Stage Is Set for Some Drama at Supreme Court
(Bloomberg View) -- President Donald Trump managed to head off the drama of a Supreme Court confrontation, for now, by issuing a new travel ban last week. But the justices begin a new term Monday with other exciting, high-profile cases planned, tackling issues such as religious liberty and equality, privacy, unions and employees’ rights, and international human rights. One of the cases, a challenge to partisan gerrymandering, could turn out to be the most game-changing decision by the court in the realm of politics since one person, one vote.
The gerrymandering case, Gill v. Whitford, goes to the dark heart of how federal political power is deployed in the U.S.: through congressional districting decisions made by state legislatures. Under the one person, one vote principle, all districts have to be roughly the same size. But the parties that control the state legislatures that do the redistricting can shape the districts to elect more of their favorite candidates.
The traditional methods are called, somewhat embarrassingly, “cracking” and “packing.” The first is when you divide a party’s likely voters in a given geographical area into different districts in which they are short of the majority, so that the party loses in both. The second is when you put lots of extra voters from a party into a district you know that party will win, thus “wasting” the votes beyond what is necessary for victory.
Sophisticated technology has allowed the parties that control state legislatures -- mostly Republicans -- to turn these tricks into a science. The software allows the redistricters to predict voting patterns down to the precinct level and to draw district lines to maximize success.
The Supreme Court has long rejected race-based gerrymandering, but has never held that partisan gerrymandering is unconstitutional, mostly because of the difficulty of finding a simple test that shows partisan motive. The trickiest bit is that voters from particular parties tend to group themselves together, in Democratic cities, for example, or Republican suburbs. An effective test has to distinguish self-segregation from intentional partisan manipulation.
The case probably comes down to Justice Anthony Kennedy, who in the past has hinted that partisan gerrymandering could violate voters’ free association rights as well as their equal protection rights. If Kennedy wants, he can add to his growing liberal legacy by holding partisan gerrymanders unconstitutional. That would be a boon to Democrats, who have more to gain by the displacement of the existing system because they have done a worse job of controlling state legislatures. Over time, such a holding could help change the composition of the House of Representatives.
Another case also implicates Kennedy’s legacy: Masterpiece Cakeshop v. Colorado Civil Rights Commission. After Kennedy’s landmark gay-marriage decision, religious liberty claims have proliferated. In this instance, a baker refused to bake a wedding cake for a gay couple and was charged with violating state civil-rights laws. The court will have to decide if not baking a cake for people whose marriage plans go against your religious beliefs is constitutionally protected speech or religious freedom, or whether it’s a straightforward civil-rights violation. The outcome will profoundly shape the whole question of responses to gay marriage nationally.
This term’s big privacy case is Carpenter v. U.S. It asks whether the government needs a warrant to use the records of your mobile phone’s interaction with cell towers to triangulate your location. The answer isn’t obvious. Historically, the court usually assumed that if you told a third-party where you were going or what you were doing, that wasn’t private anymore. Now, when you carry your phone around, you’re telling your carrier where you are. With the advance of phone technology, unless the court treats your location as private, the government can track you wherever you go without a warrant. It’s uncertain what the justices will decide, but the results are sure to be both interesting and important.
More predictable is Janus v. American Federation, which is the court’s most recent go-around on the issue of whether public-sector unions can charge nonmembers a fee in lieu of dues to compensate the union for negotiating on their behalf. The issue in the past led to a 4-4 split; Justice Neil Gorsuch can be expected to join a majority that will overturn precedent and say no. This will be a demonstrable defeat for unions directly traceable to the U.S. Senate’s block of President Barack Obama’s pick for the seat, Judge Merrick Garland.
Another major case about employer-employee relations will consider whether the company you work for can make you sign an agreement to resolve all work-related disputes through individual arbitration rather than by going to court as part of a class action. Corporate America would dearly love to put an end to class-based litigation against companies like Wal-Mart Stores Inc. The decision will require a subtle reading of the relationship between two statutory schemes, the National Labor Relations Act, which unions like, and the Federal Arbitration Act, which employers like. No doubt the justices’ politics will be relevant in the background.
Two quirky cases round out the high-profile list. One concerns New Jersey’s efforts to legalize some forms of sports gambling in the state. A bizarre federal law allows Nevada to have gambling but effectively requires other states to keep in place state laws prohibiting the practice. New Jersey is claiming that Congress, by prohibiting the state from changing its laws so as to allow gambling, is exceeding federal power by forcing the state to do Congress’s bidding. The counterargument is that Congress isn’t commandeering New Jersey’s resources -- it’s just saying what they cannot do. The decision will have significant implications for states’ rights.
The other odd case involves an issue the court was supposed to decide a few years back but didn’t: whether an obscure federal law dating to 1789 and known as the Alien Tort Statute allows lawsuits by foreigners against corporations for human rights violations. Think of a U.S.-based corporation that manufactures poison gas used in an attack, or a private security company that is implicated in a genocide. In the past, international human rights law hasn’t typically been applied to corporations. But given the development of human-rights norms, it seems possible that the court may be willing to allow such suits in cases where the alleged wrong is sufficiently connected to the U.S. to fall within Congress’s intent.
So tune in. Trump’s policies mostly won’t be at issue this term, but maybe that will be a relief.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Noah Feldman is a Bloomberg View columnist. He is a professor of constitutional and international law at Harvard University and was a clerk to U.S. Supreme Court Justice David Souter. His seven books include “The Three Lives of James Madison: Genius, Partisan, President” and “Cool War: The Future of Global Competition.”
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