Milwaukee Journal Sentinel

SCOTUS opens pivotal term

Cases on gay rights, religious freedoms will reveal swing

- MARK SHERMAN

WASHINGTON - Disputes over a wedding cake for a same-sex couple and partisan electoral maps top the Supreme Court’s agenda in the first full term of the Trump presidency. Conservati­ves will look for a boost from the newest justice, Neil Gorsuch, in a year that Justice Ruth Bader Ginsburg has said will be momentous.

President Donald Trump’s travel ban appears likely to disappear from the docket, at least for now.

But plenty of highprofil­e cases remain.

The justices will hear important arguments that touch on gay rights and religious freedoms, the polarized American electorate, the government’s ability to track people without search warrants, employees’ rights to band together over workplace disputes and states’ rights to allow betting on profession­al and college sporting events.

Last year, “they didn’t take a lot of major cases because they didn’t want to be deadlocked 4-to-4,” said Eric Kasper, director of the Center for Constituti­onal Studies at the University of WisconsinE­au Claire. “This year, that problem doesn’t present itself.”

Gorsuch quickly showed he would be an ally of the court’s most conservati­ve justices, Clarence Thomas and Samuel Alito, most recently joining them in objecting to the court’s decision to block an execution in Georgia.

While justices can change over time, Gorsuch’s presence on the bench leaves liberals with a fair amount of trepidatio­n.

The very first case of the term, set for arguments Monday, could affect tens of millions of workers who have signed clauses as part of their employment contracts that not only prevent them from taking employment disputes to federal court, but also require them to arbitrate complaints individual­ly, rather than in groups.

“I’m very fearful, given the new Supreme Court, of what will happen,” said Sherrilyn Ifill, president and directorco­unsel of the NAACP Legal Defense and Educationa­l Fund.

Just on Thursday, the justices added a case that has the potential to financiall­y cripple Democratic-leaning labor unions that represent government workers.

Taken together, the two cases “have a real chance of being a onetwo punch against workers’ rights,” said Claire Prestel, a lawyer for the Service Employees Internatio­nal Union.

In the term’s marquee cases about redistrict­ing and wedding cakes, 81year-old Justice Anthony Kennedy, closest to the court’s center, remains the pivotal vote.

In an era of sharp political division, it may be now or never for the court to rein in excessivel­y partisan redistrict­ing.

The high court has weighed in several times on gerrymande­ring over the past 30 years, without agreeing on a standard that would allow courts to measure and oversee a process that elected lawmakers handle in most states.

But a lower court was convinced that Democratic voters’ challenge in Wisconsin to the Republican-led redistrict­ing following the 2010 census offered a sensible way to proceed. The GOP plan seemed to consign Democrats to minority status in the Wisconsin Assembly in a state that otherwise is closely divided between parties.

The only real question in the case is whether Kennedy will decide that partisan redistrict­ing “has just gone too far” in Wisconsin and other states where one party has a significan­t edge in the legislatur­e, but statewide elections are closely fought, said Donald Verrilli Jr., solicitor general during the Obama administra­tion.

The wedding cake case stems from a Colorado baker’s refusal, based on his religious beliefs, to make a cake for a same-sex couple.

Colorado’s civil rights commission said baker Jack Phillips’ refusal violated the state’s anti-discrimina­tion law.

As the case has come to the Supreme Court, the focus is on whether Phillips, who regards his cakes as works of art, can be compelled by the state to produce a message with which he disagrees.

On the other side, civil rights groups worry that opponents of same-sex marriage are trying to make an end run around the Supreme Court’s 2015 decision that extended same-sex marriage rights across the country by carving out exceptions to civil rights laws.

The competing narratives are both meant to appeal to Kennedy, who has forcefully defended free-speech rights in his 30 years on the court and also wrote the court’s major gay rights rulings, including the landmark decision two years ago.

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