Three times in the Supreme Court’s current term, the Justices and their staffs have put together schedules for hearings, and three times they have intentionally chosen to bypass three of the cases waiting the longest to be argued. The likely reason: the Justices are inclined to think that those cases would only wind up in 4-to-4 splits, settling nothing. So they remain in a scheduling limbo.
The Court’s release on Friday of the schedule for the term’s third round of hearings – the two week session that begins on November 28 — was the latest sign that the vacancy left by the death of Justice Antonin Scalia in February is interfering with the Court’s normal operations. Although the schedule had four one-hour spots that were open, none got filled, and most glaringly omitted were the three cases that the Court had agreed on January 15 that it would decide.
Every other case that the Court accepted for review in the second half of last term – that is, between January and the end of June — has either been decided or was set for a hearing in the new term that started in early October. Normally, cases get on a hearing calendar more or less in the order in which they are granted. Not so for the three cases awaiting a hearing date since mid-January.
Although the Court has given no explanation for keeping those three cases marooned on its docket, there is nothing about any of the cases individually that would require that they be held for a later hearing date. In fact, all of the necessary legal papers have been filed in each, so they could be assigned a hearing date at any time.
That leaves the very strong impression that, in any discussions the Justices have had about those cases up until now, they have found the issues too potentially challenging for an eight-member Court that very likely holds conflicting views about how each of the three might be decided.
It may be worth noting that each of the three was accepted at a time when the late Justice Scalia remained on the Court; he died about a month later after the grant orders for those three came out. It takes the votes of just four of the nine Justices to grant review of a new case, and these cases had come to the Court in appeals by organizations or individuals with whom the Court’s more conservative Justices might well have been in sympathy.
Not every potentially controversial case that the Court in January had accepted for review got put aside. Most notably, the Court went ahead, after Scalia’s death, and heard – on an expedited basis – the Obama administration’s appeal seeking to revive its ambitious policy for delayed deportation of potentially as many as five million undocuomented immigrants.
Tellingly, however, that case (United States v. Texas) would up, near the end of last term, in a 4-to-4 tie, rebuffing the administration’s attempt to put the policy into effect. (The policy is still under review, aiming towards another ruling, in a federal trial court in Texas.)
The split outcome on the immigration case (and on three other cases last term) almost certainly was a warning sign to the Court that the continuing vacancy on the bench was going to be a problem. At least it seems to have played a significant part in this term’s scheduling.
The highest profile case among the three unscheduled cases is Trinity Lutheran Church v. Pauley. It does not appear, at first glance, to be a really major case: it is about access to a state government program for turning old tires into playground surfaces, to be supplied to schools that ask for the materials.
But this Court is deeply divided over issues of religion, as demonstrated most vividly by the conflicts about religion issues related to the Obama administration’s Affordable Care Act. The Trinity Lutheran case, from a church in Columbia, Mo., landed right in the middle of that conflict: it tests the constitutionality of several decades-old state constitutional clauses (in Missouri and 34 other states) that deny equal access to government benefits for an organization that is a house of worship, or is directly affiliated with one.
Those are so-called “Blaine amendments,” which get their name from the lead sponsor of a failed national constitutional amendment in 1876 by a member of Congress, James G. Blaine, that would have barred public funds to parochial schools. The fight over that amendment came amid a wave of virulent anti-Catholic hostility.
It almost goes without saying that Justice Scalia’s strong conservative principles would have led him to join in voting to review the church’s appeal.
He very likely also was among those who voted to grant review of the other two cases that are being held off the argument lists. Both of those involve issues on which Justice Scalia had taken a lead role in decisions in recent years. If, in fact, his vote was cast for review in the three cases, the fact of his death would not have ended the cases; they remained on the docket with a promise of review.
One of the others involves the power of government, especially at the state and local level, to impose environmental controls on private property, and the other involves challenges to the legal tactic of having consumers who are upset with some product or service join together in a class-action lawsuit because their individual claims are so small that it would not be worth a lawyer’s time to take on their case.
The new private property case is Murr v. Wisconsin. It involves the basic question of how private property is defined, when government seeks to prevent or regulate its development for environmental reasons. The case has attracted a wide array of friend-of-court legal briefs, from widely differing perspectives and stressing the profound importance they see to the underlying question of defining property rights.
The property involves two side-by-side lots that lie along the banks of the St. Croix River in the small town of Troy, Wis. Four members of the Murr family have been denied a permit to develop the lots. Their legal objection, though, is that the two lots should be treated as separate for purposes of regulation, arguing that lot lines are what actually defines ownership rights. That was rejected by state courts in favor of consolidating the lots for joint regulation – thus limiting the owners’ options.
The third case now on hold involves the computer giant, Microsoft Corp., and its widely popular video game console, the Xbox 360. The case is Microsoft v. Baker. A small group of consumers in Washington State sued the company, complaining that the device had a defect that caused its optical disc to spin out of control, damaging the machine so that it was not playable.
They attempted to sue as a class, since their individual claims would have been for small amounts, making pursuing them individually not worthwhile. After their class effort was rejected in a trial court, the individuals who had sued got the case dismissed in a maneuver that would enable them to appeal as a class anyway, seeking to go forward with their group grievance.
That kind of maneuvering in class-actions was a source of continuing complaints by Justice Scalia, and the Court apparently took on the Microsoft appeal to clear up a conflict among lower courts on the legality of the dismiss-then-appeal tactic.
It is unclear at this point whether these three cases will get scheduled when the Court next issues a hearing calendar – the one for the January sitting. At this point, it seems unlikely that there will be a ninth Justice by then.

(NOTE: This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)