What to Watch and How to Engage
On Monday, October 2nd the Supreme Court began its 2017-2018 term. This marked the 100th anniversary of the Court starting its new year on the first Monday in October. And some are calling this term the ‘most consequential in recent memory.’
It is also, notably, Justice Neil Gorsuch’s first full term after joining the court last April.
Half of the docket is already complete, and so far the cases are wide-ranging with the potential for broad impact reaching into each of our daily lives.
The Supreme Court has until late June or early July of 2018 to deliver opinions, which “are typically released on Tuesday and Wednesday mornings and on the third Monday of each sitting,” i.e. when the justices hear arguments, issue opinions, or conduct other business of the Court opposed to the times they are in ‘recess’ studying the cases and writing opinions. Learn more about Supreme Court procedures, here.
The first argument that the Court heard on October 2nd pitted government lawyers representing the Justice Department against government lawyers representing the National Labor Relations Board (NLRB). Justice Ruth Bader Ginsburg pointed to the unique state of the opposing sides, saying “she’s never seen that in nearly 25 years on the high court.”
What is this case about? The case is NLRB v. Murphy Oil USA. Currently there is a provision in millions of contracts that require “workers with complaints to go to arbitration individually, rather than in groups.” Employers want to enforce that provision. At question is whether the requirement for individual arbitration is too costly and therefore violates federal labor laws, as the NLRB feels it does. (Chicago Tribune) This case could vastly change the legal landscape for employers who have long relied on the ability to resolve employment disputes on individual bases.
That is one case. Here is an overview of other headline-grabbing cases:
Gerrymandering case – Gill v. Whitford. “The term itself—gerrymandering—was coined in 1812, when Elbridge Gerry, the Governor of Massachusetts, signed a law creating a district so sinuous that, reportedly, the editor of the Boston Gazette saw it as a salamander.” (The New Yorker)
The case before the Supreme Court refers to a Republican redistricting plan passed in Wisconsin in 2011. Redistricting disputes do not fall on one side of the aisle or another – and in Gill v Whitford, bipartisan groups of state lawmakers and Members of Congress have appealed to the Supreme Court to establish a standard for redistricting. These groups are weighing in because they have seen negative consequences emanating from what some have termed ‘excessive partisan gerrymandering.’
(To read more about how the legislative branch operates, see The Policy Circle briefs on the House and the Senate, explained)
The question now is, do a majority of the Justices believe that it is the role of the Court to intervene in a question “entrusted to one of the political branches,” as Former Justice Antonin Scalia believed. Early signs show Gorsuch aligned with Scalia’s belief that the Supreme Court was not afforded this role in the constitution. Who to watch? Justice Kennedy, who previously left the door open by explaining that just because the Supreme Court had not yet set a “workable standard” does not mean that it never will.
Mandatory Dues for Public Sector Unions – Janus v. American Federation of State, County and Municipal Employees, No. 16-1466. This case was brought by a state government worker in Illinois who believes his First Amendment rights are violated by labor laws that force him to contribute to a union that lobbies on political positions with which he disagrees. The union position, alternatively, is that unions have the right to collect “fair share” fees for contract negotiations from workers who don’t support the unions. See The Policy Circle’s Labor Day post for more background on this topic.
Religious Liberty and the cake baking issue – Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. As Fortune outlines, this case involves “a Christian baker who said he would sell a cake to a gay couple planning to get married, but would not bake a special one just for them.” One side reasons that if First Amendment rights allow someone to not bake a special cake celebrating a divorce for religious reasons, the same determination could be made for same-sex marriages. The other side says this action violates the state’s anti-discrimination law. At question in this case are the boundaries of First Amendment protections for free speech and freedom of religion.
Cell Phone Privacy – Carpenter v. U.S. Should police officers be required to obtain a warrant in order to access your movements through cell tower location data collected from your cellphone? To-date, such data has been accessed and utilized to inform potential of criminal activity without the use of a warrant. The Supreme Court is going to weigh in to determine if the current state of affairs amounts to unreasonable search and seizure under the U.S. Constitution’s Fourth Amendment. Read more about this case here.
States’ rights as it relates to the legality of betting on professional and college sporting events. In this case, New Jersey is challenging the federal ban on sports wagering and betting. Read about the gaming industry’s amicus brief that was filed with the Supreme Court in an effort to overturn the ban, here. And more about the case from a states’ rights perspective, here.
WHAT CAN YOU DO?
Suggest to your Policy Circle to discuss and follow a Supreme Court case:
- Start with learning more about the case and how it made its way to the Supreme Court. The Federalist Society Commentary and Blog would be a good source. The SCOTUS Blog is a useful source for following Supreme Court activity. Check it out here.
- Seek out groups and organizations that support your side of the case and follow their activity. For example, “friend of the court briefs” (i.e. amicus curiae briefs) are legal briefs prepared by a lawyer and filed with the Supreme Court by interested individuals or organizations. In some cases, an organization filing a brief will look for supporters to sign on to their brief to demonstrate broad support. In the Janus case, for example, linked here is the list of individuals and organizations who submitted amicus curiae briefs petitioning the Supreme Court to hear the case. If you and other circle members are interested in this case and want to have an impact – reach out to the organizations that share your opinion, express your support for the effort, and continue to follow and share their activity.
- The late Justice Antonin Scalia’s new book, just out October 3, 2017, Scalia Speaks: Reflections on Law, Faith, and Life Well Lived. (CBSnews review) could also be a great topic for a Policy Circle conversation. The Constitution is the foundation of the American Experience, we owe it to our founders and our children to know it.
If you find yourself in Washington, D.C. or wanting to read what transpired in the courtroom:
- The Supreme Court Building is generally open to the public from 9 a.m. to 4:30 p.m.
- The Court releases their order list at 9:30 a.m. Orders generally accept or reject petitions before the court, such as a petition to hear a case or expedite a case. Regularly scheduled lists of orders are issued on each Monday that the Court sits.
- When the Court convenes for a public session in the Courtroom, it convenes at 10 a.m and the Justices usually hear two, one-hour oral arguments.
- Courtroom Lectures are available within the next 30 days. (supremecourt.gov)
The Policy Circle is a 501(c)3 that provides a fact-based, nonpartisan framework that inspires women living in the same community to connect, learn about and discuss public policies that impact their lives. Women across the nation are taking a leadership role in public policy dialogue on what human creativity can accomplish in a free market economy.