Jus­tices gear up for block­buster court cases

Trump’s tweets, gay wed­dings on the line

The Washington Times Weekly - - National - BY ALEX SWOYER

The Supreme Court over the next month is poised to up­end the way the coun­try picks rep­re­sen­ta­tives to Congress, de­cide whether the First Amend­ment pro­tects peo­ple who refuse to do busi­ness with same-sex cou­ples and rule on whether Pres­i­dent Trump’s tweets can be used in court to de­rail his agenda.

Af­ter what an­a­lysts de­scribed as a lack­lus­ter term last year, this year is shap­ing up to de­liver a se­ries of block­buster rul­ings that will sig­nal to lower courts how they should treat the un­ortho­dox Mr. Trump.

The biggest test comes on the pres­i­dent’s travel ban. His op­po­nents have begged the jus­tices to hold Mr. Trump’s cam­paign-era tweets against him, say­ing his com­ments about Mus­lims taint the travel pol­icy he an­nounced once he took of­fice.

Led by Hawaii, the case is also the first big test of the blue state anti-Trump re­sis­tance to reach the high court, and an­a­lysts said it will test how far the court will go in act­ing as a brake on the ad­min­is­tra­tion.

“The travel ban case presents the court with the op­por­tu­nity to look be­hind the texts of the travel ban it­self and the ra­tio­nale of­fered by the gov­ern­ment to the anti-Mus­lim an­i­mus ex­pressed by Don­ald Trump not just on the cam­paign trail but sev­eral times since he has been in of­fice,” said Robert Tut­tle, a law pro­fes­sor at Ge­orge Wash­ing­ton Uni­ver­sity.

Mr. Tut­tle said he could see the court up­hold­ing the cur­rent ver­sion of the pol­icy.

Lower ap­peals courts have taken a skep­ti­cal view of Mr. Trump’s pol­icy, which re­stricts ad­mis­sion of ci­ti­zens from a num­ber of coun­tries that don’t fully co­op­er­ate with U.S. travel poli­cies, but the jus­tices seemed more open to the pol­icy dur­ing oral ar­gu­ment.

Curt Levey, pres­i­dent of the Com­mit­tee for Jus­tice, said a win for Mr. Trump will also send a mes­sage to the district courts against the is­suance of na­tion­wide in­junc­tions against the pres­i­dent’s poli­cies.

“If the court rules for Trump, it will send a mes­sage to the lower courts that it is un­ac­cept­able for them to join the re­sis­tance no mat­ter what they may think about the pres­i­dent’s mo­tives,” Mr. Levey said. The travel case, known of­fi­cially as Trump v. Hawaii, is one of 29 rul­ings the jus­tices are ex­pected to de­liver by the end of this month, when the 2017-2018 ses­sion con­cludes.

Josh Blackman, a pro­fes­sor at South Texas Col­lege of Law, said the most important take­away from the term thus far is the court’s slow pace in is­su­ing its de­ci­sions.

It is also the first full ses­sion for Jus­tice Neil M. Gor­such, a Trump appointee, who set court-watch­ers atwit­ter this year when he sided with the four Democrat­ap­pointed jus­tices in rul­ing against a law al­low­ing le­gal im­mi­grants to be de­ported if they com­mit a vi­o­lent crime. He said the law was too vague in defin­ing what con­sti­tuted “crimes of vi­o­lence.”

Mr. Levey said Jus­tice Gor­such could be the de­cid­ing fac­tor in many of the pend­ing high-pro­file cases. The early signs are that the court has be­come more con­ser­va­tive since he filled the seat of the late Jus­tice An­tonin Scalia.

Two years ago, af­ter Scalia’s death but be­fore Jus­tice Gor­such’s ap­point­ment, the court dead­locked 4-4 on a case in­volv­ing whether pub­lic-sec­tor la­bor union members can be re­quired to pay dues that the unions then spend on their po­lit­i­cal goals.

Now an­other such case is back be­fore the court. Mark Janus, a gov­ern­ment em­ployee in Illi­nois, says he is forced to pay union dues that sub­si­dize speech with which he dis­agrees.

Mr. Levey said this case could be a ma­jor set­back to pub­lic unions and their abil­ity to spend money ad­vanc­ing their agen­das if the court, with Jus­tice Gor­such, sides with Mr. Janus.

In an­other ma­jor First Amend­ment case, re­li­gious con­ser­va­tives are ea­gerly await­ing the jus­tices’ de­ci­sion on whether Chris­tian com­pa­nies can refuse to do busi­ness for same-sex wed­dings.

The le­gal bat­tle be­gan when Jack Phillips, a Chris­tian baker, turned a same-sex cou­ple away from his bak­ery and re­fused to create a cus­tom cake for their same-sex wed­ding be­cause it vi­o­lated his re­li­gious be­liefs.

Colorado said he broke pub­lic ac­com­mo­da­tion laws that pro­hibit busi­nesses from turn­ing cus­tomers away based on race, sex­ual ori­en­ta­tion, age and na­tion­al­ity.

Mr. Phillips coun­tered that the law crimped his free speech rights by re­quir­ing him to bake and dec­o­rate a cake — his form of art — in sup­port of some­thing he finds ob­jec­tion­able. Mr. Trump’s Jus­tice Depart­ment sided with the baker.

Mr. Tut­tle said an ex­cep­tion to the pub­lic ac­com­mo­da­tion law could have ram­i­fi­ca­tions for other mi­nor­ity groups across the board.

“There is noth­ing in prin­ci­ple that lim­its this to the ex­clu­sion of gays and les­bians or LGBT-plus folks. It can also in­clude other forms of dis­crim­i­na­tory con­duct if some­one be­lieves that this vi­o­lates their right to com­pelled speech, so I just worry about this across the whole range of ex­emp­tions,” Mr. Tut­tle said.

The jus­tices could also set­tle a land­mark bat­tle over how nakedly po­lit­i­cal states can be in draw­ing lines for their leg­isla­tive dis­tricts, such as state­houses and members of Congress.

A host of lib­eral voter groups chal­lenged Wis­con­sin’s maps, say­ing Repub­li­cans drew the lines to pack Democrats into a few dis­tricts while spread­ing out Repub­li­can vot­ers to max­i­mize the num­ber of House seats.

A lower court ruled that the po­lit­i­cal move vi­o­lated vot­ers’ right to have a fair chance to pick a can­di­date of their choice. The court sug­gested that a math­e­mat­i­cal for­mula should be used to cal­cu­late how par­ti­san a district can lean be­fore it is deemed il­le­gal.

But an­a­lysts say it’s tricky, if not im­pos­si­ble, to set­tle on an ac­cept­able for­mula.

The court will also ad­dress the in­creas­ing ten­sion be­tween tech­nol­ogy and pri­vacy in a case over cell­phone track­ing data and whether the gov­ern­ment needs a war­rant to track peo­ple’s where­abouts.

The Trump ad­min­is­tra­tion ar­gued that the cell­phone records be­long to telecom­mu­ni­ca­tions com­pa­nies, not cus­tomers, so there is no need for a war­rant to ob­tain data lo­ca­tion records. Skep­tics, though, say it vi­o­lates the con­sumers’ Fourth Amend­ment right.

Court watch­ers will also be look­ing for re­tire­ment an­nounce­ments, which of­ten co­in­cide with the end of a ses­sion.

Ilya Shapiro, a se­nior fel­low at the Cato In­sti­tute, ad­vises court watch­ers not to get too com­fort­able with the cur­rent lineup.

“This com­po­si­tion of the court won’t last long, whether [Jus­tice] Kennedy re­tires now or later,” he said. “But I re­ally like Gor­such. His ap­proach is a breath of fresh air.”

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