King Hall Faculty Lead ‘U.S. Supreme Court Year in Review’
UC Davis School of Law faculty led a discussion of the U.S. Supreme Court’s 2016-17 term, characterizing it as “the calm before the storm” in view of blockbuster cases on the docket for the coming year and the possible retirement of Justice Anthony Kennedy, rumored to be pending next summer.
The panel discussion, held at the Sacramento office of Orrick, Herrington & Sutcliffe LLP on July 7, included presentations by Kevin R. Johnson, Dean of the School of Law, Professors Carlton Larson and Aaron Tang, and Anand Easha, an Associate in Orrick’s San Francisco Office, as well as opening remarks from Marc Levinson ’73, Senior Counsel at Orrick, and moderator Madhavi Sunder, Senior Associate Dean at the School of Law. The event, the first of a planned annual series, drew an audience of about 40 local attorneys, many of them King Hall alumni, as well as Professors Lisa Pruitt and Cruz Reynoso, current King Hall students, and reporters from the Davis Enterprise and California Lawyer. In conjunction with the panel discussion, Professor Larson and Professor Tang were interviewed on the Capital Public Radio program Insight with Beth Ruyak.
Professor Larson started the discussion by citing statistics to show that despite the public perception of a divided court, the justices are most often in agreement, reaching unanimous decisions in 41 of 67 cases during the most recent term. “In the public mind, because so many of the high-profile cases tend to be closely decided, it’s easy to forget just how much agreement there really is even on these hard issues that reach the Supreme Court,” said Larson.
Larson said the term’s “big event” was clearly the arrival of Justice Neil Gorsuch, who appears to be even more conservative than the late Justice Antonin Scalia, whom he replaces. “What that means is that the Court, as it is currently constituted, is the most conservative Supreme Court in at least 80 years,” Larson said.
Professor Tang, a former clerk for Justice Sonia Sotomayor, described the recently concluded term as “the calm before the storm.”
“There were no blockbuster cases,” said Tang. “There were a lot of important cases that affect a lot of people, but no real game-changers. By contrast, I count five or six cases that are almost guaranteed for decision next term that would be of more consequence.”
The 2017-18 term will likely see decisions in cases involving President Trump’s executive orders on immigration, partisan gerrymandering, whether requiring business owners to serve same-sex couples violates religious freedom, whether the government needs a warrant to access personal cell phone data, and other hot button issues. In addition, there are “credible rumors” suggesting the coming year could see the retirement of Justice Kennedy, Tang said.
If President Trump were to replace Kennedy, widely viewed as the court’s moderate “swing vote,” with a conservative similar to Justice Gorsuch, then “all bets are off,” said Tang. Seemingly settled law such as Roe v. Wade and same-sex marriage would be “live issues,” Tang said. “It would be a storm such as we have never seen in modern Supreme Court history.”
Anand, like Tang a former clerk for Justice Sotomayor, focused her presentation on the “shadow docket,” the 7,000-8,000 petitions for certiorari the court receives each year, of which only about 80 are heard. The rejected cases are still significant, she said, with the justice’s decision not to hear them often regarded as “quasi-precedential” by lower courts. In some instances, justices author dissenting opinions regarding the dismissal of a case, and these may serve as a “roadmap for litigants” seeking to bring similar issues before the court, Anand said.
Dean Johnson focused his closing presentation on immigration, which in recent years has formed a significant portion of the Supreme Court docket, including about seven of the approximately 70 cases accepted for review during the 2016-17 term. The high number of immigration cases is in many ways a reflection of the large number of deportations during the Obama years, a trend that is likely to continue as the Trump administration pushes for tougher immigration enforcement.
“It seems this administration is very willing to go to the constitutional limits in terms of trying to promote immigration enforcement,” Johnson said, citing the executive orders banning travel from six Muslim-majority nations, efforts to expand expedited removals, threats to withhold federal funding from “sanctuary cities,” and other measures.
Immigrants have done well in recent Supreme Court cases, Johnson said, winning about three-fourths of the time over the past five years. Recent decisions show the court moving away from the Plenary Powers Doctrine—the notion that the executive and legislative branches have the power to set immigration policy without judicial review.
“Overall, when it comes to immigration, the Supreme Court has been pretty consistent in bringing immigration into the mainstream of both constitutional law and administrative law in ways that I think have been very good and are somewhat surprising for what some people would view as a pretty conservative court,” said Johnson.