SCOTUS, Supreme Court

Looking Back On The Supreme Court Term That Was

This wasn't the most thrilling Term ever, but a star-studded panel of SCOTUS experts offered interesting insights.

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Left to right: Kenji Yoshino, Joan Biskupic, Dan Abrams, Trevor Morrison, and Thane Rosenbaum (photo by Bruce Gilbert).

In early June, I shared with you a look at the Supreme Court Term up to that point. Now that October Term 2016 is over — and Justice Anthony M. Kennedy’s tenure on SCOTUS is not — let’s review the entirety of the SCOTUS term.

Last night, I ventured north of 59th Street to the 92nd Street Y, where I attended Law of the Land: the Supreme Court’s Year in Review, co-sponsored by the 92nd Street Y and the Forum on Law, Culture & Society (which I profiled in 2014, when it became part of NYU Law School). OT 2016 wasn’t the most exciting Term ever — the Court dodged a number of hot-button issues, the kind that get decided 5-4, since it had just eight justices — but the evening’s discussion turned out to be worthwhile, thanks to the star-studded panel:

In light of the Term’s shortage of blockbuster cases, Rosenbaum wisely focused the discussion on the history and future of the Court and its role in American society, as opposed to specific rulings. He opened by asking the panelists to share their thoughts of the Court’s newest member, Justice Neil Gorsuch, and the confirmation process that brought him to SCOTUS.

Gorsuch is the type of highly qualified, solidly conservative nominee that one might expect out of any Republican administration, said Dan Abrams. But it wasn’t a foregone conclusion that President Donald Trump would nominate someone like Gorsuch, Abrams added; the unpredictable DJT could very well have “gone rogue.”

What might that have entailed, Rosenbaum asked? My first thought was Justice Peter Thiel, but I also liked Abrams’s answer: “His sister.” (“His” meaning Trump’s sister, Judge Maryanne Trump Barry of the Third Circuit — not Dan Abrams’s sister, Judge Ronnie Abrams of the Southern District of New York.)

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Joan Biskupic agreed with Abrams on Justice Gorsuch fitting the Republican mold for a SCOTUS nominee: he’s well credentialed, conservative, and young — just 49, turning 50 next month. He could be on the Court for a good part of the lives of your kids or even your grandkids, Biskupic told the audience. (The grandkids reference struck me as quite apropos, given the demographics of the 92nd Street Y audience.)

Interestingly enough, Kenji Yoshino noted, there’s no minimum age for serving as a Supreme Court justice. In contract, the Constitution sets forth age requirements to serve as a member of the House (25), a Senator (30), and a president or vice president (35).

Did the Founders not care as much about the Supreme Court? If so, it would be understandable; Yoshino reminded the audience that the Court in its early years was far less powerful and prestigious than it is today. It was not uncommon for justices to resign from the Court to take posts that the justices would never accept today (e.g, Justice John Rutledge resigning from the Court to become the Chief Justice of the South Carolina Court of Common Pleas).

The stakes in Supreme Court cases have gone up astronomically over the years, Trevor Morrison pointed out. One of the most high-profile aspects of the Court’s role today, enforcing federal constitutional rights against state and local governments, was something the Court really didn’t do for the first century of its existence. The huge stakes of SCOTUS cases are a major factor behind the intensity — and unpleasantness — of contemporary confirmation wars.

Some of the Court’s most important cases concern the scope of executive authority — an issue raised by the travel ban cases, which the Court agreed to hear next Term. The panelists didn’t opine too much on the merits, but Biskupic noted that the executive branch’s broad power over national security matters, invoked repeatedly by the Trump administration in the lower courts, enjoys significant support in Supreme Court precedent (more support, I suspect, than most members of the left-leaning 92nd Street Y audience realize — I predicted back in March that SCOTUS would uphold the travel ban, and I stand by that prediction).

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Whether resolved for or against the administration, the travel ban case will likely represent an important precedent about executive power — and a precedent that will bind future administrations, Dan Abrams emphasized. In other words, as Trevor Morrison noted, rules that restrict executive power here will also apply to future presidencies. (My take on this: Abrams and Morrison were reminding the liberal audience that while they might love to see the Trump administration placed in a straitjacket, they might feel differently about a Kamala Harris or Eric Holder or Elizabeth Warren administration.)

The travel ban cases will be decided by the Court next Term. What about cases that actually were decided by the Court in the Term just ended? The evening would not have been complete without discussion of Trinity Lutheran Church v. Comer, in which the Court held that Missouri’s denial of grant money to Trinity Lutheran because of its status as a religious institution violated the Free Exercise Clause of the First Amendment.

In this case, the grant money was for resurfacing of the church preschool’s playground. A key question, the panelists noted, concerns how broadly to read the case and how to apply its reasoning in future cases. Chief Justice Roberts, perhaps to get Justice Kagan’s vote — she joined the Chief’s opinion in full (Justice Breyer just concurred in the judgment) — dropped the now-infamous footnote 3 into the opinion:

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.

This footnote didn’t sit well with Justices Thomas and Gorsuch. They dissented from the footnote, arguing for a broader reading of Trinity Lutheran in future cases.

How such future cases turn out will depend, of course, on the future membership of the Supreme Court. And that will in turn depend in part upon the appointments of President Donald J. Trump — who is likely to have at least two more Supreme Court appointments, according to Dan Abrams.

As President Barack Obama famously quipped, “Elections have consequences.” And when it comes to the Supreme Court, those consequences are momentous indeed.

Law of the Land: The Supreme Court’s Year in Review [Forum on Law, Culture & Society / 92Y]

Earlier:

DBL square headshotDavid Lat is the founder and managing editor of Above the Law and the author of Supreme Ambitions: A Novel. He previously worked as a federal prosecutor in Newark, New Jersey; a litigation associate at Wachtell, Lipton, Rosen & Katz; and a law clerk to Judge Diarmuid F. O’Scannlain of the U.S. Court of Appeals for the Ninth Circuit. You can connect with David on Twitter (@DavidLat), LinkedIn, and Facebook, and you can reach him by email at dlat@abovethelaw.com.

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