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The Next Court Term: Five Cases That May Make News- Part 1

Thus far, the United States Supreme Court has accepted a little more than 35 cases for the October 2014 term.  If recent terms are any indication, this represents about half their docket.  There are several jurisdictional and patent cases in the upcoming term.  In this entry, I would like to highlight four cases of interest.

The first case is Alabama Democratic Conference vs. Alabama, a case involving redistricting in Alabama.  Specifically, it addresses the retention of so called majority-minority districts.  This involves state legislative districts.  In 1990, a court-drawn map established 27 state house districts and 8 state senate districts which had a black majority population.  After the 2000 census, these districts were basically retained.  However, after the 2010 census reacting to a state law requiring basically identical populations in all districts, the new boundaries, in effect, created black supermajorities in several districts.  Some of the percentages reached as high as 75%.

In effect, the ADC along with the Alabama Legislative Black Caucus (in a sister case) argue that the state has packed blacks into a few districts thus diluting their political power in other areas of the state.  This would amount to racial gerrymandering by the state which would trigger strict scrutiny by the courts.  Unlike the normal appeals process, this one is automatically taken by the Supreme Court under a pseudo-original jurisdiction type of action.

I have written in the past about the silliness of creating minority districts.  Dealing with federal congressional districts, each one should have a population of about 712,000.  It would be great if a state could create perfect little blocks out of their state without regards to the racial or ethnic make up of those blocks, but population distribution does not work that way.  As a result one gets odd-shaped congressional districts at times.  What does not make sense are those that are deliberately drawn to capture a desired population in the name of racial political equality.  It does a great disservice to the racial minorities by asserting that only one of their own is worthy of representing them.  And by creating these districts, it naturally creates deviations elsewhere where the minority population will be under-represented.  Each district is not going to look like the racial profile of any state with a certain percentage of this or that in every district.  Population distribution does not work that way.  My guess is that the plaintiffs in this case would really want a black majority population district (say 51%) be incorporated into a white majority population district.  This is not an expansion of minority voter rights, it is a suppression of non-minority voter rights.

In Elonis vs. United States the Court must decide whether subjective intent is required or whether a reasonable person standard must be applied to alleged threats on social media.  In this specific case, the plaintiff posted rather graphic and violent “threats” on Facebook after he lost his job and wife.  He made the postings in the form of rap lyrics and testified that it was basically harmless ranting on social media that became therapeutic for him at a particularly vulnerable time in his life.  If we take Elonis at his word (there are, in some cases, disclaimers on his postings and “emoticons” meant to convey the comments were “tongue-in-cheek”) he would seem to have a case.

However, an important consideration is at what point and under what circumstances should the law intervene?  In this case, there was a restraining order against Elonis although it did not mention commenting on social media sites.  But, imagine if the perpetrators of Columbine had made similar comments on Facebook before they carried through on their actions?  Every time some tragedy happens, people hand-wring over why warning signs were missed.  Does the subjective intent have to come true in order for the words to be actionable?  This is a tough one.  On the other hand, considering there was a restraining order of sorts one has to question why there is a federal law in the first place.

The third case is Zitofsky vs. Kerry which actually returned to the Court as expected after it was rebuffed two terms ago.  This has separation of powers questions attached and foreign policy implications.  A law passed by Congress notes that passport place of births for those born in Jerusalem state “Jerusalem, Israel.”  However, so as not to offend the Palestinians who dispute Jerusalem being part of Israel, the State Department issued a directive that such births be recorded as either/or, but not both Jerusalem and Israel.  The question is whether this Congressional requirement infringes on the president’s power to conduct foreign policy.  The courts are generally deferential to the Executive when it comes to foreign policy so it will be interesting to see if this case is another vehicle by which to smack down executive power.

Implicated in this case is the so-called “political question doctrine.”  This asserts that courts should stay out of questions that are more correctly decided by the political branches of government.  However, since they accepted the case (it was denied two terms ago pending a decision on the doctrine) it signals that the Court is willing to take on the more important Separation of Powers question.  Once again, considering that the courts generally defer to the Executive Branch in matters of foreign affairs, the odds would be on the State Department prevailing.  However, it also signals that this Court may be more open to restoring a balance where co-equal branches of government decide foreign policy.  To this writer, it signals that Roberts may just be using this case to reign in an Executive Branch running amok.

The final case is Holt vs. Hobbs out of Arkansas.  It involves the growing of beards by prison inmates in that state.  Arkansas prohibits the growing of beards by any inmate.  Holt, also known as Abdul Maalik Muhammad, wishes to grow a half-inch beard in accordance with his religious beliefs.  He dropped his First Amendment claims and is instead arguing under the Religious Land Use and Institutionalized Persons Act (RLUIPA) of 2000.  This law specifically prohibits any government from enacting guidelines which prohibit the practice of one’s religion.  A state may do so if they have a compelling governmental interest and they use the least restrictive means.  Like the RFRA which was used in Hobby Lobby, the law simply codified Supreme Court jurisprudence.

When it comes to religious freedom, there is a world of difference between running a hobby store and running a prison, most notably security and safety concerns.  The state argues that if they allowed prisoners to grow beards, they could hide contraband and that an escaped prisoner could easily alter their appearance by simply shaving.  Holt wishes to grow a one-half inch beard.  In a previous altercation with prison officials- during an injunction against the rule that allowed Holt to grow a beard- he physically threatened the prison barber for cutting his beard to short.

Here is the problem for the state: they say the compelling interest is safety and security, but they can offer little proof of such violations since 44 other states and the federal government do not have outright bans on the growing of beards in prison.  Because something is possible does not automatically make that something a compelling state interest.  Thus, in my mind, the state is on tenuous grounds right from the start.  But, let’s give them the benefit of the doubt.  That would then require that they use the least restrictive means to enforce the rule.

I have a problem with the “least restrictive means” being equated with outright bans.  Usually, it boils down to what is easiest for the government from an administrative standpoint.  That may be well and good in certain circumstances, but when a constitutional right, clearly codified and made applicable even to prisoners, is involved, then it is not well and good.  Just looking at this case from a commonsense perspective and realizing that this Court has consistently upheld religious rights, I cannot see Arkansas winning this case and rightfully so.

In part 2- three cases that are likely to reach the Supreme Court and they are blockbusters!  They involve gay marriage, Obamacare and Guantanamo detainees.

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