By Oliver Fredrickson
Back at full strength with the confirmation of Justice Brett Kavanaugh, the Supreme Court began its new term on October 1. Although this term’s docket does hold the same high-profile cases that we saw last term, it will nonetheless provide valuable insight into the trajectory the court will take in the coming years. The confirmation of Justice Kavanaugh entirely recalibrated the ideological make-up of the Court, leaving the traditionally conservative Chief Justice John Roberts at the Court’s ideological centre. To give context of what a Court with Chief Justice Roberts at the center looks like, some of his notable decisions include:
o Voted in the majority holding, for the first time, that the Second Amendment of the United States Constitution provides an individual the right to bear arms.
o Voted in the majority holding that provisions of the Bipartisan Campaign Reform Act restricting unions and corporations from independent political spending violated the First Amendment of the U.S. Constitution.
o Wrote the majority opinion holding that section 4(b) of the Voting Rights Act, which sought to eliminate racial voting discrimination, was “no longer responsive to current needs” and therefore unconstitutional.
o Wrote a dissenting opinion advocating against a constitutional right to same-sex marriage.
o Dissented from Justice Breyer’s opinion that Texas’s restrictions on abortion clinics placed an “undue burden” on access to an abortion.
Since being confirmed as Chief Justice in 2005, John Roberts’ primary concern has been maintaining the integrity of the Court. He has stoically refuted any claims of partisanship and consistently claimed that the Court’s role is to “call balls and strikes, and not to bat or pitch.” With this in mind, the key takeaway of this term may be whether Chief Justice Roberts reigns in his intuitive conservative tendencies in order to preserve the public perception of the Supreme Court. Whether he embraces the neutral role of the “swing vote” or stays true to his conservative nature will have a profound impact on the trajectory of the Supreme Court and in turn, the nation as a whole.
On the Docket
Gamble will require the Court to assess the scope of the Fifth Amendment’s Double Jeopardy clause. The Fifth Amendment unequivocally states that no person “shall . . . be subject for the same offence to be twice put in jeopardy of life or limb.” Despite this unambiguous language, the Supreme Court in Abbate v. United States (1959) limited this guarantee, holding that the Fifth Amendment does not prevent dual prosecution for the same crime in state and federal government. Abbate established the “separate sovereign doctrine,” which postulates that the federal government and individual states are independent sovereign states. As such, acts that violate both states and federal law are not the “same offence” under the Double Jeopardy clause.
When the Supreme Court decided Abbatte in 1959, there were very few federal crimes due to the Court’s narrow reading of the Commerce Clause. However, the Court’s expansive reading of the Commerce Clause in the mid-twentieth century paved the way for a raft of federal legislation. Today, there are approximately 5,000 federal crimes which inevitably overlap with state crimes. The result is that individuals face the very real risk of being tried in both federal and state court for the same offence.
This is exactly what happened to Terance Gamble. Gamble was charged simultaneously under both state and federal law for a collection of firearm offenses. As a result, Gamble was sentenced to one year for the state conviction and 46 months plus three years of probation for the federal conviction.
Gamble argues that the separate sovereignty doctrine is inconsistent with the Fifth Amendment and fails to effectively protect individuals from multiple prosecutions for the same offence.
The Eighth Amendment provides that “excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishment inflicted.” The Supreme Court has previously held that the prohibitions on excessive bail and cruel and unusual punishment apply to the states (Schlib v. Kuebel (1971); Robinson v. California (1962)). However, the Court has never clarified whether the prohibition on excessive fines applies to individual states.
The Indiana Superior Court convicted Tyson Timbs of dealing heroin. He was sentenced to one year home detention and five years of probation; he also received a $1,200 bill for court fees. Further, the state of Indiana sought to take Timbs’ Land Rover, which he had used to buy and transport heroin. Timbs argued that such forfeiture was “excessive,” as the $40,000 value of the vehicle greatly exceeded the maximum $10,000 statutory fine for his conviction. Though the trial court accepted Timbs’s argument; the Indiana Supreme Court refused to find an Eighth Amendment violation, holding that the amendment does not apply to the states.
Accepting certiorari for this case, the Supreme Court will determine whether the prohibition on excessive fines applies to individual states.
In Madison, the Supreme Court will decide whether a state may execute an individual whose mental disability leaves him with no memory of committing the capital offense and prevents him from having a rational understanding of his execution.
Vernon Madison has been on Alabama’s death row for 30 years after being sentenced to death for shooting a police officer in 1985. In that time, Mr. Madison has suffered a number of severe strokes and now suffers from dementia, cognitive impairment, dead brain tissue, and blindness. As a result, he cannot “identify where he is or what the day is” and is “bewildered or confused” most of the time.
In Ford v. Wainwright (1986), the Supreme Court held that someone who is “incompetent” cannot be executed. Here, Madison argued that the Supreme Court is yet to identify the underlying disorders that could render a person incompetent to be executed and that severe dementia should fit within this category. Conversely, the state of Alabama contended that dementia should not render an individual “incompetent” under Ford and that the Eighth Amendment forbids the execution of a murderer who “has lost his sanity, not his memory.”
This case was argued on October 2 and as such, Justice Kavanaugh did not participate. With an eight-judge panel and Alabama prevailing in the lower court, Madison requires a majority to prevent his execution going forward. You can hear the audio of the oral argument here. Madison was represented by Bryan Stevenson, who has a fantastic book titled “Just Mercy” that I thoroughly recommend.
On the Horizon
There are also a number of significant cases bouncing around the circuit courts that are likely to reach the Supreme Court during this term. One of the most noteworthy is Altitude Express Inc. v. Zarda.
Under Title VII of the Civil Rights Act of 1964, employers may not discriminate against any individual with respect to “compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex or national origin.” Altitude Express Inc., if accepted by the Supreme Court, will determine for the first time whether the prohibition of sex discrimination under Title VII includes discrimination based on an individual’s sexual orientation.
In 2010 Donald Zarda was fired from his job as a skydiving instructor at Altitude Express Inc. Zarda sued Altitude Express Inc., alleging that that his firing was due to his sexual orientation as a homosexual. Congress has never amended the statue to include sexual orientation as a protected class, and the Supreme Court has never ruled on the issue. The only guidance available was the Equal Employment Opportunity Commission (EEOOC), which under the Obama administration began interpreting this prohibition of sex discrimination to include sexual orientation.
Initially, Zarda lost in both the district court and the U.S. Court of Appeals for the Second Circuit, both of which distinguished sex and sexual orientation. However, on rehearing, the Second Circuit found for Zarda, holding that “because sexual orientation is a function of sex and sex is protected characteristic under Title VII, it follows that sexual orientation is also provided.” This decision created a circuit split, as the Eleventh Circuit in Evans v. Georgia Regional Hospital (2017) came to the opposite conclusion.
The Supreme Court is yet to grant certiorari for Altitude Express Inc.’s appeal, but given the circuit split and social ramifications of this issue, certainty in this area is required.