Supreme Court set for historic new term

The Supreme Court is beginning a new term on Monday with a blockbuster docket of cases touching on civil rights, free speech, presidential power, redistricting and privacy rights.

The court has agreed to hear 43 cases so far, including a challenge to mandatory union fees in the public sector. The justices are likely to take up even more cases on Monday. 

But court watchers may never get to hear arguments in two of the most closely watched cases of the term.

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The court canceled arguments scheduled for Oct. 10 in two cases challenging President Trump’s travel ban after the White House issued new, targeted restrictions on travelers from eight countries. 

The justices have asked the parties in the travel ban case to submit additional briefs on how the new order impacts the current cases before the court. Arguments could be rescheduled, but what the court will decide to do remains unclear. 

Aside from the cases, the term could be memorable for other reasons.

It will be Justice Neil Gorsuch’s first full term on the bench. He joined the court in April after a bitter, partisan battle over the vacancy left by the late Justice Antonin Scalia.

Court watchers also say this term could be Justice Anthony Kennedy’s last. Long the court’s pivotal swing voter, Kennedy was rumored to have been considering retirement last spring. 

“There’s only one prediction that’s entirely safe about the upcoming term," Justice Ruth Bader Ginsburg said recently while speaking at Georgetown Law School, "and that is it will be momentous."   

Here’s a look at the top cases to watch.

Trump v. International Refugee Assistance Project; Trump v. Hawaii 

Some argue the Trump administration has already won the fight over its travel ban. The court in June agreed to reinstate the 90-day ban on nationals from six majority-Muslim countries that had been blocked by lower courts.

The justices, however, carved out an exemption from the ban for people who have a “bona fide” relationship with a person or entity in the U.S.

The challengers, including the state of Hawaii, are pushing the court to find the ban, which expired on Sept. 24, unconstitutional. They argue Trump used nationality as a proxy to uphold a campaign promise to ban Muslims from entering the U.S.

But the updated travel restrictions Trump issued for Chad, North Korea, Venezuela, Iran, Libya, Syria, Yemen and Somalia could bolster the administration’s case that it needed the temporary ban to assess vetting procedures; it could also push the justices to rule the case is now moot.  

The court’s next move will all depend on what’s argued in the briefs due Oct. 5. 

Gill v. Whitford

The justices have agreed to wade into the controversial issue of partisan gerrymandering — the process of drawing voter districts to increase the political power of one party over another. 

The case centers on Wisconsin’s 2011 legislative map, which was drawn by the state’s Republican-controlled legislature. A lower court struck down the map as unconstitutional last year.   

A group of Democratic voters claim Republicans divided Democrats among districts so they fell short of a majority. Other Democratic voters were packed into districts their party’s candidate was already sure to win, they say. 

All eyes will be on Kennedy, who signaled in a concurring judgment in 2004 that he would be open to the court resolving the issue if a “limited and precise” rationale could be found for determining whether partisan gerrymandering has occurred.  

The Democrats challenging the map in this case claim to have come up with one — the "efficiency gap." That is calculated by taking one party’s total wasted votes in an election, subtracting the other party’s total wasted votes, and then dividing that by the total number of votes cast.

Wisconsin officials appealing the lower court decision argue one-third of all redistricting plans drawn in the last 45 years could be challenged under the plaintiff’s standard.

Whether the court will accept the standard is anyone’s guess. Arguments are scheduled for Oct. 3, the second day of the new term.

Masterpiece Cakeshop v. Colorado Civil Rights Commission 

The case centers on Jack Phillips, a Colorado baker who refused to make a wedding cake for a same-sex couple and argues he can’t be forced to do so under the state’s public accommodations law. That statute prohibits businesses from discriminating against customers based on their sexual orientation.  

As a Christian, Phillips says he strives to honor his faith in all aspects of his life, including his art and his cakes. Creating a custom wedding cake to celebrate a same-sex wedding ceremony, he argues, would violate his First Amendment rights.

The justices will decide whether Phillips’s religious objections prevail over the state law.

“The Court held that gay and lesbian persons could live out their identity by lawfully marrying someone of the same sex,” religious groups led by the Christian Legal Society wrote in a brief supporting Phillips.

“Now this Court must hold that religious dissenters from same-sex marriage have the same liberty to live consistently with their identity.” 

Attorneys from the American Civil Liberties Union Foundation who are representing the same-sex couple in the case say a ruling in favor of Phillips would have disastrous consequences.

If religious motivation exempts businesses from anti-discrimination laws, the government could do nothing to protect Americans from the “harms of invidious discrimination,” they say.

Carpenter v U.S. 

Your cellphone tracks your every move, but is that data private? 

The justices are being asked to weigh whether police can obtain location data from a cellphone service provider without a warrant.

Timothy Carpenter, who was convicted of robbing Radio Shack and T-Mobile stores in Michigan and Ohio in 2010 and 2011, claims police violated his Fourth Amendment right against unreasonable search and seizure when they obtained records of his cell site locations and presented them at his trial to show his proximity to the robberies around the time they occurred. 

On appeal, the 6th Circuit Court of Appeals rejected Carpenter’s argument. The court said he had no reasonable expectation of privacy in cellphone location records held by his service provider.

Janus v. American Federation of State, County and Municipal Employees, Council 31

The justices are revisiting an issue it grappled with last term, when it had only eight justices: whether public sector employees can be forced to pay union fees. 

The court deadlocked 4-4 in Friedrichs v. California Teachers Association in March, affirming a lower court ruling that upheld a California law requiring some public-sector workers to pay union fees.   

This case before the court now centers on Mark Janus, a child support specialist for the state of Illinois who has been forced to pay money to the American Federation of State, Country and Municipal Employees Council 31. He says that union has contributed to the fiscal and economic problems of his state with its unreasonable demands.

“Our case was already in the pipeline when the court considered Freidrichs. … Now it’s in a position to take up this issue again and actually reach a decision because now there are nine members and there shouldn’t be a tie,” said Jacob Huebert, an attorney with the Liberty Justice Center. 

Huebert argues that government workers at every level should be able to choose whether they give their money to a union. 

The union, however, claims it has 40 years of Supreme Court precedent on its side. It argues the court has consistently affirmed its 1977 ruling in Abood v. Detroit Board of Education, holding that employees may be required to pay their share of collective-bargaining activities, since all employees benefit from the outcome.