If last term was the relatively quiet “calm before the storm”for the U.S. Supreme Court, then get ready. The clouds are gathering.
The term beginning Oct. 2 is front-loaded with arguments in marquee cases on the President Donald Trump travel ban and partisan gerrymandering, as well as key business disputes ranging from arbitration and labor law to corporate liability for wrongdoing abroad.
“We can safely predict that next term will be a momentous one,” Justice Ruth Bader Ginsburg said in late July before Duke Law School students in Washington.
“There are more blockbuster cases scheduled for October alone than there were all of last year,” said Kannon Shanmugam, head of Williams & Connolly’s Supreme Court and appellate litigation practice. “When all is said and done, this could be the most consequential term yet for the Roberts Court.”
It is also the first full term of the Trump era, and cases challenging White House policies from sexual orientation discrimination to immigration are already making their way to the court. The change in administration also intensifies the importance of a potential vacancy, especially if a liberal justice departs.
All eyes will be on Trump appointee Justice Neil Gorsuch who will enter his first full term. Will he be a predictable ally for the president who appointed him? And how does the term shape up for veteran Justice Anthony Kennedy who remains, at least for now, as the swing justice whose vote counts the most.
“Will this be Anthony Kennedy’s valedictory to the left, or a last-ditch effort to assuage the right?” asked Josh Blackman, associate professor at the South Texas College of Law Houston, and a prolific conservative author and blogger about the court.
Key Cases, Key Votes
The answer on Kennedy may come in one of the hot-button social agenda cases the court has docketed for the fall: Masterpiece Cakeshop v. Colorado Civil Rights Commission, brought by a Colorado baker who refused to make a custom wedding cake for a gay couple. The state commission ruled that baker Jack Phillips violated state anti-discrimination laws.
“This will be a tough case for Justice Kennedy,” said Adam Charnes, a former Kennedy clerk and now partner at Kilpatrick Townsend & Stockton in Dallas. “Two of his core principles may conflict.”
Charnes was referring to Kennedy’s legacy of authoring the key decisions that advanced gay rights and same-sex marriage on the one hand, and his long history as a First Amendment advocate on the other. In the Masterpiece Cakeshop case, Phillips claims the commission’s action violated his rights to free speech and free exercise of religion.
Gorsuch’s brief April to June stint at the court was long enough to stamp him as a solid conservative somewhere near Justices Samuel Alito Jr. and Clarence Thomas on the ideological spectrum.
But Charnes, who is also a friend of Gorsuch, said “It’s too early to make a judgment whether last term will reflect his approach in the long term,” though “I don’t think he’s going to drift to a large degree to the left.”
Elizabeth Wydra, president of the liberal Constitutional Accountability Center, sees the coming term as “a test of whether [Gorsuch] is Donald Trump’s justice or will be a check on the most authoritarian and anti-Constitution president I’ve ever seen.” She vowed to make “strong arguments” in upcoming briefs to remind Gorsuch that his pledge to follow the Constitution’s text and history can lead to liberal results.
Politics on the Docket
The court in Gill v. Whitford confronts perhaps the most significant election challenge since the Warren Court. The Wisconsin case tests the constitutional boundaries of partisan gerrymandering, the practice by which the party-in-power draws districts to solidify its power and disadvantage the opposing party. It is another case where Kennedy’s vote is likely to determine the outcome.
In the 2004 decision in Vieth v. Jubelirer, a fractured high court held that partisan gerrymandering claims were not reviewable because there were no clear or manageable standards for measuring them. But Kennedy, in a concurring opinion, kept the door open to the possibility of a standard emerging some day. The Whitford challengers, represented by the Campaign Legal Center’s Paul Smith, say they have that standard — a neutral mathematical test for measuring when partisan gerrymandering goes too far.
“There is really no issue more important than whether partisan gerrymandering should continue,” said Erwin Chemerinsky, dean of the University of California Berkeley School of Law recently. Partisan gerrymandering, he and others explain, denies voters an effective voice in electing their representatives. Retired Justice John Paul Stevens has called partisan gerrymandering the greatest reason for gridlock in Congress today.
The justices face a political case of a different stripe in Trump v. Hawaii (consolidated with Trump v. Int’l Refugee Assistance Project). The high court said it will decide whether Trump’s March 6 executive order on immigration — the so-called travel ban — is religious discrimination in violation of the establishment clause and exceeds his authority under federal immigration laws. The challenges were brought by Hogan Lovells’ Neal Katyal for Hawaii and American Civil Liberties Union attorneys for the International Refugee Assistance Project.
When the justices agreed to hear those rulings by the Fourth and Ninth circuits, respectively, they also ordered the parties to brief whether the case was moot because the executive order contained a June 14 expiration date. The 90-day period specified in the executive order will lapse before the October arguments in the case.