Now that it is back to full strength, the U.S. Supreme Court is making up for lost time. The court is slated to hear more big cases in the first month of its 2017 term than it did all of last year.
The justices returned to work on Sept. 25 and began hearing oral arguments Oct. 2. It marked the start of Justice Neil Gorsuch’s first full term, months after the death of Justice Antonin Scalia.
No longer afraid of a 4-4 split, some of the significant constitutional issues before the court include cell phone privacy, partisan gerrymandering and the rights of same-sex couples. The justices also have agreed to consider key cases that will impact the business community, including those involving intellectual property, employment law and corporate liability.
Gov. Chris Christie’s fight to legalize sports gambling in New Jersey also will come to an end one way or another as the court takes up Christie v. NCAA and New Jersey Thoroughbred Horsemen’s Association v. NCAA. While the lower courts have rejected the state’s argument that the Professional and Amateur Sports Protection Act is unconstitutional, New Jersey may have a better shot with the Roberts Court, which has been critical of federal overreach.
Below is a brief summary of several other highly anticipated cases on the Supreme Court’s docket so far:
Gill v. Whitford: The court will revisit the issue of partisan gerrymandering this term. While gerrymanders that dilute the votes of a particular race clearly violate the U.S. Constitution, the court has struggled to establish a test for partisan gerrymandering. The justices first must determine whether such claims are justiciable and, if so, determine the proper standard for assessing whether the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011 is permissible.
Carpenter v. United States: This Fourth Amendment case will determine whether law enforcement officers must obtain a warrant to access historical cell-site records, which indicate which cell towers a cellphone connected with while it was in use and can be used to track a suspect’s location. While the court’s third-party doctrine traditionally has held that certain records or information shared with third parties are not entitled to Fourth Amendment protection, the court’s precedents all predate the proliferation of cell phones, the Internet and electronic data.
Jesner v. Arab Bank: The court is slated to finally address whether corporations can be held liable under the Alien Tort Statute. Enacted in 1789, the federal statute states that U.S. courts shall have jurisdiction over any civil lawsuit “by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The decision will impact the extent that corporations can be held liable for transactions with suspected terrorist organizations as well as human rights abuses committed overseas.
Marinello v. United States: The court will resolve a circuit split over whether a conviction under the U.S. Tax Code for “corruptly endeavoring to obstruct or impede the due administration of the tax laws” requires proof that the defendant acted with knowledge of a pending Internal Revenue Service action. The Second Circuit U.S. Court of Appeals, and three other circuits, have held that a defendant may be guilty of obstructing the administration of the tax code even if the defendant has no knowledge of a pending IRS action or proceeding or even if there is no pending IRS action or proceeding.
Masterpiece Cakeshop v. Colorado Civil Rights Commission: The latest same-sex marriage case to come before the court involves a Colorado bakery’s refusal to create a custom wedding cake for a gay couple. While the lower court ruled that refusing to bake the wedding cake amounted to sexual orientation discrimination under the Colorado Anti-Discrimination Act, the bakery owner argues that compelling him to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.
The court will continue to add cases to its docket over the course of the term. Based on the controversial issues it has already agreed to take on, there should be no shortage of noteworthy decisions come June.
Donald Scarinci is a managing partner at the law firm Scarinci Hollenbeck.
