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While activists and lawyers offer help and information, Hanadi Al-Haj prays in the Tom Bradley International Terminal at Los Angeles International Airport as she waits for her Yemeni mother to arrive from Jordan via Istanbul on June 29, 2017. (AP photo)
While activists and lawyers offer help and information, Hanadi Al-Haj prays in the Tom Bradley International Terminal at Los Angeles International Airport as she waits for her Yemeni mother to arrive from Jordan via Istanbul on June 29, 2017. (AP photo)

Supreme Court in 2018: significant, controversial

At the United States Supreme Court this year, Justice Anthony Kennedy retired, his former law clerk Justice Brett Kavanaugh replaced him, and the Court addressed a number of significant—and sometime controversial—issues. Here are ten cases to remember.

Religion and immigration

Immediately upon taking office, President Trump issued an executive order that for 90 days barred the entry into the United States of all foreign nationals from seven majority-Muslim countries. The bar was struck down in the lower courts, and the President replaced it with a second one. That bar too was struck down, and the President replaced it with a third order that applied to eight countries, some majority-Muslim and others not. Struck down in the lower courts, this bar reached the Supreme Court, which affirmed it against the argument that it discriminated against religion in violation of the Establishment Clause. Although the bar itself was facially neutral as to religion and focused on the affected countries’ security screening and threat of terrorism, the challengers argued that the “President and his advisers” had made a series of statements “casting doubt on the official objective” of the bar. “[T]he issue before us,” the Court held, “is not whether to denounce the statements” but instead what significance they had “in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility.” Concluding that the very most the courts could do is review the bar for a rational basis, the Court sustained it as being based on legitimate security concerns, notwithstanding the President’s comments. Trump v. Hawaii.

Religion and same-sex marriage

The First Amendment protects the free exercise of religion and the freedom of speech, but in 2015 the Supreme Court held that the Constitution also protects the right to same-sex marriage. When state laws prohibiting discrimination on the basis of sexual orientation are applied to people holding religious objections to same-sex marriage, courts are called upon to reconcile the conflicting rights. So it was in Colorado, where a devout Christian baker declined to bake a wedding cake celebrating a same-sex marriage and was charged with violating Colorado’s anti-discrimination laws. Reviewing the record of the Colorado Civil Rights Commission’s adjudication of the claim, the Court found that members of the Commission showed a “clear and impermissible hostility toward the sincere religious beliefs” of the baker by, among other things, comparing his actions to slavery and the holocaust as other supposed instances where “religion has been used to justify all kinds of discrimination.” By a 7-2 margin, the Court held that the Commission’s proceeding violated the duty “not to base laws or regulations on hostility to religion or a religious viewpoint” and reversed the penalty. Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

Political speech by public unions

Since 1977, the constitutional rule had been that public-sector employees could not be compelled to pay dues to support a union’s overtly political activities, but they could be compelled to pay dues to support collective bargaining activities. In a 5-4 decision, however, the Supreme Court overruled its precedent and held that public-sector employees cannot be forced to pay any dues. The freedom of speech protected by the First Amendment includes the freedom not to speak, the Court reasoned, and collective bargaining inherently involves “how public money is spent,” a topic of substantial public concern. Individuals therefore may not be compelled “to support the union irrespective of whether they share its views.” Janus v. State, County, and Municipal Employees.

Political speech in the polling place

In case arising here in Minnesota, the Court struck down the state’s ban on wearing a “political badge, political button, or other political insignia” in polling places on election day as a violation of the First Amendment’s protections for political speech. The Court agreed with Minnesota that polling places are non-public forums and also that, because the polling place “is a time for choosing, not campaigning,” Minnesota has a reasonable interest in barring advocacy within it. But the Court found that Minnesota’s statute provided no administrable definition of “political,” raising the possibility that election officials could apply the ban discriminatorily. It is open to the State to enact a ban with clearer boundaries, but a new law has not yet been passed. Minnesota Voters Alliance v. Mansky.

Political gerrymandering

Political gerrymandering—drawing the boundaries of a political district to favor one’s preferred party—has a rich history in the United States dating back to colonial days. The term “gerrymander” itself was coined by a political cartoonist in 1812 when Massachusetts Governor Elbridge Gerry signed a bill approving a district that looked like a salamander. Now, however, the combination of computers and micro-data has enabled a new level of effectiveness in the practice, yielding the question of whether there are any constitutional limits on it. The Court granted review of two cases raising that question under equal protection and First Amendment theories but reached the merits in neither one. One of the cases was remanded for further proceedings, however, all but guaranteeing that the issue will return. Gill v. Whitford; Benisek v. Lamone.

Taxing internet sales

In a quirk of constitutional law that all nine current Justices agreed made no sense, the Supreme Court had twice held that, although States may levy taxes on sales made by out-of-state sellers to buyers located within the State, they cannot constitutionally require the sellers to collect the taxes unless they have a physical presence in the State. With the rise of internet sellers like Amazon, this rule created a gaping hole in States’ tax schemes, costing them billions of dollars in lost revenue. Although four Justices would have waited for Congress to fix the problem—which it can do for judicial decisions like this one issued under the dormant Commerce Clause—five Justices concluded that the error was too “egregious and harmful” to stand and thus overruled the prior decisions. South Dakota v. Wayfair.

Government access to cell-phone location data

As sensitive, personal information is increasingly housed by technology companies, the question of whether and how the Fourth Amendment’s protections against unreasonable searches and seizures apply to that information becomes increasingly important. That question arrived at the Court in the person of

Thomas Carpenter, who was convicted of leading a gang that had robbed a series of T-Mobile stores. Part of the evidence against him was location data from his cell phone placing him at the scenes of some of the robberies. The government obtained that data without a warrant, arguing that Carpenter had waived the Fourth Amendment’s protections by voluntarily sharing the data with a third party (the cell-phone carrier). Rejecting that argument, the Court held that the so-called third-party exception did not “overcome the user’s claim to Fourth Amendment protection,” and hence the government was required to obtain a warrant to search and seize the data. Carpenter v. United States.

Patent review and jury trial rights

Responding to the perceived problem of patent trolls, Congress in 2012 created a process called “inter partes review” through which any person other than the patent owner can ask the U.S. Patent and Trademark Office (PTO) to cancel a previously issued patent’s claim on the grounds of obviousness or lack of novelty. A disgruntled owner whose patent was invalidated through the process challenged it in court, arguing that it impermissibly delegated judicial power to the executive branch, violating Article III of the Constitution. The Supreme Court rejected the argument, holding that, because a patent is a grant of public rights made by the PTO, there is no infirmity in allowing the PTO to reconsider its grant. Oil States Energy Services, LLC v. Greene’s Energy Group, LLC.

Individual arbitration of employment claims

In separate lines of cases, the Supreme Court had held both that the Federal Arbitration Act protects the right to enter arbitration agreements requiring claims to be resolved individually and that the National Labor Relations Act protects the right of employees to act collectively, including in dispute resolution. The Supreme Court was therefore asked to determine what happened when both rights were implicated by an employee agreeing to resolve any employment claims individually in arbitration. In a 5-4 decision, the Supreme Court held that the NLRA did not specifically address arbitration and hence that the FAA controlled the enforceability of arbitration agreements and made agreements to proceed individually enforceable. Epic Systems Corp. v. Lewis.

Retaliatory arrest

What happens if the government has you arrested for disorderly conduct with good cause, but you can prove that it ordered the arrest in retaliation for things you said that it didn’t like? The answer is that you can sue for violation of your First Amendment rights, if you can prove that there was an official policy motivated by retaliation. So held the Supreme Court 8-1. But what if you allege a retaliatory motive by an individual police officer instead of by a government entity? That is an open question, to be answered in another case that the Court has agreed to review in 2019. Lozman v. City of Riviera Beach.

Aaron Van Oort is a legal strategist, class action litigator and appellate lawyer who co-chairs Faegre Baker Daniels’ appellate advocacy group. He is a partner at the firm, a former law clerk for Justice Antonin Scalia and a Fellow of the American Academy of Appellate Lawyers, 

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