WASHINGTON — The U.S. Supreme Court, once again with a full complement of nine justices, begins a challenging term that underscores its pivotal role in a time of political polarization and partisan gridlock.
“This will be a very big term,” Elizabeth Slattery, a legal fellow at the Heritage Foundation, told the Register, “and there are a lot of important issues at stake.”
The justices will tackle cases that address an array of issues, from penalties imposed on wedding vendors whose beliefs hold that marriage is between one man and one woman and employment agreements that bar class-action lawsuits to unions that require mandatory fees from nonmembers and political gerrymandering designed to secure one party’s dominance.
Catholics worried about fresh challenges to religious freedom will be watching one high-profile case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, which pits a Christian wedding cake baker in Colorado against a public-accommodation law that bars the denial of service for customers based on sexual orientation.
The baker argues that the Colorado’s Civil Rights Commission violated his religious freedom and free-speech rights by forcing him to create a wedding cake for a same-sex couple. Analysts say the court’s decision in this case could set legal precedent for a slew of legal challenges to similar anti-discrimination statutes that have put Christian wedding vendors on the defensive.
“You would be hard put to pick a better case,” Carrie Severino, chief counsel and policy director of the Judicial Crisis Network, told the Register, as she noted the baker’s legal argument and personal story.
The baker, Jack Phillips, told the same-sex couple “that they could buy any cake off the shelf, but he wouldn’t design one because of his religious principles,” said Severino.
“Like the owners of Hobby Lobby, Phillips ran his business according to religious principles: He refused to do racy cakes for bachelorette parties or cakes with alcohol in them, as he was down the street from an Alcoholics Anonymous” program. Hobby Lobby was a precedent-setting 2014 decision that upheld the religious-freedom rights of the Christian owners of Hobby Lobby, an Oklahoma-based craft company, to decline to provide abortion-inducing contraceptive drugs in their company’s health plan.
The baker's lawyers will also argue that his free-speech rights have been violated, and the court's strong support for freedom of expression could make this a winning strategy.
“Every American should be free to choose which art they will create and which art they won’t create without fear of being unjustly punished by the government,” David Cortman, one of Phillips’s lawyers, told the New York Times
The Gorsuch Effect
But an ideologically divided court could rule against the baker, with Associate Justice Anthony Kennedy supplying the crucial swing vote. While Kennedy, a Catholic, ruled in favor of Hobby Lobby’s legal challenge to the Health and Human Services’ contraceptive mandate, he also wrote the majority opinion in the 2015 landmark case that redefined marriage in the United States to include same-sex couples, Obergefell v. Hodges.
The recent arrival of Associate Justice Neil Gorsuch, President Donald Trump’s first nominee to the high court, raises further questions about the likely outcome of the Masterpiece Cakeshop case.
“You inject a new kid on the block, and the dynamics of the group will change,” Robert Destro, professor of law and director for the Institute for Policy Research & Catholic Studies at The Catholic University of America, told the Register.
“Kennedy is the prize, and the question then becomes: How will Gorsuch affect Kennedy? We know he has been affected by the more liberal justices,” said Destro.
Archbishop Jose Gomez of Los Angeles highlighted the significance of religious freedom in an Oct. 1 homily at the annual Red Mass held at Washington’s St. Matthew’s Cathedral that traditionally marks the start of the high court’s fall term.
Addressing a congregation that included Chief Justice John Roberts Jr., Justices Samuel Alito, Stephen Breyer, Anthony Kennedy and Clarence Thomas, and a cohort of U.S. lawmakers, Archbishop Gomez warned that the nation, and, by extension, its courts, “should never silence the voices of believers. They connect us to our Founders’ vision.”
Archbishop Gomez also emphasized that faith-based social teaching offered an essential moral framework for legal and political deliberation.
That guidance could apply to a number of cases on the court’s docket, including Epic Systems Corp. v. Lewis, a consolidated case that addresses the legality of agreements requiring employee disputes to be resolved through individual arbitration and that waive a worker’s right to class-action lawsuits.
Employers have increasingly opted for the waivers as the cost of litigation has skyrocketed. But the National Labor Relations Board ruled against such an agreement, creating uncertainty about whether the waivers are enforceable.
The arbitration cases touch on issues that are pertinent to Catholic social teaching, said Destro.
“There is universal agreement that individuals should be paid at least what they deserve under the law,” he said.
A particular issue posed by these cases, he added, is “one of ‘remedy’: What is the most efficient way in which to get the employee what he or she deserves?”
Legal specialists like Andrew Pincus, a visiting clinical lecturer at Yale Law School, told the Register that arbitration helps most workers obtain a remedy more quickly and at a much lower cost.
But those opposed to the adoption of the class-action waiver “believe that the deck is stacked in the employer’s favor,” said Destro.
Thus far, Congress and the Supreme Court have accepted the arbitration agreement as binding, and a reversal of that policy could render millions of such agreements unenforceable — a point raised by Roberts in the Oct. 2 oral arguments in the case.
Government Union Dues
The justices will also address another labor-rights issue — the power of government unions to require nonmembers to pay for collective bargaining. In a past decision, the court said it was lawful for nonmembers to fund this work, but in Janus v. American Federation of State, County and Municipal Employees, No. 16-1466, an Illinois state government employee has asked the justices to overturn this ruling.
The government employee, Mark Janus, argues that collective bargaining by a public union is of general public interest and thus violates the free-speech rights of nonmembers like him who disagree with the union’s position. His union contends that there is a difference between political speech and collective bargaining, and the law protects against those who would opt out of paying their fair share for supporting the union’s work.
“This case is yet another example of corporate interests using their power and influence to launch a political attack on working people and rig the rules of the economy in their own favor,” Lee Saunders, the president of the American Federation of State, County and Municipal Employees, said in a statement released after the court agreed to hear the case.
If the court rules against the unions, it could sharply reduce the pool of funds they use to leverage their political power in state capitals and in Washington.
“This will be one of the biggest cases of the term and could have huge implications for unions across the country,” said Slattery.
Democrat lawmakers are also keeping a close eye on Gill v. Whitford, a Wisconsin partisan gerrymandering case that could reset U.S. politics for a generation.
A lower court ruled that the electoral map drawn by the Republicans-controlled Wisconsin Legislature, following the last census, violated the U.S. Constitution. State Democrats challenging the plan contend they were unlawfully denied seats as a result.
The high court has taken up past cases of gerrymandering linked to racial discrimination, but it has stayed out of legal challenges to redistricting on political grounds. The lack of any clear standard for evaluating partisan gerrymandering is one reason the court has left the issue in the hands of state legislatures, say experts.
“It is hard to predict what they will do in this case,” said Slattery.
She noted that Kennedy, in a previous concurrence, said he would not “foreclose the possibility that someone might come up with the standard to judge these claims.”
The Democrats opposed to the Wisconsin plan have proposed such a standard, setting off a robust debate in political and legal circles.
But if the justices rule against the Wisconsin redistricting plan, Slattery predicted that they could be forced to get involved in restricting disputes “every time a map is drawn up after a census.”
“I would guess that, as a practical matter, the court would not want to review all those cases,” she said.
The political ramifications of the cases that deal with government unions and partisan gerrymandering will likely draw the most public debate.
But plenty of other important issues are before the court, including potentially the Trump administration’s “travel ban,” which critics say has unlawfully targeted immigrants from Muslim-majority nations. The justices shelved oral arguments in that case, scheduled originally to be heard for Oct. 10, while they consider whether the case has been rendered moot because of changes the administration announced in late September that broadened the application of the ban to several additional nations.
A case that will decide whether law enforcement can have access to a suspect’s GPS information without a warrant could prove equally momentous, as the nation grapples with the limits of privacy in the digital age and the growing reach of technology giants, like Google and Facebook.
This uncharted territory, say legal analysts, will place fresh burdens on a court that already had a difficult job. And legal specialists will be watching Gorsuch during oral arguments this term.
Gorsuch’s views appear to be similar to those of the late Justice Antonin Scalia, Pincus told the Register. “But we have a very small sample of his opinions, because he only participated in one month of cases” during the court’s last term.
As the new term advances, confirmation battles over Trump’s nominees to the appellate bench and questions about Kennedy’s plans for retiring will also shadow the proceedings and underscore the court’s outsized role.
“What can’t be overstated,” said Slattery, “is the importance of having good justices on the court who will be fair and impartial and try to find the original meaning of the constitutional provisions.”
Joan Frawley Desmond is a Register senior editor.