For Supreme Court watchers, late May and all of June are flood season. In this period, the heretofore trickle of released decisions turns into a raging river of majority, concurring, and dissenting opinions.
Some of these opinions concerns matters so mired in legalese that only a lawyer could take interest. But others touch upon issues known by and important to all citizens — questions regarding religion, liberty, and our structure of government.
Here’s a guide to the coming torrent, with some of the biggest cases and what big principles are at stake in them.
Public Role of Religion
The case: Maryland-National Capital Park and Planning Commission v. American Humanist Association. Here, the court will determine whether a more than 90-year-old World War I monument violates the Establishment Clause because it take the form of a cross.
What’s at stake: The role religion should play in our public life. The case’s oral arguments, despite deep divisions, showcased a unified movement toward greater secularization in the public sphere. The justices most inclined to remove the cross emphasized its religious meaning. Justice Elena Kagan, in particular, pointed to the cross as a symbol of the sectarian claims of Christians to the divinity and resurrection of Jesus. The justices seemingly favoring its preservation downplayed such meaning. Instead, they emphasized an evolving tradition that empties crosses of particular religious significance, instead symbolizing patriotic values of courage and honor. Thus, while divided in outcome, the justices seemed to agree that claims of religion’s importance as a shaper of public morality and thereby public happiness, claims common to the Founding generation, seem no longer welcome before the Supreme Court.
Federalism vs. Individual Rights
The case: Gamble v. United States. Let’s say a state and the national government outlaw the same action. Can allegedly doing that act allow both governments to prosecute and punish you? One side, Gamble, says doing so violates the Fifth Amendment’s protection against double jeopardy. The other side, the U.S., calls upon what is known as the “separate sovereigns” doctrine, saying double jeopardy doesn’t apply across the state/federal line.
What’s at stake: This case presents competing values inherent in our system of government. We believe that the right to liberty means the government can’t keep prosecuting you until it gets the result (you in jail) that it wants. At the same time, we adhere to federalism. The people are sovereign, and they have divided the regular exercise of their sovereignty between the states and the national governments. Allowing only a state or a federal law to be enforced risks effectively enveloping one part within the other. This issue presents special problems for states, given that the Constitution makes the national government’s laws the supreme law of the land.
Separation of Powers
The cases: Gundy v. United States, Kisor v. Wilkie, and New York v. Department of Commerce. Gundy asks if Congress has given away its legislative power to the U.S. Attorney General by leaving important decisions to his discretion. Kisor questions whether the courts should continue to largely defer to bureaucrats’ interpretation of those bureaucrats’ self-written regulations. The New York case presents the issue of how much discretion the Commerce secretary possesses in conducting the census, including asking questions related to citizenship status.
What’s at stake: Each case presents important issues related to separation of powers. Kisor seeks to draw a line between legislative and executive power. Kisor concerns the spheres of judicial and bureaucratic authority. New York involves the parameters of judicial and executive power. These questions matter in and of themselves. But our Framers instituted a system of separated powers for even greater purposes, namely creating a government effective enough to protect liberty and safe enough to not itself threaten that principle. All three cases ask the court to draw lines that respect both concerns about our freedom — giving government enough leeway to do its job but not so much as to let it run its citizens into tyranny.
Free Speech
The case: Iancu v. Brunetti. This litigation concerns a 1946 law allowing the U.S. Patent and Trademark Office to deny trademarks to “immoral … or scandalous matter.” Do such limits violate the First Amendment’s protection of free speech, including here where the trademark involves a word pronounced nearly the same as the king of swear words?
What’s at stake: This case will force the court to ask two important questions. First, it must determine the line between individual rights and government-bestowed benefits. Where does a government trademark fall? Second, and more importantly, it will push the court to consider whether a society can legally recognize lines between discourse that is civil and uncivil, licit or illicit. Whether such standards exist in common among Americans very much is an open question.
As these cases come out over the next few weeks, we must examine them — not just for who won, but for the deeper principles they uphold or undermine. To what degree will the justices recognize the true meaning of religious establishment? Will they adequately protect individual liberty, federalism, and separation of powers?
In short, this Supreme Court flood season, will justice stay afloat or be washed under the judicial current?
Adam Carrington is an assistant professor of politics at Hillsdale College.
