Law & the Courts

A Supreme Court Term for the Ages

(Reuters photo: Carlos Barria)
Even if the ‘travel ban’ doesn’t appear, a slew of major cases will make court-watching great again.

The “Notorious RBG” has become more notorious of late for public remarks unbefitting a sitting federal judge. But Justice Ruth Bader Ginsburg did not reveal anything confidential when she noted the Supreme Court’s upcoming term would be “momentous.” As has been clear for months, the 2017–18 term, which begins Monday, is likely to be among the most consequential in recent memory.

Last year’s term, with the Court short a justice following the death of Antonin Scalia, was relatively sleepy. With the prospect of 4–4 splits preventing decisions in the most difficult and contentious cases, the justices were slow to accept consequential new cases prior to Justice Neil Gorsuch’s confirmation in the spring. This is likely to be seen as “the calm before the storm.”

The Court’s docket is only half complete, but the term is already chock-full of potential blockbusters, including cases on religious liberty, political gerrymandering, and the privacy of cell-phone records. However reticent the Court may have been to take major cases before, the justices are not avoiding anything now.

Those who were hoping for a SCOTUS ruling on the Trump administration’s “travel ban” will likely be disappointed. After the ban expired on schedule this past week and was replaced with a new presidential directive, the Court removed the cases addressing the issue from the oral-argument calendar and asked the parties to brief as to whether the case is moot. In all likelihood, this means challenges to the administration’s immigration policies will have to start over from scratch in the district courts. No matter; there’s plenty else for the justices to do this term.

One of the most significant decisions will undoubtedly come in Masterpiece Cakeshop v. Colorado Civil Rights Commission, which pits religious liberty and freedom of conscience against anti-discrimination laws. This case arose when a baker, Jack Phillips, refused to bake a cake to celebrate the nuptials of Charlie Craig and David Mullins, prompting a complaint to local authorities. Phillips’s decision, the complaint alleged, violated Colorado’s law prohibiting discrimination on the basis of sexual orientation. Phillips, for his part, argued that he has no objection to serving gay customers, but instead objects to participating in an event that is contrary to his religious beliefs. Being forced to bake a cake for a same-sex wedding, Phillips maintains, both requires him to violate his religious conscience and violates his First Amendment right against forced expression.

Masterpiece Cakeshop is tailor-made for Justice Kennedy. The case will likely split the Court down the middle, and it pits two of the swing justice’s most cherished causes against one another. While Justice Kennedy authored the Court’s decisions recognizing same-sex marriage, he has also been the most speech-protective justice on the Court. While he is likely to share Colorado’s concern regarding arguable discrimination against same-sex couples, he is also likely to have misgivings about forcing an artisan to participate in a celebratory event of which he disapproves. As a consequence, it should not surprise if this case divides the Court 4–1–4, with equal numbers of justices supporting the baker and the couple while Justice Kennedy slices the cake in some unique way down the middle.

If the baker wins, it will be because his attorneys will have convinced a majority of the Court that the act of baking and decorating a custom wedding cake entails enough artistic expression to warrant First Amendment protection. This argument is strengthened by the fact that the baker regularly serves homosexual customers and also refuses to bake cakes for other events to which he has religious objections (including Halloween). While the baker’s objections are religious, it’s worth stressing his strongest legal claim is based on free expression, not religious liberty. This is because (under Justice Scalia’s opinion in Employment Division v. Smith) there is no constitutional right to a religious exemption from a generally applicable law, such as a non-discrimination ordinance. (The Religious Freedom Restoration Act essentially overrode Smith in regards to federal law, but it does not apply to state and local laws, and Colorado has no similar law at the state level.)

Because free expression is key to the case, one approach that might appeal to Justice Kennedy (and perhaps the chief justice) is simply to deny that compelled expression is at issue in this case at all. Baking a cake, after all, is not quite a public endorsement of a particular event, so it’s not as if the couple asked Phillips to personally embrace a particular message. One reason this might appeal to Justice Kennedy in particular is that it would enable the Court to affirm the importance of free expression — and the right to refuse to endorse a message with which one disagrees — without appearing to create an exception to civil-rights laws for those who oppose same-sex marriage.

Perhaps the most important case the Court will hear this term (at least according to Justice Ginsburg, who keeps commenting on it) is Gill v. Whitford, in which the Supreme Court will again consider whether partisan gerrymandering of legislative districts violates the Equal Protection Clause. In the past, the Court has held that such claims represent nonjusticiable “political questions” because they cannot be resolved by judicially discoverable and manageable standards, which is a fancy way of saying that judges have no real way to determine when political processes become too political. Justice Kennedy, however, has also suggested he’s open to reconsidering that view, if the right theory is presented in the right case.

The theory offered in Gill is known as the “efficiency gap,” a measure that academics developed to measure the extent to which a given redistricting plan produces more “wasted” votes for one party than another. The “efficiency gap” is an interesting measure, and perhaps better than those that have been tried before, but it’s hard to argue that such a measure is objectively the correct one, let alone that it’s somehow embodied in the Constitution. The question, in all likelihood, will be whether this measure appeals to Justice Kennedy. Notice a pattern yet?

Justice Kennedy is not the swing vote for every case, though. In some, it’s likely to be Justice Gorsuch — in that Justice Gorsuch is the only justice who has not already cast a vote on the issue. This is the case with two immigration-related cases the Court scheduled for reargument this term, in addition to a major case just added to the Court’s docket.

On Thursday, the Court announced it would hear Janus v. American Federation of State, County, and Municipal Employees, revisiting the constitutionality of mandatory union “agency fees” for public-sector employees. Combined with other labor-law cases already on the Court’s docket, Janus creates the real possibility this could be a terrible, horrible, no good, very bad term for organized labor, public-sector unions in particular.

Most court watchers were ready to say goodbye to mandatory agency fees for public-sector unions last term after the Court heard argument in Friedrichs v. California Teachers Association, but the Court deadlocked 4–4 after Justice Scalia’s passing. Thus it was only a matter of time before the Court revisited the question, and it appears that time is now.

In addition to Janus, the Court will begin the term considering the enforceability of mandatory-arbitration provisions in employment contracts. The National Labor Relations Board (NLRB) has held that such provisions constitute an “unfair labor practice” under the National Labor Relations Act. The Obama administration had agreed, but the Justice Department reversed course when Trump took office, agreeing with business groups that such provisions are enforceable under the Federal Arbitration Act. Given the Court’s recent decisions in FAA cases, there’s a decent chance a majority of justices will agree.

New Jersey governor Chris Christie’s efforts to obtain a plum appointment in the Trump administration may have come to naught, but his petition for certiorari was granted by the Supreme Court in Christie v. National Collegiate Athletic Association, potentially the most important federalism case of the term.

Under the Professional and Amateur Sports Protection Act (PASPA), states may not “authorize” gambling on amateur or professional sports events. (Four states — Delaware, Montana, Nevada, and Oregon — are exempted under a grandfather clause.) Despite PASPA, New Jersey lawmakers authorized sports betting under state law, prompting the NCAA and other sports associations to sue.

There’s no dispute that, under current law, the federal government may prohibit sports betting directly. Current interpretations of the Commerce Clause clearly reach this far. At issue in Christie is something slightly different: Whether federal law can require that states maintain their own pre-existing prohibitions on sports betting, as PAPSA seems to. If the justices agree, this case could have significant implications for other contemporary federalism disputes, including those over marijuana and “sanctuary cities,” where states likewise wish to eliminate state-level prohibitions on activity prohibited under federal law.

The biggest criminal-procedure case of the term, Carpenter v. United States, could also have far-reaching implications. Carpenter concerns whether police may obtain cell-site records, which show the general location of cell phones, without a warrant. As a general matter, the police are free to obtain information about suspects from third parties, such as where an eyewitness may have seen a suspect and what the suspect was doing. Therefore, the government argues, they should be able to get equivalent information from cell-phone companies. Yet given the pervasiveness of electronics, this could give the government access to extensive information about the whereabouts of large numbers of private citizens. As with prior cases about cell-phone searches and the use of GPS devices by police, Carpenter will force the justices to consider how traditional Fourth Amendment rules apply to modern technology.

Carpenter is a big deal, but it’s not the only big criminal case. In two other cases the Court just added to the term, the justices will consider the conditions in which police officers may search rental cars (Byrd v. U.S.) and vehicles parked in private driveways (Collins v. Virginia), and the Court is already preparing to split in a new round of death-penalty appeals as well.

Strap yourself in, for this term is going to be quite a ride — and that will be true whether or not (as some predict) Justice Kennedy announces his retirement next spring.

As if all this were not enough, there are also cases about the Alien Tort Statute (Jesner v. Arab Bank) and the permissibility under federal law of state efforts to clean up voter rolls (Husted v. A. Phillip Randolph Institute). The Court is likely to add a few dozen more cases to the docket for this term, including a few of major significance. The constitutional challenge to the structure of the Consumer Financial Protection Board is on its way to the Court, as is a case questioning the constitutionality of the administrative-law judges relied upon by the Securities and Exchange Commission.

Strap yourself in, for this term is going to be quite a ride — and that will be true whether or not (as some predict) Justice Kennedy announces his retirement next spring.

When Justice Gorsuch joined the Court last April, he hit the ground running. With only a few weeks to prepare, he dove right in to the Court’s remaining cases, authoring a striking number of opinions for a justice who had not been on the Court all that long. The other justices may soon be appreciative of their newest colleague’s energy and verve. High-profile cases have the tendency to produce longer and more numerous opinions, so there will be much work to be done. And when the dust settles, we’ll have a good picture of the shape of the new Court and a sense of whether Trump fulfilled his promise of a justice in the mold of Scalia.


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Jonathan H. Adler — Mr. Adler is an NRO contributing editor and the inaugural Johan Verheij Memorial Professor of Law at Case Western Reserve University School of Law. His latest book is Marijuana Federalism: Uncle Sam and Mary Jane.


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