The Next SCOTUS Term Looks Like A Blockbuster

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Kevin Daley Supreme Court correspondent
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The Supreme Court has set a loaded, controversial docket for its next term, electing to review high-profile immigration, gerrymandering, Fourth Amendment, and LGBT cases for its 2017 sitting.

The high court has spent much of the last year and a half sidestepping antagonism and working towards consensus, after the unexpected death of Justice Antonin Scalia left the tribunal with just eight members. But the (relatively) quiet term the justices have just completed will be succeeded by a blockbuster year.

Travel Ban

On its last day of business the Court announced that it will review lower court rulings blocking enforcement of President Donald Trump’s executive order on refugee and migrant entry, and stayed injunctions barring the order’s implementation.

The justices consolidated two travel ban cases from the 4th and 9th U.S. Circuit Courts of Appeals, and scheduled oral arguments for the first session of the Court’s next term, which begins in October. They also partially vacated several lower court injunctions barring enforcement of the order’s travel ban provision, which prohibits the entry of foreign nationals from six countries with high instances of terrorism for a 90-day period.

Two classes of foreign national from the six countries named in the order may still enter the United States; aliens with relatives in America and individuals with a meaningful connection to corporate entities and educational institutions in the United States will not be affected by the order.

The Court also will allow the order’s provisions concerning refugee resettlement to take effect, with the same exceptions it provided for the travel ban. The directive reduces the number of refugees the United States will accept from 110,000 to 50,000, and denies refugee entry for 120 days.

As the 90-day ban on migrant entry will expire before the Court hears the case, the justices asked the parties to address a “mootness” issue. Courts may only adjudicate ongoing controversies, and many take the view the travel ban will not be a live controversy by the time the justices hear arguments, as the 90-day entry ban will have elapsed. Therefore, it is possible the justices will conclude they no longer have jurisdiction to hear the case by the start of the next term.

The mootness issue notwithstanding, the case will be argued during the first session of the next term, which begins in October.

Religious Liberty and LGBT 

The justices will hear a landmark religious liberty case concerning the rights of merchants who object to participating in same-sex weddings given their moral and theological convictions.

The case arose after the proprietor of a Colorado bakery, Jack Phillips, declined to produce a wedding cake for an LGBT couple. Phillips’ lawyers say he is a “Christian who strives to honor God in all aspects of his life, including his art.”

“As a Christian, Phillips believes that God ordained marriage as the sacred union between one man and one woman, a union that exemplifies the relationship of Christ and His Church,” Phillips’ petition to the Court reads. “And Phillips’ religious conviction compels him to create cakes celebrating only marriages that are consistent with his understanding of God’s design.”

The justices must now decide whether the state’s public accommodations law requires Phillips “to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment.”

Partisan Gerrymandering

“Gerrymandering” refers to the practice of drawing legislative district lines to favor incumbents, political parties or interest groups. Although the justices have frequently invalidated district maps that disadvantage minorities, they have stopped short of striking down maps favoring one political party over the other.

This case, Gill v. Whitford, arises from Wisconsin. Although Republicans and Democrats split the vote in the 2016 general election, the GOP has a 2-1 advantage in the state legislature.

A three-judge panel ruled in 2011 that the Republican redistricting plan violated the First Amendment and equal rights protections given its partisan posture.

A ruling that partisan gerrymanders are unlawful would dramatically recast the apportionment process and shuffle the balance of power in Congress and state legislatures.

This case could be heard as early as October. The justices did give themselves something of a procedural off-ramp to avoid reaching a decision on the merits of the case. The Court indicated it would also consider a jurisdictional issue when the case is heard, creating the possibility it will ultimately punt because they lack authority to resolve the controversy.

Cell Site Data

The justices will also decide whether police need a warrant to track a suspect’s movements through his cellphone records, affording the justices the opportunity to revisit a key tenet of Fourth Amendment law.

Warrantless seizure of such records, called cell site data, has become integral to criminal prosecutions because it allows law enforcement to seize critical location data from a suspect’s cellphone without a warrant. This information allows police to identify a criminal suspect’s general location at a given moment in time (cell site data does not allow for real-time tracking, however.)

A 2016 AT&T report shows the company received over 50,000 requests for historical cell site data from police agencies.

A legal theory known as the third party doctrine the Supreme Court first announced in Smith v. Maryland in 1979 allows police to obtain records shared or maintained by third parties without a warrant. According to the doctrine’s reasoning, individuals relinquish their expectation of privacy when they agree to share certain records with a third party, like a phone company, bank, or internet service provider. Since telecommunications firms maintain cell site data, prosecutors argue that individuals should not expect the Fourth Amendment, which prohibits unwarranted searches and seizures, to protect this information.

The first argument day for the next term has been set for Oct. 2. The Court will begin to schedule arguments over the coming months.

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