- The Washington Times - Monday, May 29, 2017

The U.S. Supreme Court has fallen behind pace, and will have to sprint to the end of its term with a series of decisions over the next month.

Analysts said there are relatively few high-profile cases still awaiting a ruling, but among the ones most anticipated are decisions in a case involving taxpayer support for secular activities at churches and a trademark case that could decide whether the Washington Redskins’ trademark is deemed racist.

“This is a term that’s not as interesting as most,” said Carrie Severino, chief counsel at the conservative Judicial Crisis Network and a former law clerk for Justice Clarence Thomas.

Much of the court’s term, which began in October and is scheduled to end the last week in June, was dominated by the battle over replacing the late Justice Antonin Scalia. Republican senators blocked President Barack Obama’s selection of Judge Merrick Garland, and instead confirmed President Trump’s pick of Justice Neil M. Gorsuch.

Perhaps because of the smaller court, the justices took fewer cases this year, considering just 71. They heard 82 cases in the 2015-16 term. But even with the smaller workload, the court still has 29 cases outstanding — four more than the justices had at this point last year.

Some of the court’s highest-profile cases already have been decided, including last week’s ruling that invalidated North Carolina’s congressional map. The justices ruled the map was illegally drawn to pack black voters into two districts.

The court also issued a patent law decision that was eagerly anticipated by the business community.

But this term has been devoid of major social issues, putting the focus on the trademark case and a case involving a Missouri church that was barred by the state’s constitution from accessing grant money to improve a playground.

Jordan Lorence is senior counsel at Alliance Defending Freedom, a religious liberty law firm that is defending Trinity Lutheran Church. Mr. Lorence said the question the high court must decide is whether the government must treat a religion worse than everyone else in order to remain “neutral.”

Marge Baker, executive vice president for People for the American Way, said her organization is keeping an eye out for the Trinity Lutheran opinion because it wants a balance between religious liberty and the separation of church and state.

“This case treads on that issue of whether the government is inappropriately supporting religion,” Ms. Baker said.

Steve Wermiel, a law professor at American University, said he’s most interested in the Trinity Lutheran case because Justice Gorsuch will get to participate in the ruling, providing an opportunity to see if his vote will make a difference.

The trademark case, meanwhile, involves a challenge to a band that named itself the “Slants” — a reference to the members’ Asian heritage.

The U.S. Patent and Trademark Office denied a trademark, ruling the name is disparaging to Asians. The band claimed an infringement on its First Amendment speech, and an appeals court has sided with them.

The Redskins aren’t a party to the case, but legal scholars say whatever the justices rule should also govern the team. The trademark office has rejected their trademark, and the team appealed to the U.S. Court of Appeals for the 4th Circuit. The case was put on hold to await the Supreme Court’s decision in the band’s case.

“Whatever happens here will probably dictate whatever happens in the Redskins’ case,” said Josh Blackman, a professor at South Texas College of Law.

Legal scholars also are looking to the high court to decide whether religious nonprofits should be treated like churches or like secular organizations with regard to laws on retirement plans. Churches are allowed greater freedom to structure their plans under the Employee Retirement Income Security Act of 1974 (ERISA).

“If this case comes out against the Christian health care network, a lot of religious organizations will now be subject to ERISA, and the consequences of that are significant for the contraceptive mandate,” said Mr. Blackman, referencing the series of challenges religious nonprofits have lodged against Obamacare’s mandate requiring most organizations’ health plans to cover contraceptives.

The court also could step gingerly into thorny issues of border security and international politics when it rules on the case of a 15-year-old Mexican boy shot by a U.S. Border Patrol agent who was firing into Mexico. The agent says the boy was throwing rocks at him, while the boy’s family says he was playing with friends in a culvert that is maintained by the U.S. and Mexico.

Lower courts have rejected the family’s attempts to sue in American courts, saying the Constitution’s Fourth and Fifth Amendment protections don’t apply to Mexican citizens on Mexican territory.

During oral arguments, the court’s liberal justices seemed to be searching for a way to extend U.S. protections, while conservative justices said that would be breaking new ground and could open the door to legal challenges to American drone pilots and U.S. troops.

Also still before the high court are petitions to hear cases for the next term beginning in October.

Lucas Powe, a law professor at the University of Texas and a historian of the Supreme Court, said he’ll be watching to see whether the justices accept Wisconsin’s request to hear a case on its legislative map.

A lower court struck down the map, holding it is too much of a partisan gerrymander.

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