Federal Courts and Nominations

The Supreme Court’s new term

The nine judges will consider gerrymandering, gay wedding-cakes, labour unions and a host of other controversies

Steven Mazie

A year ago the Supreme Court returned to work one judge down, as Senate Republicans refused to consider Merrick Garland, Barack Obama’s nominee to replace Antonin Scalia. On October 2nd, when all nine seats are once again filled for opening day with Neil Gorsuch, Mr Trump’s choice, perched in the right-most chair, the court will begin a term promising bigger cases, sharper splits and higher hopes for conservatives. How far those hopes are realised will turn on Anthony Kennedy, the longest-serving justice, who sits at the court’s ideological centre.

Retirement rumours in June proved premature, but Justice Kennedy, who is 81, has told clerkship applicants he may not hire a full team for the 2018-19 term. That means perhaps one last docket of 60 or 70 cases for the 29-year veteran to decide before he hangs up his robe. The dazzling array of cases may have been too tantalising to watch from the golf course. According to Elizabeth Wydra of the Constitutional Accountability Centre, after the last, tentative term, the justices have opted to “confront a raft of controversial issues head-on.”

The first case, Epic Systems Corp v Lewis, could tip the balance of power in the workplace away from workers and towards bosses. It asks whether companies can require new employees to agree to resolve any future workplace disputes through arbitration rather than in court. Mandatory arbitration violates New Deal labour laws, the employees say. Companies counter that the Federal Arbitration Act protects their right to steer workers away from the courtroom and to block class-action lawsuits. The ruling will affect a growing chunk of America’s economy, including Uber drivers, who say they have a right to band together to challenge pay rules.

The next day, October 3rd, the Supreme Court will hear a case from Wisconsin that could transform the way America elects its legislators. The plaintiffs’ target in Gill v Whitford is gerrymandering, the age-old scourge that allows lawmakers to choose their voters through creative drafting of electoral districts. The Supreme Court has cracked down on maps for state legislatures and for Congress that sort voters illicitly by race, but it has never curtailed purely partisan gerrymandering.

Plaintiffs say intricately contorted maps—like those drawn up using computer models after the 2010 census in Wisconsin, where Republicans make up about half the electorate but now win nearly two-thirds of the state Assembly seats—deprive Democratic voters of equal protection and freedom of association. Gill is probably the court’s last opportunity for a while to rein in the practice: when the justices last considered partisan redistricting in 2004, Justice Kennedy could not settle on a workable limit to the practice, but noted he was open to curbing gerrymandering if a viable standard could be found.

With footwork impeccable

The median justice is quite likely to hold the tie-breaking vote in Masterpiece Cakeshop v Colorado Civil Rights Commission, too. In an opinion in 2015, extending constitutional protections to same-sex marriage, Justice Kennedy wrote that “those who adhere to religious doctrines, may continue to advocate with utmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” and they are protected in this mission by the First Amendment. He and his colleagues will now clarify whether this principle protects a Christian baker’s right to refuse to create a wedding cake for two men.

The couple says Colorado’s civil-rights law requires businesses to serve gays and straights alike, while Jack Phillips, the baker, complains that this rule forces him to endorse what he believes to be sinful behaviour and to express a message he reviles. If the court finds for Mr Phillips, calligraphers, florists, photographers and tailors who reject gay marriage may earn a licence to discriminate as well.

Another application of 18th-century rights to the 21st comes in Carpenter v United States, a case asking whether the right to privacy extends to information beamed out from mobile phones. In 2011, when Timothy Carpenter was arrested for organising a series of armed robberies, the FBI built its case on four months of mobile-phone data showing where he was when the crimes took place. This information was retrieved under a law permitting phone companies to divulge information to corroborate “specific and articulable facts” relevant to a criminal investigation. By placing Mr Carpenter within a stone’s throw of the robberies based on the antennae through which he placed and received calls, the FBI was able to map his movements and convict him without ever securing a warrant from a judge. In Carpenter, the justices will ask whether this tactic violated the Fourth Amendment’s ban on “unreasonable searches and seizures”.

Other notable cases coming this autumn include a row over hundreds of thousands of Ohioans who were removed from the registered-voter rolls because they had not voted in recent elections, and a battle in New Jersey over sports betting that might lead the court to authorise some forms of gambling nationwide. The justices are also likely to take up a case revisiting a question they answered 40 years ago and neatly divided on after Justice Scalia’s death in 2016: whether public-sector unions may charge a fee to non-members for the cost of negotiating their contracts. These “agency fees” preserve “labour peace”, the court decided in 1977, and prevent employees from hitching a free ride on the backs of their dues-paying colleagues. If the justices strike down agency fees as a violation of workers’ freedom of speech, labour unions in half the country will find themselves poorer, and less powerful at election time.

“All eyes will be on Justice Gorsuch” this term, says Ms Wydra of the Constitutional Accountability Centre, but she suggests that court-watchers should keep an eye on John Roberts, the chief justice, too. As the justices navigate these controversies, the chief justice will strive to uphold the court’s “legitimacy and dedication to basic constitutional values”, she says. But in the end, according to Steve Vladeck, of the University of Texas, the upcoming term will be “dominated by Justice Kennedy in every respect”, and haunted by “the looming spectre of his potential retirement”. Josh Blackman of the South Texas College of Law says only one outcome is certain: the swing justice, who found himself in the majority 98% of the time last term, “will continue to infuriate both sides”.

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