The Supreme Court will be busy this term, hearing cases on voting rights, the First Amendment and discrimination, collective bargaining, and privacy in the age of cellphones. To better understand the legal arguments and consequences of the cases before the court, we turned to Northeastern legal scholars Dan Urman and Michael Meltsner.
Their first takeaway? In a number of major cases, they said, Justice Anthony Kennedy is likely to tip the scales one way or the other.
There are several major cases to watch this term. One of them is Gill v. Whitford, which calls into question the practice of gerrymandering, the act of drawing voting districts to heavily favor one political party over another.
“This is the most important case this term because it gets to basic democracy,” said Meltsner, George J. and Kathleen Waters Matthews Distinguished University Professor of Law. “The Supreme Court has never really intervened in a nonracial gerrymandering case, so this will be an interesting one.”
Another case, Masterpiece Cakeshop v. Colorado Civil Rights Commission, could also have significant consequences, according to both Urman and Meltsner. The case, involving a Colorado baker who refused to create a wedding cake for a gay couple, could just as easily become a fight over free speech as it could civil rights, said Urman, director of hybrid and online programs in the Northeastern School of Law and an expert in law and public policy.
“Once same-sex marriage became the law of the land, other questions popped up that were unresolved by the court, and this is an example of one of them,” Urman said.
Here, we take a closer look at these two cases and identify others the court will tackle this term.
Gill v. Whitford, or whether gerrymandering is unconstitutional
“There is so much at stake with this one,” Meltsner said, “especially in an age of party politics being so divisive.”
It’s a sentiment echoed by Justice Ruth Bader Ginsburg, who this summer said the court’s decision to hear the case was “perhaps the most important grant so far.”.
In this case, Democrats say voting maps in Wisconsin were drawn unconstitutionally to benefit Republicans. They argue that the maps represent extreme partisan gerrymandering while preventing fair and effective representation by diluting voters’ influence and penalizing voters based on their political beliefs.
Lawyers for the state argue that the maps are legitimate because there were several other factors that went into drawing them. Furthermore, they argue that it’s not the job of the Supreme Court to draw district lines.
“The facts are that despite not having a majority of the votes, the Republican Party has two-thirds of the Wisconsin state legislature,” Meltsner explained. “Using computers and modern sampling techniques, they’ve arranged the districts so that the results are preordained for them.”
The practice of gerrymandering is not new, nor is it a one-party issue. In fact, a similar case brought by Republicans is brewing in Maryland.
The real question at heart here, Meltsner said, is how to measure whether a particular redistricting plan was partisan gerrymandering. “The fear is that there is no impartial, non-political way of doing that, and thus the courts would be constantly choosing between Republicans and Democrats,” he said. “This would compromise the integrity of an impartial judiciary. In other words, it could politicize the courts.”
That’s not to say there’s no risk on the other side, though. “The flip side is that even given those risks, the court not acting is worse because it means that democracy is undermined,” he said.
Given Justice Anthony Kennedy’s position as this case’s likely swing vote, Meltsner said it was worth noting that the justice asked five questions of the Republicans defending the practice of the case and none “of the lawyers challenging the scheme.”
“What’s so important here is that if you don’t have a fair allocation system, you’re going to have disparity between the results of legislative action and the attitude of the population,” Meltsner said. “If the gerrymandering situation continues, we’re going to continue to have minority legislatures. As the disparity between the popular vote and the sources of power grows, it undermines the defense of any governance.”
Masterpiece Cakeshop v. Colorado Civil Rights Commission, or whether cake-baking is protected free speech
“The reason this one is so interesting is because it’s novel,” Urman said.
The case hinges on Jack Phillips, the owner of the Colorado-based Masterpiece Cakeshop, who refused to make a cake for a same-sex wedding.
Because of the artistry associated with custom cakes, Phillips argues that he “honors God through his work by declining to use his creative talents to design and create cakes that violate his religious beliefs.”
But the American Civil Liberties Union attorneys representing the couple, David Mullins and Charlie Craig, claim that Phillips’ reasoning for discriminating against their clients could apply to a host of other businesses and essentially amounts to a civil rights violation.
Urman said there are two groups of cases the Supreme Court could follow in ruling in this case.
The first is a string of cases in which the high court ruled that people cannot be forced to communicate a message with which they disagree. As an example, Urman offered the 1993 case of Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston, Inc., in which the Supreme Court ruled unanimously that local parade organizers didn’t have to allow the Irish-American LGBT group to march because doing so would express a message with which they disagree.
“The idea is that the speaker is allowed to decide what message they want to send,” Urman said.
The other group of cases that the justices might follow would put them in line with the Colorado Civil Rights Commission.
“The other line of thinking would lead to saying that a bakery that sells its goods needs to publicly accommodate members of protected groups,” Urman said. “Guess what Colorado protects? The LGBT community.”
Like the gerrymandering case, this one will likely come down to Justice Kennedy, Urman said.
“What’s so novel here is that it comes down to two sets of cases where Kennedy has a strong track record. He’s a strong proponent of both the First Amendment and gay rights, but he’ll have to pick one here,” Urman said. “This is a chance for him to cement his legacy one way or the other.”
Other cases to watch
Other big cases that Urman and Meltsner noted include Carpenter v. United States, which calls into question the Fourth Amendment’s place in the cellphone age, and two cases—Epic Systems Corp. v. Lewis and Janus v. American Federation of State, Country and Municipal Employees—that could have major implications for collective bargaining.
Both legal scholars noted that in nearly all of these seminal cases, Kennedy will likely end up being the key tie-breaking justice. Or, as Meltsner said, “It’s generally understood here that the key justice, as in so many cases, is Kennedy.”