By Brandon Bub
July 21, 2014
How many cases would you guess that the Supreme Court decides each year? If you mainly follow news about the Court when it makes front page headlines, you might guess around 10 because that’s about the number of cases each year that get covered in detail by major news outlets. So, would it surprise you to hear that this past term the Court actually heard 69 cases? The reason why you don’t hear about the other 59 cases is because they usually involve narrow statutory interpretation and aren’t very political in nature (and, since so many of these cases are decided unanimously, they tend to not be very interesting).
While we don’t know precisely how many cases will be decided next term, it’s likely this pattern will hold, and it’s even more likely that all of the “good stuff” won’t be decided until next June at the very end of the term. The justices don’t just do this so they can ape the producers of American Idol; it’s not just a function of getting people to watch until the very end. Part of the reason is because oftentimes these controversial cases aren’t argued until closer to the end of the term.
As anyone who has ever gone through the papers of a former Supreme Court justice can tell you, these opinions go through reams of revisions (and most of them are not exactly light reading to begin with). Moreover, the more controversial a case is, the more revision it generally takes before a draft is found satisfactory to a majority coalition of justices. Cases like Hobby Lobby and McCullen also tend to attract spirited concurring and dissenting opinions, which can sometimes be even longer than majority opinions themselves.
All of this is to emphasize that even though the Court will no doubt consider a lot of important cases next term, you shouldn’t go expecting the big decisions until about a year from now. As far as what the Court will actually be deciding in its next term, some of the cases might look familiar.
Last week, the U.S. Court of Appeals for the Fifth Circuit gave its decision on a case involving the University of Texas’s affirmative action policies in admission, finding in the university’s favor after a student sued alleging that the policies violated her equal protection rights. That case was Fisher v. University of Texas. Yes, that Fisher v. University of Texas. The reason why a lower court is looking at this case again is because last year, the Court remanded the case on technical grounds, arguing that the lower courts had not applied the correct standard of scrutiny in this case. If this case is appealed to the Supreme Court again (and I’m betting it will, though I could be wrong), there will be very few opportunities for the Court to dodge the question about the continued legality of affirmative action in college admissions.
The other issue that will almost certainly come to a head next year is gay marriage. After the Court’s decision in U.S. v. Windsor in 2013, courts have been striking down same sex marriage bans across the country like a legal game of Whack-A-Mole. Whenever an issue like this tends to sow such controversy among lower courts, SCOTUS usually has no choice but to take the issue. Last month, the Tenth Circuit Court of Appeals upheld a decision in Utah striking down that state’s gay marriage bans, meaning this is the case the Court will likely take if they decide they want to tackle the issue this year. Depending on how the Court rules on that, marriage equality across the nation could be less than a year away.