On Friday, Pacific Legal Foundation and National Review Institute held their annual preview of the new Supreme Court term. I moderated a discussion with three of the country’s top lawyers: Ginger Anders, Michael Carvin, and John Elwood. The video is now online.
The pending case that occasioned the most conversation was, inevitably, Masterpiece Cakeshop v. Colorado Civil Rights Commission, for which my mental label is “the bake me a cake, or else case.” Elwood suggested that the history of the case, and similar cases, suggests a reluctance on the part of the conservative justices to take up the issues they raise. He pointed to Justice Kennedy’s dissent in Hill v. Colorado as a portent of how he might rule. Kennedy had previously voted to keep opponents of abortion from being able to use the democratic process to enact their preferred policies. But he insisted that they be allowed to express their views. The parallel to his view of marriage policy is a hopeful sign for the baker. Anders speculated that the history of religious objections to civil-rights laws would weigh on Kennedy: It would be tricky to carve out an exception that treated protections for gays and lesbians differently than protections for racial minorities. One way around that problem, said Carvin, would be to note that the baker had a history of working for gay customers–just not of doing anything he construed as an endorsement of same-sex marriage.
The Janus case on public-sector unions (discussed last week on NRO) drew a consensus: The unions were going to lose their bid to keep collecting dues from non-members. Carvin noted that further litigation could arise as the Court considered whether it would be enough for public-sector employees to be able to opt out of dues. It could rule in a future case that an opt-in system was necessary. In this year’s case, though, all agreed that Justice Gorsuch was likely to vote the same way Justice Scalia was expected to vote before he died. Elwood speculated that the case could, however, end up being decided on narrow grounds.
Carvin walked through the history of Supreme Court cases on political gerrymandering, arguing that the case being argued today—Gill v. Whitford—presented the same old issues in new dress. Kennedy has kept looking for a judicially manageable standard for deciding which redistricting plans to allow and which to bar. Carvin argued that none would be found because none could be. (I write about the case at Bloomberg today. Short version: Carvin is right, and the Supreme Court should stay out of this area.)
A last high-profile case drew another consensus: All the panelists agreed that Carpenter v. United States is the most important Fourth Amendment case in years. It concerns whether law enforcement has to get a warrant to get several months’ worth of cell-phone records revealing a phone user’s movements. It’s an issue that could break the usual left/right lines on the Court.
Check out the video to hear about several other important cases. Many thanks to Anders, Carvin, and Elwood, and to Jones Day for hosting the event.