Supreme Court Cases to Watch

— -- The Supreme Court begins its 2016 term on Tuesday. The currently eight-member court appears to be avoiding divisive cases on which the justices are likely to split 4-4, so the docket is heavy with intellectual property and criminal law cases (two areas where the justices don’t always split along predictable ideological lines). Here are six cases we’ll be watching closely:

Buck v. Davis

The case: Duane Buck was convicted of murder in Texas. At his sentencing hearing, his own lawyer called an expert witness who testified that he was more likely to be dangerous in the future because he was black. The jury ultimately sentenced Buck to death.

This same expert was used in multiple other cases, often making the same point about the increased dangerousness of black and Hispanic defendants. Several years ago, Texas conceded that this testimony was improper and announced that it would not fight resentencing efforts in cases featuring this expert. But in Buck’s case, Texas continues to argue that Buck has forfeited his right to a new sentencing hearing.

Issue: Were Buck’s trial lawyers constitutionally ineffective in calling a racially biased expert, and if so, should Buck be granted a new sentencing hearing?

Significance: This case raises important questions about racial bias in determinations of guilt and punishment.

Moore v. Davis

The case: Bobby Moore was convicted of murder in Texas and sentenced to death. A trial court later ruled that he was intellectually disabled and thus ineligible for the death penalty. But the Texas Court of Criminal Appeals reversed that ruling, on the grounds that the trial court hadn’t used the right test — a test Moore argues consists of outdated medical standards and nonclinical factors.

Issue: Does the Constitution require the use of current medical standards in determining intellectual disability for purposes of the death penalty?

Significance: Nearly 15 years ago, the court announced that the Constitution forbids the execution of individuals with intellectual disabilities. But the court left the definition of intellectual disability to the states. This case is the court’s second foray into the meaning of intellectual disability since 2002.

Pena-Rodriguez v. Colorado

The case: The defendant in this case was convicted of unlawful sexual contact. After his conviction, two jurors reported that a third juror, a former police officer, said during deliberations, “I think he did it because he’s Mexican. Mexican men take whatever they want.” That juror cautioned the other jurors not to believe the testimony of a witness for the defense who was an undocumented immigrant. Pena-Rodriguez now seeks a new trial.

Issue: Does a rule prohibiting juror testimony about confidential deliberations undermine the constitutional guarantee of an impartial jury?

Significance: Like Buck, this case is fundamentally about racial bias in determinations of guilt and punishment — and whether courts must address the issue of bias even in the face of procedural obstacles.

Lee v. Tam

The case: At the center of this case is a rock band that attempted to register the name the Slants but had its application denied by the Patent and Trademark Office on the grounds that the term disparages Asian-Americans, in violation of a law that prohibits trademarks that disparage “persons, institutions, beliefs or national symbols.” The band challenged the denial and won on appeal to the federal circuit, and the federal government petitioned the Supreme Court for review.

Issue: Does federal law’s disparagement prohibition violate the First Amendment?

Significance: The decision here will likely affect not just this case but also the Washington Redskins’ trademark case, which is currently in the lower courts.

Trinity Church of Columbia v. Pauley

The case: Trinity Church, which operates a preschool and day care, was denied access to a state program that resurfaces playgrounds with recycled tires; the denial was based on a state constitutional provision that prevents public funds from going to religious entities. Trinity argues that this provision violates the federal Constitution’s free exercise and equal protection clauses

Issue: Whether a state program that excludes religious entities violates the federal Constitution.

Significance: What the court says here could have broad implications for the eligibility of religious entities for government programs. The justices took this case quite some time ago, so the fact that it has not been set for argument has led to speculation that the justices maybe holding it until a ninth justice is in place.

Salman v. United States

The case: The defendant in this case, Salman, received information thirdhand from a corporate insider to whom he was related by marriage. Salman, who was convicted of insider trading and sentenced to three years, argues that a recipient of confidential information (a tippee) can’t be liable for insider trading unless a corporate insider (a tipper) receives some monetary benefit in exchange for the information.

Issue: When confidential corporate information is passed from an insider to a relative, friend or business associate, what sort of benefit must the insider receive in order to give rise to liability?

Significance: Federal prosecutors and corporate lawyers are watching this case closely. The future of insider trader liability may turn on it.