By Lisa Soronen
By the end of January, the U.S. Supreme Court will have filed its docket for the current term ending June 30. So what are the big cases affecting the states?
Previous Thicket entries have covered a number of cases affecting the states where the State and Local Legal Center (SLLC) has filed an amicus brief. But the SLLC didn’t file a brief in some of the most interesting and controversial cases of this term affecting the states. Here are three of them.
The question relevant to states in Bond v. United States is whether the federal government can adopt a statute implementing a valid treaty that it otherwise does not have the authority to adopt. Upon discovering her friend was pregnant with her husband’s child, Carol Anne Bond acquired toxic chemicals and placed them on her friend’s mailbox and door and car handles. Bond was indicted under a federal statute implementing a chemical weapons treaty the United States signed. While Bond concedes the treaty in this case is valid, she argues the federal statute adopting it violates the Tenth Amendment because states—not the federal government—typically punish assaults. However, Missouri v. Holland, decided nearly 100 years ago, holds that if a treaty is valid Congress may implement it even if Congress would otherwise be unable to legislate in that domain.
During oral argument Justice Scalia asked whether the United States’ position in this case could mean the federal government could join in a same-sex marriage treaty, which would require Congress to pass a law making all states comply. The court may avoid the question of whether Missouri v. Holland should be limited or overruled by holding that Bond’s use of the chemicals didn’t violate the federal statute. She argues the statutes does not reach “conduct that no signatory state could possibly engage in—such as using chemicals in an effort to poison a romantic rival.”
In Schuette v. Coalition to Defend Affirmative Action, the court will consider the constitutionality of a 2006 Michigan state constitutional amendment that prevents the state and its universities from giving “preferential treatment to any individual or group on the basis of race,” relevant here in the university admissions context. Unlike last term’s Fisher v. University of Texas at Austin, which deferred a ruling on the constitutionality of an affirmative action program, Schuette asks the court to determine whether banning affirmative action altogether violates the Fourteenth Amendment’s Equal Protection Clause. As in Fisher, Justice Kagan has recused herself from the case, leaving eight Justices to consider the issues and making a broad pro-affirmative action ruling unlikely. All eyes (and ears) were on Justice Kennedy during the oral argument to predict if he might oppose the amendment. SCOTUSblog’s Amy Howe called it a “tough sell.”
Town of Greece v. Galloway might redefine the court’s approach to legislative prayer practices. Under the 1983 case Marsh v. Chambers, the court held that a state legislature could hire a chaplain to deliver a prayer at the beginning of its sessions as long as the practice was not “exploited to proselytize or advance any one, or to disparage any other, faith or belief.” The Town of Greece’s official policy allows any person of any or no denomination to deliver an invocation at the beginning of town board meetings, and the Town does not approve or even examine the prayer in advance. In practice, all but four invocations (two Jewish, one Baha’I, and one Wiccan) have been led by Christians. The court will review a “totality of the circumstances” test employed by the Second Circuit to declare the Town’s practice an unconstitutional violation of the Establishment Clause and revisit its holding in Marsh for the first time in three decades. The case could affect many state bodies which begin their sessions with a prayer. At oral argument the court seem unsatisfied with the Marsh test but was hard pressed to come up with a better alternative.
Lisa Soronen is executive director of the State and Local Legal Center. She writes frequently on Supreme Court cases for the NCSL Blog.