Redistricting on high court’s agenda

In new term, justices also will hear arguments on shield from gay-rights laws

WASHINGTON — The Supreme Court opens its term Monday focused on whether to shield conservative Christians from gayrights laws and whether to rein in the partisan gerrymandering that Republicans have used in recent years to tighten their grip on power in Congress and state legislatures.

As usual, for the past several years, the answers likely will come from Justice Anthony Kennedy, the 81-year old Reagan appointee who often holds the deciding vote when the rest of the court is evenly split along ideological lines.

Kennedy has been the court’s leader in striking down laws that discriminated against gays and lesbians, but he also has been a steady champion of free speech. Religious-rights advocates insist that religious freedom is in danger in this country, but in court, they rely mostly on the First Amendment principle that the government cannot force someone to speak its message.

That’s the issue in a case involving a Colorado baker of wedding cakes. Advocates for religious conservatives want the court to rule that business owners whose work is “expressive” have a free speech right to refuse to comply with civil-rights laws — at least those that protect same-sex couples.

Jack Phillips, the baker, turned away two men who asked for a wedding cake, and he was charged with violating the state’s civil-rights law. Colorado and 20 other states require a business open to the public to provide “full and equal” service to all customers without regard to their sexual orientation.

Lawyers for the Alliance Defending Freedom describe the baker as a “cake artist.” The Supreme Court agreed to hear his claim that the state cannot force a person to endorse or help celebrate a same-sex marriage by making a special wedding cake. The administration of President Donald Trump supports Phillips and urged the court to carve out a “narrow” exemption to gay-rights laws that would allow photographers, florists, musicians and others whose work is “expressive” to refuse to participate in a same-sex marriage. The court will hear the case, Masterpiece Cakeshop v. Colorado, after Thanksgiving.

The meaning of free speech is also at the core of a Wisconsin case in which Democrats and liberals want the court to strike down the highly partisan electoral maps that permit one party to entrench itself in power for a decade or more.

Although the case directly involves just one house of the Legislature in one state, control of the U.S. House of Representatives could be at stake, depending on the outcome.

Wisconsin Republicans drew legislative district lines in 2011 that virtually guaranteed they would control at least 60 of the 99 seats in the state Assembly, the lower house of Wisconsin’s Legislature.

The challenge to what Democrats call a partisan gerrymander, Gill v. Whitford, will be heard Tuesday.

Wisconsin Democrats argue that the Republican electoral map violates their First Amendment rights because their views will never have majority support in the state House barring an “unprecedented political earthquake.”

Their argument, like the one in the baker’s case, is aimed at Kennedy. The last time the Supreme Court considered political gerrymandering — and decided not to act — Kennedy wrote that the court might be more open to a future appeal based on freespeech principles.

The other major issue before the court — Trump’s power to deny entry to citizens of several Muslim majority nations — is in limbo. The justices were scheduled to hear arguments Oct. 10 on the constitutionality of the president’s temporary travel ban. But part of that order expired last Sunday, and the justices canceled the arguments after the White House issued a revised and expanded set of restrictions on foreign nationals who apply for visas.

Still, the legal issue needs to be resolved. The American Civil Liberties Union and other alien-rights advocates are determined to challenge Trump’s revised order as unconstitutional. So a new case is likely to appear to the court’s docket.

The justices also will try to decide an immigration case left unresolved in their last term. At issue is whether thousands of noncitizens who are arrested and scheduled for deportation can be held indefinitely. The 9th U.S. Circuit Court of Appeals ruled that after six months, those detainees had the right to a bail hearing and a chance to be released if they posed no danger to the public and were not likely to flee.

The outcome, in Jennings v. Rodriguez, probably depends on Justice Neil Gorsuch. The eight other justices heard the case in November but did not issue a ruling. It will be reargued Tuesday.

On Monday, the court will hear a major workers-rights dispute that has divided the federal government. At issue is whether companies may require workers to waive their rights to join a class-action suit and instead require them to have their claims be heard individually by an arbitrator.

The administration of President Barack Obama and the National Labor Relations Board said employees had a right to take “concerted activities” to protect their interests, citing a New Deal law from 1935. A group of technical writers sued their software company, contending that they were wrongly denied overtime pay. But under the Trump administration, the federal government switched sides after the court agreed to hear the case and said arbitration agreements are valid, citing the Federal Arbitration Act of 1925.

“This will be a first for me in the nearly 25 years I’ve served on the court,” Justice Ruth Bader Ginsburg told Georgetown law students Sept. 20. “There is only one prediction that is entirely safe about the upcoming term,” she added, “and that is it will be momentous.”