The first Monday in October is opening day for the United States Supreme Court’s new term. Unlike years past, there are few high-profile cases on the Court’s calendar, such as same-sex marriage, abortion rights or affirmative action. The docket is relatively sparse: both in terms of the raw number of cases and their content. Why? The most likely explanation is the lingering vacancy on the bench produced by Justice Scalia’s death. The Court is presumably (and understandably) reluctant to tackle the most pressing issues of the day until it’s back up to full strength. With only eight justices, there’s a real risk of many split, four-four decisions and, with them, the prospect of sending an uncertain message to the lower courts.
At the moment there’s only one case on the docket from New England—a dispute involving whether the “sovereign immunity” of an Indian tribe in Connecticut bars certain civil actions for damages against tribal employees. But the cupboard is by no means bare when it comes to matters of interest for our region. Here are two cases to chew on: Lee v. Tam: Just last Thursday, the Court announced review of a case involving the Asian-American rock band The Slants. The band sought to register its name with the federal Patent and Trademark Office. The PTO refused to do this, noting that the term is “disparaging” to people of Asian ancestry. Among other things, this case could have ramifications on the use of “Redskins” as the name of Washington’s team in the National Football League. More generally, this matter tests the boundary between free speech under the First Amendment and offensive speech that does not warrant protection. Although it’s a trademark case, it touches upon many issues that are salient in an education hub like Boston. What words and topics are appropriate for discourse inside and outside the classroom? How do you determine this—and who should be vested with the power to make that determination?
Pena-Rodriguez v. Colorado: There is a fascinating case from Colorado involving bias in jury deliberations. A Latino man was charged with a crime and went to trial. During deliberations, a juror expressed hostility to Latinos in general. The key issue revolves around the extent to which courts can and should peer behind the curtain shrouding deliberations and question jurors about their behavior. This case implicates two crucial and arguably competing principles. On the one hand, we want jurors to speak their minds and vote their consciences without fear of oversight. On the other hand, we worry about biases infecting our trial process. Where should we draw the line? Will jurors talk freely if they fear future interrogation about their comments? Will the possibility of monitoring merely prompt jurors to hide their biases and make decisions that still reflect those views? Or will greater supervision provoke a more robust and more targeted conversation about the actual facts of the case?
These are not the only notable cases on the Supreme Court’s calendar. For example, the Justices will explore cases related to redistricting, capital punishment, the rights of children with disabilities, and religious freedom. Yet the docket lacks many of the hot-button issues that have characterized its decisions of late. Like much of the country, I suspect the Supreme Court is watching the presidential election with intense interest, in part, because its future composition and course are at stake.
Daniel S. Medwed is a Legal Analyst for WGBH News and Northeastern University law professor