If last year’s Supreme Court term was so dry of interesting cases that it looked like a desert, this term, which opens Monday, already looks like a tropical rainforest. And the justices are only halfway to filling up their docket.
Already scheduled are major test cases on a raft of controversial issues such as partisan gerrymandering, privacy in an age of technology, sports betting and much more, including a case that pits the right of a same-sex couple to buy a specially created wedding cake against the right of a cake creator and his bakery to refuse.
Justice Ruth Bader Ginsburg recently predicted the term will be “monumental.”
It will be the first full term with the court’s newest justice, Neil Gorsuch, on the bench. It will also be a term undoubtedly marked by increasing speculation about Justice Anthony Kennedy’s retirement plans. In many of the most hotly contested cases that reach the court these days, Kennedy’s vote determines the outcome because the court is so closely and ideologically divided.
Were the 81-year-old justice to retire, giving President Trump the chance to appoint a second hardcore conservative, the court would swing dramatically to the right.
Cases to watch
Perhaps the highest visibility case before the court involves Masterpiece Cakeshop in Lakewood, Colo. In 2012, a same-sex couple went to the bakery to order a cake for their upcoming wedding reception. The owner of the shop, Jack Phillips, told them that he was perfectly willing to sell them a cake off the shelf, but he would not create a cake for their wedding celebration. He said his policy was based on religious convictions and that he did not create cakes for Halloween either.
The bridegrooms filed a discrimination claim with the Colorado Civil Rights Commission, charging that Phillips had violated the state public accommodations law, which bars discrimination on the basis of sexual orientation. The Commission ruled in their favor, as did the state supreme court. Phillips appealed to the U.S. Supreme Court, which will hear the case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, later this fall.
Phillips’ main argument is that as a cake creator, he has a First Amendment right of artistic expression, and thus a right to refuse to use his talents in support of gay marriage.
On the other side, the couple says that Phillips’ arguments are a pretext for discrimination. They point to cases back in the 1960s involving similar small vendors — like a drive-in barbecue chain in South Carolina — which refused to serve African-Americans based on the owner’s stated religious opposition to mixing races. In that case too, the owner claimed a sort of artistic bent, through his special barbecue recipe.
Former Solicitor General Gregory Garre says that Phillips and his lawyers have done an effective job of converting a gay marriage case into a test of free speech. “But on the other side,” he observes, “is a very exceptionally compelling narrative of our history as a society, the public accommodations law, sort of the crown jewels of the Supreme Court’s civil rights decisions.”
The big political case of the term, so far, tests whether extreme partisan gerrymandering is unconstitutional. In Gill v. Whitford, the state of Wisconsin denies that the Republican legislature engaged in extreme redrawing of legislative district lines to perpetuate the party’s power. It also argues that regardless of how partisan a gerrymander may be, the courts should stay out of such political questions. The case is to be argued this week.
Later in the fall, the justices will hear a privacy-versus-technology case, Carpenter v. United States. It tests whether law enforcement authorities have to get a search warrant in order to get cell site location information that in this case led to the apprehension and conviction of an armed burglary ring. Because cellphone providers have long retained general location information for calls made and received, police have been able to get that general location information by obtaining, not a search warrant, but a court order for the company’s business records that is much easier to obtain.
Just how the court answers the questions in the case will determine not only how law enforcement may access cell tower site and sector location information, but whether other such location information — for instance, about texts and email — can be similarly obtained from service providers.
George Washington University law professor Jeffrey Rosen notes that this case for the first time forces the court to confront whether law enforcement can track someone’s public movements for months on end, without a search warrant. “And the answer to that question,” he warns, “will determine whether tiny drones can fly in the air and follow us from door to door and reconstruct our movements for a month, whether other forms of ubiquitous surveillance are permissible.”
However, as University of Chicago law professor Aziz Huq observes, “it’s extremely unappetizing from the court’s perspective to imagine a world in which the government needs probable cause every time it obtains any kind of data about a person from a third party.”
There is a case that tests whether the federal law banning sports betting unconstitutionally commandeers the states into carrying out a federal mandate. The case, Christie v. National Collegiate Athletic Association, is from New Jersey. The state wants to repeal its ban on sports betting, but cannot do so under federal law. On one side is New Jersey Gov. Chris Christie, and on the other, every major sports league in existence.
Then too, there are a variety of challenges to the labor movement and labor unions this term. The tea leaves in these cases do not read well for unions.
For instance, after the death of Justice Antonin Scalia, the court deadlocked on the question of reversing a decades-old decision of critical importance to public employee unions, and likely private unions as well. In 1977, by a 6-3 vote, the high court ruled that non-union members in a unionized shop of public employees can be required to contribute partial dues to cover the costs of negotiating a contract that will benefit them too. For the last several years, the conservatives on the current court have been trying to reverse that decision. It is highly likely that with Justice Gorsuch now on the court, that day is near in Janus v. American Federation of State, County, and Municipal Employees, Council 31.
As University of Chicago law professor Daniel Hemel put it, “It’s been a bad decade, really a bad quarter century for the labor movement at the Supreme Court. I think this will be a particularly bad year in that bad quarter century.”
As for the Trump travel ban, that seems to be off the Supreme Court’s table, at least for now. Arguments in the consolidated cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii, had been scheduled for October 10, but the justices canceled the hearing after President Trump issued a new travel ban a week ago, making the issues presented in the previous ban arguably moot. A formal disposition of the current case will likely come later this month, but stay tuned. There certainly will be challenges to the new travel ban.