Washington Post
October 1, 2017
By Robert Barnes
The Supreme Court opens its new term Monday. (Matt McClain/The Washington Post)
The Supreme Court begins its new term Monday with a fortified conservative majority and a docket filled with some of the moment’s most contentious issues: voting rights, religious liberty, protection from discrimination and privacy in an increasingly monitored society.
The court was shorthanded for more than a year after the death of Justice Antonin Scalia in February 2016 and responded by largely avoiding controversial topics and compromising to reach narrow, consensus decisions.
Now, with Justice Neil M. Gorsuch not only filling Scalia’s seat but also matching his conservative ideological role on the court, the court is back to its full nine members and has a docket that will test harmony.
“We’ve heard the last term described as the calm before the storm,” said Ian Heath Gershengorn, who was acting solicitor general under President Barack Obama. “I think we may get to see the storm in this next sitting.”
Justice Ruth Bader Ginsburg told Georgetown University law students recently: “There is only one prediction that is entirely safe about the upcoming term, and that is: It will be momentous.”
A trio of cases that will probably be heard before the end of the year form the nucleus. At issue:
● Whether the court for the first time will find that a state’s electoral districts were gerrymandered with such a partisan skew that they violate the Constitution.
● Whether prosecutors must seek a judge’s permission before securing cellphone tower records that contain months of details about a person’s whereabouts.
● Whether a wedding vendor whose religious beliefs do not condone same-sex marriage must comply with a state law that prohibits discrimination based on sexual orientation.
David Cole, legal director of the American Civil Liberties Union, was referring to those three cases when he said, “At the broadest level, the court has cases that will shape the future of democracy, privacy and equality.”
But beyond examiningthe rulings, those who study the Supreme Court will be evaluating how the nine justices — Gorsuch joined the court in April at the end of its oral arguments — conduct themselves in their first full term together. With every new justice, the late Justice Byron R. White liked to say, it’s a new court.
“I’m going to be watching early on to see how the court reintroduces itself back to the country in the midst of the current political spitballing otherwise enveloping Washington,” said Jeffrey L. Fisher, a Stanford law professor who frequently argues cases before the Supreme Court. “Will the court present itself as the grown-ups in the room, or will it, in a sense, join the ideological battle?”
He added: “No governmental institution has a more profound interest in preserving its own legitimacy and the overall concept of separation of powers.”
Perhapsbecause Americans are comparing the court with the combustible President Trump and the gridlocked Congress — both with approval ratings underwater — a recent poll shows the public’s trust in the federal judicial branch increasing to 68 percent.
For the first time in nearly a decade, more Americans (30 percent) think the Supreme Court is too conservative than think it is too liberal (23 percent), according to Gallup. The pollsters say Americans’ perceptions of the ideological leaning of the court are probably influenced by the president’s political party and the justices he appoints.
Justice Anthony M. Kennedy remains the court’s pivotal justice; last term, he was in the majority 97 percent of the time, more than any other justice. He is likely to be the deciding vote in the partisan gerrymandering case and the case of the baker who refused to make a cake for a gay couple, as well as in a host of other disputes.
Kennedy most often sides with the court’s conservatives, and it is almost always true that liberal victories are possible only with his help.
There will be two compelling questions about him this term.
One is whether it will be his last term. There were (mostly unsubstantiated) rumors that Kennedy, 81 and the court’s longest-serving member, considered retiring last term. If this is it, it could affect how hard interest groups push to get issues on the court’s docket now.
“I think there are a lot of people who are trying to get cases to the court because they think this is a court that is more favorable to their positions than would be there if they let the issues percolate longer,” said Pamela S. Karlan, co-director of the Stanford Supreme Court Litigation Clinic.
One example: whether federal anti-discrimination protections cover sexual orientation, an issue on which lower courts are divided. Kennedy has written all of the court’s major gay rights decisions.
There is also the question of whether Gorsuch might have an effect on Kennedy, for whom he clerked in 1993-1994. It’s the first time a clerk has joined a former boss on the court.
“Perhaps the most interesting and impactful question going into this term is whether Justice Gorsuch will succeed as others haven’t in holding his former boss in a firm conservative majority or whether a strong, new conservative voice on the court in a Justice Gorsuch might actually push Justice Kennedy to the left,” said Gregory G. Garre, solicitor general under President George W. Bush.
For his part, Gorsuch in a recent law school appearance denied any special insight. “As far as reading his mind — I don’t purport to read any of my colleagues’ minds,” he said. “I read their opinions.”
Based on the scant evidence from last year’s term, Gorsuch seemed more ideologically aligned with justices Clarence Thomas and Samuel A. Alito Jr., the court’s most conservative members. “The budding bromance” between Gorsuch and Thomas bears watching, said Washington lawyer Helgi C. Walker, a former Thomas clerk.
The third major player this term will be Chief Justice John G. Roberts Jr. “He may have the most difficult job,” Garre said. “After a year-and-a-half period in which the justices seemed to go to extraordinary lengths to achieve some form of consensus, the environment is ripe for internal friction if the court falls back into a more conventional 5-4 lineup in the biggest cases.”
Also looming: Trump. The court has put aside for now a scheduled oral argument on the president’s executive order banning travel from six mostly Muslim countries, since a new order was put in place last month.
But a confrontation between Trump and the court feels inevitable to Stanford’s Fisher.
“Perhaps at first only in a tweet but perhaps also ultimately in some kind of refusal to abide by a court decision,” he said. “Such a moment would bring a dramatic constitutional showdown of the sort not seen at the federal level for almost 200 years, or even at the state level since desegregation battles of the mid-20th century.”
The court will accept cases through January to fill out the term’s docket. These are some of the most important ones that have been accepted:
Masterpiece Cakeshop v. Colorado Civil Rights Commission
Baker Jack C. Phillips in 2012 refused to create a wedding cake for a reception that Charlie Craig and David Mullins had planned to celebrate their wedding in Massachusetts. Phillips told the couple that his religious beliefs did not allow him to participate in a celebration of same-sex marriage.
The civil rights commission and a Colorado court found that Phillips had violated a state law requiring businesses serving the public not to discriminate based on, among other things, sexual orientation.
The Trump administration is backing his claim that his cakes are an artistic expression and that forcing him to comply would violate his right to free speech. The state, however, says that the cake is not his speech and that an observer would see only that Phillips is complying with the law.
Gill v. Whitford
Did the Republicans in control of Wisconsin’s legislature and governor’s office draw election redistricting maps so skewed in the party’s favor that they violate the Constitution?
While the Supreme Court regularly makes states redraw maps that are found to be racially gerrymandered, the justices have never agreed on a standard that would disallow extreme partisan gerrymandering.
The last time the court considered partisan gerrymandering, four justices said the task of adjudicating the practice was impossible. The challengers to Wisconsin’s plan believe they’ve found a standard that could work.
It will probably be up to Kennedy as to whether they are right. A ruling against partisan gerrymandering could have enormous consequences for how the nation conducts elections.
Carpenter v. United States
In perhaps the court’s most important case involving technology and privacy, the justices will consider whether prosecutors need a warrant to gain access to cellphone tower records that can trace a person’s movements.
Timothy Carpenter was convicted of nine armed robberies around Detroit in part because prosecutors used the records to show that he was in the vicinity of the crimes at the time they were committed.
Privacy advocates say prosecutors should have to show a magistrate that they have enough probable cause to obtain a warrant. But the government says the records are important and, under a1986 federal law, no warrant is necessary.
The outcome could have great consequences for digital privacy.
Epic Systems Corp. v. Lewis (plus two other consolidated cases)
The first case of the term asks whether employers can force workers to settle disputes through individual arbitration, rather than collectively.
The Obama administration sided with workers, saying forced arbitration clauses are illegal under the National Labor Relations Act of 1935, which grants employees the right to “concerted activities.”
But the Trump administration switched sides after the court granted the case, saying the companies were correct under the Federal Arbitration Act of 1925.
Jennings v. Rodriguez
An evenly divided Supreme Court could not decide last term whether noncitizens who are scheduled to be deported can be kept in jail indefinitely or whether they must receive a bail hearing after six months.
The U.S. Court of Appeals for the 9th Circuit came up with the six-month requirement and said the potential deportees had a right to bail if they pose no danger to the public and are unlikely to flee. The government said noncitizens can have no such expectations.
The case was scheduled for reargument, and Gorsuch presumably will cast the deciding vote.
Husted v. A. Philip Randolph Institute
This case concerns how states remove voters from their rolls to keep them current.
Ohio removes voters who have been inactive and then fail to respond to notices from the state over four years.
But an appeals court agreed with civil rights activists who said the practice violates federal law, which says registration cannot be canceled for “a failure to vote.”
This is another case in which a change in administration has altered the Justice Department’s view. The department now supports Ohio.
Christie v. NCAA
This long-running case will determine whether New Jersey can allow sports betting at its casinos and racetracks.
The state is challenging a federal law that limits such betting to Nevada, and a ruling for New Jersey could open betting to other states.
Janus v. AFSCME
The Supreme Court said 40 years ago that states could require public employees to pay a fee to unions to cover the cost of collective bargaining to prevent workers from reaping the benefits without sharing the cost.
But conservatives say that forces workers to pay for speech with which they might disagree.
The court appeared ready to overturn its precedent in 2016. But Scalia’s death meant there were no longer five justices to make a majority. The new case would mean Gorsuch casts the deciding vote.
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