Cases involving President Trump's travel ban, gerrymandering, voter purges and religious rights highlight the October 2017 term of the nation's highest court.
By Ruth Steinhardt/GW Today
The upcoming Supreme Court term is packed with blockbuster cases that recall landmark civil rights rulings and also may require the nation’s highest court to wade into uncharted waters, said panelists at a George Washington University Law School press briefing Wednesday.
GW Law Associate Dean for Public Interest and Public Service Alan Morrison moderated a panel that comprised Gregory Garre, JD ’91, a former U.S. solicitor general; Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund; GW Law professor Jeffrey Rosen, who is president and CEO of the National Constitution Center; and Jonathan Turley, J.B. and Maurice C. Shapiro Professor of Public Interest Law at GW Law.
Below, five cases the panel of experts discussed at the briefing.
Trump v. Hawaii, Trump v. International Refugee Assistance Project
Is the Trump administration’s executive order limiting citizens of six predominantly Muslim countries from entering the United States a violation of the applicable statutes and/or the Establishment Clause?
Collectively termed the “travel ban cases,” these deal with President Donald Trump’s series of executive orders suspending entry to the country by certain citizens of six Muslim-majority countries. Lower courts have ruled against the travel order on various grounds. The Fourth Circuit determined the order violated the Establishment Clause, with a judge writing that a reasonable observer would conclude its “primary purpose is to exclude persons from the United States on the basis of their religious beliefs.” In the Ninth Circuit, judges determined that Mr. Trump had not shown evidence the six countries in question were in fact detrimental to national security.
Mr. Turley said the case was unique in that lower courts looked at Mr. Trump’s statements on Twitter to determine whether the order was issued in good faith. (The Ninth Circuit cited former press secretary Sean Spicer’s declaration that the president's tweets are "considered official statements by the President of the United States.")
“The president became the chief witness against himself,” Mr. Turley said.
Ms. Ifill, a longtime civil rights advocate, said she was “encouraged” by the courts’ willingness to look at Trump’s tweets as evidence. “Even the president’s plenary power stops at the borders of both arbitrariness and discrimination,” Ms. Ifill said.
None of that may ultimately be relevant. The Supreme Court is partial to “off-ramps” by which justices can prevent having to make touchy decisions, Mr. Turley said, and the travel ban cases are loaded with such possible escape routes. For instance, the ban was intended to be in place for 90 days, which will have passed by the time the term opens in October. The court may therefore determine the case is moot.
Gill v. Whitford
Are there constitutionally enforceable limits on partisan gerrymandering in legislative redistricting?
“This is the most important case involving the structure of American politics in a generation,” Mr. Rosen said. After a 2011 redistricting by the Wisconsin state legislature, Democrats won a majority of the statewide assembly vote in 2012 and 2014. Yet Republicans won a majority of the legislative seats. A lower court ruled that the 2011 plan was “an aggressive partisan gerrymander” that locked in a Republican majority in the state assembly under “any likely electoral scenario.”
The Supreme Court has hesitated to involve itself in gerrymandering cases, in part because such cases are often “political questions” committed to other branches of government, Mr. Rosen said. However, the court has suggested in a series of recent cases that some gerrymandering cases may be justifiable, if an adoptable standard for measuring a district’s reasonableness were devised. This case may propose such a standard: the “efficiency gap,” devised by two academics at the University of Chicago and the Public Policy Institute of California.
Mr. Rosen said that though the Supreme Court in general has avoided ruling on gerrymandering, the historic moment is such that they may now do so. Swing justice Anthony Kennedy will be particularly important, Mr. Rosen said, since he is particularly concerned about the decline of civil discourse and increasing polarization.
“The fact that you get a minority [of votes] electing a majority of seats is such a democratic dysfunction” that the Supreme Court may break with its tradition of avoiding ruling in these cases, Mr. Rosen said.
Epic Systems Corp v. Lewis, Ernst & Young LLP v. Morris, National Labor Relations Board v. Murphy Oil USA
Are agreements to resolve disputes through mandatory employee arbitration unenforceable as applied to employers subject to the National Labor Relations Act?
These consolidated cases “would have been viewed as a blockbuster,” Mr. Garre said, if not for a docket packed with high-profile issues. They involve employees who were told they could not bring collective action lawsuits against their employers because they had signed employment arbitration agreements—agreements to adjudicate employment disputes privately, outside of court—giving up their right to bring such collective cases. The employees argued that such waivers violated their right to engage in “concerted activities” under the National Labor Relations Act.
The federal government has changed its position on these cases since the Obama administration, Mr. Garre said, with the Trump administration’s Justice Department having filed a brief on behalf of the employers. But the National Labor Relations Board will still argue on behalf of the employees, creating an unusual split.
The cases are important because “everything you know about what protects you as a worker happens through concerted action,” Ms. Ifill said. “It’s important for workers to be able to come together and challenge conditions in the workplace.”
Moving employment disputes into private arbitration, as opposed to the public courts, also “denudes the ability for public to see and be engaged in the development of the law,” she said.
Mr. Garre also said this case will show the “biggest impact” in the ideological switch from potential Justice Merrick Garland to the newly appointed Neil Gorsuch. “The employers have some advantages,” he said.
Husted v. A. Philip Randolph Institute
What are the statutory limits on states’ ability to “purge” voter rolls based on failure to vote for several years?
In Ohio, a registered voter’s failure to vote for two years triggers a confirmation notice to that voter. If the voter does not respond, then fails to vote in two more elections, he or she will be removed from Ohio’s voter lists.
It is certainly acceptable and necessary for states to “clean” their voter lists, Ms. Ifill said, and there are state databases that provide information for doing so. But targeting a voter for removal because they have not voted is problematic because it uses the failure to participate in the process to interrupt the voter’s rights. And these voters make a difference, she said: Both Barack Obama and Donald Trump were elected in part by populations who previously had not felt engaged by the process.
“This case is made more important by the context, where the issue of voter suppression is all around us,” Ms. Ifill said. “Voter purges have been one of the key voter suppression tools” faced by civil rights groups, because they are used as “a pretext” for blanket removals of already-marginalized voting blocs.
Masterpiece Cakeshop Ltd. V. Colorado Civil Rights Commission
Did Colorado’s public accommodations law violate the religious rights of a baker who refused to provide a wedding cake for a same-sex couple?
In this high-profile case, a gay couple in Colorado walked into a bakery and requested a cake to celebrate their reception. The baker refused, saying the couple could purchase a cake off the shelf but that the custom cakes were his form of artistic expression and his religious convictions forbade participation in same-sex marriages. The baker has claimed his right not to make the cake on two separate grounds: first, that it is against his religious beliefs, and second, that making the custom cake would be a form of “compelled speech” in violation of his First Amendment rights.
Mr. Turley said he saw no way for the court to “thread the needle” between the baker’s right to creative expression and the plaintiff’s right to be served. But Ms. Ifill said she saw parallels between Masterpiece Cakeshop and landmark civil rights cases like Newman v. Piggie Park, where a restaurant owner refused to serve African-American customers except in designated areas. The owner’s arguments included a conviction that the “intermixing” of races was an “affront to God” and that therefore the Civil Rights Act violated his right to religious freedom.
“We forget at our peril that religion was very often the rationale offered by segregationists and others as the reason they would not serve African Americans,” Ms. Ifill said.