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3 Supreme Court Arguments We're Still (Impatiently) Waiting For

By Casey C. Sullivan, Esq. | Last updated on

With all the attention paid to Neil Gorsuch's Supreme Court nomination, and with no oral arguments scheduled until late February, you could be forgiven for losing sight of the Court's important upcoming cases. But we haven't.

The Supreme Court still has plenty of important and interesting arguments ahead in the coming months. Here are three we're looking forward to.

1. Trinity Lutheran Church v. Pauley: Religious Freedom, Tires, and a Long-Delayed Argument

It's not often than you come across a case involving preschool children, recycled tire scraps, and the wall between church and state. Trinity Lutheran is one of those cases. Alright, it's probably the only such case.

The dispute centers around a recycled tire program in Missouri, where the Department of Natural Resources offers grants to help schools and playgrounds resurface their dangerous floors with safe, Missouri-ground rubber tire scrap.

But Missouri's constitution builds a high wall between the state and religious organizations. So, when Trinity Lutheran Church of Columbia applied for some help resurfacing its playground, the state rejected it. The church sued, arguing that the denial violated its free exercise and equal protection rights.

It's a novel, curious dispute, but it's not a trivial case. As the Eighth Circuit characterized it, a decision on behalf of Trinity Lutheran would be an "unprecedented ruling -- that a state constitution violates the First Amendment and the Equal Protection Clause if it bars the grant of public funds to a church."

Trinity Lutheran promises to be one of the most interesting cases the Court addresses this term -- if it addresses it. The Court granted cert more than a year ago, but has yet to schedule the case for oral arguments.

We're starting to get a bit impatient.

2. Gloucester County School Board v. G.G.: Transgender Students and Bathroom Access

Here's another blockbuster case, but one the public might have heard of before. Gloucester County involves the rights of a transgender Virginia high school student to use the bathroom that comports with his gender identity. The school refused him that right, saying that the student, who was born female but lives and identifies as male, must answer nature's call in the girl's room or, alternatively, a converted broom closet.

After the student sued, a federal court ordered the school to let him use the boys' room. In doing so, it relied on a relatively recent Department of Education interpretation of Title IX that treats discrimination against transgender students as impermissible sex discrimination. Thus, the case touches not just on the hot-button issues of transgender rights and bathroom access, but administrative law, with the school board arguing that the Court should revisit decades' old precedent granting deference to agency interpretations.

If Gorsuch was on the Court, this would be the perfect opportunity to put his criticism of deferential admin law doctrines to the test. But that's unlikely to happen, given that oral arguments are scheduled for March 28th. Nonetheless, even a limited ruling could have wide-ranging impacts, both for administrative law and transgender rights.

3. Murr v. Wisconsin: Remember Penn Central?

It's time to dust off those old property law casebooks, because this upcoming argument has us going back to a classic: Penn Central Transportation Co. v. New York. That's where the Supreme Court announced its regulatory takings test, examining whether restrictions on property interfere with reasonable investment-backed expectations.

But how do you define the relevant property when analyzing such a takings claim? That's the question here. Murr involves two lots in Wisconsin, both contiguous, both owned jointly by the same four siblings, both subject to local zoning regulations limiting what could be done with the land. The Murr family, unhappy with those regulations, sued, demanding compensation for a regulatory taking for at least "all, or practically all," of one of the two parcels.

Penn Central's "parcel as a whole" rule, as well as state law, requires those lots to be treated as one, a Wisconsin court determined. The Murr's Supreme Court challenge contests that. If they're successful, the Court's decision could alter the outcome in many future takings cases, which often depend on a court's characterization of the unit of property analyzed.

Murr, like Trinity Lutheran, is another long-delayed case, having languished since cert was granted in January, 2016. But, unlike Trinity Lutheran, Murr finally has an argument date. The Court announced last Friday that it would hear oral arguments in Murr on March 20th.

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