WASHINGTON — The U.S. Supreme Court, now with all nine justices, will tackle big-ticket cases this fall, starting with gerrymandering and marching through GOP President Donald Trump’s Muslim immigration ban, workers’ rights, and cell-phone privacy, a panel of expert attorneys says.
And they’ll get the “wedding cake” case from Colorado, too, where a baker refused, on religious and alleged freedom of speech grounds, to bake a cake for a same-sex couple’s post-nuptial celebration.
How the nine will come out on any of the high-profile disputes is hard to measure in advance, the five experts told an American Constitution Society symposium on Sept. 14.
Indeed, they added, the jurists may kick Trump’s Muslim ban back down to the lower courts and tell them to start all over again when he issues a new executive order banning immigrants from selected nations. The anti-Muslim order Trump issued before—which courts partially blocked on constitutional grounds—is running out, according to its own deadlines. The justices will hear that case on Nov. 4.
Labor’s free rider problem
One of the two big labor cases, challenging the right of public worker unions to collect “agency fees” from “free riders” in union-represented shops, may also get kicked back down, says a top attorney for the Service Employees, Claire Prestel. The court has yet to set a date for hearing that case.
But Prestel said the National Right to Work Legal Defense Fund, which is financing the case pitting a dissident AFSCME worker against the union and the state of Illinois, may not have the right to sue, because it hasn’t been directly hurt itself. “And it’s a heavy lift” the right-to-work group seeks, as they’re asking the justices to overturn a 1975 decision for unions and fees, she added.
But if the justices rule against AFSCME, unions would lose millions of dollars and have less ability to defend all workers, union and non-union, said Prestel. That’s because the ruling would make every one of the nation’s state and local workers a potential free rider. “It’s very clear these cases are part of a decades-old movement to weaken the power of workers and keep them from advocating for themselves,” she said in a brief interview after the ACS session.
Before the Muslim case and the agency fees case, the court starts on Oct. 2, the traditional “First Monday in October.” The next day it hears the Wisconsin political gerrymandering case.
Voter-proof Republican districts
Gerrymandering is important to everyone because, as one panelist said, it lets legislators choose their constituents and not the other way around. Gerrymandering also can freeze partisan majorities into state legislatures and the U.S. Congress for a decade or more, they noted. That affects policies on everything from school funding to who can vote to workers’ rights.
Gerrymandering is most noticeable in closely split swing states, such as Ohio, Michigan, Wisconsin, Pennsylvania, Iowa, and Missouri. In those states, GOP gerrymandering packed Democrats into selected districts, giving legislatures—and U.S. House delegations—to Republicans for a decade or more. But it also occurs in heavily one-party states, such as Maryland.
The panel did not cite examples, but they are rife: Political gerrymandering led to an Iowa GOP legislative majority that this year stripped many public workers of collective bargaining rights. Missouri’s GOP-gerrymandered legislature passed, and the GOP governor signed, a so-called “right-to-work” law. And the Wisconsin GOP majority and right-wing GOP Gov. Scott Walker led the way in 2011 by stripping almost all public workers of collective bargaining power, outlawing dues checkoff, and forcing unions to seek recertification yearly.
Ohio’s GOP majority ended collective bargaining, too. But workers and their allies forced a referendum on the issue and the collective bargaining ban lost 61 percent-39 percent.
The Ohio majority also drew a congressional district map that packed most Democratic voters into two districts around Cleveland, a third in Columbus, and the fourth stretching from Akron to Youngstown. Though Ohio is a 50-50 state politically, its House delegation is 12-4 Republican.
And Michigan’s GOP state legislative majority enacted the law to let the governor impose a special financial czar on “financially failing” local governments. He named one for majority-minority Detroit and another for majority-minority Flint. That czar ordered the change in the city’s water source to save money—and the switch led to the lead in the city’s drinking water.
The court has for years tossed state and congressional district plans when they discriminated against people by race, said Dale Ho, director of the American Civil Liberties Union’s Voting Rights Project. “This goes beyond that,” he added.
Wisconsin’s gerrymandering was so bad that statistics show state Republicans won 60 percent of state assembly seats in 2012 and 2014 while getting only 48 percent and 50 percent of the votes, respectively. A lower federal court ruled that result unconstitutionally discriminated against Democratic voters, by depriving them of an equal voice in politics, equal protection of the laws, or both.
“But the question is whether” those pro-GOP election results “are due to gerrymandering or geography—the ‘Big Sort,’” so to speak,” where Democrats cluster in cities and suburbs and Republicans are more evenly spread out statewide and nationwide. “Liberals are blue islands concentrated in a sea of red.”
“The ACLU brief arises from First Amendment principles—that voters have a right to associate” as the amendment says “with candidates they choose to represent their views, but that those rights are violated when their votes” are virtually worthless due to political gerrymandering.
But voters can upset the politicians’ gerrymanders, replied Erin Murphy, a Kirkland & Ellis lawyer whose firm represents the Wisconsin legislature. “There have been multiple instances over the years where lower courts have said it [political gerrymandering] is blatant and permanent, and then in the next election the voters flipped. You can’t change your color. You can change your party affiliation.”
Forced arbitration: Corporate weapon
The first of the two labor cases sees the court wade into a thicket that businesses, especially financiers, are using to clobber consumers and workers: Forced mandatory arbitration. That’ll come up Oct. 2.
Though the case itself, involving workers at Murphy Oil Co., is narrow, the issue is not: Whether the Federal Arbitration Act overrides other rights, including the right of workers to band together to protect Themselves—via organizing, class action suits, or any other way—under the National Labor Relations Act, said Prestel.
The Murphy Oil workers don’t want to unionize over the firm’s failure to pay them overtime. They want to sue as a class. The firm says they must go to forced arbitration, one by one.
The National Labor Relations Board has tossed out forced arbitration agreements left and right, backing both union and non-union workers. Murphy is challenging the NLRB’s decision that labor law overrides forced arbitrations, period.
Trump’s Muslim ban echoes McCarran Act
The case against Trump’s anti-Muslim executive order arises out of the 2016 campaign, when he promised to ban all Muslims from entering the U.S. He tried that with his first executive order, but the courts shot it down as a violation of the U.S. Constitution’s mandate of freedom of religion.
Some panel members said if the justices don’t punt the case back down in anticipation of a new Trump executive order to replace the expiring one, they’ll have to tackle whether to include Trump’s statements as evidence of his illegal intent. Others differed, saying the order, targeting six almost wholly Muslim countries, was bad enough on its face to show the intent to discriminate on a religious basis.
Georgetown University law professor Martin Lederman, pointed out Trump justified the Muslim ban as “in the national interest,” citing language from the 1952 McCarran-Walter Act. The law lets the president ban “any persons or classes of persons” from the U.S. for that vague reason. Congress passed it, though Lederman did not say so, to ban alleged Communists from entering the country.
“But Congress has since enacted many statutes limiting” the 1952 law’s reach, Lederman said.
The wedding cake case from Colorado pits the cake store owner’s freedom of speech and freedom of religion—including freedom from a state order to utter “speech” by baking the cake—against Colorado anti-discrimination law. The state law covers same-sex couples, and bans discrimination by all businesses against customers by reasons of race, gender, sexual orientation, religion, and other factors.
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