The Other SCOTUS Cases

At 10:00 AM EDT tomorrow (and again on Friday, and maybe again on Monday), the whole hep political world will be watching the U.S. Supreme Court, to see if one of the two blockbuster cases everybody’s been waiting on will come down: Obergefell v. Hodges, the same-sex marriage case, and King v. Burwell, the Obamacare subsidies case. The current betting is that Obergefell will be announced on Friday, which probably not coincidentally is the anniversary of two big LGBT rights opinions written by Justice Kennedy (2003’s Lawrence v. Kansas, which struck down state anti-gay sodomy laws, and 2013’s U.S. v. Windsor, which invalidated the federal Defense of Marriage Act). So the Court’s announcement of an unusual Friday announcement of an opinion leads many observers to figure Obergefell will be announced then and that Kennedy will write an opinion establishing a federal constitutional right to marriage.

Putting Obergefell aside, there are six other decisions left on the docket, and if the Court follows the usual practice of announcing them roughly in order of when they were argued, the odds are pretty high that King v. Burwell will come down tomorrow–unless SCOTUS wants to make a big term-ending splash by announcing it Monday. And as we have discussed here for a good long while, the decision there will either create a massive frenzy in Washington and in many state capitals–or will be a huge anticliimax.

I urge you, though, to read Amy Howe’s full “plain English” discussion of all seven remaining cases at SCOTUSblog, because there is the potential for additional blockbuster decisions. One almost certain to come down tomorrow is Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, which could give the Court’s conservatives a chance to strike a blow against the “disparate impact” approach to discrimination laws, and instead require proof of an intent to discriminate. Another likely decision for tomorrow is in Arizona Legislature v. Arizona Independent Redistricting Commission, which could ban the delegation or transfer of redistricting responsibilities from legislatures to “independent” commissions, even by referendum or state constitutional amendment. California would probably be the state hit hardest if the Court sides with the legislatures in this case. And still another case from roughly the same early time-frame is Michigan v. EPA, a case brought by Republican-governed states to force earlier and more emphatic consideration of economic costs in pollution cases. For arcane reasons of case distribution, Howe thinks it’s very likely Justice Scalia will write the opinion in that case, which is not good news for environmentalists.

So there’s a lot going on in these last few days of the term. Here at PA we’ll try to unravel it all as it happens.

Ed Kilgore

Ed Kilgore, a Monthly contributing editor, is a columnist for the Daily Intelligencer, New York magazine’s politics blog, and the managing editor for the Democratic Strategist.