- The Washington Times - Sunday, October 1, 2017

The Supreme Court opens its term Monday with a full contingent of nine justices and a slate of cases that will show just how far the new court — with Justice Neil M. Gorsuch on board — will go in playing referee between President Trump and his opponents.

Already on the docket this year is a case involving the president’s “extreme vetting” travel ban, where lawyers and the court are grappling with the latest round of changes Mr. Trump has made to the limits on visas and refugees.

But the justices will also delve deeply into politics with a landmark battle over how states draw congressional district lines. The outcome of the case could determine control of the U.S. House for years to come.

The high court will also tread back into gay rights issues with a case over what rights observant Christians have to refuse to service same-sex weddings, and the justices will again probe the tension between technology and privacy with a case over cellphone tracking data.

It’s a major shift from last term, when legal analysts said the court — with just eight justices for most of the year — didn’t break much legal ground.

“It looks bigger by comparison to last term,” said Andrew Pincus, a lawyer for the firm Mayer Brown. “There were relatively few high-profile cases that the court decided, and there seems to be a number already on the docket.”

The court sits from October through June.

First up Monday is a labor case that could decide whether employers can use contracts to force employees to agree to arbitration rather than join class-action lawsuits.

“This is really about a collective action ban that’s just been embedded in an arbitration clause,” Claire Prestel, an attorney for the Service Employees International Union, said at a Supreme Court preview hosted by the American Constitution Society.

The first high-profile case comes Tuesday, when the justices hear oral arguments over Wisconsin’s legislative district maps.

A host of liberal voter groups challenged the maps, saying Republicans drew the lines to pack Democrats into a few districts while spreading out Republican voters to maximize the number of House seats.

A lower court ruled that the political move was too naked and violated voters’ right to have a fair chance to pick a candidate of their choice. That court suggested a mathematical formula should be used to calculate how partisan a district can lean before it is deemed illegal.

But analysts say it’s tricky, if not impossible, to settle on an acceptable formula.

The Supreme Court has suggested that partisan gerrymandering is acceptable to a certain point but has struggled to find that limit.

When the justices agreed to take the Wisconsin case, they stayed the lower court’s order to redraw the district lines, suggesting they are skeptical of the trial court’s formula.

“That suggests that they also may have a thumb on the scale in terms of thinking there’s a likelihood of success on the merits in this case,” said Carrie Severino, chief counsel of the conservative Judicial Crisis Network.

The justices will get another chance to referee Mr. Trump’s policies in the travel ban case. At the end of the last term, they delved into it briefly and delivered a partial victory in reviving parts of the ban over the objections of lower courts.

Now, the justices are slated to hear full arguments.

But Mr. Trump upended the court’s plans with his revisions last week, which add other countries to the ban list and subtract one country that is now complying with information sharing. Mr. Trump also adjusted the levels of penalties and said enough information is available to tailor the policy.

Briefs are due Thursday on the case, but the revisions may not be big enough for the justices to send the case back to lower courts to review — perhaps guided by the justices’ repeated curtailing of lower courts’ eagerness to punish Mr. Trump.

“We’re going to have litigation, but I think the 9th and 4th circuits will be a little bit more deterred,” said Samuel Estreicher, a law professor at New York University.

The court’s swing vote, Justice Anthony M. Kennedy, will likely be tested on gay rights yet again in a case involving a Colorado baker who was cited by the state’s civil rights commission for refusing to bake a wedding cake for a same-sex couple.

The baker, a Christian, says his religious and free speech rights are being infringed if he has to either bake for everyone or no one.

“It’s one of the more sexier cases on the docket this term involving the law of cake and whether cake speaks,” said Martin Lederman, a law professor at Georgetown University.

The case, though, could have bigger implications beyond bakers, testing the tension between gay rights and religious freedom.

One case where Justice Gorsuch could make his mark on the Fourth Amendment and privacy rights involved a criminal defendant who was convicted in a string of robberies based off of his cellphone location data, which the government obtained from the phone company without a warrant.

The justices will be evaluating just how far the Fourth Amendment protection extends in an era of growing technology.

Mr. Pincus said Justice Gorsuch’s predecessor, Justice Antonin Scalia, was a strong champion of Fourth Amendment protections from the government into private spaces, so it will be interesting to see whether Justice Gorsuch aligns with Scalia on the issue.

The court ruled in 2012 that a tracking device on a vehicle violates the Fourth Amendment.

“What makes this case fascinating beyond its importance for the internet — the technological era — there’s so many directions the court could go in and so little of what the justices have written themselves on these issues,” Orin Kerr, a law professor at George Washington University, said during a court preview hosted by the Federalist Society.

With only eight justices last year, the court took a smaller-than-usual caseload. That could change this year with the court back to nine members.

So far, they have agreed to review 44 cases, including a review granted Thursday on a case involving whether public employee unions can demand fees from government employees who don’t want to join the union.

• Alex Swoyer can be reached at aswoyer@washingtontimes.com.

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