Will butchers, bakers, and candlestick makers be required to perform services for sore-winner crybullies they would rather go across the street to avoid? Are public service unions allowed to steal money from the paychecks of public employees who want nothing do with them? May police officers have access to all your location information from your mobile device without a warrant? These questions and more will be decided for all Americans by summer.
A Momentous Term For The Court
"There is only one prediction that is entirely safe about the upcoming term, and that is it will be momentous.” That’s Ruth Bader Ginsburg on the newest session of the United States Supreme Court which hears its first case of the new term on Monday, October 2nd. It certainly has the potential to be. Justice Scalia died in office in the middle of the October 2015 term, and his seat was not replaced until there were but a few weeks left in the October 2016 term. New Justice Gorsuch surely made an impression in those few weeks, but with a fresh term ahead without the hullaballoo of a new nomination and fight, plus all the turmoil a cross-country move brings, expect even more production from him.
Justices themselves decide which cases to hear, and the rules they have currently set for themselves requires four justices to agree for a case to be added to the Court’s docket. If you think a very important issue will not be resolved as it should, or that it will result in a 4-4 tie, leaving a lower court ruling intact, would you vote for the case to be heard, or wait until nine justices were impaneled? There was at least a perceived reluctance on many justices’ parts to accept the kind of high-profile everyday life impacting decisions. Not so for this term.
What About The Travel Ban?
“Those who were hoping for a SCOTUS ruling on the Trump administration’s “travel ban” will likely be disappointed. After the ban expired on-schedule this past week and was replaced with a new presidential directive, the Court removed the cases addressing the issue from the oral argument calendar and asked the parties to brief as to whether the case is moot. In all likelihood, this means challenges to the administration’s immigration policies will have to start over from scratch in the district courts. No matter; there’s plenty else for the justices to do this term.”
That’s law professor Jonathan Adler writing for the National Review with a helpful preview of some of the term’s important cases. We’ll see if the ACLU can find another judge to strike down President Trump’s executive orders to force the case back to the fore.
What’s First?
The Court will hear arguments in eight cases this first week. Here’s a rundown of the top ones, with help from the indispensable SCOTUSblog:
Epic Systems Corp. v. Lewis, etc.
Whether an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act. (This is three consolidated cases with like disputes combined.)
Are criminal-removal provisions in the immigration laws largely immune from judicial review, or do these people have reviews and due process rights more akin to citizens and legal residents?
This case may decide whether partisan gerrymandering or redistricting of electoral lines to benefit the party in power is constitutional and is one potential blockbuster for its impact. In 2004 the court split on this issue.That plurality opinion determined that partisan gerrymandering claims were nonjusticiable (or impossible to decide) because there was no discernible and manageable standard for "adjudicating political gerrymandering claims."
This case concerns “[t]he constitutionality of mandatory and lengthy immigrant detention without a bond hearing.” Are these people entitled to the hearings citizens would enjoy?
Here police busted a party and some attendees for trespassing. The partiers claimed they had permission to be there and were wrongfully arrested, and sued. Police then claimed even if they were wrong they aren’t liable due to qualified immunity. Are they?
If a defendant pleads guilty, does she forgo the right to challenge the conviction later? Given the epidemic of plea bargaining in our criminal justice system, this decision will have existential consequences for many defendants.
Whatever the outcomes of this first week, the next term of the Supreme Court is likely to be one of the most interesting, and potentially divisive, we have seen in a long time.
