New York Times
Back at Full Strength, Supreme Court Faces a Momentus Term
September 13, 2017
by Adam Liptak
WASHINGTON — The Supreme Court, which was shorthanded and slumbering for more than a year after the death of Justice Antonin Scalia, is returning to the bench on Monday with a far-reaching docket that renews its central role in American life.
The new term is studded with major cases likely to provoke sharp conflicts. One of them, on political gerrymandering, has the potential to reshape American politics. Another may settle the question of whether businesses can turn away patrons like gay couples in the name of religious freedom.
The court will hear important workers’ rights cases, including one on employers’ power to prevent workers from banding together to sue them. Perhaps the most consequential case involves fundamental principles of privacy in an age when cellphones record our every move.
“There’s only one prediction that’s entirely safe about the upcoming term,” Justice Ruth Bader Ginsburg said last month at Georgetown’s law school. “It will be momentous.”
The court returned to full strength in April when Justice Neil M. Gorsuch replaced Justice Scalia after a fight over the seat that lasted more than a year. In the few cases in which Justice Gorsuch participated in the last term, most of them minor, he consistently voted with the court’s most conservative members, Justices Clarence Thomas and Samuel A. Alito Jr.
Justice Gorsuch’s first full term, which will include more than the usual number of blockbusters, will bring his jurisprudence into sharper focus.
At the same time, Justice Anthony M. Kennedy, who is likely to decide closely divided cases as the member of the court at its ideological center, has been drifting left. According to data compiled by Lee Epstein, a law professor and political scientist at Washington University in St. Louis, Justice Kennedy’s voting in the term in which Justice Scalia died, ending last year, was the most liberal of any justice in that decisive central position since the mid-1960s.
Justice Kennedy is 81, and he has signaled that he is considering retirement. Should President Trump name his replacement, the court would almost certainly gain a justice ideologically similar to Justice Gorsuch, leaving it with a solidly conservative majority and thrusting Chief Justice John G. Roberts Jr. into the median position.
The court’s docket may be an embarrassment of riches, but it is also a work in progress. The justices have for now set aside arguments over Mr. Trump’s travel ban while they consider whether the administration’s issuing of a new travel order has made the current challenge moot. And there are major cases on the horizon, including one on whether a federal employment discrimination law protects gay men and lesbians.
“The upcoming term,” said Elizabeth Slattery, a lawyer with the Heritage Foundation, “promises to be one for the history books.”
Justice Ginsburg has singled out one case in the coming term as especially important: Gill v. Whitford, No. 16-1161, which could change the way elections are conducted. Speaking in July at a Duke Law School event, Justice Ginsburg said the court’s decision to hear the case was “perhaps the most important grant so far.”
The challengers in the case, which will be argued Tuesday, are asking the court to rule for the first time that extreme political gerrymandering — the drawing of voting districts to give lopsided advantages to the party in power — violates the Constitution.
Few think partisan gerrymandering is an attractive feature of American democracy. But the Supreme Court has so far never struck down a voting map on the ground that politics played too large a role in how it was drawn.
The decisive vote probably belongs to Justice Kennedy, who has expressed uneasiness about partisan gerrymandering. In 2004, he wrote that he might consider a challenge to the practice if there were “a workable standard” to decide when such tactics crossed a constitutional line.
The challengers in the new case, Democratic voters in Wisconsin, say that they have identified such a standard and that the maps drawn by Republican lawmakers in the state after the 2010 census badly fail it. In a surprising move, several prominent Republicans filed briefs in the Supreme Court saying the same thing.
The Supreme Court will hear a second case on voting rights in November, that one concerning the lawfulness of Ohio’s vigorous efforts to cull its voting rolls.
Federal laws generally prohibit states from removing people from the rolls “by reason of the person’s failure to vote.” Ohio sends confirmation notices to people who fail to vote over a two-year period and then removes them from the rolls if they do not respond and do not vote in the next four years.
Before the appeals court, the Obama administration arguedthat the state had gone further than the law allowed. In an unusual move, the Trump administration switched sidesin the case, Husted v. A. Philip Randolph Institute, No. 16-980, telling the Supreme Court that the relevant laws allowed Ohio to purge its voter rolls.
The court will re-enter the culture wars in a case concerning a Colorado baker who refused to create a wedding cake for a gay couple, saying it would violate his Christian faith and his right to free speech.
The case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, No. 16-111, involves a clash between laws that prohibit businesses open to the public from discriminating based on sexual orientation and claims of religious freedom.
On one side are religious people and companies that say the government should not force them to choose between the requirements of their faiths and their livelihoods. On the other are gay and lesbian couples who say they are entitled to equal treatment from businesses that choose to serve the general public.
The Supreme Court’s earlier decisions and Justice Kennedy’s conflicting impulses about gay rights and free speech make the outcome hard to predict. In 2015, in a majority opinion written by Justice Kennedy, the court established a constitutional right to same-sex marriage, and the court has in recent decades consistently ruled in favor of gay rights.
But the court has also shown solicitude for businesses run on religious principles, as when it ruled in 2014 that some companies could not be required to provide free contraceptive coverage for their female workers. Justice Kennedy voted with the majority.
On Monday, the court will hear arguments about whether companies can use arbitration clauses in employment contracts to prohibit workers from linking together to take legal action over workplace issues.
The Supreme Court has generally favored contracts that require disputes to be resolved informally through arbitration rather than litigation. In cases concerning consumer contracts, like the standard-form agreements used by cellphone and car rental companies, the court has also endorsed class-action waivers in arbitration provisions.
The question for the justices in three new cases, including Epic Systems Corp. v. Lewis, No. 16-258, is whether the same principles apply to employment contracts.
The workers in the cases say employment contracts are different from consumer contracts because the National Labor Relations Act protects “concerted activities” by workers. That language, they say, prohibits class-action waivers.
As in the Ohio case on voter rolls, the federal government has switched sides in the arbitration cases. The Obama administration had supported the workers; the Trump administration will argue on behalf of the employers.
On Thursday, the court agreed to hear a second major case on workers’ rights, one that could deal a sharp blow to public-sector unions. The court deadlocked on the issue in the case after Justice Scalia’s death. Now that it is back to full strength, unions have reason to be nervous.
The question in the case, Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, is whether government workers who choose not to join unions may be forced to pay for the unions’ collective bargaining work.
If the court rules against the unions, millions of government workers in more than 20 states could be allowed to opt out of paying for collective bargaining, depriving unions of vast sums of money and making them less powerful and effective.
A leading candidate for the most important case of the term is Carpenter v. United States, No. 16-402, which will consider the privacy of location data held by cellphone companies.
“This is the most consequential case currently on the court’s docket,” said Kannon Shanmugan, a lawyer with Williams & Connolly. Nathan Freed Wessler, a lawyer with the American Civil Liberties Union, said, “This is the most important Fourth Amendment case we’ve seen in a generation.”
The A.C.L.U. represents Timothy Carpenter, who was convicted in a series of robberies based in part on records provided by his cellular carrier that showed his movements over several months. Mr. Carpenter said that prosecutors’ failure to obtain a warrant for the information violated the Fourth Amendment, which bars unreasonable searches and seizures.
Earlier Supreme Court decisions should give Mr. Carpenter reasons for optimism. The court has limited the government’s ability to use GPS devices to track people’s movements, and it has required a warrant to search cellphones.
A ruling in his favor could revise a fundamental Fourth Amendment principle: that people have no reasonable expectation of privacy when they voluntarily turn over information to a third party like a phone company.