Joseph P. Williams

/ Best Lawyers – Legal Issue 2018

If the Supreme Court’s 2016–2017 term had been a Hollywood film, it would probably garner a middling review on Rotten Tomatoes, the crowdsourced movie rating website.

Defined by drama beyond its control—a Machiavellian Senate power play to keep open the vacancy created by Antonin Scalia’s death, and the surprise-ending presidential election that determined who got to fill it—the court largely avoided sinking its collective teeth into tough cases that might end in a 4–4 deadlock.

There were important decisions on issues such as affirmative action and voting rights, but there weren’t any game-changing cases identifiable in a word or two, like Citizens United, Obergefell, Hobby Lobby, or Shelby County. Yet court analysts say the 2017–2018 term has the potential to be so action-packed it will look like an Arnold Schwarzenegger movie by comparison.

By spring, the high court will determine if gay rights supersede the First Amendment and religious freedom and whether hyperpartisan gerrymandering is a threat to American democracy. It will hear cases involving online sports gambling, privacy rights in the Internet age, and labor unions fighting for survival. It will almost certainly consider President Donald Trump’s decision to ban refugees from Muslim-majority countries from entering the U.S., pitting the nation’s reputation as a safe haven for the oppressed against its national security plans.

As it grapples with those heavyweight issues, the court will continue to adjust to its newest member, Justice Neil Gorsuch, who replaced Scalia in April. Yet it also will contend with speculation about the retirement plans of Justice Anthony Kennedy, a conservative jurist who helped deliver big legal wins to liberals, and whether Trump will get to remake the bench with hardcore conservatives.

“There is only one prediction that is entirely safe about the upcoming term,” Justice Ruth Bader Ginsburg told a Georgetown University law class in September. “And that is, it will be momentous.”

“There’s obviously a lot at stake here,” says Susan Bloch, a Georgetown constitutional law professor and Supreme Court analyst. Writ large, she says, there’s an unintentional yet overarching theme among the marquee cases and other important ones that aren’t yet on the radar screen.

This term, she says, could determine “our [national] sense of democracy and what our sense of equality is.”

The fall term began in October with one of the most closely watched cases on the docket: Gill v. Whitford, a Wisconsin case accusing state Republicans of hyperpartisan gerrymandering of political districts drawn after the GOP seized power in the 2010 midterm elections.

At issue is whether political parties can use powerful computer software to carve out highly favorable legislative districts that all but guarantee they’ll consistently win state legislative majorities. Though the high court has used a light hand on the issue—election winners get to make the rules—the plaintiffs argue that the GOP has manipulated the system so they’ll remain in power even if more people vote for Democrats.

Paul Smith, an attorney and vice president of the nonpartisan Campaign Legal Center, told the court that the situation is “gerrymandering on steroids,” and the judges must intervene. If they fail, he said, “the festival of extreme gerrymandering [unleashed] will be like nothing you’ve seen.”

The Terminator himself agreed: action hero Arnold Schwarzenegger, California’s former Republican governor and an opponent of gerrymandering, was on hand for the arguments and spoke to a rally afterward.

“Let’s say ‘Hasta la vista!’” to a rigged system, he said in October.

The Gill case has an equally significant bookend: Husted v. A. Philip Randolph Institute, a challenge to Ohio’s policy of purging inactive voters from its rolls. At issue is the state’s decision to trim the lists “by reason of the person’s failure to vote”; their failure to respond to official notices or failing to vote during a four-year period.

Proponents of the policy argue it’s vital to help ensure that elections are fair and as a check against voter fraud, but opponents argue it invites mistakes—40,000 people, mostly minorities, were improperly removed from rolls in just one Ohio county in 2015—and is a back-door method of voter suppression in a crucial battleground state.

Another highly anticipated case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, pits an artisan baker’s right to practice his religion—and, he argues, his freedom of expression in crafting high-end cakes—against a same-sex couple’s protection against discrimination.

The case stems from Jack Phillips’ refusal to create a specialty cake for the couple’s wedding reception in Denver. Phillips argues the union of two men violated his religious principles and forcing him to bake for them goes against his First Amendment protections.

But the newlyweds sued and won, leading to Phillips’ appeal before the Supreme Court. The case and others like it prompted lawmakers in red states to pass “religious freedom” laws that would give merchants like Phillips the right to refuse service to people on faith grounds.

The justices must decide “whether or not gays and lesbians are entitled to the same rights” as heterosexuals and if the law allows them to “live their lives free of discrimination,” says Bloch. The outcome, she says, will deliver a message to the gay community, signaling “what they can expect [from the courts] when their rights are challenged.”

Perhaps the most significant case on the fall docket, despite receiving relatively little attention, is Carpenter v. United States, in which the court must decide whether data used to hone in on a cell phone user’s location is protected under the Fourth Amendment.

It centers on an armed robbery suspect who gave FBI agents the cell numbers of his alleged accomplices. Instead of a search warrant outlining why they were suspects, agents got a court order requiring telecom companies to hand over cell tower data with dates and times of calls to and from those numbers, along with the general location of where calls began and ended—information used to identify and capture the rest of the robbery crew.

Lawyers for the suspects argue the FBI’s actions violated their constitutional right against illegal search and seizure of evidence, since the phone records carry an expectation of privacy. If the court rules for the government, it could give authorities broad access to records that reveal someone’s whereabouts or activities at any time, even in places where privacy is expected. That includes at home, behind closed doors.

Though it’s impossible to predict how the court will rule on those cases and others, most court-watchers expect the justices will migrate to their ideological corners. Now that Gorsuch has replaced Scalia, the 5–4 conservative bloc is back at full strength—at least on paper.

All eyes are on Justice Kennedy, who is considered a conservative but has drifted to the center during his decades on the court. As the decisive vote in cases that legalized gay marriage and upheld race-conscious college admissions, for example, Kennedy was lauded as a part-time liberal hero, a bulwark against full conservative control of government.

But during the spring and summer, rumors swirled around Washington that Kennedy plans to retire in the near future. Trump himself fed the rumor mill shortly after taking office.

If Kennedy does hang up his robe, it would trigger a worst-case scenario for liberals.

Trump and the Republican-majority Senate would almost certainly replace Kennedy with a jurist like Gorsuch: a strict conservative handpicked by the Federalist Society, a far-right policy center.

Outnumbered Senate Democrats, stripped of nearly all legislative tools, are powerless to stop the GOP, all but guaranteeing the court will anchor on the right for decades. 

Leonard Leo, Federalist Society executive vice president and the man who shepherded Gorsuch through the confirmation process, says Trump “has an understanding of what’s at stake,” including the court’s need for another “originalist,” “someone who will embrace an ideal [of jurisprudence] based in limited government [power]” and dedicated to the freedom of the individual.

By most accounts, Gorsuch, the most junior of the justices, hit the ground running. Having clerked for the court while he was in law school, Gorsuch has seemed engaged in oral arguments and has staked out a position to the right of Justice Clarence Thomas, formerly the court’s most conservative member.

Given that dynamic, Leo predicts that there’s “a good chance” the court will tilt to the right in most if not all of the marquee cases, including Janus v. AFSCME, a case to determine whether public sector employees who opt out of joining unions must pay “fair share” fees when labor leaders engage in collective bargaining.

Even the court’s liberal bloc has occasionally reached conclusions after viewing the Constitution through an originalist lens, Leo says. Though the Janus case deadlocked the short-handed court last year, he says, Gorsuch likely will make the difference in the outcome—and influence other cases to come.

Quoting a bon mot from Dale Carpenter, a University of Minnesota law professor, Leo summed up his view of how the current session will unfold: “We’re all originalists now,” he said.