Gorsuch to make difference on variety of cases
High court likely turning hard right
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 Republicancontrolled 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 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 jus- tices," said Greg Garre, a Washington lawyer at Latham & Watkins 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.
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."