Supreme Court Year in Review

Oh, the Cases We'll See
An email conversation about the news of the day.
June 28 2011 5:32 PM

Supreme Court Year in Review

VIEW ALL ENTRIES

1_123125_123115_2297409_2297412_2297411_110627_scbt_scalesillotn

Dear Paul and Dahlia—

It is certainly possible that the Supreme Court term that begins next October will have an extraordinary number of high-profile cases. Nominees for next term's major cases could include the challenge to the health care law; the Proposition 8 gay marriage case from California; the constitutionality of the Defense of Marriage Act; the most important of the Arizona immigration control laws; and the warrantless GPS monitoring case, which the National Association of Criminal Defense Lawyer has already predicted will be the "the most important privacy case since Katz v. United States," which was issued in 1967.

Advertisement

But as Paul notes, you never know. Many a case that has been "headed for the Supreme Court" has wound up headed to the nearest exit. Of that list, the least likely case to make it to the Supreme Court is the appeal from Judge Vaughn Walker's decision that gay couples in California have a constitutional right to marry. As I noted in Slate last year, that case should never make it to the Supreme Court because no affected party with standing has chosen to appeal. And I would not be shocked if the Supreme Court took one or more of the challenges to the health care law's "individual mandate" but dismissed those cases on the basis of one or more arguably serious jurisdictional flaws. The court would eventually hear a challenge to the health care law, but it would not be until some taxpayer sought a refund in 2015 of the 2.5 percent penalty for not having minimum health insurance coverage in place when that requirement goes into effect in 2014.

Of course, on standing I've always thought it important that the court decide constitutional issues only when there is a real case involving real parties with a real, legal stake in the outcome. That is why I thought the court should have used the opportunity it had this term in Arizona Christian School Tuition Organization v. Winnto overrule Flast v. Cohen, a 1968 case that allowed a taxpayer who had not a single penny of tax liability at stake to challenge a government expenditure supporting religion. I have always thought Flast wrongly decided, but I could understand why those liberals who favored giving courts more power to decide more cases liked it back in the '60s. But I can't figure out why those liberals find it desirable to cling to Flast in an era of increasingly conservative courts. As our look ahead to next term suggests, there are good, solid standing rules that could protect the decision favoring gay marriage in California, and put off a decision on the health care law. But whichever way strong standing rules cut, they are wise, as I have said before, because they stand for the proposition that courts get to decide constitutional issues not because they are special or better than anybody else, but only because they have a job to do—resolving actual cases—and applying the law is necessary to that job. Respect for good standing rules should create a bit more humility about the courts' proper role.

Well, judicial review lives on, so there will likely be another Breakfast Table next year. But until we see what cases the court actually takes, we can't really know how newsworthy next year's end-of-term decisions will to be. Our editor, Michael Newman, says it would be nice if the Supreme Court would keep Slate's needs in mind when shaping its docket.

Good point. Paul, I assume that you would be the right person to convey that thought to the chief justice, right?

Until next year,
Walter

Walter Dellinger is a professor of law (on leave) at Duke University and a partner in the appellate practice at O’Melveny & Myers in Washington, D.C.

TODAY IN SLATE

Justice Ginsburg’s Crucial Dissent in the Texas Voter ID Case

The Jarring Experience of Watching White Americans Speak Frankly About Race

Here’s Just How Far a Southern Woman May Have to Drive to Get an Abortion

The Most Ingenious Teaching Device Ever Invented

Marvel’s Civil War Is a Far-Right Paranoid Fantasy

It’s also a mess. Can the movies do better?

Behold

Sprawl, Decadence, and Environmental Ruin in Nevada

Space: The Next Generation

An All-Female Mission to Mars

As a NASA guinea pig, I verified that women would be cheaper to launch than men.

Watching Netflix in Bed. Hanging Bananas. Is There Anything These Hooks Can’t Solve?

The 2014 Kansas City Royals Show the Value of Building a Mediocre Baseball Team

  News & Politics
The World
Oct. 20 2014 1:50 PM Why We Shouldn’t be Too Sure About the Supposed Deal to Return the Abducted Nigerian Schoolgirls
  Business
Moneybox
Oct. 20 2014 2:16 PM Even When They Go to College, the Poor Sometimes Stay Poor
  Life
Outward
Oct. 20 2014 2:19 PM A Procedural Rule Could Keep Gay Marriage From Ever Reaching SCOTUS Again
  Double X
The XX Factor
Oct. 20 2014 1:10 PM Women Are Still Losing Jobs for Getting Pregnant
  Slate Plus
Tv Club
Oct. 20 2014 7:15 AM The Slate Doctor Who Podcast: Episode 9 A spoiler-filled discussion of "Flatline."
  Arts
Brow Beat
Oct. 20 2014 2:39 PM Gwen Stefani Does Her Best Rihanna Impression on New Song
  Technology
Future Tense
Oct. 20 2014 1:51 PM Will Amazon Lead Us to the Golden Age of Books? A Future Tense Event.
  Health & Science
Medical Examiner
Oct. 20 2014 11:46 AM Is Anybody Watching My Do-Gooding? The difference between being a hero and being an altruist.
  Sports
Sports Nut
Oct. 20 2014 10:23 AM Where I Was Wrong About the Royals I underestimated the value of building a team that’s just barely better than mediocre.