People For the American Way Foundation

Trump Justice? A Preview of Cases in the Supreme Court’s First Term in the Trump Era

Trump Justice? A Preview of Cases in the Supreme Court’s First Term in the Trump Era

The erosion of democratic norms we have already seen during the Trump era poses a significant threat to our system of government and the liberty it is supposed to protect. That makes it all the more important to stand up to threats to our fundamental rights and to our democratic form of government.

As the Supreme Court opens its new term, it does so in the shadow of an administration that has ignored or destroyed civic norms, brushed aside or encouraged racism and anti-Semitism, and regularly peddled falsehoods on a wide range of subjects.

Under our Constitution, the federal courts—especially the Supreme Court—should stand as a bulwark against threats to our democracy and our rights. However, the Court itself has been affected by the erosion of democratic norms. Throughout 2016, conservatives prevented the Senate from even considering President Obama’s nomination of Merrick Garland to fill Justice Antonin Scalia’s seat. As a result, the vacancy was available for President Trump to fill. Judge Neil Gorsuch was confirmed after the Senate majority changed the chamber’s rules to overcome the opposition to Gorsuch and make his confirmation possible.

The Supreme Court whose term begins October 2 is not the one it would be under ordinary democratic norms. Nevertheless, this is the Court that will be deciding cases that will be critical to protecting our democracy and our rights. Among the issues the Court is scheduled to address:

  • Is there any limit on a political party’s ability to gerrymander their opposition’s supporters and deprive them of the chance of winning elections?
  • Can corporations get around worker protection laws by forcing their employees to sign agreements waiving those protections?
  • Does the First Amendment create a constitutional right to discriminate against LGBTQ people?
  • Can immigration authorities detain immigrants indefinitely without a bond hearing?
  • Is President Trump’s Muslim immigration ban legal?

For these and every other case, especially if decided 5-4, it is important to ask two questions: (1) Would this likely be the result if Merrick Garland rather than Neil Gorsuch were on the Court; and (2) What does Gorsuch’s impact tell us about the kind of person Trump will nominate to fill subsequent vacancies that may occur while he is on office?

Below are descriptions of a number of key cases the Court plans to hear this term.

Voting Rights

Gill v. Whitford: Constitutionality of Partisan Gerrymandering

This case has the potential to help make Congress and state legislatures more democratic by ensuring that legislatures fairly allow voters to choose their representatives. Or, alternatively, it could make it even easier for representatives to effectively choose their voters, essentially guaranteeing that the majority party cannot be removed from power absent an enormous wave election.

The Constitution mandates decennial reapportionment and redistricting of congressional and state legislative districts to reflect population shifts. Legislatures consider factors like compactness, the principle of one-person-one-vote, geographic boundaries, county and city lines, and communities of interest in making these decisions. Unfortunately, they too often consider partisan politics: How can the party in power follow traditional redistricting principles in a way that maximizes the seats they win in each election?

Two common methods are “cracking” and “packing.” The party drawing the lines can “crack” their opponent’s supporters among many districts, where their preferred candidates tend to lose by small margins. With “packing,” lines are redrawn so that the out-of-power party’s supporters are “packed” into just a very small number of districts, where their preferred candidates win overwhelmingly.

With advances in computer technology and data collection, parties have been able to make very specific, house-by-house predictions of how people will vote and how lines can be drawn to maximize partisan advantage. That makes cracking and packing schemes far more effective, and thus far more destructive to the democratic process.

As recently as 2015, the Court made clear that partisan gerrymanders are “incompatible with democratic principles.” But the Court has never identified a specific unconstitutional partisan gerrymander. In the past, the four most conservative justices (then including Antonin Scalia) have written that the courts should stay out of the issue altogether, while the four more progressive justices have disagreed. Justice Anthony Kennedy has always agreed with the conservatives that the particular redistricting plan before them should not be struck down, but he has always been with the moderates in stating that in principle, the federal courts could get involved in the issue if there were some “judicially discernible and manageable standard” available to identify and measure the impact of partisanship in redistricting.

That may be exactly what we have in Wisconsin, where Republicans controlled redistricting after their victories in the 2010 election. Voters shut out of power by the state’s partisan gerrymander presented a new neutral statistical standard (called the “efficiency gap”) to a three-judge district court panel. The standard analyzes actual election results rather than conjecture, and it measures “wasted” votes. Votes for winners beyond the 50 percent mark are considered wasted, as are all votes cast for the losing candidates.

To determine the “efficiency gap,” take one party’s wasted votes in an election, subtract the other party’s wasted votes, then divide by the total number of votes cast. The result indicates whether and by how much district lines pack or crack one party’s voters more than the other’s. (The Brennan Center’s How the Efficiency Gap Works is a useful resource explaining in detail how this statistical analysis works.)

The lower court agreed that this was exactly the type of neutral standard that the Supreme Court was looking for, and it struck down the state redistricting plan as an unconstitutional partisan gerrymander. It also ordered the state to come up with new maps.

However, last June, the Supreme Court, in a 5-4 vote, granted Wisconsin’s petition to put the lower court’s order on hold until the justices could resolve the case on appeal, with Kennedy and the arch-conservatives in the majority. That may foretell how the Court will rule on the actual appeal, but not necessarily. If at least five justices find that the “efficiency gap” model presents courts with a “judicially discernible and manageable standard,” then it could be a major step in moderating one of the most pernicious threats our democracy faces.

Oral arguments are scheduled for October 3.

Husted v. A. Philip Randolph Institute: Stripping Voters from Voter Rolls

Voter suppression comes in many forms, and one of the most common ones is removing eligible voters from the rolls if they have not voted recently. Recognizing how this method of updating voter rolls was being abused to disenfranchise people, Congress took measures to protect voters in the National Voter Registration Act of 1993 (NVRA, or “Motor-Voter”) as modified by the Help America Vote Act. The Motor-Voter law prohibits roll maintenance processes that result in striking people from the voter rolls by reason of their not voting in past elections.

Ohio has two systems to update its rolls to account for voters moving away. The first relies on the post office’s change-of-address data and is not at issue in this case. The second—which this case is about—is called the “Supplemental Process:” Election boards throughout the state identify registrants who have not voted in two years, then send them confirmation notices to see if they still live at their registered addresses. If the registered voter doesn’t respond or vote within the next four years, their name will be purged. Ohio deployed this program every two years from 1994-2014, at which point Secretary of State Husted made it annual.

Husted is being sued by the A. Philip Randolph Institute, the Northeast Ohio Coalition for the Homeless and Larry Harmon, a citizen of Ohio who was removed under Ohio’s program. Harmon voted in 2008 and chose not to vote in 2009 or 2010. Records show he was sent a confirmation notice in 2011, but he does not recall ever seeing it. He did not like any of the candidates running in 2012 or 2014, so he again chose not to vote. Under the rules of the “Supplemental Process,” his name was dropped from the voter rolls in September 2015. Harmon did not learn of this until the November election, when he discovered he was not registered, and that his vote would not be counted.

PFAW Foundation has joined an amicus brief in the case authored by Asian Americans Advancing Justice that notes the impact on Latino and Asian Americans in particular:

Asian American and Latino registrants vote at lower rates than the rest of the U.S. population. Because of their lower voting rates, Asian Americans and Latinos are more likely to be subject to Ohio’s Supplemental Process and purged from the registration lists than any other racial group. Asian Americans and Latinos already encounter a number of barriers to voting. For one, a large percentage of the U.S. population is comprised of Asian Americans and Latinos for whom English is not their first language and who may not be fluent in English. As a result, English-only election-related mailings create a barrier to access and comprehension which disenfranchises limited English proficient (LEP) voters, many of whom are Asian American and/or Latino.

Because the disenfranchisement process is set in motion by only one thing—a citizen’s not voting—the Sixth Circuit Court of Appeals struck the process down as violating the Motor-Voter law. The court determined that Ohio can use the confirmation-notice method to confirm information it has already received that a voter may have moved. But it may not use the lack of voting as a trigger for that.

At one time, this was also the position of the Department of Justice. However, after Jeff Sessions became attorney general, the administration switched sides. The Justice Department has submitted an amicus brief to the Supreme Court in support of Husted and Ohio’s voter purge system.

Oral arguments are scheduled for November 8.

Workers’ Rights / Corporate Power / Arbitration

Janus v. AFSCME: De-Funding Public Sector Unions

In this case, well-funded anti-worker organizations are continuing their assault on public sector unions, one that was put on hold when Justice Scalia passed away. Anti-labor advocates are again asking the Court to overrule an important 1977 case on the rights of working people (Abood v. Detroit Board of Education) by striking down requirements that public sector employees who are not members of the unions that are required by law to represent them pay “fair share” fees to cover the costs of that representation. Justice Alito has authored two opinions (Knox v. SEIU and Harris v. Quinn) criticizing the reasoning of the 1977 Abood precedent and, in the latter case, essentially invited conservative activists to generate a case to give the Court an opportunity to overrule it and severely weaken workers’ ability to come together, form a union, and effectively negotiate their working conditions and benefits. Friedrichs v. California Teachers Association was that case, but Justice Scalia’s death led to a 4-4 tie with no precedential value.

This time, their tool is Janus v. AFSCME, a case originating in Illinois. The trial court and the Seventh Circuit followed Abood, since they have no authority to do otherwise. In fact, that is part of the conservatives’ strategy. Since the lower courts’ hands are tied, they don’t have any reason or authority to hold a trial and develop any kind of detailed factual record on how fair share fees work in practice and how they impact non-union workers’ rights, if at all.

So now the case is at the Supreme Court, with at least four of the conservatives apparently once again primed to overrule Abood without allowing any factual record to be developed that might contradict the assertions they plan to use to justify their action. Another four justices would uphold Abood.

If none of them has changed their mind, then Justice Gorsuch will be the fifth vote in a 5-4 ruling. Although we will never know how a Justice Garland would have ruled, we will learn before the end of the term whether Trump’s justice will fulfill the expectations of his supporters, who spent millions of dollars blocking Garland and promoting Gorsuch. The answer will have an enormous impact on working people.

Oral arguments have not yet been scheduled.

Epic Systems Corp. v. Lewis: Arbitration Agreements to Strip Workers of Their Rights

(consolidated with NLRB v. Murphy Oil and Ernst & Young v. Morris)

Justice Gorsuch’s presence could tip the scales on three important labor cases next term, consolidated as Epic Systems Corp. v. Lewis. This could extend the conservatives’ work in a series of 5-4 rulings that have empowered large corporations to use arbitration agreements to prevent consumers and businesses they harm from filing class actions against them. Class actions are often the most effective (and sometimes the only effective) means of holding companies accountable when they violate rights.

Corporate interests are now seeking to expand this tactic to labor contracts. The National Labor Relations Act specifically gives employees the right to engage in “concerted activities” for “mutual aid or protection.” This is an essential right that reduces the inequality of bargaining power between employer and employee (or job applicant). Although Congress has specifically guaranteed this right, employers are frequently requiring their employees to sign that right away as a condition of employment, exactly what the NLRA was enacted to prevent. They do this through employment agreements requiring employees to resolve conflicts with the employer through one-on-one arbitration. In these cases, the companies are asking the Court to uphold those employment agreements, even though they prevent workers from exercising their statutory rights under the National Labor Relations Act.

The position of the National Labor Relations Board (NLRB) is that arbitration agreements cannot nullify employees’ right to engage in concerted activities for mutual aid or protection. The Board will be arguing this position before the Supreme Court, but in a rare development, it will be opposed by another part of the U.S. government: the Justice Department. DoJ had sided with the NLRB and employees, but that changed when Trump became president. Under Jeff Sessions, the Justice Department switched sides (as it did in the Ohio voting rights case) and now supports the companies.

Previous arbitration cases stripping consumers and others of their legal rights have usually been decided 5-4, with the conservatives in the majority. Justice Scalia had been a reliable fifth vote in such arbitration cases, and Gorsuch’s business-friendly record suggests he will be, as well.

Oral arguments are scheduled for October 2, the first day of the new term.

Digital Realty Trust v. Somers: Protection for Whistleblowers of Potential Securities Law Violations

This case addresses whether the whistleblower protection provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 apply to an employee who reports potential illegalities internally, but not to the Securities and Exchange Commission. Dodd-Frank specifically defines “whistleblower” as someone who provides information to the SEC.

In this case, Paul Somers, a vice president at Digital Realty Trust, reported potential violations of securities law within the company to senior management. He was then fired by the company, before he could report the suspected violations to the SEC. Somers sought whistleblower protection under Dodd-Frank, but Digital Realty argues that the law’s definition of the term does not include Somers, because he did not report his suspicions to the SEC.

The Ninth Circuit ruled that Dodd-Frank protects internal whistleblowers even if they have not yet reported to the SEC. The statute protects whistleblowers who give information to the Commission, who aid an investigation, or who “mak[e] disclosures that are required or protected under the Sarbanes-Oxley Act of 2002 … and any other law, rule, or regulation subject to the jurisdiction of the Commission.” Sarbanes-Oxley specifically protects internal whistleblowers but prohibits them from reporting to the SEC unless they have already reported the problem internally.

The lower court ruled that the Dodd-Frank whistleblower provision broadly incorporates the disclosure requirements and protections of Sarbanes-Oxley, which include internal whistleblowers. Dodd-Frank would not work otherwise. If it were limited to those who report potential legal violations to the SEC, then internal whistleblowers would be fired upon reporting the misconduct to their company, before they could ever report to the SEC.

The Ninth Circuit noted the similarity to King v. Burwell, the attack against the Affordable Care Act seeking to limit insurance subsidies to states that set up their own exchanges. In that case, the Court looked at congressional intent and the structure of the ACA as a whole, and it reached the obvious conclusion that Congress did not mean to deny subsidies to Americans in the federal-exchange states. Noting King’s observation that terms can have different operative consequences in different contexts, the lower court ruled that strict application of Dodd-Frank’s definition of “whistleblower” would all but read the reference to Sarbanes-Oxley out of the statute, an absurd result.

Oral arguments have not yet been scheduled.

Religious Liberty and Speech

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Religion as a Sword to Deny Other People Their Legal Rights

Masterpiece Cakeshop is another vehicle being used by the Religious Right to portray LGBTQ equality as inherently inconsistent with religious liberty. It is also an effort to advance their long-term effort to transform religious liberty from a shield designed to protect rights into a sword designed to strip others of their rights. The cakeshop’s case relies on claims under the Free Exercise Clause as well as the First Amendment’s free speech provision.

Masterpiece Cakeshop is owned by Jack Phillips, who practices a version of Christianity deeply hostile to LGBTQ equality. (Both the company and its owner are parties; the question of corporate religion under the Constitution is not addressed in the case.) When two men asked Phillips to design and make a wedding cake for a local celebration after their planned marriage, the bakery owner refused, saying his religion disapproved of their marriage and so he would not create wedding cakes for same-sex couples. However, Colorado prohibits discrimination in public accommodations on the basis of sexual orientation, and as a business open to the general public, the bakery was ordered to end its policy of discrimination. A state appellate court upheld that decision.

Masterpiece argues that its wedding cakes are works of art declaring that the wedding at which it is eaten should be celebrated. Similarly, it claims that creating and baking those cakes is an expressive act signifying Phillips’ approval of the marriage being celebrated. Therefore, compliance with the anti-discrimination law would be unconstitutional compelled speech he does not agree with, under the First Amendment.

One of the problems with this argument is that there is no indication that the cake would contain a message that the baker would be offended or repulsed by (such as a written racist, political, or religious message on the cake). Operating a public bakeshop that designs and sells wedding cakes in compliance with anti-discrimination laws does not convey a celebratory message by the baker himself. Any pro-equality message that an observer might interpret from the cake would be attributed to the couple, rather than to the baker. In addition, the lower court ruled that simply obeying a law does not express agreement with it.

Masterpiece also claims that Phillips considers himself “an active participant” in a wedding where he makes the cake, and enforcement of the law violates his rights under the Free Exercise Clause. (There is no RFRA claim, because RFRA applies only to federal government conduct, and Colorado has no state-level equivalent.) Under the 1990 Employment Division v. Smith case (which weakened the Free Exercise Clause and led to the passage of RFRA in response), the Free Exercise Clause does not excuse a person from complying with a valid and neutral law of general applicability on the ground that it prohibits or requires conduct in violation of their religious beliefs.

Masterpiece argues that, as applied, the anti-discrimination law isn’t a neutral law, but instead has been used to target its owner’s particular religious beliefs. It also claims that since it also concerns free speech, strict scrutiny should apply under Smith. Both these arguments were rejected by the lower court. In fact, Masterpiece refused to serve the couple before there was even any discussion of possible inscriptions or designs, undermining their First Amendment claims.

The 5-4 Hobby Lobby case showed that five justices were willing to transform the concept of religious liberty into a weapon to deprive others of their legal rights. Although one of those in the majority was Justice Scalia, his replacement by Gorsuch is unlikely to change the outcome.

Justice Kennedy’s position is the one that is the least predictable. He is the author of all of the Court’s major opinions recognizing the rights—and the basic humanity—of lesbians and gays. Creating a constitutional right for businesses to discriminate against them, when no such right exists for discrimination against (for instance) African Americans or women, would undermine all his work in including lesbian, gay and bisexual people as part of “We the People” as opposed to “them.”

In addition, in his Hobby Lobby concurrence, he went out of his way to stress that the majority opinion should be interpreted narrowly, and that the free exercise of religion may not be used to “unduly restrict other persons … in protecting their own interests, interests the law deems compelling.” Yet that is exactly what Masterpiece Cakeshop and its Religious Right supporters demand the right to do.

Oral arguments have not yet been scheduled.

Trump v. International Refugee Assistance Project: The Legality of Trump’s Muslim Immigration Ban

With issues relating to anti-Muslim discrimination, immigration, presidential power, and a direct affront to core American values, the travel ban case has enormous importance. It was originally scheduled to be argued in October. However, two weeks beforehand, the Trump administration replaced the executive order that the parties had briefed with a permanent one containing some modifications to the earlier ban. In response, the Court removed the case from the calendar and ordered the parties to submit briefs on whether it should be dismissed as moot. Many arguments central to the briefs already submitted to the Court will remain relevant with the new executive order.

As a presidential candidate, Donald Trump vowed to ban Muslims from entering the country. Within days of taking office, he issued an executive order that: (1) imposed a 90-day entry ban on nationals of seven majority-Muslim nations; (2) banned new refugees for 120 days, with an indefinite ban for Syrians (which was lifted in a second executive order); (3) set a policy of prioritizing non-Muslim refugees claiming religious persecution (this was also dropped in the second executive order); and lowered the 2017 cap on refugees from 110,000 to 50,000. (The administration later announced that the 2018 cap would fall again, to 45,000.)

Amid accusations of religious discrimination and after being stayed by the courts, the executive order was replaced by a second one in March. To give the appearance that religious discrimination had never played a role in the policy, the second EO stated that the first one “did not provide a basis for discriminating for or against members of any particular religion” and was “not motivated by animus toward any religion.”

The Ninth Circuit struck the ban down as exceeding the president’s powers under immigration law, noting the disconnect between the purported national security goals and the actual terms of the ban. The Fourth Circuit also struck the ban down as violating the Establishment Clause of the U.S. Constitution.

The Supreme Court subsequently allowed parts of the ban to go into effect, but let the injunctions continue in cases where immigrants or refugees have significant American ties.

The Trump administration has urged the Supreme Court to defer to the president’s authority on national security issues and look only at the purportedly religiously-neutral language of the executive order (which has now been superseded). In other words, they want the Supreme Court to turn a blind eye to the president’s anti-Muslim campaign and other statements, including his call for a “total and complete shutdown of Muslims entering the United States.” But the Constitution simply does not allow the government to act on the basis of animus toward members of a particular group. The Fourth Circuit explained it well:

The question for this Court, distilled to its essential form, is whether the Constitution… remains a law for rulers and people, equally in war and in peace. And if so, whether it protects Plaintiffs’ right to challenge an Executive Order that in text speaks with vague words of national security, but in context drips with religious intolerance, animus, and discrimination. Surely the Establishment Clause of the First Amendment yet stands as an untiring sentinel for the protection of one of our most cherished founding principles—that government shall not establish any religious orthodoxy, or favor or disfavor one religion over another. Congress granted the President broad power to deny entry to aliens, but that power is not absolute. It cannot go unchecked when, as here, the President wields it through an executive edict that stands to cause irreparable harm to individuals across this nation.

The Fourth Circuit also provided a critical reminder of the importance of the courts for everyone in the country:

The Government has repeatedly asked this Court to ignore evidence, circumscribe our own review, and blindly defer to executive action, all in the name of the Constitution’s separation of powers. We decline to do so, not only because it is the particular province of the judicial branch to say what the law is, but also because we would do a disservice to our constitutional structure were we to let its mere invocation silence the call for meaningful judicial review. The deference we give the coordinate branches is surely powerful, but even it must yield in certain circumstances, lest we abdicate our own duties to uphold the Constitution.

The Fourth Circuit is correct: Despite the administration’s claims to the contrary, the executive orders are the fulfillment of President Trump’s campaign pledge to ban Muslims from coming to the United States. The first executive order stated it was intended to keep people out who “bear hostile attitudes toward [the U.S.] and its founding principles,” who “do not support the Constitution,” and who “would place violent ideologies over American law.” By claiming that a ban on people from the listed majority-Muslim nations would fulfill those goals, the federal government sent an unmistakable message: Muslims are dangerous, Muslims are un-American, Muslims are “the other.” As many have already pointed out, adding a small number of possible immigrants from two non-Muslim majority countries to the ban does not remedy this flaw.

Whether it is in the first, second, or third version of the ban, such denigration of people based on their religion unquestionably violates the Establishment Clause. It also encourages the increased violence, threats, and harassment targeting Muslims in America that has occurred since Trump’s election. PFAW Foundation has submitted an amicus brief along with Americans United and other groups urging the justices to strike down the ban as violating the First Amendment.

Immigration

Jennings v. Rodriguez: Bond Hearings for Detained Immigrants

This is a case that was originally argued last term, without resolution. It initially asked if certain federal immigration statutes give detained immigrants a legal right to a bond hearing, in which they would appear before an immigration judge and ask to be released on bail. Several immigrants filed a class action suit because they had been held in detention and denied such a hearing for years. When the case was before the Ninth Circuit, the court noted that if the statutes were interpreted to permit detention without a bond hearing, the judges would then have to address whether that is constitutionally permissible. So, under a doctrine called “constitutional avoidance” in which courts interpret statutes in order to avoid ruling on a constitutional issue, the appeals court ruled that the statutes in fact require periodic bond hearings, in which the government bears the burden of proving that the immigrant should not be released.

Last term, the Supreme Court heard oral arguments in the case, and there apparently was not a majority who would read the statutes the same way the Ninth Circuit did. So the Court asked the parties to submit briefs on the constitutional question that the lower court had avoided: whether the Constitution gives detained immigrants the right to a bond hearing.

This occurred months before the end of the 2016-17 term, yet the Court reached no decision, instead ending the term with an order calling for oral arguments on the new questions. It strongly suggests that the justices were divided 4-4 on the matter, with Gorsuch not participating because he had not yet joined the Court. If so, then the far-right justice nominated by an anti-immigrant president will determine whether the federal government can detain immigrants indefinitely without ever giving them bond hearings.

Oral arguments are scheduled for October 3.

Sessions v. Dimaya: Ambiguity in a Law Used to Deport Immigrants

Noncitizens can be deported if they are convicted of an “aggravated felony,” which immigration law defines as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015’s Johnson v. United States, the Court struck down a similarly worded definition in an unrelated statute (under the Armed Career Criminal Act; a defendant with a gun gets a more severe sentence if he has three previous “violent felonies”) as unconstitutionally vague, meaning it was so ambiguous that a person would not know if their actions were aggravated or not. This case asked whether the definition in immigration law is also unconstitutionally vague.

On the last day opinions were released this past June, the Court ordered this case to be reargued. Oral arguments had been held before Justice Gorsuch joined the Court, and the eight justices were apparently split 4-4. We can be sure that when this is decided next term, it will be a 5-4 decision, with Gorsuch determining the outcome.

Oral arguments are scheduled for October 2, the first day of the new term.

Privacy From Police Searches

Carpenter v. United States: Warrantless Searches of Cell Phone Location Data

In this case, the Court will determine if the police need a search warrant before ordering a cell phone company to hand over months of location information for a customer’s phone (and, by extension, for the customer).

Under the Fourth Amendment, law enforcement generally cannot conduct a search without first getting a warrant from a judge, who issues it only when the police demonstrate they have “probable cause” to conduct the search. This judicial role is a critical mechanism that protects us from random and invasive police searches.

But cell phones didn’t exist when the Bill of Rights was adopted in 1791, and—until very recently—they haven’t existed in all the years that the Supreme Court has been interpreting the Fourth Amendment. Our smartphones, which contain so much information about us, and which have their locations tracked and recorded hundreds of times a day, are conceptually different from earlier phones. As a result, Supreme Court precedents that apply to landlines must be reanalyzed when applied to cell phones.

When the Detroit police ordered cell phone companies to turn over data on where Timothy Carpenter’s phone was over a four month period, they did not have a warrant. Lower courts that have addressed this issue have held it constitutional, but under old cases involving landlines. The justices will analyze the issue in a new context, determining if users have a reasonable expectation of privacy in the location information their phones regularly emit.

A ruling for the United States in this case would take us a dangerous step closer to a dystopian “surveillance society,” where the government can track our every move.

Oral arguments have not yet been scheduled.

Conclusion

The Supreme Court’s decisions have an enormous impact on our rights and freedoms. As President Trump and his allies violate democratic norms, as corporations seek more ways to evade laws that limit their power over us, and as white supremacy becomes more open in the corridors of power, we rely on the Supreme Court to “right the ship.”

Whether it will do so likely depends on Justices Kennedy and Gorsuch. Throughout this term, we will see the consequences of the unprecedented power play that got Gorsuch onto the Court. Should he vote with the arch-conservatives as expected, then Justice Kennedy will likely be the swing justice in critically important 5-4 opinions.