Supreme Court Confidential

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The U.S. Supreme Court released 16 opinions last month, leaving just a handful of undecided cases. While the Court generally waits for the waning days of the term to release its most significant decisions, it is unclear if the eight-member Court will generate any true blockbusters this Term, even with affirmative action, abortion, and immigration all on the table.

Without Justice Antonin Scalia, the Court has focused on compromise as a means to move forward and avoid 4-4 ties. “I think we spend a fair amount of time — maybe a little more than others in the past — talking about things, talking them out. It sometimes brings you a bit closer together,” Chief Justice John Roberts recently stated.

Key Supreme Court Decisions in May

The short-handed Supreme Court punted on this Term’s Affordable Care Act case. The Court issued a per curium opinion Zubrik v. Burwell that declined to address the merits of the case, namely whether requiring non-profit religious organization to facilitate the provision of contraception under the ACA violates the Religious Freedom Restoration Act of 1993 (RFRA). Instead, the justices pinned their hopes for a resolution of a number of concessions made by both sides during oral argument, ordering the lower courts to hash out the details of a potential compromise that would accommodate the organization’s religious exercise and ensures that women under their health plans receive contraception coverage.

The Court also failed to establish a bright-line rule in one of the Term’s most important business cases in May. The question before the justices in Spokeo, Inc. v. Robins was whether Congress may confer Article III standing upon a plaintiff who suffers no concrete harm, and who would otherwise not be able to invoke the jurisdiction of a federal court, by authorizing a private right of action based on a bare violation of a federal statute. The Court sent the case back to the Ninth Circuit Court of Appeals because it failed to consider both aspects of the injury-in-fact requirement mandated as part of Article III standing analysis. Going forward, the Court advised that a plaintiff does not automatically satisfy the injury-in-fact requirement “whenever a statute grants a person a statutory right and purports to authorize that person to sue to vindicate that right”; however, it also noted that the violation of a statutory right “can be sufficient in some circumstances to constitute injury in fact.”

Capital punishment was again front and center last month. In Lynch v. Arizona, the Court held that the death row defendant should have been able to inform the jury that the only alternative to a death sentence was life without the possibility of parole. Accordingly, his death sentence violated the Constitution’s Due Process. While the justices continue to chip away at the death penalty, the Court declined to address the larger constitutionality issues. Last month, it denied certiorari in a case that directly challenged the validity of capital punishment under the Eighth Amendment.

Subdued Finale in Store?

In cases where the justices have reached a consensus, the decisions have been narrow and decidedly lackluster. The finale is likely to be more of the same, which stands in stark contrast to the landmark decisions of the past several years, in which the justices legalized same-sex marriage and upheld the controversial Affordable Care Act (ACA).

The Supreme Court is scheduled to issue orders and opinions on the remaining Mondays of June. The last decisions will likely be issued on June 27.

Donald Scarinci is a managing partner at Lyndhurst, N.J. based law firm Scarinci Hollenbeck.  He is also the editor of the Constitutional Law Reporter and Government and Law blogs.

Supreme Court Confidential