In reviewing the recently ended U.S. Supreme Court term that included several landmark cases and three reversals of precedent, retired 7th Circuit Court of Appeals Judge John Tinder finally had to quote baseball legend Yogi Berra as to what might happen in the 2018 term.
“As the great philosopher Yogi Berra said, ‘It’s really tough making predictions, especially about the future.’”
Tinder joined a panel of sponsor Faegre Baker Daniels attorneys Aug. 1 in Indianapolis for a review of the most significant cases of the Supreme Court’s October 2017 term. Appellate attorney Brian Paul moderated the discussion that also featured partner Jane Dall Wilson and associate Daniel Pulliam.
Speaking after the event, Paul described the 2017 session of the Supreme Court as an “extraordinary term.” Many of the cases that came before the justices brought with them significant issues of free speech, privacy, religious freedom and the anticommandeering rule. He said cases were so widely discussed that even nonlawyers seemed to be more aware of the docket than usual.
Paul speculated the court tackled the tougher cases because, with the addition of Justice Neil Gorsuch, it had finally returned to a full bench of nine. The court had been working with eight justices for almost 14 months after the death of Justice Antonin Scalia in February 2016.
While waiting for the ninth justice to be appointed, Paul noted, the court shied away from taking controversial cases and worked hard to find agreement on the cases it did review. Once Gorsuch arrived, the court might have had some pent-up energy to expend or had a backlog of cases it felt it could now handle.
Tinder pointed out the court overruled longstanding precedent three times during the 2017 term.
The case of Janus v. AFSCME, 585 U.S. ___ (2018), held nonunion public sector employees do not have to pay “agency fees” for services provided by the union’s bargaining unit. This decision reversed Abood v. Detroit Board of Education, 431 U.S. 209 (1977). Also, South Dakota v. Wayfair, Inc., et al., 585 U.S. ___ (2018), ruled states can require online retailers to collect sales taxes, reversing the precedent set in both Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and National Bellas Hess v. Department of Revenue of Ill., 386 U.S. 753 (1967).
Tinder also counted the court overturning Korematsu v. United States, 323 U.S. 214 (1944), as part of its ruling in the travel ban case, Trump v. Hawaii, 585 U.S. ___ (2018). Writing for the majority, Chief Justice John Roberts said Korematsu was “gravely wrong” and “has been overruled in the court of history.”
Tinder was not ready to declare that the three overturned precedents signaled a trend against stare decisis. Citing an analysis by Jonathan Adler of Case Western Reserve University School of Law, Tinder pointed out the reversals were unusual for the Roberts court. Where the Warren, Burger and Rehnquist courts overturned precedents at an average rate of 2.7, 2.8 and 2.4 per term, respectively, the Roberts court has an overturn average of 1.6.
Still, Tinder acknowledged the question remains as to whether this session was a blip or a sign of a change.
“Well, we’ll see,” he said.
After the panel discussion, Tinder noted the judicial system does provide the opportunity to rethink decisions. But the predictability that comes with following precedent is critical.
“So much of what we do in commerce, so much of what we do in our daily lives is done knowing there’ll be some predictability about how the courts will address it,” Tinder said. “It’s very important.”
Paul does not expect the court will take a step back from the tough cases, even if the nomination of D.C. Circuit Court of Appeals Judge Brett Kavanaugh is delayed and the 2018 term begins with only eight justices. The docket already includes cases that address incredibly important issues such as the anti-delegation doctrine, where the court has held for more than 80 years that Congress can turn over legislative authority to administrative agencies as long as it provides reasonable guidance.
Some in and outside of the legal profession have floated the idea lately of expanding the Supreme Court’s bench. The Constitution does not limit the number of justices that can be appointed and, as some argue, increasing the size would counteract the seemingly partisan nature of the body.
But Paul does not think any serious effort will be made to pack the court and, personally, sees no need to bring on more justices.
“Nine is fine with me,” he said.•