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Supreme Court year in review: The calm before the storm?

Loren Singer  Principal Attorney Editor, Judicial Editorial Department, Thomson Reuters Legal

Loren Singer  Principal Attorney Editor, Judicial Editorial Department, Thomson Reuters Legal

It may be that 2017 doesn't go into the history books as a landmark year for the U.S. Supreme Court, but it issued noteworthy decisions nonetheless - and 2018 may be a different story.

With only eight justices on the bench until April, calendar year 2017 was not destined to deliver blockbuster decisions from the Supreme Court. The confirmation of Neil Gorsuch as the ninth Justice meant the Court could start accepting review in cases that might result in 5 to 4 decisions. But we won’t get those decisions until 2018, because the oral arguments were held in October, November, or December of 2017.

Still, 2017 had some significant decisions. Here are five of them:

Trinity Lutheran Church of Columbia, Inc. v. Comer, Government Grant for Church School’s Playground: The first case illustrates how little, comparatively speaking, the Court decided this year. It raised issues concerning government aid to a church-operated school. The church won. Chief Justice John Roberts, as the author of the majority opinion for the nine-member Court, wrote a footnote that attempted to limit the scope of the decision. And that’s the big story: How will lower courts, and the Supreme Court itself, treat the decision? The Court’s holding can’t be described without using a lot of nouns. One way of phrasing it: the State of Missouri violated the Free Exercise Clause of the First Amendment by rejecting an application for a competitively-awarded grant to purchase rubber playground surfaces solely because the applicant was a church that operated a preschool and daycare center. This was a 7-2 decision. But only four Justices (including the Chief Justice) joined in footnote 3. Often, it’s slightly annoying to redirect your eyes to a footnote. Here, it’s worth the effort. Footnote 3 is short and sweet: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

Pena-Rodriguez v. Colorado, Probing for Jurors’ Racial Bias: This case posed a clash between the no-impeachment rule, which prevents a jury verdict from being called into question based on the comments jurors made during deliberations, and the constitutional right to a trial before an impartial jury. Here, Justice Anthony Kennedy, who is often the swing vote for a divided Court, wrote for the majority in a 5-3 decision. He concluded that when a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the no-impeachment rule must give way.

Beckles v. U.S., Enhanced Sentences for Repeat Violent Offenders: This case involved enhanced sentences for offenders with previous convictions for violent felonies. In an earlier case, the Supreme Court had ruled that a federal statute’s catch-all language defining “violent felony” was unconstitutionally vague.This time, the Court considered the same language, but it appeared in a different place: The federal Sentencing Guidelines, rather than a statute – same definitional language, but not the same result. The Court concluded the Sentencing Guidelines can never be unconstitutionally vague, because they’re advisory, not mandatory.In a decision expected in 2018, the Court will address the constitutionality of very similar language in an immigration statute addressing the deportation of aliens with criminal convictions — a so-called “crimmigration” statute.

Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, Cutting Back on Plaintiffs’ Choice of Forum: This decision addressed the constitutional limits on federal courts exercising jurisdiction over parties that don’t reside in the state in which the federal court sits. In an 8-1 decision, Justice Samuel Alito, writing for the majority, held that due process did not allow a federal district court in California to hear products liability claims brought by consumers who did not live in California, in a lawsuit brought by California residents against a prescription drug manufacturer that did not reside (in a legal sense) in California. This decision will make it harder for plaintiffs to join their claims in a single suit, which they sometimes hope to do in judicial districts where juries are perceived as being friendlier to plaintiffs.

Matal v. Tam, Disparaging Trademarks Can Be Registered: Legal observers are expecting some important free speech decisions in 2018, but they got one in 2017. The eight-member Court ruled that a federal statute prohibiting registration for trademarks that might disparage any person, living or dead, violated the First Amendment protection of free speech. The statute had been challenged by a band called “The Slants.” The Patent and Trademark Office had not allowed the band, whose members were of Asian descent, to trademark its name. For supporters of free speech, the favorable reaction might have been akin to what they used to say on the TV show American Bandstand: “It’s got a good beat and I can dance to it. I give it an 88.” And for the owners of the Washington Redskins, a touchdown dance would be appropriate.

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