By Greg Stohr, Bloomberg News
Justice Neil Gorsuch’s first full term on the U.S. Supreme Court promises to show just how much was at stake with his appointment.
The term that opens Monday is full of ideologically divisive cases that could turn on a single vote, starting with arguments over worker class-action lawsuits and political gerrymandering of election districts. The court will consider whether gay rights must yield to business owners’ religious beliefs, and the justices on Thursday added a fight over mandatory union fees paid by government workers.
The term “will be momentous,” Justice Ruth Bader Ginsburg predicted this month in a speech at Georgetown University Law Center.
It might also be a conservative rout, given President Donald Trump’s selection of Gorsuch to fill what ended up being a 14-month vacancy.
Gorsuch took a seat Democrats had tried to fill with Judge Merrick Garland, former President Barack Obama’s nominee who never got a vote in the Republican-controlled Senate. Since he was confirmed in April, Gorsuch has aligned himself with the court’s conservative wing.
Gorsuch’s presence could make the difference in many of the court’s biggest cases in the nine-month term. The scheduled argument dates are in parentheses:
Class Actions (Oct. 2)
The term starts with a case that could let companies enforce agreements in which workers promise to pursue wage or job-discrimination claims in arbitration, and not in class-action lawsuits.
Employers want to extend 2011 and 2013 Supreme Court decisions in which a conservative majority said companies can channel disputes with consumers and other businesses into arbitration. But some lower courts have said workplaces are different because federal labor law gives employees the right to engage in “concerted activities.”
Companies say that provision must yield to a 1925 law that requires arbitration agreements to be enforced like any other contract.
“The employers have a few advantages going in here, particularly with a more receptive set of justices,” said Greg Garre, a Washington lawyer at Latham & Watkins LLP and former solicitor general under President George W. Bush.
The Trump administration is backing the employers. But in an unusual twist, the National Labor Relations Board is set to argue on the side of the workers. The independent agency has long said workers aren’t bound by arbitration agreements that prohibit group claims.
The NLRB could change its position at the last minute. The Senate confirmed attorney William Emanuel, who has represented employers, to the board this week, giving it a Republican majority for the first time in almost a decade.
Gerrymandering (Oct. 3)
The Supreme Court has never struck down a voting map as being so partisan it violates the Constitution. Critics of gerrymandering hope a case over a Republican-drawn Wisconsin map will provide the occasion.
Wisconsin Democrats say the map virtually assures Republicans will maintain a majority in the state Assembly, even if they lose the statewide popular vote as they did in 2012.
The pivotal vote belongs to Justice Anthony Kennedy, who said in 2004 that he wouldn’t preclude partisan-gerrymandering lawsuits but hadn’t yet seen a manageable test to determine how much politics was too much. The Democrats are proposing a test that relies in part on statistical analyses of voting patterns.
“Justice Kennedy thinks this is very problematic from a constitutional perspective,” said Marty Lederman, a law professor at Georgetown. At the same time, “he’s going to be probably very uncomfortable with any of the tests that have been proposed to him.”
Voter Purges (Nov. 8)
An Ohio voter-purge clash has become a flashpoint in the broader fight over the rules governing who can cast ballots. The state removes people from the rolls if they don’t vote during a six-year period and don’t respond to a request to confirm their address.
Ohio says the system is a legitimate method to keep its voter database up-to-date. Opponents say the procedure is a voter-suppression tool that violates a 2002 federal law.
The Trump administration is backing Ohio. The president has drawn criticism for claiming without evidence that 3 million people voted illegally for his opponent, Democrat Hillary Clinton. Trump then appointed a voting-fraud commission, controlled by Republican hard-liners, to examine the issue.
Gay rights vs. free speech (not yet scheduled)
What began as a brief discussion about a wedding cake has grown into a Supreme Court dispute between some of the nation’s most cherished values. On one side are Charlie Craig and David Mullins, who were turned away when they visited a Colorado bakery to order a cake for their wedding. On the other is Jack Phillips, a baker who says he can’t create a cake for a gay wedding without violating his religious beliefs.
The Colorado Civil Rights Commission said Phillips violated a state law that bars discrimination on the basis of sexual orientation by businesses that sell to the public. Phillips says his constitutional speech and religious rights are being infringed.
Kennedy, a champion of free speech and gay rights, will again be at the center of the debate and likely to cast the deciding vote.
“Here we actually have two aspects of Justice Kennedy’s jurisprudence pitted against each other,” said Yaakov Roth, a Washington lawyer at Jones Day.
Cell-phone privacy (not yet scheduled)
The court will take up a major test of digital privacy when it considers whether prosecutors need a warrant to get mobile- phone tower records that include months of information about a person’s location.
Timothy Carpenter is seeking to overturn his conviction for taking part in nine armed robberies in the Detroit area. At trial, prosecutors used phone data to show Carpenter was near the site of each robbery when it occurred.
Critics say prosecutors are able to get massive amounts of data without having to meet the “probable cause” standards for a search warrant. The largest telecommunications providers receive tens of thousands of requests for location information a year under the 1986 Stored Communications Act, which doesn’t require a warrant.
“I think this is the most consequential case that’s currently on the court’s docket,” said Kannon Shanmugam, a Washington lawyer at Williams & Connolly LLP.
It also could be the best candidate to cut across the court’s ideological divide. The court under Chief Justice John Roberts has been broadly protective of digital privacy rights, as in a unanimous 2014 ruling that said police usually must get a warrant before searching the mobile phone of a person being arrested.
Sports gambling (not yet scheduled)
The court will consider reinstating a New Jersey law that would legalize sports gambling at casinos and racetracks. The dispute pits New Jersey Governor Chris Christie — who backs gambling — against the nation’s largest professional and amateur sports leagues and associations, as well as the Trump administration. A ruling for New Jersey could free states elsewhere to legalize sports betting.
The case, which turns on a 1992 federal law outlawing sports betting in most of the country, will also be an important test of states’ rights.
New Jersey says the measure violates the Constitution’s Tenth Amendment.
Travel ban (no argument scheduled)
Although the court has dropped its planned Oct. 10 argument on Trump’s ban on travel to the U.S. from a group of mostly Muslim countries, the justices still must decide what to do with the case.
The court canceled the argument after Trump released a revised policy based on recommendations from the Department of Homeland Security. The new policy puts restrictions on travel from three additional countries — Chad, North Korea and Venezuela — and extends indefinitely into the future. The new policy supersedes the temporary ban that was to have been the focus of the Supreme Court case.
In dropping the argument, the justices signaled they might dismiss the case and let a lower court take the first look at the new policy. But even if they do, the matter could quickly return to the high court.
Union fees and anti-gay discrimination
The court got a head start on its term Thursday by adding nine new cases, most notably one that will determine whether 5 million government workers can refuse to pay union fees.
The issue deadlocked the court 4-4 in March 2016, and Gorsuch is now positioned to tip the balance. Workers say they have a free-speech right to refuse to contribute to unions, even if the money covers only such matters as bargaining for pay raises. To side with the workers, the court would have to overturn a 1977 precedent.
The court also will say in the coming weeks whether it will hear a pending appeal that tests whether the main federal job- bias law protects against discrimination on the basis of sexual orientation. Federal appeals courts are divided on the question, making Supreme Court intervention likely.
With other potential blockbusters lurking — including fights over voter-identification laws and race-based redistricting — the justices may even hit a point where they have to consider deferring some major issues.
“One of the things that’s going to become pretty interesting very quickly is: How much can the Supreme Court handle?” Garre said. “These are human beings, and at some point I think they’re going to be looking to less contentious cases.”
For more news, visit Bloomberg.