Federal Courts and Nominations

OP-ED: Justices court controversy in weighty new term

Immigrant rights. Voting rights. Gay rights. Privacy rights. These are among the high-stakes issues the Supreme Court will tackle when it begins its new term.

Unlike last term, when an evenly divided court sidestepped or deadlocked on many contentious cases, this term — following Justice Neil Gorsuch’s April confirmation — the court runs headlong into controversy. Now that it once again has its full complement of nine justices, the High Court is poised to rule on cases that could alter the landscape of American politics and society for years to come.

As he has for many years, Justice Anthony Kennedy, the longest-serving among current justices, likely will provide the deciding vote in several closely divided and ideologically charged cases. Although he was appointed by President Ronald Reagan in 1988 and more often than not sides with conservatives, Kennedy has written several opinions expanding gay rights, and famously cast the tie-breaking vote in 2015 that affirmed a constitutional right for same sex couples to marry.

This term, the court will hear the case of a baker who refused to make a wedding cake for a gay couple. Kennedy’s vote may well determine whether one’s personal religious beliefs trump another’s right to be treated as an equal citizen under the Constitution.

The newcomer on the court, Gorsuch, will also be under the microscope in his first full session. Critics will be watching his decisions closely to determine if he is an impartial jurist with respect for the court’s precedents, as he claimed during his confirmation hearing, or if he is beholden to the president who nominated him, who not only has shown a blatant disregard for the judiciary but whose plan to ban travel from a handful of Muslim-majority countries might come before the justices this session.

So far, the court has accepted 32 cases this term, the most high-profile of which will decide questions of:

Equal Citizenship — in a case that will determine whether the Constitution allows a wedding cake baker to invoke personal religious beliefs to justify refusing service to same-sex couples, because of their sexual orientation.

Religious Discrimination — in two cases that will determine whether President Trump’s Muslim travel and refugee ban exceeds his power under federal immigration laws and violates the First Amendment (note that the case is currently off the argument calendar while the parties hash out how Trump’s newest policy affects the case).

Privacy — in a dispute over whether the Fourth Amendment requires law enforcement to obtain a warrant before using cell tower information to determine an individual’s location and movements.

Partisan Gerrymandering — in a case to determine whether politicians, by drawing legislative districts along partisan lines, should essentially continue to be allowed to choose their voters, rather than the other way around.

Voting Rights — in a case that will determine if states purging inactive voters from its rolls before federal elections violates the National Voter Registration Act and the Elections Clause of the Constitution.

Arbitration — in three cases that will determine whether employers can essentially block their employees from joining together in court to resolve employment disputes by forcing them into individual arbitration instead, even though the National Labor Relations Act protects employees’ efforts to bring class actions.

Union viability — in a case that will decide whether non-union workers who benefit from the contracts that public-sector unions negotiate with state and local governments must pay a fair-share fee.

The High Court’s docket in the new term is brimming with cases of national interest and importance, the resolution of which will have far-reaching effects for all Americans. For anyone who ever ignored the importance of the courts in our everyday lives — from the workplace to the polling place — the justices are poised to grab our nation’s attention with a thunderclap.


This piece appeared in at least the following additional outlets:

  • Orlando (FL) Sun Sentinel (online) (print 10/4/2017 – p. 15A)
  • Honolulu (HI) Star-Advertiser (print 10/4/2017 – p. A6)
  • Idaho Falls (ID) Post Register (online) (print 10/4/2017 – p. A11)
  • Decatur (IN) Daily Democrat (print 10/7/2017 – p. A4)
  • Las Vegas (NV) Sun (online) (print 10/4/2017 – p. 25D)
  • Albany (NY) Times-Union (online) (print teaser 10/6/2017 – p. A10)
  • New York (NY) Newsday (online)
  • Oklahoma City (OK) Oklahoman (online) (print 10/4/2017 – p. 11A)
  • Jacksonville (IL) Journal-Courier (online)

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