Will the short-staffed Supreme Court keep a ‘low profile’ this term?

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The U.S. Supreme Court will hear oral arguments for Buck v. Davis to determine if Duane Edward Buck received a fair trial in 1997 or if he needs to be retried because racism corrupted justice.  REUTERS/Molly Riley

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JUDY WOODRUFF: From the race for the White House, we turn to the start of a new term at the Supreme Court, and to Jeffrey Brown.

JEFFREY BROWN: And a most unusual term it is, with an empty seat since the death of Antonin Scalia last February. It’s been at least 25 years since the court began a term with just eight members.

We look at that and at a case argued today about racial bias and the death penalty.

And we welcome back our own favorite court watcher, Marcia Coyle of “The National Law Journal.”

(LAUGHTER)

MARCIA COYLE, The National Law Journal: Thanks, Jeff.

JEFFREY BROWN: Welcome back. Time to get to work. Right?

MARCIA COYLE: Absolutely.

JEFFREY BROWN: OK.

So, a term in which the court begins shorthanded, what impact are we seeing, might we see? What jumps out at you?

MARCIA COYLE: Well, I think, right now, what we see has to do with the kinds of cases that the court has already accepted for decision.

There are no potential blockbuster issues on the docket of the kind that seemed to mark just about every term of the Roberts court since it began in 2005.

JEFFREY BROWN: There have always been a couple at least.

MARCIA COYLE: That’s right.

And, instead, the cases that we’re seeing, there is a healthy dose of patent, arbitration, bankruptcy, and there are more narrow technical statutory interpretation cases.

But I would say, Jeff, there have been other terms that began rather low-key, low-profile, and it only takes one to raise the profile. The justices will continue to add cases through the middle of January. But without knowing what’s in every justices’ mind, I have a feeling this court right now is happy to have a low profile during this election campaign.

JEFFREY BROWN: And we should just say — I mean, we talk about this often, but the court gets to decide what cases it will take.

MARCIA COYLE: It does.

JEFFREY BROWN: So, you’re suggesting that the thinking might be, let things simmer a little bit, or maybe some cases that are too hot for an eight-member panel might be worth not taking.

MARCIA COYLE: I think so, because, certainly, in the calculus of accepting a case, they have to think, will we be able to get five votes, a majority, to decide it?

And if that’s questionable, they may veer away from that particular case.

JEFFREY BROWN: All right, now, no blockbusters, but a lot of cases I see with a theme around race or racial bias.

MARCIA COYLE: Yes.

JEFFREY BROWN: One was argued today, a death penalty case.

MARCIA COYLE: That’s right.

In fact, race plays a central role or even a smaller role in three types of cases this term, criminal justice cases, the drawing of electoral maps, and even mortgage lending.

But, today, the court focused on criminal justice and Duane Buck’s case. Buck is a Texas death row inmate. His trial back in the mid-1990s, his own defense counsel at that trial introduced an expert witness who testified to a stereotype, a terrible stereotype that’s been debunked for years now.

He testified that, because Buck was black, he was more likely to be dangerous in the future. Future dangerousness is a special issue that Texas jurors have to agree unanimously to in order to impose the death sentence, and they did so here.

JEFFREY BROWN: So, he’s not — in this case, just to be clear, he’s not challenging the conviction.

MARCIA COYLE: No.

JEFFREY BROWN: He’s challenging the sentencing, which — with the claim that it was based on a racial bias.

MARCIA COYLE: That’s exactly right.

JEFFREY BROWN: So, what happened in the court today? What was the argument?

MARCIA COYLE: Well, the court seemed sympathetic to Mr. Buck. Even Justice Alito said that what happened in that trial was indefensible.

But the problem for the court is really, how are they going to deal with this? This is a very procedurally complicated case. And the chief justice asked Buck’s attorney, what do you want us to do here? Do you want to us say, on one hand, this was a clear violation of the Constitution, Mr. Buck, he gets a new sentencing hearing?

Or do we address the issue that the attorney actually raised, and that is, did the lower federal appellate court use the right standard in denying Buck what we call a certificate of appealability, which would have enabled him to go back to a federal district court, reopen his habeas petition to argue that he deserves a new sentencing hearing?

JEFFREY BROWN: So, in this case, the possible outcomes are unclear.

MARCIA COYLE: That’s right.

JEFFREY BROWN: But the sentiment seemed to be…

MARCIA COYLE: I think so. It seemed pretty clear across the bench that they definitely had a problem with what happened at his trial.

JEFFREY BROWN: Just in our last minute, let me come back to the larger picture, because you said no blockbusters.

MARCIA COYLE: Yes.

JEFFREY BROWN: But there are a few out there that they might take. Right?

MARCIA COYLE: Oh, absolutely.

Just because they may be small or narrow or low-profile doesn’t mean they’re unimportant or uninteresting. The court has, for example, an interesting religion case. Trinity Lutheran Church in Missouri is challenging Missouri’s denial of state grants to it to resurface a playground, claiming that it discriminates against religious institutions, that violates the First Amendment.

The Oregon rock group the Slants is involved in a trademark case. Their mark was turned down by a federal agency because it disparaged Asian Americans. A federal appellate court struck that law down as violating the Constitution. The Obama administration is asking the Supreme Court to take a look at it.

JEFFREY BROWN: And some very high-profile — there’s a transgender case that could…

MARCIA COYLE: This is in the wings, right.

JEFFREY BROWN: In the wings.

MARCIA COYLE: There’s a petition from a Virginia county school board that’s challenging a lower court’s order that a transgender boy should be able to use the boys’ bathroom.

And there’s also an interesting case, sort of continued fallout from same-sex marriage, where a Colorado baker said his religious beliefs prevented him from baking a wedding cake for a same-sex couple. Colorado’s Civil Rights Commission found that the baker violated the public accommodations law. The baker has brought a petition to the Supreme Court.

They could definitely raise the temperature of the court if it takes it.

JEFFREY BROWN: Absolutely.

OK, Marcia Coyle, “The National Law Journal,” welcome back.

MARCIA COYLE: Thank you. My pleasure, Jeff.

JEFFREY BROWN: And online, there’s more on the case of Duane Edward Buck on our Web site, PBS.org/NewsHour.

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