Blockbuster Term??? Oh yea, the right wing side-show...

The Supreme Court’s Blockbuster Term

Get ready for the landmark decisions to start rolling in.

By RICHARD PRIMUS

The Supreme Court term that begins this week is set to be a blockbuster. There’s a reason: When Justice Antonin Scalia died in February of 2016, the court hit the pause button on some of the most important issues it was facing. Either because the justices knew they would deadlocked, or because they preferred not to tackle important questions without a full bench, the court started ducking big cases, and we've now been through two cycles with relatively few landmark decisions.

That's about to end. Once Justice Neil Gorsuch took his seat, the court put one big case after another on the calendar, and the term that starts this week is set up to pack the punch of two to three normal Supreme Court terms. When you factor in the Trump administration’s tendency to provoke constitutional litigation, there’s no telling how explosive the new term could be.

Some of this term’s docket presents familiar culture-war issues: Prominent in that category is Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which a Christian baker seeks legal vindication for his refusal to sell a wedding cake to a same-sex couple. The legal question is whether the First Amendment’s protection of religious free exercise permits a business to exempt itself from a generally applicable anti-discrimination law. (For those watching at home: Expect Justice Samuel Alito to ask whether Colorado could require Orthodox Jewish congregations to interview female as well as male rabbis for open clergy positions; expect Justice Elena Kagan to ask the bakery’s lawyer whether a business owner who reads the Bible to require racial segregation could refuse service to a black customer.)

Another case, Carpenter v. United States, asks whether and how the Fourth Amendment limits the government’s ability to track individuals’ locations by searching their historical cellphone records. Most Americans who carry smartphones leave electronic trails everywhere they take their phones. In the Carpenter case, law enforcement used that trail to show that robbery suspects were present at the scenes of a string of robberies. But criminals aren’t the only people who carry smartphones, and privacy advocates worry about letting the government know where everyone is all the time.

There’s also Janus v. American Federation of State, County, and Municipal Employees, in which the court is being asked, on First Amendment grounds, to overrule prior cases holding that public-sector unions can require employees at unionized workplaces to contribute financially to the unions. It’s a classic free-rider problem: Unions bargain for workers collectively, so each individual worker benefits from concessions that unions win from employers whether or not that worker paid dues, just as every American benefits from national defense whether or not he individually pays taxes. Labor law accordingly lets the unions make contributions mandatory, because if individual workers could opt out, the whole funding system could unravel, leaving the unions too poorly funded to be effective advocates for anyone. A case presenting this issue was set to be decided when Scalia died, and the strong conventional wisdom was that it looked bad for the unions. Now the case is back, and the calculus with Gorsuch looks no different: Janus is likely to be a serious blow to what remains of the effectiveness of public-sector unions across the country.

The biggest constitutional controversy of the Trump administration so far—the entry ban—could also find its way to the court. From January to June, cases challenging President Donald Trump's polarizing travel ban wound their way through the lower courts, with most courts ruling the ban unconstitutional. But the Supreme Court avoided any final decision on the question: In June, the court put the case of the 90-day ban on the calendar for October, knowing that the 90 days would run out before argument, thus making the issue moot. Now the ban as it existed last spring has indeed run its course, and the case has been formally removed from the court’s docket. But the Trump administration has wasted no time ordering a new version, one tweaked to make the order more defensible against the charge of anti-Muslim discrimination through the inclusion of North Korea and Venezuela on the list of affected countries. Litigation over the current version will surely retrace the path of the last version, and whether the Supreme Court will reach the merits this time is anybody’s guess.

But the most important developments of all this year could come in election law. In Husted v. A. Philip Randolph Institute, the court confronts Ohio’s effort to purge its voter rolls of voters who have not voted in recent elections. Ohio says it’s doing reasonable housekeeping, and the Randolph Institute says Ohio’s Republican secretary of state is deliberately rescinding the registrations of voters from demographic groups who lean Democratic, in violation of two federal statutes protecting the right to vote. Most momentously of all, Gill v. Whitford presents a challenge to Wisconsin’s system of districts for state legislative elections. Everyone knows that legislatures consider partisan motives when they draw districts, and historically the Supreme Court has been reluctant to police gerrymandering, except when the gerrymanders are racially motivated. But the court has also suggested that a sufficiently extreme partisan gerrymander could violate the Equal Protection Clause—if only it were possible to find some judicially manageable standard for determining how much partisan self-dealing is too much. As a combined result of greater polarization and improved information technology, the degree and effectiveness of partisan gerrymandering has increased enormously since the court’s prior landmark decisions in this area, and many observers think it possible that Justice Anthony Kennedy will finally say that enough is enough. If he does, his position is almost sure to be the position of the Court. Nobody thinks the Court will stop—or even could stop—all redistricting with partisan motives. But if it sets a new standard that prohibits extreme gerrymanders, states could be forced to redraw quite a lot of districts—and the resulting revolution in electoral politics could be as big as anything since the Voting Rights Act of 1965.

As significant as the court’s new term seems, though, the whole year could also feel like just a prelude to what might be coming next. Court-watchers speculate perpetually about retirements, and usually the speculation is overly eager. But it isn’t crazy to think that Kennedy might be on his last lap.

If he retires next summer, whoever replaces him will surely be to his right on constitutional law’s most divisive social issues: abortion and affirmative action. In the 1980s, when Kennedy became a justice, Republican appointees had a range of views on those issues. In the landmark 1992 decision Casey v. Planned Parenthood, which turned back the most serious challenge to Roe v. Wade, all five Justices who voted to uphold Roe were Republican appointees—as were three of the four who voted to overturn Roe. And in the 21st century, abortion and affirmative action have remained alive at the Supreme Court because two Reagan appointees—Kennedy, and Sandra Day O’Connor before him—did not share their more doctrinaire colleagues’ views on those issues.

But today neither the Republican Party nor the conservative wing of the nation’s professional legal elite stands where it was 30 years ago. Starting with Justice Clarence Thomas’s appointment in 1991, every GOP-nominated justice has been fully committed both to the view that there is no constitutional right to abortion and to the view that race-based affirmative action is flatly unconstitutional. So if Trump gets another appointment next summer, the term that opens a year from now is almost certain to feature a court itching to overrule both Roe v. Wade and Grutter v. Bollinger, the 2003 O’Connor decision upholding a limited form of affirmative action. It would probably take a couple of years for litigation presenting the issues to reach the Supreme Court. But when the cases came, the court would almost surely erase the constitutional right to abortion and ban affirmative action in all public institutions—thus achieving two of the conservative movement’s highest aims in constitutional law. As big as the term now opening will be, it may be just the first shoe to drop.