THERE IS ONLY ONE PREDICTION THAT IS ENTIRELY SAFE FOR THE UPCOMING AND THAT IS IT WILL BE MOMENTOUS . THAT IS THE ASSESSMENT OF JUSTICE RUTH BADER GINSBURG ABOUT THE NEW SESSION OF THE NEW SUPREME COURT WHICH BEGINS TODAY . THE COURT IS ONCE AGAIN AT FULL CAPACITY WITH THE ADDITION OF JUSTICE NEIL OR SUCH BECAUSE COURT OBSERVERS BECAUSE EXPECT HIM TO BE A RELIABLE VOTE MANY EXPECT THE ONE SWING VOTE ON THE CORD TO ONCE AGAIN DETERMINE THE OUTCOME OF MANY OF THESE TERMS CASES . JOINING IS GLENN SMITH CONSTITUTIONAL LAW PROFESSOR AT CALIFORNIA WESTERN SCHOOL OF LAW . AND WE ALSO HAVE ATTORNEY DAN EATON PARTNER AT A LAW COMPANY . SO WHY DO YOU THINK JUSTICE GINSBURG IS PREDICTING THIS TERM WILL BE MOMENTOUS? THERE ARE JUST FOUR OF FIVE CASES THAT HAVE THE POTENTIAL FOR MAKING MAJOR SHIFTS NOT ONLY IN THE LAW BUT IN SOCIETY IN PRACTICAL TERMS . THE POLITICAL GERRYMANDERING TERMS -- CASE THEY HAVE STARTING TOMORROW CAN HAVE A REALLY PRACTICAL CLINICAL EFFECT ON NOT ONLY STATE LEGISLATURES AND THE POWER AND STATES THAT DERIVATIVELY VOTER ID LAWS AND SENATE RACES AND ALL KINDS OF THINGS . AND THEN THERE ARE SEVERAL CASES THAT HAVE THE POTENTIAL FOR EFFECTING RIGHTS OF IMMIGRANTS, AND THE CASE INVOLVING THE CAKE BAKER WHO CLAIMS THIS FREE-SPEECH RIGHT AND RELIGIOUS RIGHT, THERE ARE SOME EXAMPLES OF POTENTIAL THINGS WE ARE LOOKING AT . LET ME PICK UP ON THE CASE THAT GLENNA JUST MENTIONED ONE OF THE MOST CONTENTIOUS CASES IT OUT OF COLORADO ASKED TO MAKE OUT WEDDING CAKE AND HE REFUSES TO MAKE A CAKE FOR SAME-SEX COUPLES . LAWYERS FOR THE BAKER APPARENTLY REFERS TO HIM AS A CAKE ARTIST . AND THEY ARE ASKING THE COURT TO MAKE A FIRST AMENDMENT EXCEPTION FOR PEOPLE WHOSE WORK IS EXPRESSIVE . WHAT IS THAT ABOUT? IT'S ABOUT TWO THINGS . WHETHER HE IS ENGAGED IN SPECIFIC CONDUCT AND WHETHER HE IS BEING FORCED IN EFFECT TO EXPRESS WHAT THE STATE WANTS HIM TO UNDERCUT WHAT IS PUBLIC ACCOMMODATION LAW WHICH UNLIKE A FEDERAL LAW WAS CIVIL RIGHTS ACT TITLE TO APPLIES TO SEXUAL ORIENTATION DOESN'T PERMIT YOU TO DO THAT ON THAT BASIS BUT HE SAYING MY FIRST AMENDMENT RIGHT TRUMPS THAT BECAUSE WHAT YOU'RE DOING BY FORCING ME TO GIVE THIS CAKE WHICH IS THE CENTERPIECE OF AWARDING IS TO EXPRESS APPROVAL AND ACCOUNT TO THAT FROM FIRST AMENDMENT ENDPOINT AND NOTING TO EXPRESS IT BUT EXPRESSED PARTICULAR STATEMENT BUT ALSO TO PARTICIPATE IN A PARTICULAR CEREMONY IN EFFECT EVEN THOUGH HE IS NOT THERE HIS CONTENTION IS THAT ACTUALLY HE IS DISSIPATING IN IT BECAUSE HE IS THERE IN EFFECT BY CREATING THIS UNIQUE TAKE . IT'S A CUSTOM CAKE THAT WE'RE TALKING ABOUT NOT ONE OF THE SHELF . EVERYONE AGREES CAN'T DISSEMINATE OFF-THE-SHELF BUT TO FORCE ME TO USE MY ARTISTRY TO CREATE THIS IS UNCONSTITUTIONAL AND BURNS MY RIGHT TO FREE SPEECH AND PERHAPS ALSO RELIGION BUT THE SPEECH ARGUMENT IS THE STRONGER ONE . WHEN YOU SAYING THAT THIS DOES NOT -- YOU DON'T SEE THIS HAVING BEAUTIFICATION FOR OTHER STATES? IT WILL HAVE BROUGHT IN LOCATIONS FOR ARTISTS AND PROFESSIONALS AND COULD APPLY TO WEBSITE DESIGNERS AND THINGS LIKE THAT BUT WHAT I MEANT IS I THINK PEOPLE THINK THAT THIS ISSUE WILL BE -- THE ULTIMATE QUESTION LEFT HANGING AT THE END OF THE SAME SEX MARRIAGE CASE AND TO WHAT EXTENT CAN BROADLY -- CAN BUSINESSES OR INDIVIDUALS WHO ARE IN,'S CLAIM THAT THEIR RELIGION WINS OUT OVER CIVIL RIGHTS EQUALITY RIGHTS OF SAME-SEX COUPLES AND SEXUAL ORIENTATION MINORITIES? THAT IS THE ISSUE . THIS ONE IS CHIPPING AWAY AT THAT BUT IT'S NOT FRONT AND CENTER BRING THE ISSUE TO THE FORE . I SEE WHAT YOU'RE SAYING. LET ME GO TO THE GERRYMANDERING CASE WHICH ALSO GLENN BROUGHT UP . IT IS GAIL VERSUS WOODFORD WHICH WILL BE HELD TOMORROW . GILL CONCERNS WHETHER OR WHAT POINTS DOES GERRYMANDERING BECOME SO SEVERE THAT IT'S ACCEPTABLE? IT INVOLVES WISCONSIN WHO TARGETED TECHNOLOGY AVAILABLE TODAY TO TARGET WITH INCREDIBLE PRECISION THE MAX -- TO MAXIMIZE REPUBLICAN ADVANTAGE IN THE STATE LEGISLATOR PARTICULARLY FOR THE LOWER HOUSE . THE QUESTION IS REALLY WHETHER THIS IS JUDICIAL, THAT IS TO SAY THAT THE JUDGES HAVE ANY BUSINESS WALKING INTO THIS POLITICAL THICKET . THAT IS A THRESHOLD QUESTION AND IF THEY DO WHAT IS THE TEST? THIS TEST SOME SAY IS A BRIEF FILED BY SOME REPUBLICAN OFFICIALS INCLUDING BOB DALE SO THIS IS AN EASY CASE . YOU HAVE THINGS THAT ARE OBVIOUSLY TARGETED WHERE YOU CAN SHOW ACTUAL HYPOTHETICAL EFFECT THAT REALLY DESIGNED TO LIMIT IN EFFECT FREE-SPEECH RIGHTS OF THE MINORITY PARTY BY FREEZING THEM OUT THAN THE COURTS CAN AND SHOULD GET INVOLVED IN THIS IS A CASE WE SHOULD BECAUSE BACK IN THE 1960S OF COURSE IN A COUPLE OF CASES THE COURT SAID ONE MAN AND ONE VOTE IS ENSHRINED IN THE CONSTITUTION BUT THE PROBLEM IS HOW DO YOU GET TO FAIR AND EFFECTIVE REPRESENTATION AS JUSTICE KENNEDY SAID IS THIS SOMETHING THAT THE SPRING QUARTER TRY TO DO? THIS WILL BE LEFT OF VIRGINITY TO DO IT . ONE OF THE THINGS THAT IS FASCINATING ABOUT THIS FOR ME IS JUDICIAL METHOD QUESTION . 37 YEARS AGO THE COURT SAID THERE COMES A POINT AT WHICH PARTISAN GERRYMANDERING BECOMES A VIOLATION OF SECTION BUT SAID THEY NEVER BEEN ABLE TO DEFINE IT SOONER THERE IS A LIMIT SOMEWHERE BUT THAT NEVER BEEN ABLE TO DEFINE IT AND THIS IS DEFINITELY ONE OF THE CASES AS YOU SAID AT THE OUTSET JUSTICE KENNEDY HAS BEEN HOLDING THE DOOR OPEN FOR THE POSSIBILITY AND MOST OBSERVERS THINK THAT IF THERE IS ANY TASK THAT IS LIKELY TO COMMAND HIS SUPPORT IT'S GOING TO BE THIS TASK . SO MAKE IT AN ANSWER TO A 37-YEAR-OLD QUESTION WITH HUGE POLITICAL INDICATIONS . THERE ARE A NUMBER OF OTHER CASES THAT ARE GOING TO MAKE THE HEADLINES WHEN THEY ARGUED AND FINALLY DECIDED . NEIL GORSUCH IS THE NEW JUSTICE ON THE BENCH BUT AS YOU BEEN MENTIONING THIS IS REALLY KENNEDY'S COURT ISN'T IT? I BELIEVE IT IS YES . BECAUSE WE ARE INTERESTED IN WHERE ON THE CONSERVATIVE CONTINUUM WILL GORSUCH COME OUT . BUT IT'S PRINTED HE'LL BE THERE SO THE PERSON WHO WILL BE KEY IN THE CASES WE TALKED ABOUT PROBABLY WOULD BE KEY IN THE TRUMP TRAVEL BAN CASE IF THE COURT DECIDES TO PUT THAT BACK ON THE CALENDAR AND WILL BE KEY IN THE UNION RIGHTS CASE THAT IS COMING UP, ALL THOSE UNLIKELY TO BE JUSTICE KENNEDY . IS BACK AND GORSUCH COULD BE THE DECIDING FACTOR BECAUSE THE COURT WILL SPLIT 4 TO 4 AND HAD SCALIA BEEN THERE HE WOULD PROHIBITED UNIONS AS A FIRST AMENDMENT TO ANOTHER TO COLLECT AGENCY FEES . PEOPLE SHOULDN'T HAVE TO SUPPORT THAT THEY DON'T WANT TO SOAK IT UP BY THE UNION AGENCY CASE AND YOU TALKING ABOUT THE RODRIGUEZ CASE WHICH IS THE IMMIGRANT ATTENTION CASE THOSE ARE CASES THAT WILL BE SPLIT FOUR, FOUR . BUT IT REALLY WILL BE THE COURT OF GORSUCH ON THOSE ISSUES BUT YOU'RE RIGHT THE VAST MAJORITY YOU HAVE TO WORK -- WATCH FOR KENNEDY . AND THIS MAY BE KENNEDY'S LAST SESSION? HE WANTS TO GO IS 81 YEARS OLD . BUT THE PROBLEM MAUREEN IS WHAT IS HE GOING TO DO IN JULY OF AN ELECTION YEAR IN 2018 IS YOU REALLY GOING TO ANNOUNCE HIS RETIREMENT? IN THIS RECORD ALL OF A SUDDEN BECOMES FRONT AND CENTER? IT BECOMES DIFFICULT IT'S A QUESTION OF TIMING AND IT DOESN'T SEEM TO BE A RIGHT TIME . I HAVE BEEN SPEAKING WITH GLENN SMITH CONSTITUTIONAL LAW PROFESSOR AT CALIFORNIA WESTERN SCHOOL OF LAW AND DAN EATON UPON AT A LAW FIRM . THANK YOU BOTH VERY MUCH.
If last year's Supreme Court term was so dry of interesting cases that it looked like a desert, this term, which opens Monday, already looks like a tropical rainforest. And the justices are only halfway to filling up their docket.
Already scheduled are major test cases on a raft of controversial issues such as partisan gerrymandering, privacy in an age of technology, sports betting and much more, including a case that pits the right of a same-sex couple to buy a specially created wedding cake against the right of a cake creator and his bakery to refuse.
Justice Ruth Bader Ginsburg recently predicted the term will be "monumental."
It will be the first full term with the court's newest justice, Neil Gorsuch, on the bench. It will also be a term undoubtedly marked by increasing speculation about Justice Anthony Kennedy's retirement plans. In many of the most hotly contested cases that reach the court these days, Kennedy's vote determines the outcome because the court is so closely and ideologically divided.
Were the 81-year-old justice to retire, giving President Trump the chance to appoint a second hardcore conservative, the court would swing dramatically to the right.
Cases to watch
Perhaps the highest visibility case before the court involves Masterpiece Cakeshop in Lakewood, Colo. In 2012, a same-sex couple went to the bakery to order a cake for their upcoming wedding reception. The owner of the shop, Jack Phillips, told them that he was perfectly willing to sell them a cake off the shelf, but he would not create a cake for their wedding celebration. He said his policy was based on religious convictions and that he did not create cakes for Halloween either.
The bridegrooms filed a discrimination claim with the Colorado Civil Rights Commission, charging that Phillips had violated the state public accommodations law, which bars discrimination on the basis of sexual orientation. The Commission ruled in their favor, as did the state supreme court. Phillips appealed to the U.S. Supreme Court, which will hear the case, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, later this fall.
Phillips' main argument is that as a cake creator, he has a First Amendment right of artistic expression, and thus a right to refuse to use his talents in support of gay marriage.
On the other side, the couple says that Phillips' arguments are a pretext for discrimination. They point to cases back in the 1960s involving similar small vendors — like a drive-in barbecue chain in South Carolina — which refused to serve African-Americans based on the owner's stated religious opposition to mixing races. In that case too, the owner claimed a sort of artistic bent, through his special barbecue recipe.
Former Solicitor General Gregory Garre says that Phillips and his lawyers have done an effective job of converting a gay marriage case into a test of free speech. "But on the other side," he observes, "is a very exceptionally compelling narrative of our history as a society, the public accommodations law, sort of the crown jewels of the Supreme Court's civil rights decisions."
The big political case of the term, so far, tests whether extreme partisan gerrymandering is unconstitutional. In Gill v. Whitford, the state of Wisconsin denies that the Republican legislature engaged in extreme redrawing of legislative district lines to perpetuate the party's power. It also argues that regardless of how partisan a gerrymander may be, the courts should stay out of such political questions. The case is to be argued this week.
Later in the fall, the justices will hear a privacy-versus-technology case, Carpenter v. United States. It tests whether law enforcement authorities have to get a search warrant in order to get cell site location information that in this case led to the apprehension and conviction of an armed burglary ring. Because cellphone providers have long retained general location information for calls made and received, police have been able to get that general location information by obtaining, not a search warrant, but a court order for the company's business records that is much easier to obtain.
Just how the court answers the questions in the case will determine not only how law enforcement may access cell tower site and sector location information, but whether other such location information — for instance, about texts and email — can be similarly obtained from service providers.
George Washington University law professor Jeffrey Rosen notes that this case for the first time forces the court to confront whether law enforcement can track someone's public movements for months on end, without a search warrant. "And the answer to that question," he warns, "will determine whether tiny drones can fly in the air and follow us from door to door and reconstruct our movements for a month, whether other forms of ubiquitous surveillance are permissible."
However, as University of Chicago law professor Aziz Huq observes, "it's extremely unappetizing from the court's perspective to imagine a world in which the government needs probable cause every time it obtains any kind of data about a person from a third party."
There is a case that tests whether the federal law banning sports betting unconstitutionally commandeers the states into carrying out a federal mandate. The case, Christie v. National Collegiate Athletic Association, is from New Jersey. The state wants to repeal its ban on sports betting, but cannot do so under federal law. On one side is New Jersey Gov. Chris Christie, and on the other, every major sports league in existence.
Then too, there are a variety of challenges to the labor movement and labor unions this term. The tea leaves in these cases do not read well for unions.
For instance, after the death of Justice Antonin Scalia, the court deadlocked on the question of reversing a decades-old decision of critical importance to public employee unions, and likely private unions as well. In 1977, by a 6-3 vote, the high court ruled that non-union members in a unionized shop of public employees can be required to contribute partial dues to cover the costs of negotiating a contract that will benefit them too. For the last several years, the conservatives on the current court have been trying to reverse that decision. It is highly likely that with Justice Gorsuch now on the court, that day is near in Janus v. American Federation of State, County, and Municipal Employees, Council 31.
As University of Chicago law professor Daniel Hemel put it, "It's been a bad decade, really a bad quarter century for the labor movement at the Supreme Court. I think this will be a particularly bad year in that bad quarter century."
As for the Trump travel ban, that seems to be off the Supreme Court's table, at least for now. Arguments in the consolidated cases, Trump v. International Refugee Assistance Project and Trump v. Hawaii, had been scheduled for October 10, but the justices canceled the hearing after President Trump issued a new travel ban a week ago, making the issues presented in the previous ban arguably moot. A formal disposition of the current case will likely come later this month, but stay tuned. There certainly will be challenges to the new travel ban.
Copyright 2017 NPR. To see more, visit http://www.npr.org/.
