The U.S. Supreme Court is back in session and the 2017-2018 term is gearing up to be a pivotal year. Some of the high-stakes cases are worth being familiar with.
What we won’t be seeing anytime soon is a Supreme Court decision on President Trump’s March 6 executive order, the travel ban, which is off the October calendar after Trump issued a third executive order. The court ordered parties to prepare briefs addressing whether the case is now moot.
The second day of the new term brought us oral argument in Gill v. Whitford, which will decide the constitutionality of partisan gerrymandering, or drawing political boundaries based on party affiliation in an effort to advantage one political party over another. William Whitford, a retired law professor, developed a formulaic test to measure whether votes cast in an election are “wasted” votes, either because they were for a candidate who was going to lose anyway, or were for a candidate that didn’t need them to win. He called this metric the “efficiency gap.” He brought a challenge to Wisconsin’s 2011 legislative map after the Republican-controlled Legislature drew political boundaries that resulted in Republicans winning a majority of legislative seats despite garnering a minority of the statewide vote.
The court looked at this issue 13 years ago and decided that courts could not evaluate redistricting maps because there was no good standard to apply objectively. At the time, Justice Anthony Kennedy suggested that cases might be justiciable if there was a good standard. Whitford is hoping his formula satisfies Kennedy’s longing for a workable standard.
During oral argument, more than one justice referred to Whitford’s test as “gobbledygook.” Chief Justice John Roberts worried that deciding this case would open the court up to thousands of redistricting cases from across the country.
The justices of the U.S. Supreme Court gather for an official group portrait to include new Associate Justice Neil Gorsuch, top row, far right, Thursday. June 1, 2017, at the Supreme Court Building in Washington. Seated, front row, from left are, Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice of the United States John Roberts, Associate Justice Clarence Thomas, and Associate Justice Stephen Breyer. Back row, standing, from left are, Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor, and Associate Justice Neil Gorsuch. (AP Photo/J. Scott Applewhite)
Interestingly, Arnold Schwarzenegger tickled the gaggle of reporters after oral argument with a tweaked catchphrase, “It’s time to say hasta la vista to gerrymandering.”
The court will also hear the highly anticipated Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, a case wherein a plaintiff who bakes cakes for weddings is appealing a decision and fine against him by the Colorado Civil Rights Commission for refusing to bake a cake for a gay wedding. The plaintiff is arguing that requiring him to bake a cake for a gay wedding would violate his religious beliefs as well as his right to freely express himself. He argues the state has no compelling interest to force artists to express certain ideas they deem objectionable. Colorado argues that the laws target conduct, not speech, and when a business opens for service, it may not discriminate against a person based on sexual orientation.
The court will reconsider, again, the issue of mandating union fees for nonmembers. In Janus v. American Federation of State, County and Municipal Employees, Council 31, the court will hear arguments against requiring a public employee union nonmember, to pay a “fair share” fee to cover the cost of negotiating contracts, which benefits all public employees including those who do not belong to the union. The plaintiff argues that requiring him to pay such fees violates his First Amendment rights. The court heard a similar case last term but, after Justice Antonin Scalia passed away, the opinion ended in a 4-4 tie. Court watchers are now predicting Justice Neil Gorsuch will likely side with those justices intent on reversing current law that mandates nonmembers must pay union collective bargaining fees.
Finally, in its developing Fourth Amendment jurisprudence, the court will hear Collins v. Virginia, and decide whether an officer can search a car parked on private property without a warrant. It is settled law that an officer needs a warrant to search a home and its “curtilage.” The question is whether a car parked outside, close to the house and on the property, is considered part of that protected curtilage notwithstanding the “automobile exception” to the warrant requirement that allows an officer to search any car, because it is highly mobile, if the officer has probable cause that the vehicle contains evidence of a crime. In this case, officers were looking for a stolen motorcycle, saw a picture of a motorcycle on Collins’ Facebook page, went to his house, walked up the driveway and looked under a tarp to identify the stolen motorcycle.
Decisions in these cases could have groundbreaking results and are worth watching closely.
Michelle Quist Mumford is an editorial writer for the Salt Lake Tribune who sometimes misses her old job as a lawyer. Sometimes.
