People For the American Way Foundation

The 2016-2017 Supreme Court Term: Signs of the Storm Brewing


When the Supreme Court’s current term began last October, it was a body evenly divided ideologically, 4-4, with the Senate refusing to consider the nomination of Judge Merrick Garland to fill the vacancy open since the previous February. It was a sabotaged Court trying to carry on, with our rights in the balance.

But the unprecedented blockade of Judge Garland, followed by Donald Trump’s election victory, allowed conservatives to restore the 5-4 conservative majority that has so damaged our nation. Although Neil Gorsuch took part only in the final few cases argued this term, his presence was enough to confirm Americans’ fears, even before those case opinions were released.

Among his first actions as a justice was to vote with the newly re-formed conservative 5-4 majority to deny stays of executions for eight people on death row in Arkansas. As is usually the case with such denials, there was no reasoning provided. But in this instance, Justice Breyer wrote a dissent setting forth the callousness and randomness of the state’s case. Arkansas uses a drug called midazolam to induce unconsciousness while other drugs are used to cause death. However, there is significant evidence that midazolam actually keeps people awake and in excruciating pain, but paralyzed so they are unable to communicate it. The drug is no longer produced, and Arkansas’ remaining supply was about to pass its expiration date. So the state, in a rush, planned to execute eight prisoners over 11 days.

The defendants had various arguments to support their claims. For instance, one had been represented by a lawyer who was drunk; another was tried and sentenced by a judge who was having an affair with (and later married) the prosecutor. None of that mattered: Gorsuch cast the deciding vote to allow the rushed executions to occur rather than give any of the prisoners a chance to argue their cases.

A month later, Gorsuch (along with Justice Thomas) dissented from an order declining to hear a case, but affirming the lower court’s judgment (although not necessarily its reasoning) upholding a limit on soft money. Election law expert Rick Hasen stated that the limit was “one of the two main pillars of the McCain-Feingold campaign finance law (the Court overturned the other in Citizens United.)” Although such orders usually don’t say whether the justices were divided or how they voted, Gorsuch, like Thomas, made his position public. It was an ominous early sign for Americans who want to protect our democracy by imposing reasonable limits on money in politics.

And all this was before he participated in any actual opinion released by the Court.

But it likely was a foretaste of what lies ahead. With some exceptions, the 2016-2017 term was, for the most part, the calm before that storm. Some cases expected to be blockbusters ended up not being argued. In other cases, the evenly-divided Court chose consensus over inaction, issuing moderate unanimous or near-unanimous opinions that resolved the case narrowly, without using it as a vehicle to make dramatic, controversial changes to the law.

That raises an interesting question: If the justices are capable of finding consensus even in contentious cases, why don’t they do it more often? Justice Samuel Alito actually gave us the answer in April, as reported by the Wall Street Journal:

“Having eight [justices] was unusual and awkward,” [Alito] said. “That probably required having a lot more discussion of some things and more compromise and maybe narrower opinions in some cases than we would have issued otherwise, but as of this Monday we were back to an odd number,” with the seating of President Donald Trump’s recently confirmed nominee, Justice Neil Gorsuch.

“There is a reason why we are allotted nine justices,” Justice Alito said. “I think every appellate court in the United States is allotted an odd number of justices or judges,” he said, even though the Constitution does not set the number and for several periods in the nation’s early history the court did have an even number of seats.

According to Alito, then, the Court’s ultra conservatives make a deliberate choice to avoid consensus or even discussion. Because they have the power, they choose to completely transform our laws, our Constitution, and our democracy to their liking.

(Alito was also wrong about every appellate court having an odd number of judges. In fact, Congress has chosen to allot an even number of judgeships to six of the nation’s 13 circuit courts, including the one Alito himself once served on.)

Below are some of the highlights of what the Court did—or didn’t do—in a variety of issue areas.

Religious Liberty

Trinity Lutheran Church of Columbia v. Pauley: Direct State Financial Grants to Churches

Trinity Lutheran Church v. Comer, decided on the last day of the term, was a potentially important church-state separation case involving a Missouri prohibition on direct payments by the government to a house of worship. Seven of the nine justices ruled in favor of the church, eroding church-state separation, but a majority of the Court made clear that its ruling was a very narrow one.

Missouri has a competitive grant program for organizations to improve their playgrounds, open to all to apply for. However, because the state constitution explicitly bans state funding of churches, Trinity Lutheran was ineligible to apply. In an opinion authored by Chief Justice John Roberts, the Court ruled that this violates the federal Constitution’s Free Exercise Clause by denying Trinity Lutheran an otherwise available public benefit because of its religious status. Roberts’ opinion was joined by Justices Kennedy, Thomas, Alito, Kagan, and Gorsuch. Justice Breyer provided the seventh vote for the church in a separate concurrence with the judgment. Justices Ginsburg and Sotomayor dissented.

As explained in an ACLU amicus brief that PFAW Foundation joined, the Supreme Court has never upheld direct taxpayer funding of a religious institution without adequate safeguards to prevent its misuse for sectarian ends. That is critically important, since Trinity Lutheran refused to certify that it would not use the publicly-funded improved playground for religious purposes. But only the two dissenters—Justice Sotomayor, joined by Justice Ginsburg—focused on this vitally important aspect of the case.

The majority opinion stated that this was not a case where public funding was being denied because of what the recipient would do with it (impermissibly use taxpayer money for religious purposes). Instead, Trinity Lutheran was being denied public funding because of what it is: a house of worship. The majority concluded this forces the church to choose to go without an otherwise available public benefit, or to surrender its identity as a religious entity. The state’s constitutional prohibition on direct payments to churches was not enough, the majority concluded, to warrant the infringement on the federal Free Exercise Clause.

The six-justice opinion stated that it was limited to playground resurfacing, the only part of the majority opinion that Justices Thomas and Gorsuch could not agree with. But Justice Breyer’s separate concurrence provided a fifth vote for that proposition, making it part of the binding precedent. Nevertheless, the existence of a precedent allowing direct taxpayer funding of a church activity with no way to know that it won’t be used for religious purposes weakens the Establishment Clause and does not bode well for the future.

Advocate Health Care Network v. Stapleton: Exemptions from pension obligations for religiously-affiliated employers.

This was a case that could have added to the erosion of church-state separation, and very well may have if Justice Gorsuch had participated in the case. Instead, the Court avoided constitutional issues and reached a unanimous decision interpreting the text of the Employee Retirement Income Security Act (ERISA).

ERISA imposes a number of requirements on employers designed to protect the pensions offered to employees. These important protections create added expenses for the employer. Congress wrote an exemption into the law for plans established and maintained by a church, so churches do not need to comply with ERISA’s obligations. The question before the Court was whether exempt “church plans” include plans for employers affiliated with a church (like many hospitals) if the church itself didn’t create the pension plan. The federal government has always treated them like church plans, an interpretation that was being challenged by hospital employees seeking ERISA’s pension protections.

PFAW Foundation signed on to an amicus brief authored by Americans United for Separation of Church and State in support of the employees, arguing that extending the church-plan exemption to religiously affiliated organizations would violate the Establishment Clause. The brief also argued that the First Amendment does not require the government to treat religiously affiliated organizations identically to houses of worship.

The eight justices agreed that the terms ERISA used to define a “church plan” clearly showed that Congress intended the hospital plans (and other plans of religiously affiliated organizations) to be included as “church plans.” As to the constitutional ramifications, the Court said nothing. It may very well be that the only way to get all eight justices to agree was to avoid even references to the First Amendment. Whatever the reason, their complete silence on the constitutional question limits the reach of this case (applying only to this one federal law) and prevented an opinion that could have caused significant damage to the Establishment Clause.

Ziglar v. Abbasi: Detention and Abuse of Muslims After 9/11

This was a lawsuit filed against several federal government officials seeking damages for detention and mistreatment of detainees based on their religion and nationality in the months after 9/11. The plaintiffs (who lost their case) were six men of Arab or South Asian descent, five of whom were Muslim. As stated in an amicus brief filed by Americans United and PFAW Foundation:

Respondents suffered horrific indignities. They were kept in solitary confinement, deprived of sleep, exposed to extreme temperatures, taunted, strip-searched, and shackled. Some were beaten to the point of broken bones. All of that occurred for no reason other than respondents’ perceived religion and nationality.

The government officials—who included former Attorney General John Ashcroft, former FBI Director Robert Mueller, former Immigration and Naturalization Service Commissioner James Ziglar, and officials who ran the detention facility—were being sued in their personal capacities, so they would be personally liable for any damages.

The Court focused not on the Establishment or Free Exercise Clause, but instead on precedents establishing when federal officials who have harmed someone through an illegal action can be sued personally for the resulting damages. With Justices Sotomayor and Kagan recused and Gorsuch not participating, the remaining six justices split 4-2 against the prisoners. Justice Kennedy wrote the opinion, joined by the other conservatives. Justices Breyer and Ginsburg dissented.

Although the legal focus was on immunity from lawsuit, this case could have significant near-term consequences. We are in an era when Muslims are being targeted by the president, his administration, and the supporters whose anti-Muslim frenzy they whip up. This case may make anti-Muslim federal officials feel confident that they will not be held personally liable for damages if they engage in blatantly unconstitutional discrimination against Muslims.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Religion as a sword to deny other people their legal rights

Last September, when we released our preview of the current term, the justices still had not decided whether to take this case involving the ability of a bakery to refuse service to two gay men. Surprisingly, the same was true until the last day of the term, when the Court finally announced that it will consider the appeal.

Masterpiece Cakeshop involves a baker who refused to make a wedding cake for two men, citing his religious opposition. This was in violation of state law prohibiting discrimination in public accomodations on the basis of sexual orientation. The case is part of the religious right’s nationwide effort to transform religious liberty from a shield designed to protect rights into a sword designed to strip others of their legal rights.

This could have been the case this term garnering the most public attention and interest of the year. Instead of a dramatic last-day release of the decision, we have nothing. But now that the Court has decided to hear this case, we know it will be a blockbuster next term.

LGBTQ Equality

Masterpiece Cakeshop involves a religiously-based challenge to LGBTQ equality. But there are other ways to deny equality to LGBTQ people without citing religion, and the Court had another potential “blockbuster” in this area. But as with several other cases, there ended up being no case to decide.

Gloucester County School Board v. G.G.: Transgender equality under Title IX

This is one of the cases that could have had landmark importance, but which fizzled into nothing. It involved a public school board’s efforts to prohibit Gavin Grimm, a transgender boy, from using the boys’ bathroom at school. At issue was whether Title IX—which prohibits discrimination on the basis of sex in any educational program or activity receiving federal funding—requires schools to allow transgender students to use the restrooms that are appropriate for their gender identity.

The Fourth Circuit had ruled in favor of the transgender student, based in substantial part on deference to the Department of Education’s interpretation of the statute. DoE had issued guidance that schools should allow people to use the restroom appropriate for their gender identity, and the circuit court found that this was a reasonable interpretation of Title IX. This was the basis of the appeal, and of all the briefs submitted to the Supreme Court.

But then Donald Trump became president, and the Education and Justice Departments had leadership his nominees, not Barack Obama’s. In February, the Education Department announced the withdrawal of the Title IX guidance. With the legal basis of the case now made irrelevant, the justices vacated the Fourth Circuit’s judgment and remanded the case back to the lower court for further consideration under the new circumstances.

This case may yet become a blockbuster in a future term, but not in the current one.

Voting Rights

North Carolina v. NC Conference of the NAACP: North Carolina’s “Monster Voter Suppression Bill”

This turned out to be another blockbuster as discussed in our term preview that ended up fizzling out. It would have been the Court’s most important voting rights case of the term, setting enormously important precedent on the constitutionality and legality under the Voting Rights Act of the diverse range of voter suppression methods adopted by North Carolina.

A three-judge panel of the Fourth Circuit Court of Appeals had struck down North Carolina’s notorious voter ID law, as well as its provisions curtailing or eliminating early voting, same-day registration, out-of-precinct voting, and preregistration of 16 and 17 year-olds. The court concluded that not only did the law have a racially discriminatory impact, it was actually intended to make voting harder for African Americans. The judges concluded that provisions of the new law “target African Americans with almost surgical precision” without remedying the alleged problems the state claims were their justifications.

A disturbingly high number of voter suppression laws have been enacted during the past few years, but the North Carolina one was generally considered among the worst of all, both in its scope and in its impact. The Supreme Court could have upheld the bill in its entirety, giving the green light to similar and even worse measures around the country. Or it could have agreed with the Fourth Circuit that the law was intentionally discriminatory and therefore unconstitutional. Or they could have ruled somewhere between these two extremes. But no matter what, the right to vote of millions of Americans was at stake.

But then the newly-elected governor and attorney general sought to dismiss the state’s petition for the Supreme Court to review the decision, which would have left in place the lower court decision striking down the law. In response, the state legislature’s leaders sought to intervene to make sure the case continued. What resulted was what the Chief Justice called a “blizzard of filings” among the various players about whether any of these officials had the authority to take the actions they proposed.

With so much uncertainty and doubt about what had previously been a straightforward case, the Court chose to deny the petition for certiorari—they would not hear the appeal. As a result, the Fourth Circuit ruling remained, which was an excellent result for those who support voting rights. But as the Chief Justice went out of his way to note in an unusual written concurrence, the denial of certiorari does not mean the justices have upheld the lower court. It simply means the Supreme Court expresses no opinion on the matter. This is hardly news, so the Chief Justice presumably chose to emphasize it as a signal that he would have upheld the law (or at least much of it), and that the Supreme Court will at some point have the last word on the legal issues raised in the case.

Cooper v. Harris (formerly McCrory v. Harris) and Bethune-Hill v. Virginia Board of Elections: racial redistricting

The methods used in North Carolina’s voter suppression bill are not the only ways to reduce the electoral influence of communities of color. Improper redistricting is another tool in the voter suppression arsenal, and that was the focus of these two cases.

In Cooper v. Harris, the Supreme Court in a 5-3 vote upheld the decision of a three-judge district court that two of North Carolina’s congressional districts created after the 2010 Census were racial gerrymanders in violation of the Equal Protection Clause. Justice Kagan, writing for herself and Justices Ginsburg, Breyer, Sotomayor, and Thomas (an unusual combination), concluded that state legislators had used compliance with the Voting Rights Act as a pretext to pack African American voters into District 1, thereby reducing their influence in other districts.

North Carolina had claimed partisanship rather than race as their motive for shaping District 12 as they did, but the justices upheld the lower court’s finding that race had been the actual motivator. The state argued that if the plaintiffs wanted to prove that race rather than partisanship was the basis of drawing a district, they must be able to produce an alternative map that achieves the state’s asserted political goals while improving racial balance, as had been the case in a prior Supreme Court case. However, the Court ruled that such an alternative map, rather than being a requirement, is just one evidentiary tool of many that are available for plaintiffs to show an illegitimate racial motive. In this case, Justice Kagan wrote, there was sufficient evidence of an impermissible racial motivation in the record that an alternative map was unnecessary.

In Bethune-Hill v. Virginia Board of Elections, the justices mostly reversed a lower court ruling that had upheld 12 legislative districts against charges of racial gerrymandering. Justice Kennedy wrote the opinion of the Court, joined by Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. The majority ruled that the lower court had used the wrong legal standard when it upheld 11 of the 12 districts as not having race as a “predominant factor” in their reshaping during redistricting. The district court had focused on identifying deviations from traditional redistricting criteria attributable only to race. The justices ruled that the district court should have taken a broader look at each district as a whole in its determination. The Court sent the case back to the lower court to determine racial motivation under the correct test and, should it determine that race was indeed a predominant factor, determine if the redistricting was nevertheless constitutional.

But the justices upheld the lower court’s ruling that the twelfth district (District 75) had been drawn with race as a predominant factor, but permissibly so. The Supreme Court ruled that the state had good reasons to believe that it had to use race in order to meet the preclearance requirements of the Voting Rights Act, which were then still in effect.

Unfortunately, voting rights is hardly the only area in which racial justice remains an aspiration rather than an achieved goal. Below are some cases addressing other aspects of racial justice.

Racial Justice

Bank of America Corp. v. City of Miami: Cities’ ability to hold banks accountable for the long-term impact of their discriminatory lending policies

In a 5-3 opinion, the Court agreed with the Eleventh Circuit that the Fair Housing Act allows cities to hold lenders accountable under the Fair Housing Act for the devastating (and expensive) long-term consequences of their previous racist lending policies. This was an important step forward, because the banks were arguing that cities were not among those Congress intended to have the right to sue under the FHA. The city of Miami had sued Bank of America and Wells Fargo because their discriminatory loan policies led to higher levels of default in majority-nonwhite neighborhoods. The city claimed that this, in turn, led to obstacles to integration, lower property tax revenue for the city, and increased demand for municipal service such as city code inspectors, police, and firefighting.

But the majority—Justice Breyer, joined by Chief Justice Roberts and Justices Ginsburg, Sotomayor, and Kagan— while finding that the city could sue, disagreed with the Eleventh Circuit’s conclusion that the banks could be held liable based on the fact that the city’s financial injuries were foreseeable results of the discriminatory lending an foreclosure actions. Foreseeability by itself isn’t enough, Justice Breyer wrote: The injury to the city must be directly related to the banks’ discriminatory actions. The case was remanded to the Eleventh Circuit to make that determination.

So this case was a step forward in Fair Housing, over the objections of Justices Kennedy, Thomas, and Alito. But just how big a step it is remains unknown.

Pena-Rodriguez v. Colorado: Juror’s use of racial animus and stereotypes in deciding to convict

In this 5-3 opinion authored by Justice Kennedy (and joined by the four moderates), the Court made it harder to uphold criminal convictions that may have been due to a juror’s racial stereotypes. Miguel Angel Peña-Rodriguez had been convicted of sexual assault. He and the main witness for his defense were both Latino. As soon as the jury was discharged, two of the jurors approached Peña-Rodriguez’s attorney to tell him that a third juror had made anti-Latino comments about both the defendant and his witness. That juror claimed:

  • The defendant was guilty because, based on his past experience in law enforcement, he knew that Mexican men had a bravado that caused them to believe they could do whatever they want to with women
  • Mexican men are physically controlling of women because of their sense of entitlement. “I think he did it because he’s Mexican and Mexican men take whatever they want.”
  • Based on his experience, nine times out of ten Mexican men were guilty of being aggressive toward women and young girls
  • The witness who provided an alibi was not credible because he was “an illegal.”

The judge was informed and acknowledged the obvious bias. Nevertheless, he denied Peña-Rodriguez’s request for a new trial, because of a state rule (common throughout the country) prohibiting jurors from testifying about any statements made during deliberation. This rule exists to encourage free and open discussion in the jury room, and to provide increased assurance that you will not be harassed by the court or others afterward for what you say.

The Supreme Court determined that, despite this important rule, the Constitution requires that an exception be made when a juror may have relied on racial animus in deciding to convict. The nation has a powerful constitutional imperative to purge racial bias from the criminal justice system. Also, unlike other potential problems, a juror’s racial bias is much harder to detect in their courtroom behavior than other potential concerns (such as drunkenness), is harder to screen out when selecting the jury, and is general and pernicious enough to infect numerous jury verdicts (as opposed to being case-specific, such as when a particular juror failed to disclose during jury selection that they had already made up their mind).

At a time when the rule of law is under attack from a president who seems to bristle at any constraint on his desire to rule by decree, it is worth quoting in full the opening to Justice Kennedy’s opinion:

The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.

Disability Rights

Endrew F. v. Douglas County School District: Having public schools meet their federal obligations to educate children with disabilities

It is rare if ever that the Supreme Court unanimously and thoroughly repudiates a future colleague’s approach to a legal issue while that future colleague is in the midst of a confirmation hearing. Yet that is what happened in Endrew v. Douglas County School District, when the justices ruled 8-0 that the Individuals With Disabilities Education Act (IDEA) requires public schools to do more than simply aim toward merely more than “de minimis” advancement for children with disabilities (the extremely low bar set by then-Judge Gorsuch of the Tenth Circuit).

IDEA requires schools to offer an appropriate education to children with disabilities. Writing for a unanimous Court, the Chief Justice wrote:

When all is said and done, a student offered an educational program providing “merely more than de minimis” progress from year to year can hardly be said to have been offered an education at all. For children with disabilities, receiving instruction that aims so low would be tantamount to sitting idly . . . awaiting the time when they were old enough to drop out. The IDEA demands more. [internal citations and quotations removed]

This is obvious to everyone but Neil Gorsuch, who now sits on the most powerful court in the land.

Fry v. Napoleon Community Schools: Removing obstacles to parents suing for the legal rights of their children with disabilities

In this case, a student with cerebral palsy was prohibited from bringing her service dog with her to school, which provided a human aide instead. At issue was whether her parents could sue for damages (which are not available under IDEA) under the Americans With Disabilities Act and the Rehabilitation Act, without first going through all the state-level resolution efforts required by IDEA. The Sixth Circuit had said no.

All eight members of the Supreme Court disagreed. Justice Kagan wrote the opinion of the Court, joined by the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor. (Justices Thomas and Alito agreed with the result and much, but not all, of the reasoning of their six colleagues.)

Justice Kagan wrote that the determining factor was whether the main point of the lawsuit is the denial of a free appropriate public education (FAPE) that is guaranteed by IDEA. If so, then those seeking their day in court under the other statutes must first go through the resolution efforts set forth in IDEA. But if the lawsuit’s main point is something else, then no such preliminary resolution efforts are necessary. So, for instance, if the same kind of lawsuit could have been filed against a library or movie theater that had denied entrance to the service dog, then it’s likely that the issue isn’t the absence or insufficiency of a FAPE.

Congress has passed a number of laws designed to remove obstacles preventing people with disabilities from participating as full members of our society. The decision in Fry helps advance rather than stymie Congress’s intent.

Ivy v. Morath: Fair access to drivers licenses for deaf people

Yet another important case discussed in our term preview that fizzled, Ivy v. Morath would have answered whether, under the ADA, a state is liable for discrimination in a program when it has delegated responsibility for that program to private contractors.

Five young hearing-impaired Texans were suing the state over the impossibility of obtaining a driver’s license. Texas will not give out drivers’ licenses to anyone under 25 unless they first provide a driver’s education certificate. The problem is that the only entities that provide such certificates are private companies licensed by the state, and none would provide a sign-language interpreter for the students. They sued the Texas Education Agency for violating the ADA. Texas claimed that private driver’s education is not a state function, and that is the only activity that the plaintiffs are excluded from.

But before oral arguments, all five of the plaintiffs either got their drivers licenses or moved out of Texas: There was no longer any case or controversy. The Court remanded the case back to the Fifth Circuit with instructions to dismiss it as moot. So the question the Court set out to address remains unanswered, leaving this aspect of state obligations under the ADA an unknown.

Corporate Power

Expressions Hair Design v. Schneiderman: Asking whether regulations on how sellers describe their charging more for credit card purchases violate the sellers’ free speech rights.

The Court addressed a NY law limiting how sellers could describe price differentials between cash sales and credit sales: They could tell customers there was a discount for customers using cash, but they could not say that they were paying a surcharge for using a credit card. The law didn’t affect the prices at all, only how the differential was described. The majority opinion, written by the Chief Justice and joined by Justices Kennedy, Thomas, Ginsburg, and Kagan, held that the New York law was a regulation of speech. Justice Breyer wrote a concurrence in which he agreed that the law regulates speech. (Justices Sotomayor and Alito felt the Court did not have enough information on how the law actually works in practice to make a ruling, but concurred that the case should be sent back to the lower court.)

But the Court did not say anything more than that. Instead, the five-justice majority sent the case back to the Second Circuit to determine what kind of speech it was, the level of scrutiny it should receive, and whether it violated the First Amendment. This extremely limited holding may have been the only way the Chief Justice could get a majority opinion on the eight-member court.

This case could have been a vehicle for the Roberts Court to continue its work striking down ordinary business regulations as violating corporations’ free speech rights. Fortunately, it did not turn out that way. However, the case could very well appear before the Court again as an appeal from the Second Circuit, and the conservatives may then have the ability to issue a ruling severely undermining the ability to enact ordinary economic regulation.


Trump v. International Refugee Assistance Project: The legality of Trump’s Muslim immigration ban

On the last day that opinions were issued, the Court agreed to hear the Trump Administration’s appeals of two circuit court decisions striking down his notorious Muslim ban. This will obviously be a major case next term with enormous consequences.

But the Court also took immediate action, as well. Both the Fourth and Ninth Circuits had upheld injunctions against the second executive order imposing the ban (designed to hide the unconstitutionality so obvious in the first one).

Using President Trump’s own statements, opponents of the ban have argued that it is motivated by animus rather than national security as claimed by the administration. As a result, they argue, it violates the Establishment Clause. Opponents also contend that the president had exceeded the authority that he is granted under the Immigration and Nationality Act.

The Court issued an order allowing parts of the injunctions to remain in force, but staying other aspects of it. The order was per curiam (meaning no author is listed), but the three most conservative justices—Thomas, Alito, and Gorsuch—wrote separately concurring in part and dissenting in part. So the Court’s opinion had unanimous support for part of it, but six justices in support for others.

The Court focused its analysis on the impact on American people and institutions, determining that only when such connections exist, the injunction against the ban should remain in place:

[The ban in the second executive order] may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of [the second executive order].

A similar rule was established with regard to the refugee ban:

An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded. As to these individuals and entities, we do not disturb the injunction. But when it comes to refugees who lack any such connection to the United States, for the reasons we have set out, the balance tips in favor of the Government’s compelling need to provide for the Nation’s security.

Thomas, Alito, and Gorsuch would have allowed the ban to go into effect on a much wider scale, perhaps limiting the injunction to the parties who had filed suit. When the case is argued next fall, it will not be difficult to predict how they will rule.

Maslenjak v. U.S.: Using an unimportant false statement made before naturalization as an excuse to strip a naturalized American of their citizenship

Non-citizen residents of America, both documented and undocumented, live in increasing fear of removal by the Trump Administration, destroying lives and families. Everyday actions like going to court for a traffic infraction or dropping your kids off at school have become perilous, with the knowledge that ICE agents may be waiting for you. Naturalization provides protection from deportation, but only if an immigrant’s citizenship isn’t revoked.

Fortunately, in Maslenjak v. U.S., the Court made it harder for the federal government to use an immigrant’s previous immaterial false statement to the government as an excuse to strip them of their citizenship. All nine justices (Gorsuch included) agreed on the result, although he, along with Justices Thomas and Alito, had disagreements with the reasoning used by Justice Kagan in her majority opinion.

Congress has created two methods of de-naturalization, one criminal and the other civil. The civil statute is very clear: If the government seeks to strip a naturalized citizen of their citizenship based on false statements they made in the process of immigration and naturalization, it can do so only if the false statement was “material” (relevant to the government decisions during the process).

But the criminal statute didn’t say anything about the statement having to be material.

Fortunately, a unanimous Supreme Court ruled that under either statute, the false statement has to be material in order to warrant de-naturalization.

Had the Court ruled otherwise, a presidential administration looking for a justification to strip immigrants of their citizenship could find it in trivial misstatements made at some point in the immigration and naturalization process. Once the targeted immigrants lost their rights as Americans, they could much more easily be deported. Fortunately, the Supreme Court’s ruling shuts down that particular opportunity for executive harassment and abuse.

Sessions v. Morales-Santana (formerly Lynch v. Morales-Santana): Sex-based classification used to determine children’s right to birthright citizenship

The Court unanimously struck down as unconstitutional sex discrimination a federal law establishing when a child born abroad with only one citizen parent is considered to be a U.S. citizen. Under the law as it existed at the time, the citizen parent had to have lived in the United States for at least ten years before the birth (currently it’s five). But there was an exception: if the citizen was an unmarried woman, she only needed to live here for a year in order for her child to be considered a citizen. The Court struck down the exception as unconstitutional sex discrimination, with Justice Ginsburg writing for herself, the Chief Justice, and Justices Kennedy, Breyer, Sotomayor, and Kagan. Thomas and Alito agreed with the other six only in the judgment; they would not have addressed the constitutional issue.

Sessions v. Dimaya (formerly Lynch v. Dimaya): Ambiguity in 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.” The Court struck down a similarly worded definition in an unrelated statute as unconstitutionally vague, meaning it was so ambiguous that a person would not know if their actions were lawful or not. This case asked whether the definition in immigration law is also unconstitutionally vague.

On the last day opinions were released, 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.

Jennings v. Rodrigues: Bond hearings for detained immigrants

This case initially asked if detained immigrants have a constitutional right to a bond hearing, in which they would appear before an immigration judge and ask to be released on bail. Alejandro Rodriguez filed suit because he had been denied such a hearing for three years. After oral arguments, the Court asked the parties to address several provisions of immigration law that allow the federal government to detain non-citizens for extended periods of times without providing them with the right to a bond hearing.

As with Sessions v. Dimaya, the justices appear to have been divided 4-4, and the Court directed the case to be reargued next term. Once again, Justice Gorsuch will almost certainly be the deciding vote.

Conclusion and Looking Ahead to the Next Term

We began this term during the twilight of the Obama presidency, with a Court evenly divided ideologically and often avoiding controversial rulings. We end it at the dawn of the Trump era, with a president who regularly violates important democratic norms and seems to respect no limits on his power—and a ninth, Trump-nominated justice who appears to be at least as far to the right as the Court’s most extreme member, Clarence Thomas.

Trump’s election has created a seismic shift in the nation’s awareness of the importance of the court in protecting our most fundamental liberties. As the president has sought to turn the hatred he aroused during the campaign into policy, and with Congress controlled by his allies, the federal judiciary is playing a vital and unique role in blocking him.

This will be the backdrop for the next term, as will the resumed right wing efforts to use the judiciary to favor powerful corporations, weaken our democracy, and impose their preferred policies from the bench regardless of what the law actually says.

Important cases next term include ones on partisan gerrymandering, using religion to justify unlawful discrimination, the Trump Muslim ban, and more:

Voting Rights

  • Gill v. Whitford: constitutionality of partisan gerrymandering in Wisconsin
    • Five members of the Supreme Court (including Kennedy) have said that partisan gerrymanders are “incompatible with democratic principles,” but a majority has never found a way to identify a partisan gerrymander.
    • This case proposes a new statistical method that the lower, three-judge district court panel accepted. Whether Kennedy accepts it will be the key.
    • This could have an enormous impact for the better on our democracy.
  • Husted v. A. Philip Randolph Institute: stripping voters from voter rolls
    • Ohio uses a registered voter’s voter inactivity as a trigger to send them a confirmation notice. If they don’t answer, they are removed from the rolls.
    • The Court will determine if this violates the National Voter Registration Act of 1993 (Motor Voter) and the Help America Vote Act of 2002.

Workers’ Rights / Corporate Power / Arbitration

  • Epic Systems Corp. v. Lewis (consolidated with two other cases): Arbitration agreements to strip workers of their rights.
    • The Court will address whether employment contracts can lawfully require employees to agree to individual arbitration, making the employee surrender their federal statutory rights to collective proceedings under the National Labor Relations Act?
    • The Department of Justice, which had supported the workers, has switched sides under Jeff Sessions, and now supports the employers.

Religious Liberty / LGBTQ Equality

  • Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission: Religion as a sword to deny other people their legal rights.
    • A Colorado baker refused to make a wedding cake for same-sex couple, in violation of a statewide anti-discrimination law.
    • The Court will address the baker’s contention that his religious disagreement with men marrying each other guarantees that he need not comply with the law.

Immigration (all discussed above)

  • Trump v. International Refugee Assistance Project: The legality of Trump’s Muslim immigration ban
    • This is also a religious liberty case.
    • Lower courts had enjoined enforcement because it was based on anti-Muslim animus and therefore prohibited by the Establishment Clause (Fourth Circuit), and because it exceeded the powers granted to the president by immigration statutes (Ninth Circuit).
    • 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.
    • As a candidate, Trump vowed to ban Muslims from entering the country. The Court will have to decide how much weight, if any, to give to those statements in assessing the ban’s motivation.
  • Sessions v. Dimaya: ambiguity in the law used to deport immigrants.
    • Noncitizens can be deported if they are convicted of an “aggravated felony.” The Court will determine if the definition of that term is so ambiguous that the law is unconstitutionally vague.
    • The case is being reargued, presumably because Justice Gorsuch’s vote is needed to break a tie that resulted from the Court’s consideration of the case in the term that just ended.
  • Jennings v. Rodrigues: bond hearings for detained immigrants.
    • The Court has been asked to address whether detained immigrants have a right to a “bond hearing” before an immigration judge, where they can seek to be released temporarily if they pay bail.
    • After oral arguments, the Court asked the parties to address several provisions of immigration law that allow extended detention of non-citizens without a bond hearing.
    • Like Sessions v. Dimaya, this case is being reargued, presumably because Justice Gorsuch’s vote is needed to break a tie that resulted from the Court’s consideration of the case in the term that just ended.

Especially with Donald Trump in the White House, the Supreme Court term that begins next October will be extraordinarily important.