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5 Surprisingly Undecided Cases from This Term

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By Mark Wilson, Esq. on May 04, 2015 10:53 AM

With the arrival of May comes the disheartening realization that there are going to be no more oral arguments for the October 2014 Term. For the next two months, the justices and their clerks will spend each day busily writing opinions in the 36 outstanding cases from this term.

Going through the list, we were kind of shocked to learn which high-profile cases hadn't been decided yet. Obviously, opinions from March and April cases haven't arrived, but what about these guys, which are still out there past the average 92-day decision period for cases this term?

Zivotofvsky v. Kerry

Remember this one? We do -- at least, from when it was argued in November. The contentious issue in this case is whether it's Congress or the president who gets to decide whether a person born in Jerusalem gets to have "Israel" listed as his birthplace on a U.S. passport (as Congress wants), or whether it has to be "Jerusalem" (as the State Department requires). It's no surprise that, six months on, this case still hasn't been decided, as it presents weighty separation of powers issues.

Comptroller of Maryland v. Wynne

Unlike every other state, Maryland doesn't give residents county tax credits on income they earn in other states. "That is, Maryland collects the county component of its tax on 100% of its residents' incomes, no matter where that income is earned or whether it is taxed elsewhere," explains SCOTUSblog. Taxpayers contended this violated the dormant commerce clause by unduly penalizing residents who earn out-of-state income. (Only two cases from November have yet to be decided, not counting Johnson v. United States, which was re-argued in April.)

Elonis v. United States

In the run-up to the oral arguments in December, everyone was buzzing about this case of Facebook threats. Though Elonis advanced the defense that his very directed, objectively threatening statements were just his poor attempt at writing rap lyrics, we didn't think the Court would see it that way. Deciding against him in this case won't be a loss for the First Amendment. (This is the only outstanding case from December.)

Reed v. Town of Gilbert

After oral argument in January, it looked like the Court didn't buy the argument of Good News Community Church that municipalities have to treat all signs the same. "Justice Anthony M. Kennedy, for example, reacted with apparent astonishment that anyone would argue that a sign saying 'Happy Birthday, Uncle Fred' should have the same legal stature as, say, a sign pointing to 'Birthplace of James Madison,'" wrote SCOTUSblog. Even though a church was involved, the justices still suggested that political speech is more important than a sign providing directions to the church.

Texas Dept. of Housing v. The Inclusive Community Project

This case will determine -- finally -- whether disparate impact claims can be brought under the Fair Housing Act. While it seemed clear at oral arguments in January that liberals would vote to allow disparate impact claims, SCOTUSblog was surprised to see that Justice Scalia appeared to be amenable to letting disparate impact claims through. (Five cases from January are yet to be decided.)

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