Virginia and the Nation’s Highest Court

June 16th, 2016

Over the past year, Virginia has repeatedly found itself center stage before the United States Supreme Court. In notable cases including McDonnell v. US and Wittman v. Personhuballah, Virginia politics — and politicians — figure greatly, drawing national attention.

In McDonnell, our former governor is appealing his convictions from his highly publicized influence peddling trial, arguing that the government stretched the meaning of the criminal statutes beyond fair understanding. During oral argument before the Supreme Court in late April, several of the justices appeared sympathetic to McDonnell’s arguments. Because this case has substantial potential impact upon the conduct of government officials nationwide – and indeed, could mean prosecutions for any number of public officials over acts that have already occurred – the court’s ultimate ruling will be anxiously anticipated in many quarters.

In Wittman, the Court reviewed a trial court’s ruling that Virginia’s 2013 congressional redistricting plan was unconstitutional due to its packing of minorities, especially African-Americans, into a limited number of districts. Attorney General Mark Herring, a Democrat, elected not to defend the districts, which had been drawn by the Republican majorities in the General Assembly. In the absence of an appeal by the state itself, several Republican congressmen filed to intervene and then appealed in an effort to save the General Assembly plan, but the Supreme Court refused them. The court did not actually weigh in on whether the General Assembly’s plans met constitutional requirements; instead, it side-stepped the main issue by holding that the congressmen did not have the right to maintain the appeal themselves. The result is that the decision by the Attorney General ultimately determined the outcome, and Virginia will see districts newly crafted by the federal trial court in effect beginning this November.

On the horizon, Virginia may well return to the Supreme Court’s docket in a case working through the lower courts involving one of the bathroom-related suits brought by transgender advocates. A federal trial court judge denied a transgender student’s request for a preliminary injunction against the Gloucester County School Board, but a three-judge panel of the Fourth Circuit Court of Appeals overturned that ruling, holding that the trial judge had improperly excluded certain evidence from consideration. The school board sought review by the full Court of Appeals, but was turned away. As of May 31, the case has been returned to the trial judge with instructions to continue proceedings on the student’s claims. Since recent decades have seen virtually all of the nation’s controversial social issues ultimately laid at the doorstep of the Supreme Court for determination, it may well be only a matter of time before the Gloucester student’s case provides the vehicle for the inevitable presentation of this issue to the court.