Supreme Court begins low-profile term

Justice Antonin Scalia died in February, and the Supreme Court begins its term today still short a justice. The court remains divided 4-4 between liberals and conservatives, and Senate Republicans have blocked consideration of President Barack Obama’s nominee for the bench, D.C. Circuit Court of Appeals Chief Judge Merrick Garland.

If Democratic presidential nominee Hillary Clinton wins in November, the Senate could either go ahead and confirm Garland or Obama could rescind Garland’s nomination in favor of someone more liberal. Republican presidential nominee Donald Trump has released a continually growing list of about 20 potential nominees.

While the presidential election unfolds, the court will busy itself with low-profile cases. The cases this term cover topics from insider trading and property disputes to copyright laws. The court also will hear perennial cases over the death penalty and redistricting.

Many of the 31 cases the court has agreed to hear are dry and technical. The first case on Tuesday asks the question, per the American Bar Association: “Can a vacated, unconstitutional conviction cancel out the preclusive effect of an acquittal under the collateral estoppel prong of the Double Jeopardy Clause?”

Even Supreme Court lawyers would agree it’s not the most riveting subject.

“It is a very interesting time at the court,” said Paul Clement, a lawyer and former solicitor general who regularly appears before the court, previewing the term in an event at the Heritage Foundation. “That doesn’t automatically translate into interesting cases. Some might suspect it actually translates into the opposite.”

Clement said the justices are “reluctant" to grant cases that might divide them 4-4. Carter Phillips, an attorney who also has argued extensively before the court, said the high court went through a similar phase when Justice Samuel Alito was in the process of joining.

“This is not the first time the justices have responded to what you might call the realpolitik of the situation,” Phillips said. “They try to figure out a way to move the business along.”

The court does have one hugely significant case coming this term that will affect Christians: Trinity Lutheran Church v. Pauley. Missouri has a scrap tire recycling program, under which groups can apply to the state for ground-up tires to put on their playground surfaces. Trinity Lutheran applied for scrap tire for the playground at its day care. The state received 44 applications for 14 grants. Trinity Lutheran’s application ranked 5th.

“I mean, gee whiz, this sounds great, what could possibly go wrong,” Clement said.

But the state rejected Trinity Lutheran’s application on the grounds that the state constitution prohibits any funding of churches. Now the Supreme Court must decide whether the state constitution goes too far, discriminating against religious institutions in the name of separation of church and state.

“Can a state really take the position that we have a higher wall between the separation of church and state in our state than in the federal Constitution?” Clement asked, adding, “It’ll be a hard case to duck.” He means that the court won’t be able to easily wiggle out of the issue through a narrow ruling on standing or some other technicality. To some degree, the ruling could determine the future of state aid to religious institutions.

The justices took the case in January (before Scalia died), and normally they already would have scheduled arguments. But Trinity Lutheran isn’t on the calendar, and the church’s lawyers aren’t sure why. Probably the court wants to wait for nine justices to hear such a momentous and potentially divided case.

Several other major cases are in the pipeline but the court hasn’t agreed to hear them yet. One is an appeal from a Virginia school board over a federal directive to allow students to use whichever bathroom or locker room is consistent with their gender identity. The board had offered to build several unisex bathrooms, but the transgender student rejected that approach and sued. The federal courts haven’t split over the issue yet, so the court seems unlikely to wade into such a contentious issue until it needs to.

In the meantime, the court will spend the fall discussing arcana like the “the collateral estoppel prong of the Double Jeopardy Clause.”