The Supreme Court Down the Stretch :: 06/11/2015

American Pharoah’s stretch run in the Belmont Stakes was a beauty to behold. The Supreme Court’s stretch run in the closing weeks of its term? Not so much.

I can’t remember a second week in June during which the justices delivered only one opinion. This was Monday’s decision upholding the president’s prerogative in the Jerusalem passport case, Zivotofsky v. Kerry, issued more than seven months after the argument. At that pace, it would be Thanksgiving before the court issued its decision in the same-sex marriage cases that it heard at the end of April. But that won’t happen; one way or another, with 20 cases left to decide, the court will wrap up its term before the Fourth of July.

The justices’ silence doesn’t mean indolence, of course; a great deal is happening below the surface and behind closed doors. For example, it’s obvious that there is a struggle going on over whether the court should revisit Fisher v. University of Texas, which affirmative-action opponents have dragged back onto the court’s docket for another try at using this thoroughly moot case as a battering ram against considering race as a factor in college admissions. On Thursday the case goes to the justices’ closed-door conference for a fourth week. If the justices eventually deny the appeal, or even if they decide to hear it, we may never know what arguments were on the table during those weeks.

So we can thank Justice Clarence Thomas for pulling back the curtain a bit this week when he issued a public dissent from the court’s refusal to hear a challenge to a San Francisco gun control ordinance. This case, Jackson v. City and County of San Francisco, went to conference six times before the court issued an order on Monday denying review. Even without Justice Thomas’s dissenting opinion, which only Justice Antonin Scalia joined, it would have been obvious that something was afoot, but we wouldn’t have known exactly what.

Justice Thomas’s opinion boils down to a complaint that the lower courts are dissing the Second Amendment and that his colleagues are letting them get away with it. Seven years ago, in District of Columbia v. Heller, the Supreme Court ruled for the first time that the Second Amendment gives individuals the right to own a gun. The decision overturned Washington’s strict gun control law, ruling that people have a right to keep a handgun at home, “operable for the purpose of immediate self-defense.”

San Francisco’s law, enacted the year before Heller, permits handguns in the home but provides that when the guns are not being carried or worn, they must be stored in a locked container or kept under a trigger lock. Six gun owners sued, arguing that this restriction deprived them of ready access to their guns and thus violated their Second Amendment right as interpreted by the Heller decision. They lost in the lower federal courts. Their lawyer, Paul D. Clement, the former solicitor general, told the Supreme Court in his brief that the decision by the United States Court of Appeals for the Ninth Circuit was “perhaps the most direct repudiation of this court’s holding in Heller since the decision was handed down.” The Ninth Circuit was so off base, Mr. Clement said, that the justices should simply reverse its decision summarily.

There was nothing surprising about Justice Thomas’s disagreement with his colleagues’ decision to leave the Ninth Circuit opinion undisturbed. In fact, it’s fair to say that it was Justice Thomas who put the Second Amendment issue in play at the Supreme Court in the first place, early in his tenure. In Printz v. States, a Rehnquist-era federalism case, the court limited the Brady gun-control act on states’ rights grounds. The Second Amendment was not an issue in the case, but Justice Thomas raised it in a concurring opinion, suggesting that “perhaps, at some future date,” the court would take up the question of whether the Second Amendment confers an individual right. This seemed an eccentric view at the time; not long before, the retired Chief Justice Warren E. Burger, on national television, had denounced the notion of an individual right to bear arms as a “fraud on the public.” Eleven years after Justice Thomas issued his invitation, the court decided Heller.

What did surprise me about Justice Thomas’s opinion this week was how he expressed his disagreement with the court’s refusal to hear the San Francisco case. His six-page opinion was a critique not only of the court’s failure to police fidelity to the Second Amendment, but more generally of the court’s handling of its docket. In deciding which cases to hear, the court typically looks for those that reflect a split among the lower courts on an important issue. The San Francisco case reflected no such split, a fact that some justices no doubt invoked in arguing against accepting the appeal.

“The court’s refusal to review this decision is difficult to account for in light of its repeated willingness to review splitless decisions involving alleged violations of other constitutional rights,” Justice Thomas wrote. Among the cases he invoked was Glossip v. Gross, a challenge to lethal injection that the court heard in April and that still awaits decision. He reached back further, observing that the court “has even gone so far as to review splitless decisions involving alleged violations of rights expressly foreclosed by precedent.” He named two such cases: Boumediene v. Bush, which granted habeas corpus rights to Guantánamo detainees, and Lawrence v. Texas the gay rights case from 2003 that brought the court to where it is this week, on the threshold of declaring a right to same-sex marriage. Amid this cornucopia of constitutional rights-making, Justice Thomas is saying, only the Second Amendment languishes untended.

In this column, I periodically invite readers to pay attention to the Supreme Court’s agenda-setting function, an often overlooked but essential element of the court’s power. Dissenting opinions like this one permit us to glimpse the process in the raw. It’s not a pretty sight, but we should be grateful for the view.

Last month, the court accepted another case without a split among the lower courts. Evenwel v. Abbott challenges the inclusion of noncitizens among those who are to be counted for the purpose of redistricting. The case reflects a cynical effort to maximize the voting power of Anglo Republicans in Texas, propelled to the court’s docket by the same legal team that brought us the Fisher case as well as Shelby County v. Holder, the 2013 case that gutted the Voting Rights Act.

The theory behind the new case is that when noncitizens count – as they do everywhere in the country — in the population that must be spread evenly among electoral districts, the votes of citizens (presumably Latinos) in districts with large numbers of noncitizens are overweighted. The argument is that this violates the rule of one-person, one-vote, because it acts to underweight the votes of those in districts that have few immigrants. and therefore more citizen-voters.

The issue seemed to pop up out of nowhere, but actually it’s one that never went away. In 2001, the court refused to hear a similar challenge to the counting of noncitizens. Justice Thomas dissented in that case, Chen v. City of Houston. “We have never determined the relevant ‘population’ that states and localities must equally distribute among their districts,” he wrote, adding that “as long as we sustain the one-person, one-vote principle, we have an obligation to explain to states and localities what it actually means.”

It took 14 years, but now the issue is back, in what looms so far as the dominant case of the court’s next term. But that’s next year’s stretch run.

http://www.nytimes.com/2015/06/11/opinion/the-supreme-court-down-the-stretch.html?_r=0