The New Supreme Court Term: Cheerleading Uniforms, Bad Banks, and a Little Girl and Her Dog

“There are plenty of boring, important cases out there.”

leezsnow/iStock, Brian Zanchi/iStock, TriggerPhoto/iStock


The last few Supreme Court terms were blockbusters, featuring a historic gay marriage decision, critical abortion and contraception cases, Obamacare cliffhangers, and a ruling on racial preferences in college admissions. The new term, which begins Monday and runs through the end of June, will be different. Instead of culture wars and political jousting, there will be cases involving cheerleading uniforms, patents for incontinence products, banks behaving badly, and a goldendoodle named Wonder.

The unexpected death of Justice Antonin Scalia in February and the failure of the Senate to confirm a replacement have left an eight-member court that seems to be shying away from big political questions and hot-button issues that might produce unsatisfying 4-4 votes. But as veteran Supreme Court litigator Tom Goldstein quipped recently at a DC panel discussion on the court, “There are plenty of boring, important cases out there.”

Even in its reduced state, the court can’t entirely avoid some critical conflicts in need of resolution. For instance, a number of its cases this term involve race in the justice system and elsewhere, at a particularly timely moment when many parts of the country are suffering from deep unrest over the role of race in law enforcement.

One of the first cases slated for oral arguments this term is Buck v. Davis, a case that raises a serious question about how race has infected the “machinery of death.” In 1997, Duane Buck was sentenced to death in Texas after his own lawyer introduced an expert witness who testified that Buck was more likely to commit violent crimes in the future because he was black. Potential for future danger is a critical component juries must consider in issuing a death sentence in Texas.

Texas has conceding that such testimony was unconstitutional, but it has continued to press for Buck’s execution nonetheless. The high court will have to decide whether the case presents extraordinary enough circumstances to justify reopening his sentencing. A ruling against Buck would send a disturbing signal to the justice system that there’s virtually no amount of racial discrimination that could prompt the court to overturn a death sentence tainted by bias.

In Pena-Rodriguez v. Colorado, the court will also take up the issue of racial bias on juries. By law, jury deliberations can’t be used to help a defendant appeal a negative sentence. But in this case, one of the jurors, who convicted Miguel Pena-Rodriguez of misdemeanor charges related to groping a young woman, insisted during the deliberations that he didn’t believe the defendant or his alibi witness because they were Mexican. Pena-Rodriguez is seeking a new trial on the basis of the juror’s behavior, and the question before the court is whether there can be exceptions to jury deliberation confidentiality in the interest of granting defendants their Sixth Amendment right to an impartial jury.

In what almost looks like deliberate scheduling, the court’s biggest racial discrimination case on the docket so far will be argued on Election Day (perhaps in the hope that reporters will be too busy to notice). The city of Miami has filed two cases against Bank of America and Wells Fargo for allegedly targeting minorities with predatory loans that contributed to the city’s foreclosure crisis. The city argues that such discriminatory lending and the resulting loan defaults left the city with diminished tax revenues and huge bills for cleaning up the mess left behind in blighted neighborhoods. The question for the court is whether Congress, in the Fair Housing Act, intended for municipalities, or only individuals, to sue to combat lending discrimination. The lower court sided with Miami, but if the high court disagrees, cities deeply affected by the foreclosure crisis will lose this particular avenue for holding banks accountable.

The only case on the docket close to a culture warrior entry this term is Trinity Lutheran Church of Columbia v. Pauley. A Michigan church applied for a grant from Missouri’s Scrap Tire Grant program for assistance resurfacing a playground at its preschool with a safer, rubber top made of old tires. While the church’s grant proposal was well rated, the state ultimately turned it down because the state constitution prohibits direct aid to a church. The church sued, with help from a legion of lawyers fresh off the gay marriage battles. They argue that Missouri’s prohibition, originally conceived as part of an anti-Catholic movement, violates the Establishment Clause of the Constitution, especially when the money was going to a purely secular use.

While this might have been an easy win for the church before the death of Justice Antonin Scalia, who was on the court when the justices took the case in January, the remaining eight-members might not be quite so well-disposed to rule in its favor. Forcing taxpayers to underwrite improvements to church property is in direct conflict with some of the court’s earlier rulings. Critics see a ruling for the church as a slippery-slope sort of argument, leading to compulsory government support of religion, which the Founders deeply opposed. In a sign of how much the court might already have been deadlocked on this case, it still hasn’t been scheduled for oral arguments.

Justice Samuel Alito suggested last spring that the court could use a justice with some experience in patent and intellectual property law. The court proved him right on Thursday, choosing to take up a case on whether disparaging terms can be trademarked. Lee v. Tam involves The Slants, an Asian American dance band that tried to trademark its name. Because some consider the name a slur, the US Patent and Trademark Office rejected the trademark application. The Slants sued and prevailed in the lower court, which found the trademark ban unconstitutional. The most obvious beneficiary of a Supreme Court ruling in the band’s favor, however, would be the Washington Redskins. Last year, a federal judge ordered the patent office to revoke the federal trademark registrations for the team after they were challenged in court by Native Americans who find the NFL team name offensive. A win for The Slants would be a win for the Redskins, too.

And then there are the cheerleading uniforms, which lawyers have called the “most vexing, unresolved question in copyright law.”

And then there are the cheerleading uniforms, which lawyers have called the “most vexing, unresolved question in copyright law.” At issue in Star Athletica v. Varsity Brands is whether a design in a cheerleading uniform can be copyrighted, or whether it’s simply part of the overall uniform, which cannot be copyrighted. The case could have a big impact, of all places, in Hollywood, where intellectual-property fights over movie costume knockoffs are legion. But it also has implications for people who like to dress up as Batman at comic-cons, Civil War reenactors, and 3-D printer aficionados, who rely on creative tweaks to other people’s designs that might become inaccessible to them should those clothing designs become copyrighted.

There’s still hope for some more compelling cases to come before the court between now and next June. On the horizon is the transgender bathroom issue—a case involving a Virginia school board’s decision to ban transgender kids from using the bathroom of their choosing that the court could to hear this term. Also on the docket but not yet scheduled for arguments is a case regarding the constitutionality of North Carolina’s draconian plan to restrict voting. The law has been put on hold until after the election, but the court eventually will have to decide it on the merits.

There’s also the pending Wisconsin “John Doe” case, a political blockbuster involving allegations of criminal campaign finance violations by Wisconsin Gov. Scott Walker, a Republican. The state Supreme Court ultimately stopped the investigation into the alleged violations after several judges refused to recuse themselves from the proceedings, despite having benefited from outside election spending by many of the same groups that were accused of illegal coordination with Walker’s campaign. Documents leaked this month to the Guardian gave credence to the allegations against Walker. The Supreme Court could decide as soon as Monday whether to take up the question of the judges’ recusal.

In the meantime, until the court decides what to do with those more controversial cases, the most media-friendly case of the term could be Fry v. Napoleon Community Schools, a case that shows how public officials can be blind to the optics of their decisions. In 2009, when Ehlena Fry was five years old, Michigan school officials banned her from bringing her goldendoodle therapy dog, Wonder, to class with her. Fry suffers from cerebral palsy, and the dog gave her some measure of independence by opening doors and helping her take off her coat, get out of chairs, and pick up pencils. Fry’s family sued, alleging violations of the Americans With Disabilities Act. The school district fought the case all the way to the Supreme Court, arguing that the family needed to exhaust other remedies before relying on the ADA for relief. Even if the school officials ultimately win this case, they have already lost in the court of public opinion. Just watch this video to see why: