The best is yet to come

Opinion by Chelsea Priest
May 21, 2015, 7:26 p.m.

This week marks our last column in The Stanford Daily. When we began writing in October, the Court hadn’t yet begun hearing arguments in their cases for this Term. But by now, it has far outpaced us, and it will continue issuing decisions until the middle or end of June. This week, it released six full opinions — but the best is yet to come.

Generally, the biggest and highest profile opinions are not decided until the very end of the Term. Last year, for example, the last few weeks of the Term brought the opinions in Noel Canning (regarding the President’s power to make recess appointments while Congress was out of session), Burwell v. Hobby Lobby (about the right of closely held corporations to avoid covering contraception in their health insurance plans), McCullen v. Coakley (regarding a Massachusetts law prohibiting protesting within 30 feet of an abortion clinic) and Harris v. Quinn (about required payment of union dues). The year before, Windsor struck down the Defense of Marriage Act on the very last day of the Term.

As this year’s set of columns ends, then, we wanted to leave you with a brief rundown of the cases to keep watching: those that are still outstanding, and might be interesting pieces of reading come June. We will omit two conspicuous cases: King v. Burwell, the challenge to the Affordable Care Act, and Obergefell v. Hodges, the gay marriage cases. Both have been well-covered in the popular press. Here are three opinions we’re particularly looking forward to:

The case: Zivotofsky v. Kerry

Why it matters: Zivotofsky was argued all the way back in early November, and even though all of the cases argued around that time have been decided, we haven’t heard anything about this one. At issue is a statute that allows a U.S. citizen born in Jerusalem to request that the State Department list “Israel” as his place of birth on his passport. The question is whether that statute impermissibly violates the separation of powers in the United States Constitution, which provides that the President has the power to “receive ambassadors and other public ministers” in Article II, Section 3. The Solicitor General argues that this implies that the President alone has the power to recognize nations — and therefore that the statute, by requiring the State Department to identify Jerusalem as part of Israel, infringes on that exclusive authority. The Court heard a procedural question in this case two years ago, and determined then that this was not the type of “political question” the Court had to avoid; now, with the full case before the Court, the ruling will have to tackle interesting questions about separation of powers, foreign affairs, and the difficult political landscape of the Israeli-Palestinian conflict. A recent New York Times editorial suggests the Court may be setting itself up to dodge the question yet again, but assuming the Court does decide the case, look for an opinion from Justice Kennedy some time between now and the end of June.

The case: Elonis v. United States

Why it matters: After Anthony Elonis’s wife left him in 2010, he started posting violent rap lyrics and rants on his Facebook page, often in the context of threats of harming his ex-wife, having her killed or performing other acts of violence like a suicide bombing or school shooting. After a visit from the FBI failed to deter him, he was arrested and charged under 18 U.S.C. § 875(c), which makes it a crime to communicate a threat in interstate commerce. Elonis argues that he didn’t intend to actually threaten: he was just expressing his frustration and rage. Citing Eminem, Guns ‘n’ Roses and Green Day, he argues that expressions of violence have long been protected by the First Amendment, so long as the speaker didn’t actually have an intent to harm. The Court has held that the First Amendment doesn’t protect “true threats” — this case gives it an opportunity to explain what makes a threat “true.” Chief Justice Roberts has recently become known for his affinity for First Amendment cases, and he is expected to author the opinion. First Amendment cases tend to yield very interesting opinions, and this one has the added wrinkle of social media. Whether the medium of the threatening speech makes a difference remains an open question, and it will be interesting to see what the Court says.

The case: Texas Department of Housing and Community Affairs v. The Inclusive Communities Project, Inc.

Why it matters: This case is all about how far the Fair Housing Act reaches. The law, a 1968 anti-discrimination measure that protects renters from discrimination “because of” race, color, religion, family status or national origin, has come before the Court twice before on this same question: whether it protects only against intentional discrimination, or also allows claims based on “disparate impact” — that is, sale or rental policies that have unintentional effects on one particular class of people. Both of the prior cases settled before the Court heard argument, thereby preventing it from rendering a decision. This time, the Court gets to answer the question: civil rights groups are nervous that the Court will rule that disparate impact claims are not allowed under the statute, but questions at oral argument suggested that the case might go either way.

Michael Mestitz is the president of the Stanford Law Review. Chelsea Priest is one of the Stanford Law Review’s managing editors. Contact them at mmestitz ‘at’ and cayres ‘at’

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