BLOG3 Big Questions for the Supreme Court’s New Term

By Jordan Lorence Posted on: | October 13, 2016

As the Supreme Court starts its new term, three questions loom over the Court and its work this year.

1. Will Justice Scalia’s seat be filled this term on the Supreme Court?

This by far is the biggest unknown facing the high Court. Justice Antonin Scalia long served as a principled conservative voice on the Court, but his untimely death last February turned the Court from a shaky and inconsistent 5-4 conservative majority to a 4-4 evenly divided court.

After Justice Scalia’s death, President Obama quickly nominated Judge Merrick Garland of the federal appeals court for Washington, D.C. to fill the seat. However, the Republicans, who control the Senate by a 54-46 vote, have declined to schedule a hearing or a vote on the nomination, because they believe the president elected in November 2016 should fill the seat, especially because the new person filling that seat could shift the Court leftward to a liberal five justice majority.

It is unlikely that a lame duck Senate will quickly approve the nomination after the presidential election in November. And it is unlikely that the new president will nominate someone and get that person through the Senate confirmation process before the spring or later. Therefore, this term will probably be the term of the eight justice Court.  

2. When will the Supreme Court set oral arguments for Trinity Lutheran?

The Supreme Court granted review in our ADF Trinity Lutheran case almost ten months ago on January 15, but the high court has not yet set the case for oral arguments. This is very unusual. The next possible oral argument dates would be right after Thanksgiving weekend, or during the first week of December.

Trinity Lutheran involves the ADF challenge to the State of Missouri denying a grant—broadly available to nonprofits within the state--to pay for a safe, soft playground surface made from recycled tires for a preschool operated by Trinity Lutheran Church of Columbia, Missouri. Although the church’s preschool satisfied all of the government’s criteria for the grant, Missouri denied the grant because of the state constitution’s prohibiting “any aid of any church” simply because they are … churches.

ADF has asked the Supreme Court to rule that the First Amendment prohibits a state from uniquely discriminating against a church accessing a general program promoting children’s safety and recycling of tires. We are waiting for the oral argument date in this important case. Stay tuned!

3. Will the Court take the Gloucester County Title IX gender identity case?

On October 14, the Supreme Court will consider whether or not to grant review in a case from Gloucester County, Virginia, which asks whether federal law prohibits a public school from reserving locker rooms, restrooms, hotels on overnight school trips, etc., to students of the same sex.

The ACLU sued the Gloucester County school board because it declined to allow a female high school student who believes she is male to use the boys’ restrooms. The school provided her with fully private individual facilities, but she and the ACLU demanded more. The Obama Administration agrees with the ACLU that Title IX—which was enacted to provide equal opportunities for women in education in schools and universities that receive federal funding—now protects students based on their self-perceived “gender identity.”  

The legal issue in the case is a somewhat technical one: whether the federal courts should defer to the Department of Education’s recent decision that a ban on “sex discrimination” is actually ban on “gender identity discrimination.” Gloucester School District argues that the courts shouldn’t defer to the Department at all—because the Department tried to rewrite a Congressionally enacted law, and because it didn’t even follow the correct federal law procedure for when an agency changes its own administrative rules.

Earlier this summer, the Supreme Court granted a motion to stop a court order from requiring that students be given access to the restrooms of the opposite sex at the Gloucester County schools. This means the justices see the importance of this case. If the Supreme Court grants review in the Gloucester County case, there is a strong likelihood that the court will rule on whether federal courts have to defer to the Department of Education’s redefining “sex” to mean “gender identity.” And if the Supreme Court declines to review that case, there are several cases right behind it—including some that raise even stronger privacy concerns arising from putting boys into girls’ facilities and vice versa—and it is likely that one of those cases will eventually come before the Supreme Court soon.

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Jordan Lorence

Senior Counsel, Director of Strategic Engagement

Jordan Lorence serves as senior counsel and director of strategic engagement with Alliance Defending Freedom, where he plays a key role with the Strategic Relations & Training Team.

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