Pacelle Looks at Major Cases to Come Before US Supreme Court This Session

From police shootings, to establishing religion, to transgender bathrooms, several high-profile cases likely to come before the US Supreme Court this spring could reshape some of our nation’s laws, according to UT Professor Richard Pacelle.

“It is a relatively calm year,” said Pacelle, head of the Department of Political Science who has written extensively about the Supreme Court. “Because the court had just eight justices [before the confirmation of Neil Gorsuch], it limited the types of cases it took, avoiding some controversial cases that might end up 4–4.”

Three of the prominent cases that may come before the court:

Trinity Lutheran Church of Columbia v. Pauley (establishment of religion)

Trinity applied for and was denied a grant from the Missouri Department of Natural Resources to purchase recycled tires to resurface its preschool playground. The denial was based on the state constitution which prohibits public money from aiding any church or religious denomination.

This case could affect the Lemon test—the dominant test since 1971—which provides a process for determining when a law has the effect of establishing religion.

“The court could move freedom of religion to a more accommodationist perspective on religion, allowing more government assistance to religion and more ties between church and state,” Pacelle said.

Hernández v. Mesa (police shooting)

US border patrol agent Jesus Mesa shot and killed a 15-year-old Mexican national named Hernández at the border separating El Paso, Texas, from Ciudad Juárez, Mexico, while the youngster was playing along the border fence with friends. Mesa was on the US side when his bullet crossed to the Mexican side striking Hernandez in the head. Hernandez’s parents filed the suit.

This case involves the right of a noncitizen to sue a federal official, Pacelle said.

“Given that such events are likely to increase, it should have important implications practically as well as symbolically,” particularly for immigrants, he said.

Gloucester County School Board v. G.G. (transgender bathrooms)

The case was filed on behalf of Gavin Grimm, a transgender male student. It argues that his Virginia school district’s bathroom policy discriminates against transgender students by expelling them from communal restrooms and requiring them to use alternative private facilities.

“The transgender case will set a precedent,” Pacelle said. It is a “case of first impression,” meaning there are no previous cases like it and therefore no guiding precedents.

A highly anticipated case, the Supreme Court sent the case back to a lower court earlier this spring. The decision to return (or remand) the case may have been motivated in part by the fact that there were only eight justices to decide the case. It will almost inevitably return to the Supreme Court where all nine justices can make the decision, Pacelle said.

President Donald Trump’s recent appointment of Gorsuch restores the high court’s conservative majority. Gorsuch replaces Antonin Scalia who died in 2016.

“This is a leaning conservative court,” Pacelle said. “It is essentially the court the day before Scalia died. It is the (Anthony) Kennedy court. His vote will determine most cases.”

Most of the cases this year will be determined by eight justices.

“Many cases have already been heard. Some cases have already been scheduled,” Pacelle said. “If Justice Gorsuch did not participate at the cert stage—when justices decide which cases to accept—he does not participate in the case.”

The court receives 8,000 to 10,000 petitions and hears less than 100 for full arguments and briefs.

“By not participating in the original decision to grant or reject the case, it is expected that Gorsuch will not take part in the deliberations on the merits of the case, vote, and give an opinion,” Pacelle said. “So, Gorsuch’s real impact will be revealed next term.”

Pacelle’s other research interests encompass American politics, constitutional law, civil liberties, and the judicial process. He is listed in UT’s Experts Guide.

CONTACT:

Lola Alapo (865-974-3993, lalapo@utk.edu)