Supreme Court Begins New Term as It Finished the Last One: Short One Justice

The nomination of Judge Merrick Garland, Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit to be an Associate Justice of the Supreme Court, has been pending for 202 days. Republican leaders in the Senate have refused to schedule a Senate Judiciary Committee hearing on the nomination of Judge Garland, and Senate Majority Leader McConnell continues to insist that the Senate will not take action on the nomination this year. This is unprecedented—no nominee to the Supreme Court has waited longer for Senate consideration.

And the longstanding vacancy has an impact on the Court’s work.  A number of decisions by the short-handed Court last Term demonstrated that the absence of a full complement of Justices impacted the administration of justice. During the second half of the 2015-2016 Term, the Court was unable to render substantive decisions in a number of cases. In some instances, this meant that women across the country continue to face a patchwork of laws, depending on their state of residence. As the Court begins its 2016-2017 Term, the potential for tied, nonprecedential decisions remains, and it has also been surmised that the Court has limited the number and kind of cases that it has taken for review.

Several of the cases the Court has agreed to hear have critical implications for women’s legal rights and protections.  For example:

  • Lynch v. Morales-Santana:  In 2011, in Flores-Villar v. United States, an equally divided Supreme Court affirmed the Ninth Circuit’s ruling that a law establishing different physical-presence requirements for awarding citizenship to the children of unmarried fathers than to the children of unmarried mothers did not violate the Equal Protection Clause. (Only 8 Justices participated because Justice Kagan recused herself, based on her participation in the litigation below while she served as Solicitor General.) This Term, in Lynch v. Morales-Santana, the Court will review a Second Circuit decision that reached the opposite conclusion.  In its amicus brief in Flores-Villar, the Center argued that the sex-based residency requirement of this statute embodies the inaccurate, outdated, and harmful stereotype that unmarried fathers don’t have meaningful relationships with their children — and the same arguments apply in Morales-Santana.  [link to  ] The Court’s review of Morales-Santana provides another opportunity to declare such stereotype-based sex distinctions to be unconstitutional.  The question will be whether, with only 8 Justices currently sitting, the Court will be able to reach a decision on the merits.
  • Trinity Lutheran Church of Columbia v. Pauley:  In this case the Court will decide will decide whether the exclusion of churches from a secular grant program violates the Free Exercise and Equal Protection Clauses of the Constitution. The program at issue, Missouri’s Scrap Tire Program, competitively awards grants to non-profit organizations for the purchase of recycled tires to resurface playgrounds. The Missouri Department of Natural Resources administers the program, which is funded through a fee collected on the purchase of all new tires. Trinity Lutheran Church, which runs a preschool that “teaches a Christian world view…including the Gospel,” on its property, applied for the Scrap Tire Program in order to resurface the preschool’s playground. Although its application ranked fifth out of 54 reviewed, the state declined to award the church a grant on the grounds that doing so would violate the provision of Missouri’s state constitution that states, “no money shall be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion.” Trinity Lutheran challenged this decision in federal court. While both the district and appellate courts agreed with the state, the Supreme Court decided to hear Trinity Lutheran’s challenge. This case arises amidst an intense debate, in the wake of the Court’s decision around religious exemptions to the Affordable Care Act in Burwell v. Hobby Lobby Stores as well as its ruling last Term in Zubik v. Burwell. The Court’s ruling in this case could limit states’ ability to prevent tax dollars from flowing to groups that discriminate on the basis of sex, sexual orientation, or religion.
  • Bank of America v. Miami and Wells Fargo & Co. v. Miami:  The issue in these two consolidated cases is whether a city government may sue mortgage lenders and housing operators to enforce the antidiscrimination protections of the Fair Housing Act.  The city of Miami alleged that the banks targeted African American and Latino customers for predatory mortgages.  The city asserted that these riskier loans created a foreseeable result: foreclosures and lowered property values, which in turn resulted in lost tax revenues, increased need for public services, and other economic damages incurred by the city.  The district courts hearing the underlying cases dismissed them on the grounds that the city could not bring such actions under the FHA, the question now before the Court, but the U.S. Court of Appeals for the Eleventh Circuit reversed. Women of color were disproportionately targeted in predatory mortgage schemes during the housing crisis. Although the specific allegations in this case involve race discrimination, the Fair Housing Act also prohibits discrimination by mortgage lenders on the basis of sex (as well as on the basis of color, religion, national origin, familial status, or disability).  Accordingly, the ability of municipalities (or other government entities) to bring claims under the FHA could impact the protections that the statute provides to women.
  • National Labor Relations Board v. SW General:  In 2014, in National Labor Relations Board v. Noel Canning, the Court considered the validity of the President’s appointment of National Labor Relations Board members, under the Recess Appointments Clause of the Constitution, while the Senate was in recess during a Congressional session, and found such appointments to be invalid. This Term, the Court considers the question of whether, under the Federal Vacancies Reform Act, the President properly named certain officials in an acting capacity.  SW General challenged an NLRB unfair labor practice complaint on the grounds that the individual serving as Acting General Counsel of the NLRB was not properly appointed under the FVRA. SW General persuaded the D.C. Circuit to adopt a reading of the statute that invalidated the General Counsel’s appointment – a reading, incidentally, which runs contrary to the interpretation of three Presidents in the twenty years since the statute was enacted. The Ninth Circuit reached a similar conclusion in a recent case as well. The NLRB petitioned for review, and the Supreme Court took the case. The NLRB’s decisions are in many instances critical to vindicating the rights of low-wage working women. Although the challenged decisions and actions taken by the recess-appointed Board members were resolved following the Court’s 2014 decision in Noel Canning, that decision placed significant strain on the resources of the NLRB and detracted from its adjudication of new cases. If the Court were to invalidate the NLRB’s Acting General Counsel to carry out that position, its decision likewise could call into question orders and decisions issued during that official’s tenure. Such a decision, moreover, could impact other Presidential appointments of officials in an “acting” capacity, and the ability of future Presidents to manage Executive Branch appointments.

Looking Ahead:  In addition to the cases that have already been granted, there are other cases working their way through the federal appellate courts that could reach the Supreme Court this Term. For example, following the Court’s actions last Term, cases involving a challenge to the birth control benefit under the Affordable Care Act are proceeding. In addition, the Court stayed a Fourth Circuit decision regarding the rights of transgender students pending consideration of a petition for review. Other cases, including challenges to state abortion restrictions in the wake of the Court’s decision in Whole Women’s Health v.

Texas last Term, may come before the Court this Term as well.
Women will be watching, both the Court’s deliberations and decisions in these and other cases critical to women, and the Senate’s treatment of the individual who has been named to fill the vacant seat on the Court.