The Supreme Court’s 2017-2018 term: A roundup of Brookings analysis

By Brennan Hoban

As the Supreme Court’s term came to an end this summer, Brookings scholars reflected on many of the Court’s most consequential decisions. The 2017-2018 term, which was punctuated with divisive rulings, was capped off with the announcement that Anthony Kennedy, the Court’s habitual swing vote, was retiring. The Court’s decisions in 2018 had far-reaching implications on issues ranging from privacy, to travel restrictions, to organized labor. Brookings scholars weigh in on what was decided in these landmark cases, and what impact these decisions will have.

The Issue: Partisan gerrymandering

The case: Gill v. Whitford

In Gill v. Whitford, the Supreme Court was asked to rule on whether a map of Wisconsin’s General Assembly districts—drawn to significantly benefit the Republican Party—was so partisan that it violated the Constitution. Visiting Fellow Russell Wheeler explains that in the past, the Court has refrained from issuing decisions on gerrymandering, citing a lack of standard by which to judge.

That pattern of avoidance continued in Gill v. Whitford. Senior Fellow Thomas Mann posits that the Supreme Court proved unwilling to enter “the political thicket of partisan gerrymandering” when they unanimously found that the plaintiffs in Gill v. Whitford lacked standing, and remanded the case back to the lower courts. Read Mann’s full analysis here.

With the 2018 midterms fast approaching, the Court’s decision will have important effects on the makeup of state legislatures. Mann predicts that with the federal judiciary unwilling to act, litigious organizations, voters, and party leaders may turn to state constitutions and statutes to get gerrymandered maps overturned.

 

The Issue: President Trump’s travel ban

The case: Trump v. Hawaii

In Trump v. Hawaii, the Supreme Court ruled 5-4 to uphold the third iteration of Trump’s travel ban, which banned most travelers from several Muslim-majority countries.

Senior Fellow Benjamin Wittes writes that while there is near-universal opposition to the travel ban as policy, the legal merits of the case are more convincing (although not definitive). The justices seemed to unanimously accept that the president has broad authority under the Immigration and Nationality Act (INA), but parted company on whether the president’s previous statements about Muslims should have any effect on the legality of the ban.

Following the decision, Senior Fellow Shadi Hamid wrote that he found himself in the odd position of opposing the decision on moral grounds, but agreeing with the underlying legal argument. Although he personally finds the policy objectionable, he acknowledges that “the Supreme Court, unlike Congress, is not tasked to make moral judgments about the law.”

In a 5 on 45 podcast episode, Foreign Policy Fellow Jessica Brandt argues that the decision “send[s] a powerful message that the Court believes that the president has broad discretion when it comes to setting visa and border policy to protect national security,” which is especially significant in the midst of the debate on zero-tolerance immigration policy.

The Issue: Freedom of speech/religion, and freedom from discrimination

The case: Masterpiece Cakeshop v. Colorado Civil Rights Commission

A Colorado baker’s refusal to bake a cake for a gay couple’s wedding based on his religious beliefs produced one of the most contentious cases of the 2018 term. In deciding the case, the Court ruled in favor of the baker, Jack Phillips, on the grounds that Phillips had not been given a fair hearing by the Colorado Civil Rights Commission.

According to (former) Fellow Richard Lempert, the Court’s focus on bias in the Commission means that many key questions about the intersection of the first amendment and anti-discrimination laws are left unanswered.  According to Lempert, one thing is for sure: the decision will have negative consequences for marginalized groups. He writes that “[t]he Court’s reluctance to question the bona fides of asserted religious beliefs could have opened the door not just to wide-ranging denials of services to gay men and women, but also, in some circumstances, to women in general and conceivably to racial and ethnic minorities as well.”

The Issue: Mandatory labor union fees

The case: Janus v. AFSCME

“With a 5-4 conservative court, the [Janus v. AFSCME] decision is likely to go against AFSCME, a union that represents 1.6 million current and former public sector workers.” That was Vanessa Williamson’s prediction after oral arguments, and four months later, she was proven correct.

Before Janus v. AFSCME, unions could require that all public sector employees (even those who didn’t want to be in the union) pay mandatory fees to offset the cost of representing the sector in collective bargaining efforts. The Court ruled that because these negotiations were necessarily taking place with the government, the negotiations themselves amounted to political speech and consequently violated workers’ first amendment right to free speech.

Following the release of the decision, Williamson elaborates on the free-rider problem that the Court’s decision will create. She predicts that “[n]ow that workers will get the benefits of union membership without paying dues or fees, unions risk a substantial drop in the funds the union receives.” Williamson also predicts that the newly imperiled labor movement could mean trouble for the Democratic Party in November. With unions increasingly focused on shoring up membership, they may be less inclined to organize politically.

Below, you can find a podcast with Elizabeth Mann-Levesque and Williamson in which they further discuss the reasons for and consequences of the Janus decision.

The Issue: Antitrust law

The case: Ohio v. American Express

Ohio v. American Express centered on the practice of charging different rates for customers depending on their credit card. This practice is in place because of the widely variable processing fees charged by credit card companies for any transaction using their card. Amex happens to have very steep processing fees.

The Supreme Court found that states could not charge different prices depending on the payment type. “The Supreme Court’s 5 to 4 decision to side with American Express over Ohio, sixteen other states, and the United States, further ensconced our current payment system, which rewards the wealthy while penalizing the poor,” writes Fellow Aaron Klein.

Klein argues that setting a unified price for all customers (as the Court mandated) hurts the poor. In this price structure, the burden of the processing fees is spread equally among all customers, while the benefits of using a credit card (airline miles, cash back rebates) accrue only to credit card users, who are disproportionately wealthier than their cash-using counterparts. Klein argues that “the Court missed a major opportunity to move the ball forward on this reverse Robin Hood payment system” in which the poor subsidize the credit card benefits of the wealthy.

The Issue: The Court’s newest justice

Following the announcement of Justice Kennedy’s retirement, President Trump nominated Brett Kavanaugh to fill the open seat on the Court. With Democrats still reeling from the GOP’s refusal to hold a vote on Merrick Garland, President Obama’s nominee to replace the late Antonin Scalia, the battle to confirm Kavanaugh is shaping up to be particularly contentious.

Brookings scholars have offered commentary on what the congressional battle for confirmation might look like, unpacked some of Kavanaugh’s most controversial writings on presidential immunity, and made predictions on the Supreme Court decision that he is most likely to overrule.

Fellow Molly Reynolds predicts that we’re likely to see increased pressure on senators on both sides of the aisle who might be convinced to break with their party on Kavanaugh’s confirmation vote. Democrats are pressuring Lisa Murkowski (R-Ala.), Suzanne Collins (R-Maine), and Rand Paul (R-Ky.), while Republicans are targeting Democrats up for re-election in states that Trump won, such as Joe Manchin (D-W.Va.), Heidi Heitkamp (D-N.D.), and Joe Donnelly (D-Ind.).

Senior Fellow Benjamin Wittes cautions people not to be too sensational when discussing Kavanaugh’s past writing on presidential immunity. Wittes argues that the framework Kavanaugh lays out in his published papers (which many have pointed to as evidence that Kavanaugh would be willing to give the President broad immunity) is actually substantially similar to the independent counsel framework that is currently in place.

While speculation continues about the future of Roe v. Wade, Senior Fellow William Galston argues that the case that’s most likely to be overruled by Kavanaugh is actually Chevron v. NRDC, a 1984 case that gave federal agencies broad oversight to interpret statutes free from judicial interference. If Kavanaugh’s writing on this topic is any indication, the nominee will be looking for ways to limit or roll back the Chevron decision if he gets a seat on the Court.

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