Ballots & Cakes
Gay Rights & Voting Rights: The Biggest Battles Coming to the Supreme Court
After a quiet 2016-17 term, the Court is poised to rule on numerous hot-button issues in what could be the end of a balanced court if Justice Kennedy retires.
The Supreme Court begins its fall term on Oct. 2, with a number of high-profile cases on the docket. Here are four of the most important issues the Court will address this term.
1. Voting Rights
The most important cases this term are on voting rights. We are living in a topsy-turvy time, in which the Trump administration is alleging mass voter fraud without a scintilla of evidence, while taking actions that make it harder for law-abiding citizens to vote. Of course, this is to forestall the impact of demographic shifts in American society, as the population grows younger, less white, and less Republican.
Four different voter suppression tactics will be before the Court this term.
First, is Ohio’s mass purge of inactive voters from the rolls in Husted v. A. Philip Randolph Institute. There’s no factual reason for this purge—not a single case of voter fraud using inactive voter IDs has been proven. But purging those who haven’t voted in a while does make them ineligible to vote now, and that hits disenfranchised, less affluent, and thus less white voters the most.
Second is the oldest voting scam of them all: gerrymandering. Rigging election districts to favor the party doing the rigging goes back centuries and is not, in itself, illegal or unconstitutional. But in a series of cases, the Supreme Court and lower federal courts have tried, unsuccessfully, to say when gerrymandering goes too far. When it involves race, the Voting Rights Act steps in—that’s relatively easy. But what about when it’s a transparent attempt to isolate a party’s voters in one lopsided district, thus ensuring the other party’s victory in several others?
That’s the practice at issue in Gill v. Whitford, and if past precedent is any guide, the Court will be divided on the issue, without a clear standard to guide them. Don’t look for clarity on this one.
Finally, the arch-conservative attorney general of Texas, Ken Paxton, has asked the Supreme Court for “emergency relief” after losing an astonishing five cases in a row challenging Texas’s redistricting and voter ID laws. This “relief” was granted on Sept. 12, on a 5-4 party line vote, meaning that the Supreme Court has stayed the lower decisions and will now hear them on appeal. And that means that Texas’ extremely dubious districts and laws will probably still be used in the 2018 election.
The losing streak is remarkable. The mostly conservative 5th Circuit Court of Appeals ruled that Texas’s voter ID law had a discriminatory effect on minorities, and a district court ruled that attempts to improve it had failed— and that the law had a discriminatory intent as well. That finding, if upheld, could put Texas back under federal supervision, which it has been free from since 2013, when Chief Justice Roberts gutted the Voting Rights Act in the Shelby County v. Holder case.
In all three of these cases, the Department of Justice under Jeff Sessions has, as expected, done a 180-degree turn from the Obama administration’s positions, and is supporting the states in each of the challenges. Once again, while voter suppression swung at least two states in the 2016 presidential election (and thus, the election as a whole), there has never been any evidence of voter fraud on any significant scale, and the stories that Trump and his henchman Kris Kobach have cited have all turned out to be false.
2. The Travel Bans
On Sept. 25, the Supreme Court removed the challenges to President Trump’s “travel ban” from the calendar, where hearings had been set for Oct. 10. That’s because of Trump’s weekend proclamation of a permanent ban to replace the six-month ban announced on March 6 and soon to expire.
With the existing case now basically dead, challengers will go back to square one: filing suits in district courts and working their challenges up through the system.
They will likely face an uphill battle. The new ban is different in key respects: It has specifically tailored restrictions, and it extends to two non-majority-Muslim countries, Venezuela, and North Korea. Whatever its relationship to national security, this increased specificity greatly aids the ban’s chances in court, since it at least offers some rationale for the particular restrictions now being put into place.
Of course, the original six-country ban is still largely devoid of any articulable relationship to national security, and is still suspiciously reminiscent of Trump’s call for a ban on Muslims—a ban which would almost surely be unconstitutional. However, because of the new ban, it will be months before the issue reaches the Supreme Court, rather than weeks.
3. Gay Wedding Cakes
It’s not clear how important Masterpiece Cakeshop is from a judicial standpoint, but as a flashpoint in the culture war, it’s probably the most recognizable case on the fall docket.
The facts are simple: conservative Christian owns a cakeshop, refuses to bake a wedding cake for a same-sex couple. But the conflict is complicated. If the baker wins, that’s like putting a “No Gays Allowed” sign on the storefront window. How can that be OK? But if the baker loses, the government is basically forcing an artist to compromise his religious beliefs. Indeed, if this particular baker is to be believed, it’ll put him out of business, since he’s said he’d rather quit than violate his religious beliefs.
Of course, it’s not just about cake. If a baker can turn away a gay couple, why not a government employee, a hotelier, or a doctor? Are the constitutional rights of a gay person less equal than those of, say, a black person? The question is not rhetorical; it was only a few decades ago that segregationists claimed a religious justification for not seating whites and blacks together. They lost, but Leonard Leo, the right-wing ideologue directing Trump’s judicial picks, has said that such cases should be overturned. Today’s anti-gay baker is tomorrow’s (or yesterday’s) anti-black restauranteur.
In other words, it’s about a lot more than cake.
4. Cell-Tower Records
In the hit podcast Serial, one crucial bit of evidence was the cellphone tower records that suggested various movements on the part of the key players in the case. Now, the Supreme Court will decide whether gathering such evidence without a warrant violates the Fourth Amendment.
Gathering such data is quite common—last year, Verizon and AT&T alone received around 125,000 requests for it—and highlights the challenges of interpreting an 18th century constitutional phrase like “unreasonable search and seizure” in the digital age.
On the one hand, getting the GPS coordinates of a particular phone at a particular time is clearly not something the Founders considered. It’s not like rifling through someone’s personal belongings or searching their home. Is it really a “search” just to find out where your phone was at noon last Wednesday? Moreover, speaking doctrinally, we have all agreed to share that data with our phone carriers—is it really private if we’ve done so?
On the other hand, this is the 21st century, and our digital privacy is constantly under siege. Whether it’s the Equifax hack or the NSA’s domestic surveillance operation, it’s clear that we have less privacy today than the (white, male, propertied) Founders had in theirs. Perhaps it’s time for the Court to revisit its existing doctrines.
Indeed, this is just the kind of case that illustrates the incoherence of so-called originalism, which Justice Neil Gorsuch claims to practice. The original intentions behind the Fourth Amendment had nothing to do with cellphone towers. But if they aren’t applied to contemporary life, the constitution becomes irrelevant.
Of course, along with those four headline-grabbing issues, the Supreme Court will consider dozens of others. It has taken several cases on employment law, for example, and will consider whether arbitration clauses are legal and whether collective bargaining rights may be limited under federal law. It will hear several cases on immigration, including a challenge to “mandatory detention” of foreigners entering the United States. And, of course, it will hear dozens of cases on esoteric issues that matter a great deal to small numbers of people.
Perhaps most importantly, with rumors of Justice Kennedy’s planned retirement, this term could be the last of the Supreme Court’s current configuration, with (more or less) four liberals, four conservatives, and one swing voter. If President Trump—or, more accurately, his arch-conservative minions at the Federalist Society—picks another justice like Gorsuch, and if the Senate rams that nomination through as it has been doing throughout 2017, the Supreme Court of 2018 will look nothing like it does today.
In other words, this could be the last term of the Court as we have known it for decades.