By Kalvis Golde
While the world remains focused on the President and Senate due to the circus surrounding the Affordable Health Care Act, the judicial branch has been busy.
The U.S. Supreme Court has made a number of recent announcements about cases it will hear — and others it won’t — when it reconvenes for what promises to be a momentous 2017-18 term in October. From gerrymandering to LGBTQ rights to President Donald Trump’s self-proclaimed travel ban, the topics to be ruled on rest firmly at the top of the public consciousness. Though the decisions are months away, some are already making an impact and will affect millions more once they arrive. It’s best to be prepared. Let’s cover the highlights.
After intense public debate, the Supreme Court has decided it will hear the appeals of versions of Trump’s travel ban struck down by two separate federal appeals courts. Those original decisions to strike down the ban, labeled as discriminatory and in violation of religious freedom, were met with intense public reaction: widespread relief and exaltation from many, dotted with frustration and outcry from the ban’s supporters, most notably from the president himself.
The decision to hear the appeals breathed renewed life into the travel ban, which had fallen markedly in the ranks of media attention as other issues – the Paris agreement, terror in London, and Trumpcare – boiled violently to the surface. However, this resuscitation is more than simply figurative.
In a rare unsigned opinion, the court obliged the executive branch, allowing a limited version of the ban to go into effect until it can rule formally on the issue next term. This move reverses the complete strike downs various versions of the ban received at the hands of lower appeals courts and feels strangely legislative for a purely judicial body. And the court’s vague wording has left many confused and apprehensive. A single sentences makes the sole demarcation that the temporary ban cannot be levied against anyone with “a credible claim of a bona fide relationship with a person or entity in the United States.” To leave the definition of the term “bona fide” in the hands of the Trump administration sits poorly with many vocal opponents.
As to the final fate of the ban, we will have to wait until at least October. But one thing is clear: the decision will almost certainly be 5-4 and will likely come down to Chief Justice John Roberts or Justice Anthony Kennedy. Newly minted Justice Neil Gorsuch, the only other potential wild card, made his expected position evident — to the dismay of the left and the relief of Trump and his supporters — when he joined in a dissent from Justice Clarence Thomas in which both justices explained that they would have let a full version of the travel ban stand in the meantime.
The Supreme Court made two moves on cases concerning the LGBTQ community.
First, it decided it will hear the case Masterpiece Cakeshop v. Civil Rights Commission which deals with a challenge to Colorado’s statute barring individual companies from discriminating against LQBTQ individuals. Specifically, the case concerns the suit against a Colorado cake-maker that refused to serve an LGBTQ couple based on a claim to freedom of speech.
Another likely 5-4 decision, this one represents the biggest battle over LGBTQ rights since 2015’s Obergefell v. Hodges which legalized same-sex marriage nationwide. It will almost certainly come down to Kennedy, who wrote the opinion for the 5-4 Obergefell decision. However, optimism within the LGBTQ community may be premature as Kennedy ruled that freedom of speech supercedes gay rights in a 2000 opinion — though it is worth noting that a lot has changed around this issue in seventeen years.
Justice Gorsuch again tipped his hand, this time with regards to the second big decision the court made on LGBTQ rights.
With its refusal to hear a case from Arkansas concerning that state’s forbidding to list same-sex couples on birth certificates, the Supreme Court upheld the ruling of a lower appeals court that such a refusal is unconstitutional, specifically in violation of Obergefell. Gorsuch, along with Thomas and Justice Samuel Alito, dissented, arguing that Obergefell should be read as narrowly as possible: in essence, that the right to marriage does not imply the existence of other equal rights for LGBTQ couples. This would strongly suggest that Gorsuch will come down in favor of free speech in the Masterpiece Cakeshop case.
The third power play made by the Supreme Court in recent weeks arose from its decision to hear the case Gill v. Whitford.
The case concerns the drawing of voting districts and how to determine the constitutionality of partisan gerrymandering: the reshaping of districts by one party to minimize the power of voters for the other, usually by crowding these voters into a small number of inventively drawn districts. Both Democrats and Republicans gerrymander notoriously, but Republicans, who control a large majority of state governments, generally receive greater benefit from the practice. Gill v. Whitford concerns Republican-drawn districts in Wisconsin.
Deciding to hear this case is significant for two reasons. First, the Supreme Court rarely agrees to hear cases concerning the drawing of voting districts. Second, even when it has, the Court has refrained from creating a clear metric to decide whether a district is drawn constitutionally. Many hope that the court will veer its course in Gill v. Whitford and finally delineate a clear system for the drawing of voting districts around the country.
While it makes for less interesting headlines than the above topics, this case could prove to be the most monumental of all the cases heard by the court next term: it could significantly alter the outcome of every future election.
And Other Notables:
To conclude, a few others tidbits that are certainly worth mentioning.
One noteworthy item is another case the court decided not to hear. The question of whether a state (California) can ban individuals from openly carrying guns in public without violating the second amendment will go unanswered by the court. For now, the ninth circuit ruling that such a ban is allowed will hold. The Supreme Court rarely agrees to debate questions about gun rights outside the home. Here again, Gorsuch dissented alongside Thomas, suggesting he may align more with Thomas than the late Antonin Scalia whom he was appointed to replace.
Additionally, rumors are flying that Kennedy might retire from his post before next term. For now, there exists no public confirmation or suggestion that he will, but the mere possibility has set off a firestorm. Should Kennedy step down, the court will lose a dynamic swing justice who has decided many monumental cases. And Trump would then have an opportunity to appoint another justice, likely cementing the current conservative bloc into a strong 6-3 majority.
The coming year promises to deliver as much of a media circus as the last. Presidents and politics aside: keep an eye on the Supreme Court.