First Monday in October

By: - September 30, 2017 11:00 am
(Photo: Sharon McCloskey)

The United States Supreme Court opens its new term on Monday, already loaded with blockbuster cases headed for argument in the first several weeks.

Some familiar issues — voting rights, same-sex marriage, cell phone privacy, employee arbitration — will all make an appearance early in the term.

And with the ascension of former Tenth Circuit judge Neil Gorsuch late last term, the high court will once again open with a full bench. We know already that Gorsuch is no wallflower, writing a record seven opinions in his first month. We also know that Gorsuch will fully fill former justice Antonin Scalia’s position as the court’s arch-conservative, leaving justice Anthony Kennedy still hanging in the balance of an otherwise divided court.

Here’s a look at what’s ahead in the next few months.

Muslim travel ban  The Trump administration was set for a showdown over the travel restrictions enacted early in its term and then refined in response to adverse lower court rulings.

The justices were set to hear argument on October 10 in Trump v. Hawaii and Trump v. Int’l Refugee Assistance Project, considering whether the ban disfavors Muslims and thus violates the establishment clause of the Constitution and whether the president exceeded his authority in enacting it.

The administration announced revised restrictions last week though, effective October 18, and with that the court removed the cases from the October argument calendar and asked the parties to provide supplemental briefing on the impact of the new order on the issues before the justices.

Employee arbitration   Can employers require employees to give up their rights to go to court over workplace disputes, and submit to private arbitration instead, as a condition of employment?

That’s the question the high court will entertain on the first day of the term in a trilogy of cases: Epic Systems v. Lewis, National Labor Relations Board v. Murphy Oil, Ernst & Young v. Morris .

In each of the cases an employee who signed an arbitration agreement with his employer filed a class or collective action in federal court and contended there that the arbitration provision was unenforceable. The employees are relying on provisions of the National Labor Relations Act that protect their right to “engage in concerted action for mutual aid or protection.”

The employers argue that the Federal Arbitration Act demands enforcement of their provisions unless specifically overridden by another federal statute. Here, they say, the NLRA does no such thing, since it does not specifically address class actions.

In recent years the high court has favored arbitration and disfavored class actions and has already upheld class action bans in consumer arbitration agreements.

The case has drawn plenty of attention, as evidenced by the number of amicus briefs submitted: 17 supporting the employers and 11 supporting the employees.

But it’s also drawn attention because of the drama caused by the Trump administration switching positions in the case. The Solicitor General had filed the initial petition on behalf of NLRB, supporting the employees, but in June informed the court that the new administration was now siding with the employers instead.  That’s led to an unlikely scenario at argument, with  an attorney for the government arguing against an attorney for a U.S. government agency.

Partisan gerrymander  When have lawmakers gone too far in drawing state and congressional voting lines to favor their own political party, to the point of entrenching themselves in power and depriving voters of meaningful choice and representation? 

That’s the question in Gill v. Whitford, a challenge to Republican lawmakers’ 2011 state legislative redistricting plan in Wisconsin, set for argument on October 3.

Gerrymandering – the drawing of state voting lines to favor one party – is not a new issue for the court, but it has most often been presented in the context of claims that lawmakers had drawn districts in a way that diluted the minority vote. And while the high court has struck down voting maps as racially motivated, it has never struck down a plan because of partisan gerrymandering. 

Recent election results in many states expose the danger partisan gerrymandering poses to the power of a vote, skewing representation away from the majority of voters. 

In Wisconsin in 2012, for example, Republicans won 49 percent of the statewide vote but gained 60 seats in the state’s 99-seat assembly, while Democrats won 51 percent of the vote but landed only 39 seats. Similar disparities in state and congressional voting occurred there and elsewhere in 2014 and 2016 elections.

Experts say the case might just be the most important case of the term, given the impact gerrymandering has had on governing. When lawmakers are virtually ensured a victory they are less burdened by accountability, and when insulated from any meaningful challenge, they are also less likely to reach across the aisle and compromise on legislation.

Purging voters  Does an Ohio law that requires the purging of any voter from the voting rolls who does not vote in two election and fails to respond to a warning notice violate federal law?

That’s the question in Husted v. A. Phillip Randolph Institute, set for argument on November 8.

(Photo: Sharon McCloskey)

The case calls for the justices to examine the interplay between state efforts to maintain voting registration lists and federal laws designed to expand the vote, like the National Voter Registration Act (the “motor voter law”), which bars the removal of voters from registration lists simply because they haven’t voted.

The case also presents another instance of internecine strife in the Trump administration, with the United States changing its position late in the game.

Consistent with its longstanding interpretation, the Justice Department sided with the challengers in the lower courts, arguing that the motor voter law prohibits states from initiating a purge because of a failure to vote in a particular election.  The Sixth Circuit Court of Appeals agreed and in May the Supreme Court accepted the case for review.

Last month the Justice Department filed a brief — without the signatures of any career DOJ attorneys responsible for enforcing motor voter act provisions — advising the court that it had changed its mind and now supported the state of Ohio.

Former DOJ officials have now taken up that cause, telling the high court in a brief filed last week that the Justice Department’s new position completely undermines years of established interpretation.

Same-sex wedding cake  Can a custom wedding cake baker be liable under state anti-discrimination laws protecting sexual orientation for refusing to bake a wedding cake for a same-sex couple?

That’s the question the justices will consider in Masterpiece Cakeshop v. Colorado Civil Rights Commission, a case framed by the baker involved as one raising questions about freedom of expression and freedom of religion.

Colorado is one of approximately 20 states that have expanded anti-discrimination laws applicable to businesses that serve the public to include sexual orientation as a protected class.

The baker here argues though that his custom made cake business involves creative expression and that the message of the cake for the couple involved –“let’s celebrate this gay couple” is forced speech and religiously objectionable in violation of the First Amendment.

Nearly 50 groups have filed amicus briefs in support of the baker.

The couple contends that the state law targets conduct, not speech, and even if the law targeted speech, no reasonable person would characterize cake-making as a form of speech. They also contend that a ruling in favor of the baker would have sweeping commercial implications, given the number and variety of vendors rendering services that are arguably “expressive.”

The court has not yet set an argument date.

Sports betting   Gambling cases out of New Jersey? What could go wrong?

Although the sports betting tagline evokes all sorts of Jerseyesque characters (think Tony Soprano or Nucky Thompson), the cases before the court, Christie v. NCAA and New Jersey Thoroughbred Horsemen’s Ass’n v. NCAA,  actually raise a fairly tame states’ rights issue that’s unlikely to fill the mobster bill come argument.

Can the federal government prohibit states from authorizing college and professional sports betting, as is already allowed in Nevada? That’s the question the high court will entertain at argument on a date not yet set.

New Jersey has a long history of attempts at bringing sports betting to the state. In this case, it’s up against the major professional leagues and the National Collegiate Athletic Association, who contend that state legislative efforts violate a 1992 federal law, the Professional and Amateur Sports Protection Act, which makes it illegal for states to authorize sports gambling (other than in four that already had sports betting and were grandfathered in — Delaware, Montana, Nevada and Oregon). 

The state argues in response that the law violates the Tenth Amendment by “commandeering” the regulatory power of the states.

That’s a tempting argument for the court’s conservative justices, who are loathe to support federal interference in state government. But the prospect of nationwide sports betting should they rule in New Jersey’s favor might just  be enough to tamp down their inclinations.

Cell phone privacy  Is a warrant necessary before a state can obtain cell phone location data from cell phone providers?  That’s the question before the court in Carpenter v. U.S., a case that calls for the justices to once again explore the application of Fourth Amendment case law to digital technology.

Carpenter was charged with several armed robberies in Ohio and Michigan. Relying on a federal statute that permits phone companies to release records upon a showing that the records might be relevant to an ongoing criminal investigation, law enforcement officials obtained cell tower data that showed Carpenter in the vicinity of the robberies.

Carpenter contends that obtaining those records without a warrant constituted an unlawful search and seizure in violation of the Fourth Amendment.

But the government argues that obtaining the records was not a search, because Carpenter had no reasonable expectation of privacy in the location of his phone as he moved about, and that the Fourth Amendment does not protect records or information shared voluntarily with a third party (the so-called “third-party doctrine”).  

The law on cell phone privacy is evolving.  In 2012, the court held that placing a GPS tracking device on a vehicle constituted a search and required a warrant. The justices there split on the reasons, some relying on trespass law and others on right to privacy law.  And in 2014, the court held that police needed a warrant to search the contents of a cell phone seized from a person who’d been arrested.

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Sharon McCloskey

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.