Supreme Court opens piv­otal term

The Standard Journal - - LOCAL - As­so­ci­ated Press

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.

Pr es i d e n t Don­ald Trump’s travel ban ap­pears likely to dis­ap­pear from the court’s docket, at least for now.

But plenty of high-pro­file cases re­main.

Last week, the jus­tices be­gan to hear im­por­tant cases 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 j us­tices can change over time, Gor­such’s pres­ence on the bench leaves lib­er­als with a fair amount of trep­i­da­tion, es­pe­cially in cases in­volv­ing the rights of work­ers.

The very first case of the term, ar­gu­ments were set for Mon­day, Oct. 2, that 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 di­rec­tor-coun­sel of the NAACP Le­gal De­fense and Ed­u­ca­tional Fund.

In past weeks, the jus­tices added a case that has the po­ten­tial to fi­nan­cially crip­ple Demo­cratic-lean­ing la­bor unions that rep­re­sent gov­ern­ment work­ers.

Taken to­gether, the those 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, 81- year- 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. If the jus­tices do set lim­its, their de­ci­sion could af­fect elec­tions na­tion­wide.

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 di- vided be­tween the 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.

Lo­cally, it’s a case that State Rep. Trey Kel­ley said he doesn’t be­lieve will have much im­pact on Polk County and be­lieved Ge­or­gia has a fair process in place.

“With Democrats los­ing at the bal­lot box all across the na­tion, Repub­li­cans now con­trol most state leg­is­la­tures. In­stead of ac­cept­ing re­spon­si­bil­ity for th­ese losses and fo­cus­ing the blame on their party’s lib­eral Cal­i­for­nia driven plat­form, Democrats have turned to the courts once again to try and over­rule the vote of the Amer­i­can peo­ple,” he said in a state­ment by email. “In Ge­or­gia, Repub­li­cans have es­tab­lished a fair re­dis­trict­ing process.

“This is a stark con­trast to the abuse and dis­crim­i­na­tion which took place while Democrats were in power and the courts did have to throw out the Demo­cratic drawn maps.”

The wed­ding cake case stems from a Colorado baker’s re­fusal, based on his re­li­gious be­liefs, to make a cake for a same­sex 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 cus­tom-made 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.

The Trump ad­min­is­tra­tion is sup­port­ing Phillips in this case. For­mer Jus­tice De­part­ment of­fi­cial Martin Le­d­er­man said the ad­min­is­tra­tion’s high court fil­ing is the first in Amer­i­can his­tory in fa­vor of an ex­emp­tion from civil rights laws.

The ad­min­is­tra­tion also has re­versed course in two cases be­fore the jus­tices. In the ar­bi­tra­tion case, the ad­min­is­tra­tion now is sup­port­ing em­ploy­ers over their work­ers. In the other, the ad­min­is­tra­tion backs Ohio’s ef­forts to purge its voter rolls, over the ob­jec­tions of civil rights groups.

The jus­tices have so far largely avoided be­ing drawn into con­tro­versy sur­round­ing the pres­i­dent. They found com­mon ground and re­sisted a de­fin­i­tive rul­ing on Trump’s travel ban, which crit­ics have de­rided as an ef­fort to ex­clude Mus­lims. The lat­est re­vi­sion to the pol­icy could prompt the court to jet­ti­son the case they orig­i­nally had planned to hear in Oc­to­ber.

David Cole, na­tional le­gal di­rec­tor of the Amer­i­can Civil Lib­er­ties Union, said plenty of other cases will test “whether and to what ex­tent the court will be play­ing an in­de­pen­dent role in check­ing the Trump ad­min­is­tra­tion’s po­si­tions with re­spect to ba­sic rights pro­tec­tions.”

Polk County Stan­dard Jour­nal Edi­tor Kevin Myrick con­trib­uted to this re­port lo­cally.

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