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What the New Supreme Court Will Decide

With Justice Kennedy gone, here's a preview of the cases the newly conservative court already has on its docket.

An anti-death penalty protest in 2017 (Brendan Smialowski/AFP/Getty Images)

For the first time in more than 30 years, the Supreme Court will reconvene from its summer recess this fall without Anthony Kennedy. The longtime justice’s retirement this week is a watershed moment for the nation. His successor, who will be a conservative jurist nominated by President Donald Trump, will begin to reshape American law as soon as October.

The court has already agreed to hear 38 cases for its upcoming term. So far, none of them are marquee cases on abortion, gay rights, gun control, or other issues that frequently capture headlines and public attention. Not every case the Supreme Court hears is a blockbuster legal battle, and many are decided unanimously or with large majorities. Nonetheless, the court has already taken up several significant cases that could shed light on a new justice’s thinking.

In its final set of orders for the 2017-2018 term, the court added what could be a major criminal-law case to its docket. In Gamble v. United States, Terance Gamble is challenging his prosecution by federal officials for possessing a firearm as a felon after Alabama had already convicted and sentenced him for the same offense. The Double Jeopardy Clause forbids the government for prosecuting a person more than once for the same offense, but courts have recognized what’s known as the “separate sovereign” exception.

Under that exception, a defendant could be prosecuted by both the state government and the federal government for the same offense. The practice has drawn scrutiny from liberal and conservative justices alike: UCLA law professor Eugene Volokh noted that both Justices Ruth Bader Ginsburg and Clarence Thomas recently questioned the doctrine’s viability. At the same time, ending the separate-sovereign doctrine could reshape when and how federal prosecutors approach cases. This week, for example, the Justice Department brought charges against alleged Charlottesville attacker James Fields Jr., who is already awaiting a state trial in Virginia.

The justices will also scrutinize an area of criminal law that has received significant public attention in recent years: excessive fines and fees. Timbs v. Indiana centers on the tragic story of Tyson Timbs, who began taking opioids after a back injury, became addicted, and eventually moved on to heroin. After his conviction on drug-related charges, Indiana authorities sought to seize the vehicle he recently bought with money from his father’s estate. The vehicle’s value exceeded the $10,000 fine allowed under state law, but the Indiana Supreme Court upheld the seizure.

Almost all of the Bill of Rights’ protections from federal violations of rights now apply to the states after decades of Supreme Court rulings that have extended them, one by one. But the justices have never considered whether the Eighth Amendment’s Excessive Fines Clause deserves the same treatment. If the high court rules in Timbs’s favor, Americans would have greater legal protections against exorbitant fees and fines levied by state and local governments, including the widely condemned abuses of civil asset forfeiture.

Then there are two cases that might bring Native American rights and sovereignty some long overdue public attention. In Herrera v. Wyoming, the justices will hear the case of a Crow Tribe member who was convicted of unlawfully hunting elk in Bighorn National Forest. Hererra argues that he is covered by a treaty his tribe signed with the federal government in 1868 that allowed members to hunt on the “unoccupied lands of the United States,” and that Wyoming’s subsequent admission into the Union didn’t abrogate those treaty rights. The high court’s ruling could affect treaty rights currently enjoyed by members of other tribes that were negotiated before the federal government abandoned treaty-making with Native Americans in the late 19th century.

Royal v. Murphy is a highly unusual death-penalty case in Oklahoma involving the murder of one Creek Nation member by another. Murphy argues that he has to be tried in the federal courts, not in Oklahoma courts, because the crime happened on Creek lands that Congress had never explicitly dissolved in the early 20th century. Oklahoma countered that Congress’s intent to extinguish those lands is clear from its overall treatment of the tribe. The Tenth Circuit Court of Appeals sided with Murphy last year in a ruling with wide-ranging implications for tribal governance over large portions of Oklahoma.

Murphy isn’t the only death-penalty case that the justices will hear next term. In Bucklew v. Precythe, the court will consider a challenge by Russell Bucklew to Missouri’s lethal-injection protocol; Bucklew is a death-row prisoner who suffers from a medical condition known as cavernous hemangioma. Bucklew told the court that he will likely choke and drown in his own blood if executed under the state’s method and asked to be killed by lethal gas instead. It’s the first execution method case to reach the justices since they upheld Oklahoma’s troubled lethal injection protocol in 2015.

The court’s other death-penalty case docketed so far is equally disturbing. Vernon Madison, the defendant in Madison v. Alabama, is set to be executed for killing a police officer and wounding his ex-girlfriend in a domestic dispute in 1985. More than 30 years later, he suffered from a series of strokes that caused severe brain damage. As I noted in February, Madison’s lawyers have told the courts that their client is also blind, wheelchair-bound, and incontinent. He cannot remember the name of the previous president of the United States.

Madison’s case forces the justices to consider whether it is cruel and unusual to execute a man who doesn’t remember committing the crime for which he was convicted. After all, his lawyers ask, what is the state’s interest in putting someone to death who can’t comprehend why he is being executed? Kennedy’s retirement makes it virtually certain that the Supreme Court will not abolish the death penalty for at least a generation, if not longer. Madison and Bucklew’s cases will reveal how much mercy the justices will show to those facing unjust executions until then.

More cases of great and small significance will be added to the court’s docket when the justices return in the fall. The court’s next opportunity to add more cases to its 2018-2019 docket will be in late September during the annual “long conference,” so named because of the backlog of petitions that accumulate during the court’s summer recess. That could yet bring major cases on abortion, LGBT rights, and other politically polarized issues.

Abortion will face the greatest changes after Kennedy’s retirement. The outgoing justices was the last serving member of the three-justice troika that reshaped Roe v. Wade in the 1992 case Planned Parenthood v. Casey, which established the “undue burden” test for state and federal laws on abortion. In the years that followed, he voted with his fellow conservatives to uphold the federal partial-birth abortion ban and some state-level restrictions. At the same time, Kennedy’s presence stymied right-wing efforts to end the practice altogether. He most recently joined the court’s liberals in the 2016 case Whole Woman’s Health v. Hellerstedt to block two Texas measures that would have closed almost all of the state’s clinics.

Groups on both sides of the abortion debate expect the post-Kennedy Supreme Court to adopt a more hostile stance towards the procedure. The court hasn’t directly taken up the issue since Hellerstedt, and there are no major challenges to abortion on the justices’ doorstep at the moment. That could change if Republican-led state legislatures move quickly to pass more onerous barriers for women to obtain the medical procedure. Those barriers could then trigger a lawsuit—from someone trying to obtain an abortion—that could travel to the Supreme Court. A five-justice majority that’s hostile to Roe would then face the question of overturning the 1973 decision outright or restricting the practice until it is all but extinguished in the nation’s more conservative states.

Other major legal battles also loom. In Kennedy’s final weeks, the court punted on major decisions on partisan gerrymandering and religious-freedom exceptions to anti-discrimination laws. After those rulings, the court sent one case on North Carolina’s warped legislative districts and another involving a Washington florist who refused to sell wedding arrangements to a same-sex couple back to the lower courts. After those courts issue new rulings, the cases could go back to a far more conservative Supreme Court than the one they last encountered.