’s 5-4 conservative majority sided with the executive branch.”

In another case, concerning the issue of extreme partisan gerrymandering, court watchers are waiting to see if the conservative majority is prepared to rule that such cases are better handled by the political branches than the courts.

Nodding to the dispute, Ginsburg said, “However one comes out on the legal issues, partisan gerrymandering unsettles the fundamental premise that people elect their representatives, not vice versa.”


In case you missed TNB Canary series on the census case, our most recent update was about how the census case crossed paths with the gerrymandering cases when a trove of documents showed that “the Trump administration added a citizenship question to the 2020 census as part of a right-wing plan to change how voting districts are drawn in the United States—a plan hatched to benefit “non-Hispanic whites.””

“Her father, she said, was a brilliant cartographer who was deeply committed to traditional conservative principles like free will and limited government. As a child, she said, she was schooled in those same principles, but every successive gerrymandered map he created only solidified her conviction that he had abandoned them in a quest to entrench his party in permanent control.”

According to a New York Times report, “Thomas B. Hofeller achieved near-mythic status in the Republican Party as the Michelangelo of gerrymandering, the architect of partisan political maps that cemented the party’s dominance across the country.”


But after he died last summer, his estranged daughter discovered hard drives in her father’s home that revealed something else: Mr. Hofeller had played a crucial role in the Trump administration’s decision to add a citizenship question to the 2020 census.

Files on those drives showed that he wrote a study in 2015 concluding that adding a citizenship question to the census would allow Republicans to draft even more extreme gerrymandered maps to stymie Democrats. And months after urging President Trump’s transition team to tack the question onto the census, he wrote the key portion of a draft Justice Department letter claiming the question was needed to enforce the 1965 Voting Rights Act — the rationale the administration later used to justify its decision.


Files from four external hard drives and 18 thumb drives belonging to Hoffeller showed that in 2015 he was hired in August 2015 to conduct a study and analysis by the conservative news outlet The Washington Free Beacon that is “financially backed by Paul Singer, a billionaire New York hedge fund manager and major Republican donor.”

The ACLU filed a notice with the Supreme Court, informing them of the new evidence and a motion was filed for sanctions at the district court.

CNN lays out a look at some of the remaining most watched cases:

2020 Census citizenship question – Dept. of Commerce v. New York.
Partisan gerrymandering – Rucho v. Common Cause and Lamone v. Benisek.
Racial gerrymandering – Virginia House of Delegates v. Bethune Hill.
Maryland ‘Peace Cross’ – American Legion v American Humanist.

Watch: Supreme Court to decide fate of WWI memorial cross.

Race in jury selction – Flowers v. Mississippi.
First Amendment patent claims – Iancu v Brunetti.
Indian territory jurisdiction – Carpenter v. Murphy.
Double Jeopardy – Gamble v. United States.
Veteran disability benefits – Kisor v. Wilkie.

For overview content and context of each of the listed cases, read: Buckle in: Supreme Court prepares for dramatic four-week sprint to end the term; CNN.

In “looking ahead to next Term,” Ginsberg said last Friday, “two cases from the Second Circuit will be frontrunners. We granted review in New York State Rifle & Pistol Association v. City of New York to decide whether City laws regulating the transport of handguns pass constitutional inspection.”

Full content of Ginsburg’s comments.

Stay tuned.

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