Judicial Roadmap for the Supreme Court Veers Right

There is hardly a political question in the United States which does not sooner or later turn into a judicial one.--Alexis de Tocqueville, "Democracy in America"

Get ready for change. After moving to the political center the past three terms, the Supreme Court is poised to take a turn back to the right in its new session, which kicked off Monday. The big question is how abrupt and sharp the turn will be.

One reason for the anticipated lurch to the right is that this will be the first full term served by the court's newest member, Neil Gorsuch. Confirmed by the Senate on a 54-45 vote in April, Gorsuch succeeds Antonin Scalia, the conservative firebrand who died in February 2016. Gorsuch previously held a seat on the 10th Circuit Court of Appeals, and with his addition, the high tribunal now has a full complement of nine justices, and its 5-4 Republican majority has been restored.

Like Scalia, Gorsuch is an ardent proponent of the "originalist" school of jurisprudence--the idea popularized by Scalia and think tanks such as The Heritage Foundation and The Federalist Society that the Constitution should be interpreted according to what it presumably meant to the framers at the time of its adoption, rather than on the basis of evolving standards of morality and social justice.

Gorsuch is also a great personal admirer of Scalia. In an April 2016 speech delivered at Case Western Reserve University School of Law in Cleveland, Gorsuch eulogized Scalia as "a lion of the law," whose singular "project" was "to remind us ... that judges should ... strive (if humanly and so imperfectly) to apply the law as it is, focusing backward, not forward, and looking to text, structure, and history to decide what a reasonable reader at the time of the events in question would have understood the law to be--not to decide cases based on their own moral convictions or the policy consequences they believe might serve society best."

As I have pointed out in this column before, during the presidential election campaign, Donald Trump listed 21 federal and state court judges as possible replacements for Scalia. In a comprehensive study led by Mercer University law professor Jeremy Kidd, Gorsuch was ranked second among the 21 in judicial qualities most resembling Scalia's originalist approach to adjudicating constitutional controversies. Utah Supreme Court Justice Thomas Lee--the brother of Sen. Mike Lee, R-Utah--garnered the top spot.

If anything, Gorsuch could prove to be even more regressive than Scalia. According to the SCOTUSblog website, during his short stint on the court last term Gorsuch voted in agreement with Justice Clarence Thomas, long considered the panel's most right-wing outlier, in every case he reviewed on the merits. He voted in line with Justice Samuel Alito in 94 percent of his cases. On the other hand, he agreed with Justice Sonia Sotomayor, regarded by many as the most liberal associate, at a 58.8 percent clip.

This term, Gorsuch will have a far longer and better opportunity to prove his conservative bona fides--and in some instances, tip the voting balance--in a docket of high-profile cases the court will review, many of which appear tailor-made to yield landmark conservative outcomes. Although the court will no doubt add several additional appeals to its docket before the current term closes at the end of June, five currently pending cases get my nod as the most critical of all.

1. The Muslim Travel Ban: Trump v. Hawaii, and Trump v. International Refugee Assistance Project

Once considered the most important item on the docket and originally set for oral argument on Oct. 10, these consolidated challenges to the second version of the president's travel ban, which was adopted via executive order on March 6, have been taken off the calendar. The two cases come, respectively, from the 4th and 9th Circuit Courts of Appeals, both of which issued injunctions preventing the bulk of the ban from taking effect.

Although the cases remain on the active docket, they are in danger of being dismissed as moot rather than resolved on the merits because Trump has once again revised the ban, this time by way of a proclamation announced Sept. 24. Under the terms of the new proclamation, Sudan has been removed from the original number of Muslim-majority nations from which visitors to the U.S. would be barred. Visitors from Iran, Libya, Yemen, Somalia and Syria will remain banned, while those from North Korea, Chad and Venezuela have been added to the proscribed list.

If the court doesn't dismiss the current cases, it appears likely that it will uphold at least part of the March 6 ban. In a unanimous, unsigned ("per curiam") opinion issued June 26, the justices reinstated the ban's 120-day suspension of the U.S. refugee program. However, the court held that pending further review, the travel ban would not be applied to ordinary visitors from the six targeted nations who have "a credible claim of a bona fide relationship with a person or entity in the United States," such as close relatives of citizens and lawful permanent residents, or university students.

Of particular note, Gorsuch, together with Alito, joined a concurring opinion in the case authored by Thomas, which maintained that the entire travel ban should be upheld. It would come as no great surprise if Gorsuch, Thomas and Alito were able to persuade Chief Justice John Roberts and Justice Anthony Kennedy to go along with them and hand the Trump administration a nativist victory if a merits ruling is issued.

2. Partisan Gerrymandering: Gill v. Whitford

With the Muslim ban shunted, for the time being, to the sidelines, Gill v. Whitford, scheduled to be heard Tuesday, has taken center stage. A byproduct of the Republican takeover of Wisconsin state government, the case concerns the constitutionality of the widespread and longstanding practice of political gerrymandering--the act of mapping electoral districts, both state and congressional, to entrench the majority political party in power.

Although both major parties historically have parlayed control of state governments to enable them to chart voting precincts favorable to their own incumbents, Republicans have proven especially adept at the procedure, particularly since the 2010 census. Using sophisticated computer algorithms to identify and predict voting behavior, the GOP has redrawn electoral districts across the country to help the party achieve control of all branches of government in no less than 26 states. Democrats control all levers of state government in a scant six states.

At the congressional level, Republicans have also profited from gerrymandering. According to the Brennan Center for Justice, "In the 26 states that account for 85 percent of congressional districts, Republicans derive a net benefit of at least 16-17 states in the current Congress from partisan [gerrymandering] bias."

The Wisconsin situation is particularly dire. In the 2012 election, Republicans received 48.6 percent of the two-party statewide vote for Wisconsin General Assembly candidates but won 60 of the 99 seats in the legislative body. In the 2014 election, the Republican Party received 52 percent of the two-party statewide vote and 63 Assembly seats.

The plaintiffs in Gill are 12 Democratic activists. They contend that the state's voting maps--which will remain in force until the next census in 2020--not only dilute their voting power in violation of the 14th Amendment's guarantee of equal protection, but that the maps also undermine their First Amendment rights, subjecting them to disfavored treatment because of their political views.

The problem is that while the Supreme Court has outlawed geographic gerrymanders (the practice of creating voting districts with unequal populations) and racial gerrymanders (the practice of purposely designing electoral districts to dilute the voting power of minorities), it has never declared a single instance of partisan gerrymandering illegal.

In 2004, in Vieth v. Jubelirer, a case from Pennsylvania, a plurality of four justices (one short of an outright majority), in an opinion laden with originalist theory written by Scalia and joined by Thomas, held that partisan gerrymanders are "political questions" that should never be subject to review by the courts.

And just last term, in a racial gerrymandering case from North Carolina (Cooper v. Harris), Alito authored a dissenting opinion, joined by Roberts and Kennedy, that asserted that unlike the racial variety, purely political gerrymandering is a "traditional domain of state [legislative] authority."

Still, the Gill plaintiffs managed to convince two members of a three-judge district court panel in 2016 that Wisconsin's partisan gerrymander was so extreme in its disenfranchisement of the state's Democrats that it ran afoul of the Constitution. With Gorsuch channeling Scalia's originalism on the bench, they'll no doubt face a much stiffer test in the Supreme Court.

3. A New Assault on Public Unions: Janus v. American Federation of State, County, and Municipal Employees

For the fourth time since 2012, the court will hear an appeal that seeks to end the right of public-sector unions to collect limited "fair-share" fees from nonmember employees in lieu of full formal dues to help defray the costs of collective bargaining. Without such payments, which are deducted from employee paychecks and also are called "agency fees"--in reference to the status of unions as the sole agents authorized to act on bargaining matters--the nation's entire public sector would be converted into one enormous and uniform "right-to-work" jurisdiction.

In the process, many public-sector unions would collapse economically. Increasing numbers of employees would opt to become "free riders" and remit no fees at all to unions. Unions, however, would still be required by law to represent all members of a bargaining unit in contract negotiations, the free riders as well as the dues payers. Depleted of funds, unions would be weakened, and still more workers would choose to join the free-rider ranks, creating a vicious death spiral.

In Wisconsin, for example, in the aftermath of Gov. Scott Walker's infamous 2011 assault on public unions and the state's subsequent implementation of right-to-work policies, the declines in public union membership and dues collected have been monumental. The Madison local of the American Federation of State, County and Municipal Employees lost 18,000 of its 32,000 members by the summer of 2014, and its annual revenue dwindled from $10 million to $5.5 million. The state's largest teachers union, the Wisconsin Education Association Council, lost more than a third of its membership.

Under current law, no one can be forced to join a union, even one that has been elected by a majority of workers to negotiate on their behalf. In non-right-to-work states, however, unions nonetheless can require fair-share fees from nonunion members, as long as such fees are not contributed to political campaigns or used for political lobbying.

In Abood v. Detroit Board of Education--a 1977 decision dealing with government unions, handed down during a more labor-friendly era in the Supreme Court's history--the justices upheld the constitutionality of fair-share fees. As Abood recognized, the fair-share structure is designed to equitably distribute the cost of union activities among those who benefit in the form of higher wages, pensions, health insurance and assistance with workplace grievances and employer disciplinary hearings.

There is little question that state employees receive a handsome payout from the work performed by public unions. According to figures compiled by The Century Foundation, for instance, unionized teachers in California on average earn an hourly wage 24.7 percent higher than their nonunion counterparts.

But the Roberts court, operating in a new era of hostile anti-worker judicial activism, has steadily chipped away at the Abood rule. Starting in 2012 with its opinion in Knox v. Service Employees International Union and continuing with its 2014 decision in Harris v. Quinn, a majority of the court has emphasized that the payment of union dues by public employees is a form of political speech subject to the constraints of the First Amendment, because public unions negotiate contracts with governmental entities and such contracts by definition affect public policies and the spending of taxpayer money.

The First Amendment, they reason, protects not only the affirmative right to speak but also the passive right not to be compelled to speak or to be compelled to endorse the offending speech or acts of other people or groups. Requiring dissenting employees to pay fees to a union they don't want to join, the analysis continues, amounts to such compelled speech in violation of the First Amendment.

In both Knox and Harris, the court stopped short of overturning Abood. And in 2016, following Scalia's death, the court split along ideological lines, deadlocking 4-4 on the fair-share question in Friedrichs v. California Teachers Association.

The plaintiff in the new challenge to the fair-share system is Mark Janus, a child-support specialist who works for the Illinois Department of Healthcare and Family Services. He is represented in the Supreme Court by--you guessed it--the National Right to Work Legal Defense Foundation Inc.

It's easy to see why right-to-work proponents, who have already succeeded in implementing legislation in 27 states, want to achieve a complete and final triumph before the nation's highest court: Public unions are the last bastion of organized labor in America. In 2016, the percentage of unionized wage and salary workers in the U.S. dropped to 10.7 percent, down from 20.1 percent in 1983. The unionization rate in the private sector today stands at an abysmal 6.4 percent. The public sector, by contrast, still boasts an aggregate unionization rate of 34.4 percent, although that rate has also fallen from 35.7 percent in 2014.

Unions are a consistent supporter of Democratic Party candidates and liberal ballot initiatives, donating more than $132 million to liberal super PACs in the 2016 election cycle.

With Gorsuch slipping into Scalia's robes on the Supreme Court, the 4-4 deadlock reached in Friedrichs is likely to give way to a 5-4 margin in Janus, spelling the end of compulsory fair-share fees--and dealing, quite possibly, a deadly blow to the labor movement.

4. A New Attack on Gay Rights in the Name of the First Amendment and "Religious Liberty": Masterpiece Cakeshop v. Colorado Civil Rights Commission

In 2012, Charlie Craig and David Mullins asked Jack Phillips, owner of the Masterpiece Cakeshop bakery in Lakewood, Colo., to design a cake for their wedding. Phillips, citing his Christian faith, refused because Craig and Mullins are gay.

Stunned and insulted, Craig and Mullins filed a complaint with the Colorado Civil Rights Commission, which assigned their case to an administrative law judge. The judge found that Phillips had violated the state's civil rights laws, which prohibit discrimination on the basis of sexual orientation in places of public accommodation.

Philips thereafter appealed to the Colorado Court of Appeals, which affirmed the judge's decision in August 2015, citing the Supreme Court's ruling in Obergefell v. Hodges, issued just two months earlier, recognizing the federal constitutional right of same-sex couples to marry. Although the courts in Colorado declined to hear further appeals from Phillips, the Supreme Court agreed in June to review his case.

In their briefs filed with the Supreme Court, Phillips' lawyers argue that he is not merely a vendor of baked goods, but an artist whose religious views are expressed in the designs he fashions for faith-oriented occasions such as weddings. Forcing him to decorate a cake for gay nuptials, which he opposes as a matter of principle, would contravene his religious liberty in violation of the First Amendment.

Last term, in a concurring opinion in a religious-freedom case from Missouri (Trinity Lutheran Church v. Comer), Gorsuch left no doubt that he is a strong believer in "religious liberty" of the sort Phillips and his lawyers advocate. Further, while on the 10th Circuit, he voted in favor of Hobby Lobby Stores Inc., upholding the company's right to refuse to provide health insurance for contraception coverage to its female employees. With Thomas, Alito, and Roberts (based on his voting record in such cases in the past) likely to unite with Gorsuch in the Masterpiece Cakeshop case, all eyes will be on Kennedy, the court's perennial swing justice.

This question now is whether Kennedy will vote in favor of Phillips in Masterpiece as he voted in favor of Hobby Lobby in 2014, when he penned a concurring opinion in the company's case when it came before the Supreme Court. Or will Kennedy endorse same-sex equality, as he did in Obergefell, in which he wrote the court's path-breaking 5-4 majority opinion on marriage? The case has not yet been set for argument, but we'll have an answer by the end of June.

5. Shades of Edward Snowden in a New Challenge to the Warrantless Search and Seizure of Cellphone Metadata: Carpenter v. United States

In 2013, a federal jury sitting in Detroit convicted Timothy Carpenter and a co-defendant of nine armed robberies in violation of the Hobbs Act. Central to establishing Carpenter's role as the ringleader of the robberies were his cellphone records, which the FBI had obtained without a warrant from Sprint and MetroPCS (now owned by T-Mobile).

At their trial, Carpenter and his co-defendant moved to suppress the cellphone records, arguing that the FBI had violated their Fourth Amendment privacy rights by obtaining the records without a warrant. They lost the motion, as well as their subsequent appeal to the 6th Circuit Court of Appeals.

The 6th Circuit's opinion is eerily reminiscent of the Obama administration's defense of the National Security Agency's bulk collection of the telephone metadata of all Americans, which was publicly exposed by famed whistleblower Edward Snowden. Citing the Supreme Court's 1979 ruling in Smith v. Maryland, the circuit court concluded that Carpenter had no reasonable expectation of privacy in his phone records--and hence, had suffered no Fourth Amendment infringement--because he had voluntarily turned over his phone metadata to his carriers by using them to place his calls.

Although the Smith case was decided in a pre-digital age, it is still, in the parlance of litigators, "good law." Nonetheless, there is some cause for optimism that the current court, including its Republican members, will decide to distinguish it from Carpenter's case or overrule it altogether.

In 2014, in Riley v. California, the court unanimously held that absent an emergency, police may not, without a warrant supported by probable cause, search the digital information contained on a cellphone seized from an arrested individual. While Riley did not concern metadata in the possession of third parties, there is no sound policy reason for not extending its privacy protections to metadata and requiring law enforcement to apply to judges for search warrants, something that is done routinely and with a high degree of success.

During his nearly 30-year tenure on the Supreme Court, Scalia was occasionally a civil-libertarian maverick when it came to search and seizure matters. Gorsuch, if he follows in his predecessor's footsteps, could well be the same. The Carpenter case has not yet been set for oral argument.

Honorable Mention

In addition to my top five cases, the Supreme Court will hear other vital appeals this term involving the right of immigration detainees to bail pending their deportation hearings (Jennings v. Rodriguez); the validity of Ohio's purge of its state voting rolls (Husted v. A. Philip Randolph Institute); the right of defense attorneys working on post-conviction death penalty writ petitions to receive public funds to investigate ineffective assistance of counsel claims (Ayestas v. Davis); and the right of private-sector employees to file class-action lawsuits against their corporate employers (Ernst & Young v. Morris).

Get ready for a rocky ride, strap yourself in and hope for the best, even as the judicial roadmap ahead veers mostly to the right.