Sunday, October 2, 2016

High Court Opens New Term With Low Profile

      The Supreme Court is set to open a new season on Monday [Oct. 3], but the reviews are already coming in — and they’re not good. One after another, court watchers opened preview sessions last month bemoaning the lack of hot-button issues among the unusually small number of 29 cases accepted for review before the justices left for their summer recess. “It’s a docket with cases not as sexy as some might hope,” according to Tom Goldstein, Supreme Court advocate and founder and publisher of SCOTUSblog.
      On the other hand, the justices may prefer a low profile until after the election, according to Carolyn Shapiro, a law professor and co-director of the Supreme Court Institute at Chicago-Kent College of Law. “The chief and most of the justices may want to stay below the radar till November 9,” Shapiro remarked at a preview sponsored by the liberal American Constitution Society.
      True, the cases teed up so far include none of the hot-button issues that produced liberal rulings in the two previous terms: gay marriage, abortion rights, and affirmative action. And there are no cases yet with sharply drawn challenges to major Obama administration policies like those from the last term involving the president’s immigration policy and Obamacare, round four. Both of those produced setbacks for the administration with the eight justices divided evenly between conservative and liberal blocs.
      Still, the cases already scheduled for arguments in the October and November calendars include a significant test of the government’s power to prosecute investment bankers for passing insider tips to family members (Salman v. United States, argument Oct. 5). The city of Miami is also pressing a long-shot civil rights suit against mortgage bankers for the damages their predatory lending practices caused to minority neighborhoods in the form of rampant foreclosures and boarded-up vacant properties (Bank of America v. City of Miami, argument Nov. 8).
      The justices added eight cases in orders issued on Thursday (Sept. 29) following the so-called long conference the previous Monday. “Boring,” snorted Ian Millhiser, the pugnacious Supreme Court watcher at the progressive news site Think Progress Memo. Two of the newly added cases are mind-numbing civil procedure disputes, but the new batch includes a closely watched case that mixes rock music, pro football and the First Amendment in a dispute over how far the government can go in policing racial intolerance.
      The all Asian-American rock band who proudly call themselves “The Slants” is seeking trademark protection for the name despite the finding by the Patent and Trademark Office (PTO) that it amounts to an offensive ethnic slur. The Lanham Act, the longstanding federal trademark law, prohibits federal registration of trademarks that “disparage . . persons, living or dead, institutions, beliefs, or national symbols.” The U.S. Court of Appeals for the Federal Circuit ruled that provision unconstitutional, and the Supreme Court agreed to hear the PTO’s appeal (Lee v. Tam, argument likely in January).
      The Slants are cheered on in their case by the owner of the Washington, D.C., professional football team, whose nickname was found unregistrable because offensive to most if not all Native Americans. The government argues in both cases against any First Amendment violation by noting that the band or the team can continue to use its challenged name but without any protection against infringement of the unregistered trademark.
      Despite its supposed conservative orientation, the Roberts Court has been surprisingly favorable toward criminal defendants in recent years seeking to limit federal sentencing practices or expansive readings of federal criminal statutes. However that issue plays out in the insider trading case, the court will hear pleas in its first two weeks from two criminal defendants seeking to reverse state court convictions based on alleged constitutional violations at trial implicating important questions about racial justice.
      A black death row inmate in Texas condemned for killing his former girlfriend and her new male companion is seeking to overturn his sentence because his lawyer called an expert witness who found black defendants to pose a statistical risk of future dangerousness (Buck v. Davis, argument Oct. 5). An Hispanic defendant in Colorado is asking to reverse his sexual misconduct conviction based on evidence that a juror influentially argued during deliberations that, because of their ethnicity, neither the defendant or an alibi witness was to be believed (Peña-Rodriguez v. Colorado, argument Oct. 11).
      The court gets off to a somewhat slow start with no arguments scheduled on the traditional First Monday in October because of the Jewish holiday Rosh Hashanah and two days blank the next week because of Columbus Day and Yom Kippur. But the second week features a high-stakes patent dispute between the rival combatants in the smartphone wars: Samsung and Apple.
      Samsung is seeking to overturn the $399 million judgment that Apple won by arguing that its rival infringed its design patents on such features as the rounded corners that make it easy to slip phones into pockets. Samsung argues that Apple is entitled if at all to only the portion of its profits attributable to the infringed designs, not the total amount (Samsung Electronics v. Apple, argument Oct. 11).
      Despite the poor reviews, the court bears watching, as always. And cases still in the pipeline may add to the interest and the legal stakes before the term ends next June.

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