The Supreme Court on Monday issued its calendar of cases to be heard in the fourth sitting of the Term, starting January 9, and three cases in limbo for a year are not yet on the schedule. The Court probably is holding the cases, each involving an issue likely to divide the Court, until a new ninth Justice is on the bench.
The Court will be hearing some controversial cases during the January session, including a constitutional controversy over the federal ban on trademarks that “disparage” someone, and a dispute left over from FBI roundup of non-citizens in the aftermath of the 9/11 terrorist attacks; that dispute tests whether top government officials may be sued for damages for mistreatment of arrested individuals while in federal custody.
But missing from the new list are three cases that were granted review on January 15 of last year, but still remain unscheduled for hearings. They are Trinity Lutheran Church v. Pauley, testing the constitutionality of a state’s ban on a church having equal access to a non-religious public benefit provide by a state government; Microsoft Corp. v. Baker, seeking clarification of federal appeals courts’ power to her a “class-action” lawsuit when the individuals who sued have dismissed their legal claims; and Murr v. Wisconsin, a test of government power to regulate the use of a piece of property when it is right next to another property and has the same owner.
The Court has never provided an explanation of why those three cases remain on the docket but with no further action on them. Each raises an issue that was a frequent concern of the late Justice Antonin Scalia, and he was a member of the Court when those three were accepted for review last January. He died in February. Presumably, the eight Justices have found that they are likely to be evenly divided on the outcomes, so those cases simply remain on hold for the time being.
The offensive trademark ban is set for a hearing on January 18, in the case of Lee v. Tam. The post-9/11 damages issue also will be heard on that date, in a trio of combined cases, involving, among others, former Attorney General John Ashcroft and former FBI Director Robert Mueller.
Another case of interest set for hearing in the session, on January 11,s is Endrew F. v. Douglas County School District, seeking to define what educational benefits are due to a disabled child under a federal law, the Individuals with Disabilities Education Act.
(The full January argument calendar can be read at this link..)