The Newly-Reforged Supreme Court

The last year has been relatively quiet for the U.S. Supreme Court. The death of Justice Antonin Scalia left the court with a 4-4 ideological split, making it difficult to meaningfully tackle important cases. But following the confirmation of Justice Neil Gorsuch in April 2017, the court is now back to full strength, and is prepared to tackle a backlog of critical disputes, many of them with enormous legal repercussions for the country. The following are just a few examples“cases in point”, you might say—all of which should have rulings by June 2018.


Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

In July 2012, Masterpiece Cakeshop owner Jack Phillips refused to create a custom wedding cake for Charlie Craig and David Mullins, a same-sex couple. Phillips argues that creating the cake would violate his sincere religious belief that marriage should be only between a man and a woman. He says that while he would be willing to sell a generic, pre-made cake to a same-sex couple, he feels that being forced to specifically create one for something he believe to be morally wrong would an infringement of his free speech. Phillips has previously refused to create cakes for Halloween, divorce parties, bachelor parties, and other events that conflict with his religious views. He holds this up as evidence that his actions are not intended to target same-sex people specifically, but only to make his speech consistent with his beliefs.

Craig and Mullins, for their part, argue that Phillips’ refusal to bake a cake violated the state’s Anti-Discrimination Act, which prohibits businesses from discriminating against their customers on the basis of, among other things, sexual orientation. They filed a complaint with the Colorado Civil Rights Commission, which agreed to represent them in court.

The case has worked its way up to the Supreme Court, and no easy answers are forthcoming. If the court rules for Phillips (the baker), state anti-discrimination acts, in general, will be greatly weakened, since one can see how people and businesses could then discriminate extensively and cite religion as a cover. But if the court rules for Craig and Mullins, many worry that it will set a dangerous precedent for the law restricting the freedoms of both religion and speech. At the center of all of it is the question: Does the freedom of speech (or religion) protect the right to refuse service? Perhaps the court will be able to delineate some middle ground between religious freedom and civil rights, but no matter what the outcome, this will be a landmark case to watch.


Carpenter v. United States

Pop Quiz: What is the Fourth Amendment to the U.S. Constitution? If you answered something to the effect of, “Protection against unwarranted searches and seizures”—congratulations, you’re a civics nerd! The basic idea is that you don’t have to turn things over to the police or let them into your house unless they have a search warrant. To be able to obtain such a warrant, a police officer must convince a judge that there is probable cause that the search will turn up either something illegal or something that will contribute to an ongoing investigation.

The question put forth in Carpenter v. United States is a simple one: does the Fourth Amendment apply to location data from cell phones? Or in other words, do law enforcement officers have to obtain a warrant to access your phone’s records of where you have been? If so, it will be that much more difficult for police to catch and deal with criminals, especially gangs or other criminal organizations. But if not, doesn’t that deal a huge blow against personal privacy rights in general, and the Fourth Amendment in particular? Many consider this to be the most important privacy case the Supreme Court has tried in a generation, and its impact will surely be felt for decades to come.


Gill v. Whitford

For those who don’t know, gerrymandering is the practice of deliberately redrawing electoral maps in such a way as to give your own party an advantage. This is done either by packing as many members as possible of a certain group into a single district, or by splitting those members out among many districts. Either way, it is done with the intent of diluting the group’s voting power. Gerrymandering has been around since the early 1800s and is as American as apple pie, but in the age of computers we have gotten much, much better at it, to the point of causing huge skews in representation along party lines.

The case in question deals with the Wisconsin state electoral map, though numerous other state legislatures also have cases in the works that will be affected by the ruling. In the 2012 statewide elections, right after having rewritten the electoral map following the 2010 census, Republicans won 60 percent of Wisconsin State Assembly seats, despite winning only 49 percent of the vote statewide. While this is clearly a strong and intentional distortion of the actual votes cast, the question the court must determine is whether it is actually illegal.

If the court rules against gerrymandering, it will be interesting to see whether or not it can come up with a specific mathematical standard of how much skew is required to throw out a districting map. For example, using the Wisconsin case as an example, would the map have to be thrown out if winning 49 percent of votes had given Republicans control of 55 percent of the State Assembly, instead of 60 percent? What about 52 percent? And what determines the cutoff in each individual situation? If the court does define a specific formula that can be uniformly applied to test for gerrymandering, numerous current state legislatures besides (drawn by both parties) will undoubtedly have to be redone—Maryland, North Carolina, Virginia, Pennsylvania, Georgia, and Texas all have ongoing gerrymandering lawsuits that are similar in substance to Wisconsin’s. Whatever the ruling here, it will undoubtedly have enormous influence on legislatures across the nation—indeed, it will impact our very definition of democracy.

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