The Supreme Court opens its term next week focused on whether to shield conservative Christians from gay rights laws and whether to rein in the partisan gerrymandering that Republicans have used in recent years to tighten their grip on power in Congress and state legislatures.
As usual, for the last several years, the answers probably will come from Justice Anthony M. Kennedy, the 81-year-old Reagan appointee who regularly holds the deciding vote when the rest of the court is evenly split along ideological lines.
All eyes will be on Kennedy even more than normal as this year’s term could be his last. The justice has turned away questions about his plans, but Republicans on Capitol Hill predict Kennedy will retire soon, although, of course, they predicted the same thing last year. If Kennedy does step down, President Trump could replace him with a younger, more reliable conservative and tilt the court decidedly to the right.
Kennedy has been the court’s leader in striking down laws that discriminated against gays and lesbians, but he also has been a steady champion of free speech. Religious rights advocates insist that religious freedom is in danger in this country, but in court, they rely mostly on the 1st Amendment principle that the government cannot force someone to speak its message.
That’s the issue in one of the most hotly watched cases this term, which involves a Colorado baker of wedding cakes. Advocates for religious conservatives want the court to break new ground and rule that business owners whose work is “expressive” have a free speech right to refuse to comply with civil rights laws, at least those which protect same-sex couples.
Jack Phillips, the baker, turned away two men who asked for a wedding cake, and he was charged with violating the state’s civil rights law. Along with 20 other states, Colorado requires a business open to the public to provide “full and equal” service to all customers without regard to their sexual orientation.
Lawyers for the Alliance Defending Freedom describe the baker as a “cake artist.” The Supreme Court agreed to hear his claim that the state cannot force a person to endorse or help celebrate a same-sex marriage by making a special wedding cake. The Trump administration came to Phillips’ support and urged the court to carve out a “narrow” exemption to gay rights laws that would allow photographers, florists, musicians and others whose work is “expressive” to refuse to participate in a same-sex marriage. The court will hear the case, Masterpiece Cakeshop vs. Colorado, after Thanksgiving.
The meaning of free speech also lies at the core of a Wisconsin case in which Democrats and liberals want the court to strike down the highly partisan electoral maps that permit one party to entrench itself in power for a decade or more.
Although the case directly involves just one house of the legislature in one state, control of the U.S. House of Representatives could be at stake, depending on the outcome.
Wisconsin Republicans drew legislative district lines in 2011 that virtually guaranteed they would control at least 60 of the 99 seats in the state Assembly, the lower house of Wisconsin’s Legislature.
The effort worked as planned. The next year, 51% of Wisconsin’s voters cast ballots for Democrats, but the GOP maintained its 60-seat hold on the assembly. The challenge to that effort, what Democrats call a partisan gerrymander, Gill vs. Whitford, will be heard Tuesday.
Wisconsin Democrats argue the GOP’s electoral map violates their 1st Amendment rights because their views will never have majority support in the state house barring an “unprecedented political earthquake.”
Their argument, like the one in the baker’s case, is aimed at Kennedy. The last time the high court considered political gerrymandering — and decided not to act — Kennedy wrote that the court might be more open to a future appeal based on free speech principles.
“The 1st Amendment may be the more relevant constitutional provision in future cases,” he wrote in that 2004 case, noting that states arguably were “penalizing citizens because … of their association with a political party or their expression of political views.”
The same sort of techniques that Republicans used in the Wisconsin Legislature also played a big role in redistricting nationally after the 2010 census. Republicans took full control that year in battleground states, including Pennsylvania, Michigan, Ohio and North Carolina, and they drew electoral maps that tilted strongly in their favor. The lines were drawn to concentrate Democratic voters in a few districts while assuring Republicans a safe advantage in the vast majority of districts.
Those states all voted for President Obama at least once, and they are closely divided between Democrats and Republicans. That is not apparent in the House of Representatives. The four states have 61 seats in the House: 44 Republicans and 17 Democrats.
At least two states — Maryland and Massachusetts — were gerrymandered to help Democrats win extra House seats, but the Brennan Center for Justice estimated that “aggressive gerrymanders” have given Republicans a net advantage of 17 seats in Congress. In 2018, Democrats would need to win 24 Republican-held seats to capture the majority.
As a result, a ruling that limits partisan gerrymanders could undermine the Republican congressional majority.
“This is an incredibly important case for American democracy,” said Michael Li, a redistricting expert at the Brennan Center in New York. “This is about a political party’s abuse of its power to lock in a majority for itself and to rig the election before it takes place.”
Wisconsin’s Republicans make two arguments for why the court should reject the gerrymandering claim. They say the GOP advantage doesn’t stem so much from careful line-drawing on their part as it does from the reality that Democrats are concentrated in cities such as Milwaukee and Madison. They also say the court should throw out the claim because there is no clear rule for deciding when a political map is so unfair as to be unconstitutional.
The other major issue before the court — President Trump’s power to deny entry to immigrants from several Muslim-majority nations — is in limbo. The justices were scheduled to hear arguments Oct. 10 on the constitutionality of the president’s temporary travel ban. But part of that order expired Sunday, and the justices canceled the arguments after the White House issued a revised and expanded set of restrictions on foreign nationals who apply for a visa.
Still, the legal issue needs to be resolved. The American Civil Liberties Union and other immigrants rights advocates are determined to challenge Trump’s revised order as unconstitutional. So a new case is likely to return to the court’s docket.
The justices also will try to decide an important immigration case they left unresolved in their last term. At issue is whether thousands of noncitizens who are arrested and slated for deportation can be held indefinitely. The U.S. 9th Circuit Court, acting on a class-action suit filed in Los Angeles, ruled that after six months, these detainees had a right to a bail hearing and a chance to be released if they posed no danger to the public and were not likely to flee.
The outcome, in Jennings vs. Rodriguez, probably depends on Justice Neil M. Gorsuch. The eight other justices heard the case in November but did not issue a ruling. It will be reargued on Tuesday.
On Monday, the court will hear a major workers rights dispute that has divided the federal government. At issue is whether companies may require workers to waive their rights to join a class-action suit and instead require them to have their claims be heard individually by an arbitrator.
The Obama administration and the National Labor Relations Board said employees had a right to take “concerted activities” to protect their interests, citing a New Deal law from 1935. A group of technical writers had sued their software company contending they were wrongly denied overtime pay. But the Trump administration switched sides after the court agreed to hear the case and said arbitration agreements are valid, citing the Federal Arbitration Act of 1925. The justices will hear conflicting arguments from government lawyers for the labor board and Trump’s Justice Department.
“This will be a first for me in the nearly 25 years I’ve served on the court,” Justice Ruth Bader Ginsburg told Georgetown law students last week. “There is only one prediction that is entirely safe about the upcoming term,” she added,” and that is it will be momentous.”
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