Supreme Court, Trump may face off

Travel ban, vot­ing dis­tricts may lead ‘mo­men­tous’ term

USA TODAY US Edition - - NEWS - Richard Wolf

A rein­vig­o­rated WASH­ING­TON Supreme Court will burst back on to the na­tional stage next week fac­ing a bat­tery of con­tentious is­sues and a pres­i­dent who is de­ter­mined to bend the ju­di­cial branch to his will.

Af­ter a sleepy term in which a short­handed court mostly avoided con­tro­versy, its new con­ser­va­tive ma­jor­ity will tackle ma­jor cases on vot­ing rights, gay rights, work­ers’ rights and pri­vacy rights — and, pos­si­bly, Pres­i­dent Trump’s re­vised im­mi­gra­tion travel ban. The court’s de­ci­sions could al­ter the pow­ers of the pres­i­dent, state leg­is­la­tures, cor­po­ra­tions and po­lice.

“There’s only one pre­dic­tion that’s en­tirely safe of the up­com­ing term, and that is it will be mo­men­tous,” Jus­tice Ruth Bader Gins­burg said last week.

The im­pos­ing docket ar­rives at a time when the court has re­cov­ered from the un­timely death early last year of Jus­tice An­tonin Scalia, a 14-month stand­off be­tween the White House and Congress, and the ad­di­tion of Jus­tice Neil Gorsuch, who showed signs of fill­ing Scalia’s shoes both ide­o­log­i­cally and rhetor­i­cally.

That has so­lid­i­fied the court’s right flank, giv­ing con­ser­va­tives hope of con­trol­ling the term’s ma­jor cases af­ter two years in which lib­er­als more than held their own. “There could be some re­ally sig­nif­i­cant wins,” says Car­rie Sev­erino, chief coun­sel at the Ju­di­cial Cri­sis Net­work, a con­ser­va­tive le­gal group.

The ques­tion now, for­mer U.S. so­lic­i­tor gen­eral Gre­gory Garre says, is “how much can the Supreme Court han­dle?”

It has han­dled a lot in the past five years: res­cu­ing Oba­macare not once but twice, rec­og­niz­ing and le­gal­iz­ing same-sex mar­riage, weak­en­ing vot­ing rights and cam- paign fi­nance laws, pro­tect­ing af­fir­ma­tive ac­tion and abor­tion rights, and strength­en­ing re­li­gious lib­erty and pri­vacy rights.

The com­ing term that be­gins Oct. 2 looms as an­other po­ten­tial block­buster, but with a de­gree of un­pre­dictabil­ity that did not com­pli­cate ear­lier ones. For one thing, there’s a new pres­i­dent at war with the ju­di­ciary.

The jus­tices will tan­gle with govern­ment lawyers who have switched sides on is­sues from en­forc­ing ar­bi­tra­tion clauses in em­ploy­ment con­tracts to purg­ing vot­ers from reg­is­tra­tion rolls.

Sev­eral jus­tices may need to swal­low their pride as they con­front Trump’s Jus­tice De­part­ment at the lectern. In ad­di­tion to at­tack­ing courts and judges in gen­eral for hold­ing up his im­mi­gra­tion travel ban and sanc­tions against sanc­tu­ary cities, Trump has called Chief Jus­tice John Roberts a “dis­as­ter” for green­light­ing Oba­macare and urged Gins­burg, 84, to re­sign be­cause “her mind is shot.”

The po­ten­tial show­down over Trump’s travel ban is but one of many fights on im­mi­gra­tion pol­icy. Po­ten­tial le­gal bat­tles loom over his pro­posed bor­der wall, penal­ties against sanc­tu­ary cities and end­ing le­gal pro­tec­tions for im­mi­grants brought to the United States il­le­gally as chil­dren.

For that rea­son, con­ser­va­tives say, it’s cru­cial that the court up­hold the travel ban, even in the face of Trump’s cam­paign state­ments tar­get­ing Mus­lims and po­lit­i­cally in­cor­rect tweets.

“The Supreme Court needs to sig­nal to the lower courts how to han­dle Don­ald Trump,” says Josh Black­man, a con­ser­va­tive blog­ger and as­so­ci­ate pro­fes­sor of law at South Texas Col­lege of Law. If the travel ban is struck down, he says, “then it’s open sea­son. This pres­i­dency is over.”

Trump isn’t the only new sher­iff in town. The ad­di­tion of ev­ery new jus­tice, it is said, cre­ates a whole new court, and Gorsuch ar­rived in April with gusto. He dis­sented in the first case he heard as well as three oth­ers, and he wrote or joined five other separate opin­ions.

Gorsuch’s big­gest po­ten­tial im­pact may be on An­thony Kennedy, whom he served as a law clerk a quar­ter cen­tury ago. Will he pull the the swing jus­tice into the con­ser­va­tive camp more of­ten or push him away? Ei­ther way, the lib­er­al­con­ser­va­tive gulf will re­main.

It re­mains Kennedy’s court, a fact that gives lib­er­als a glim­mer of hope that some of the ma­jor cases could tilt their way. With Kennedy con­sid­ered likely to re­tire as soon as next year, and with Gins­burg and Stephen Breyer ad­vanc­ing in age, the court may not be evenly split for much longer.

“For al­most all of these cases, I think it’s go­ing to come down to Jus­tice Kennedy,” says Er­win Che­merin­sky, dean of the Univer- sity of Cal­i­for­nia’s Berke­ley School of Law. “If this is Kennedy’s last term, it should be an amaz­ing last term.”

uOn the travel ban, Kennedy and the four con­ser­va­tive jus­tices may have tipped their hands in June by al­low­ing it to take ef­fect tem­po­rar­ily, then block­ing some fed­eral ap­peals court rul­ings that would have added to the num­ber of ex­empt trav­el­ers.

If the court is lean­ing to­ward ap­prov­ing the ban on im­mi­grants from ma­jor­ity-Mus­lim coun­tries and refugees with­out per­sonal ties to the U.S., it will have to cir­cum­vent a last-minute prob­lem. The case could be moot, or at least sent back to lower courts, be­cause of changes an­nounced Sun­day.

uKennedy will be cru­cial in what could be the term’s most con­se­quen­tial case test­ing the tra­di­tion of draw­ing po­lit­i­cal dis­tricts for par­ti­san ad­van­tage. Jef­frey Rosen, pres­i­dent of the Na­tional Con­sti­tu­tion Cen­ter, notes it has been called “the most im­por­tant case in­volv­ing the struc­ture of Amer­i­can pol­i­tics in a gen­er­a­tion.”

In three cases from 1962, 1986 and 2004, the high court has failed to de­fine how much ger­ry­man­der­ing is too much.

The case comes from Wis­con­sin, but about one-third of the dis­tricts drawn for Congress and state leg­is­la­tures could be af­fected if the jus­tices strike down the maps. Sim­i­lar cases are pend­ing in Mary­land, North Carolina and Penn­syl­va­nia.

uThe sex­i­est case of the term comes from Colorado, where “cake artist” Jack Phillips’ re­fusal to cre­ate a cake cel­e­brat­ing a gay cou­ple’s wed­ding on First Amend­ment grounds ran into state anti-dis­crim­i­na­tion laws.

Once again, con­vinc­ing Kennedy is crit­i­cal. The jus­tice, 81, has au­thored nearly all of the court’s ma­jor rul­ings in fa­vor of LGBT rights, in­clud­ing its 2015 de­ci­sion declar­ing a con­sti­tu­tional right to same-sex mar­riage.

Yet he is a firm de­fender of free-speech rights, and his 2015 opinion spec­i­fied that “those who ad­here to re­li­gious doc­trines may con­tinue to ad­vo­cate with ut­most, sin­cere con­vic­tion that, by di­vine pre­cepts, same-sex mar­riage should not be con­doned.”


De­mon­stra­tors gath­ered out­side the Supreme Court in Jan­uary 2016, the last time it con­sid­ered a ma­jor la­bor rights case.

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