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The Supreme Court's New Term

September 29, 2017

The Supreme Court is back, and its October oral argument calendar is chock full of blockbuster cases. Even with the removal of the challenge to President Trump’s Muslim travel ban, it’s hard to remember a single month with so many important cases. These October cases aren’t the only big cases on the docket this Term, but they will certainly define this year at the Supreme Court.

This lineup of blockbuster cases comes at a critical juncture. For much of the last two years, the Supreme Court has hobbled along with eight Justices, avoiding big cases and issuing extremely narrow rulings. This Term, Chief Justice John Roberts is back at the helm of a fully staffed Court. This may also be a big Term for Justice Neil Gorsuch, who joined the Court in April and quickly showed that he would be on the far right of the Court. Given the cases on the docket this Term, Justice Gorsuch will face a series of huge tests whether he will follow the Constitution’s text and history, no matter where it leads.

The term begins with a truly momentous case testing whether states may draw district lines that discriminate against voters on account of their political affiliation. On October 3, the second day of the Term, the Supreme Court will hear Gill v. Whitford, a landmark case on constitutional limits on partisan gerrymandering, which could change how state legislatures draw district lines. The stakes for our democratic system of government could not be bigger.

Partisan gerrymandering is a cancer on our democratic system of government, turning on its head the fundamental principle that voters choose their elected representatives, not the other way around. In Gill, the Justices confront a particularly grotesque set of facts: in 2011, after Republicans took control of the Wisconsin state legislature, they met behind closed doors to devise new Assembly districts, drawing lines so that their party would wield political power far in excess of votes cast at the polls. Taking advantage of new technology to manipulate the district lines for maximum advantage, Republicans in Wisconsin sought to entrench their party in power no matter what happened in future elections.

In Gill, the Supreme Court will decide whether the government may, consistent with the Constitution’s guarantees of freedom of speech, freedom of association, and equal protection for all persons, act to subordinate members of a political party because of their views and degrade the effectiveness of their votes. The Court should strike down Wisconsin’s extreme partisan gerrymandering, making clear that, under our Constitution, states cannot rig the electoral process to entrench the governing party in power. Striking down Wisconsin’s brazen gerrymander would not end all gerrymandering, but it would send a powerful lesson: courts will step in when legislators seek to perpetuate themselves in power.

In Gill, all eyes will be on Justice Kennedy, who almost certainly will cast the deciding vote. Over the course of three decades on the Supreme Court, Justice Kennedy has issued a long list of landmark First Amendment rulings, defending the special role that free speech and association plays in our democracy and making clear that the government may not regulate speech and association “based on disapproval of the ideas and perspectives” expressed, “which is the essence of viewpoint discrimination.” The question in Gill is whether Justice Kennedy will carve out a redistricting exception to these principles, permitting the government to subordinate persons because of their political views and affiliation.

Justice Kennedy’s record in past gerrymandering cases is mixed, but he has previously recognized that the First Amendment may be a specific limit on partisan gerrymandering by the states. As he has written, “First Amendment concerns arise where a State enacts a law that has the purpose and effect of subjecting a group of voters or their party to disfavored treatment by reason of their views.” If Justice Kennedy votes to give state legislators a green light to gerrymander and degrade the voting rights of their political opponents, it would be a black mark on his First Amendment legacy.

Corporate accountability will be another big theme of the Court’s October cases —and likely the Term as a whole. The Supreme Court under the leadership of John Roberts has, year in and year out, rewritten the law to make it harder for workers, consumers, and others to hold corporations accountable in the courts for their wrongdoing. As Adam Winkler has observed, “one thing remains constant on a dynamic Supreme Court: corporations and business interests win.” The Supreme Court Term opens with two blockbuster cases in which corporations are urging the Court to close the courthouse doors to those injured by corporate abuse of power.

On October 2, the Court will hear an important case about whether employers can force their employees to give up the right to bring class actions in court to hold corporations accountable and make their employees arbitrate their cases before a decisionmaker handpicked by the company. In Epic Systems Corp v. Lewis, a slew of corporations, backed by the Chamber of Commerce and the Trump Administration, argue that employees can be forced to waive their right to file class-action lawsuits against their employers and submit to binding arbitration, even though federal law explicitly guarantees employees the right to “engage in . . . concerted activities for the purpose of . . . mutual aid or protection.” On October 11, in Jesner v. Arab Bank, the Supreme Court will consider whether corporations can ever be sued under the Alien Tort Statute, a Founding-era federal law designed to ensure that foreigners can sue for a violation of the law of nations. The Alien Tort Statute does not limit at all who may be sued, and, for centuries, it has been well settled that corporations may be sued for corporate wrongdoing. But the Arab Bank, whose New York branch allegedly financed international terrorism, insists that it cannot be held accountable.

Epic and Jesner pose a key test for Justice Gorsuch, whose very first opinion for the Court insisted that “it is . . . our job to apply faithfully the law Congress has written,” making clear that courts should not “rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” “The business of enacting statutory fixes,” Gorsuch wrote in another opinion, is “one that belongs to Congress and not this Court.” The question now is whether Justice Gorsuch will abide by these principles or try to find a way to rewrite the law to close the courthouse doors on injured workers and others.

Trump’s travel ban won’t be argued in October—at least for now—but other important immigration cases remain on the docket. Last Term, the Supreme Court had two major immigration cases on its docket—Jennings v. Rodriguez and Sessions v. Dimaya—which it was unable to resolve. Both will be reargued in October.

It is a basic constitutional principle that whenever the federal government acts, it is bound by constitutional limits on its power. Deference to the political branches, as Chief Justice John Roberts put it in the health care decision of 2013, “can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.” The question for the Justices this Term is whether this basic principle applies when the federal government regulates immigration, or whether immigration is a Constitution-free zone in which the usual rules don’t apply.

In Jennings, the Justices will consider whether immigrants held in prolonged, indefinite detention—up to several years in some cases—pending their deportation are entitled to a bail hearing to ensure protection of their fundamental liberty. In Dimaya, the Court will determine if immigrants can be subject to mandatory deportation under vaguely-worded federal statutes. In both cases, the U.S. government—as it has in the travel ban cases—is urging the Court to apply a watered-down version of constitutional protections in the immigration context.

After a relatively quiet 2016, the Supreme Court has a long list of blockbuster cases on tap for 2017. What happens in the first month of the new Supreme Court Term will go a long way to defining the Roberts Court in the Trump era.

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This piece is cross-posted to Balkinization.

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