Supreme Court, Trump may face off
Travel ban, voting districts may lead ‘momentous’ term
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.”