An evenly divided U.S. Supreme Court returns from its summer recess on Monday to confront a long list of thorny issues, including the death penalty, separation of church and state and several cases involving race. But just how far the justices are willing to go in those and other cases will likely hinge on the outcome of the presidential race.

The death last year of Justice Antonin Scalia left the court split 4-4 between liberals and conservatives. President Obama nominated a replacement for Scalia -- federal appeals court Judge Merrick Garland -- but the Republicans who control the U.S. Senate have declined to consider him until at least after the presidential election.

Since Scalia’s death, the court has been deadlocked on contentious cases involving issues like public-sector unions and Obama’s executive action on immigration. In other cases, the justices have issued narrow rulings to close cases without issuing broad new policies.

Until Scalia’s vacancy is filled, legal experts expect the court to continue to shy away from major controversies.

Lisa Soronen, executive director of the State and Local Legal Center, said the high court has taken a “slightly lower but not hugely lower” number of cases this year. The real difference may be in the types of cases the court has accepted. In any given term, about 20 percent of opinions might be split 5-4. With only eight justices, “I think they've been filling it with cases where they think they can resolve issues," she said.

But there’s still plenty at stake.

“Even in a more dull or non-exciting Supreme Court term, state and local governments have a lot of cases that affect them," said Soronen.

These are the most important for states and localities:

Separation of Church and State

A Missouri case could determine whether states can exclude religious institutions from public funding for an “otherwise neutral and secular aid program.”

The dispute could have national implications because about three-quarters of states, including Missouri, have a provision in their constitutions that prohibits direct government aid to educational institutions with a religious affiliation.

In the case, a Missouri agency denied a grant application for materials to resurface a school playground owned by Trinity Lutheran Church. The church argues that by denying it the money, the state violated the First Amendment’s protections for the “free exercise” of religion and the 14th Amendment’s guarantees of equal treatment under the law.

Missouri, on the other hand, says no constitutional violation occurred.

“As the text of the First Amendment shows, the government must ensure that the exercise of religion remains unrestrained, but that does not mean the government must pay the church’s bills,” its lawyers wrote.

Death Penalty

A case out of Texas examines whether a state appellate court should have followed current medical standards in deciding whether someone facing a death sentence had an intellectual disability.

The Supreme Court already ruled in 1992 that, under the Eighth Amendment, states cannot execute someone with an intellectual disability. But it did not clarify what measures states can use to make that decision.

Texas used a definition from the early 1990s, but attorneys for Bobby Moore -- who was convicted of killing a 75-year-old supermarket employee with a shotgun -- claim that he would be ineligible for capital punishment if Texas instead used current clinical definitions from the American Psychiatric Association and American Association on Intellectual and Developmental Disabilities.


The justices will also grapple with two redistricting cases -- one from North Carolina and the other from Virginia -- that deal with the appropriate standards for accounting for voters’ race when drawing new congressional or legislative districts.

It's a topic that has long vexed the high court as well as the lower courts and state legislators who must follow the Supreme Court’s rulings.

On the one hand, the federal Voting Rights Act requires maps to ensure that large blocs of minority voters who tend to vote together must have the power to elect their own representatives. On the other hand, the high court has also ruled that states cannot gerrymander districts strictly on the basis of race, especially if that means that they are “packed” into a district to reduce their overall influence.

The redistricting cases before the high court so far this term involve North Carolina’s congressional map, which was struck down by a federal appeals court, and Virginia’s state legislative districts, which were upheld by a lower court. They both deal with situations in which minority groups claim Republican lawmakers impermissibly packed black voters into a few districts in order to reduce their overall strength in the state.

GOP officials in both cases say they used nonracial criteria (such as party affiliation) to craft the disputed districts. The cases are McCrory v. Harris and Bethune-Hill v. Virginia State Board of Elections.

Cases with such partisan implications could easily lead to a deadlock. But Justice Anthony Kennedy, a moderate conservative, sided with the court’s liberal bloc in an Alabama redistricting case decided last year, leaving open the possibility that the left-leaning justices could find another majority in the current redistricting cases as well.


Beyond politics, race plays a role in several cases this term.

A lawsuit brought by the city of Miami against Wells Fargo and Bank of America deals with the practice of “reverse redlining.”

Miami claims the banks targeted black and Hispanic customers for higher-risk loans, which came with higher fees and led to higher foreclosure rates. As a result, Miami argues that the practice cost the city tax revenue and lead to higher costs for public safety and human services.

At issue is whether Miami has standing to sue for those damages under the Fair Housing Act. The trial judge ruled that it did not, but an appeals court disagreed.

In another case in Colorado, a Hispanic man convicted of sexual assault is asking for a new trial after two jurors said that one of their fellow jurors made several disparaging remarks about Mexican men during the jury deliberations.

The defendant claims that those comments deprived him of his right to a fair trial, as guaranteed by the Sixth and 14th Amendments. But a majority of the Colorado Supreme Court rejected the argument because of a law that bars testimony from jurors about their secret deliberations.

Such “no impeachment” rules are common among states.

Other cases on the court’s docket include:

  • A dispute over a New York law (which is similar to laws in nine other states) that prevents retailers from adding a surcharge for customers who pay with credit cards. New York officials say its law does allow sellers to offer discounts to customers who pay in cash, though. The plaintiffs in Expressions Hair Design v. Schneiderman say the law violates the First Amendment because it regulates how the retailers characterize their prices. But an appeals court upheld the law, concluding that it simply required retailers to charge credit card users the advertised price on their goods
  • A lawsuit by an Illinois man who was jailed for 47 days on drug charges, even after lab tests came back negative. Manuel v. City of Joliet could clarify the rules for malicious prosecution lawsuits. 
  • A case, called Fry v. Napoleon Community Schools, brought by the family of a girl with cerebral palsy whose school prevented her from bringing a service dog to class. The question centers on whether the family needed to exhaust its administrative options before filing a lawsuit. 
  • An action brought by deaf and hard-of-hearing students against the Texas Education Association over the availability of driver’s education courses for deaf and hard-of-hearing students under 25. The plaintiffs in Ivy v. Morath claim the state agency controls nearly all aspects of driver’s education and, thus, should ensure that students with disabilities are accommodated in those courses.
  • A dispute involving four Wisconsin brothers who argue that the state took land away from their family when it rezoned two neighboring properties as one property. By doing so, the state prevented the brothers from developing and selling the parcels separately. The brothers argue that the state regulation made half of the parcels “economically useless” and they should be compensated for the loss. The Wisconsin Court of Appeals ruled that there was no “taking” because the family had retained significant value even after the properties merged.