U.S. Supreme Court Concludes a Weighty Term

By Sarah Kellogg

July 6, 2018

The U.S. Supreme Court had a consequential 2017–2018 term, fortified by the presence of conservative Justice Neil Gorsuch, producing a slate of marquee decisions on presidential power, gay rights, privacy protections, and workers’ rights.

The term was made even more memorable by the retirement of Justice Anthony M. Kennedy, a centrist who remained a pivotal vote to the very final cases of the term, often serving as the deciding justice for some of the year’s most notable judgments.

“For the most part, this was a term in which I think the Court showed its fundamentally conservative nature,” says Robert S. Peck, founder and president of the Center for Constitutional Litigation, P.C. “The fact that Kennedy joined every one of the 5–4 decisions with the conservative justices gets overshadowed by his decision to retire and the fact [that] an even more conservative Court is likely in the offing.”

In reviewing prominent decisions this year, Court watchers say that the term has reinforced or enhanced the authority of corporations, state legislatures, and the president, and it has signaled to lower courts the justices’ intentions to set new precedents that align with their conservative principles.

“The union dues case was really troubling. The Court usually doesn’t overturn things by 5–4 decisions,” says Susan Low Bloch, a constitutional law professor at Georgetown University Law Center. “There used to be an unspoken but accepted tradition not to overturn something by a 5–4 vote and not to overturn something just because there’s a new person on the Court. This particular overturning doesn’t completely fit that circumstance because if Justice [Antonin] Scalia had still been there, the majority would have overturned the case, but it’s close to violating that old rule.”

Others say most of the Court’s work this term didn’t qualify as pioneering in a general legal sense, even though it did wade into some hot political debates. Yet the justices were just as likely to sidestep controversial questions (partisan gerrymandering) or follow through on a direction they had signaled in prior cases (allowing states to tax Internet sales).

“When you’re talking about social issues, the Court is much more reluctant to take big steps, and the justices want to be more incremental,” says Ashley C. Parrish, a partner at King & Spalding LLP. “But when they’re dealing with more technical issues of the law, the Court is more confident and willing to lay down legal principles that it thinks will shift jurisprudence in some new ways.”

One example of the Court’s confidence in establishing new legal principles is its decision in Carpenter v. United States. In a 5–4 decision, the Court ruled the government could not track an individual’s location over time by searching cellphone location records without a warrant. The ruling, on its own, isn’t groundbreaking, but it could prove to be meaningful in setting a new direction for Fourth Amendment cases. “These technical legal cases,” Parrish notes, “are planting seeds for future jurisprudence.”

Along with Carpenter, other notable decisions from the High Court this term include:

Collins v. Virginia
(Decided 8–1, May 29)
The majority ruled that police cannot use the Fourth Amendment’s “automobile exception” to enter private property without a warrant to search a vehicle parked a few feet from a home. The exception “is not a categorical one that permits the warrantless search of a vehicle anytime, anywhere, including in a home or curtilage.”

Epic Systems Corp. v. Lewis
(Decided 5–4, May 21)
Employers can require workers to settle disputes through individual arbitration, the Court wrote, rather than through class action or collective bargaining. The case was notable as the government switched sides and opposed the position of its own National Labor Relations Board.

Gill v. Whitford
(Decided 9–0, June 18)
The Court sent the case back to a three-judge trial court to determine the constitutionality of partisan gerrymandering, noting that the Wisconsin voter plaintiffs lacked standing to sue because they hadn’t proved their votes were diluted due to the redrawing of voting districts.

Husted v. A. Philip Randolph Institute
(Decided 5–4, June 11)
The justices settled a conflict between federal and state rules governing voter registration lists, finding that Ohio did not violate federal laws by purging voters from the rolls if they don’t respond to a mailed notification and vote again.

Janus v. American Federation of State, County and Municipal Employees, Council 31 (Decided 5–4, June 27)
The Court concluded that public unions are barred from collecting fees from nonmembers for contract negotiation costs, overturning a 41-year-old precedent that established those fees did not violate First Amendment rights to free speech and free association.

Jennings v. Rodriguez
(Decided 5–3, February 27)
Writing for the majority, Justice Alito wrote the plurality opinion determining that immigrants held in detention facilities have no rights to periodic bond hearings under federal law to determine whether they can be released.

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission
(Decided 7–2, June 4)
The majority ruled that Colorado, in handling baker Jack Phillips’ refusal to create a cake for a gay couple’s wedding, “showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection.” Thus, Colorado violated the First Amendment in its laws and rules by exhibiting hostility toward religion or a religious viewpoint.

Murphy v. National Collegiate Athletic Association
(Decided 6–3, May 14)
The justices ruled that Congress couldn’t require states to block betting on professional and college sports. Writing for the majority, Justice Alito struck down the federal law as unconstitutional and a violation of states’ powers.

National Institute of Family and Life Advocates v. Becerra
(Decided 5–4, June 26)
The justices reversed and remanded, holding that California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act, requiring anti-abortion pregnancy centers to post notices about low-cost or free abortions, is unconstitutional. The divided Court ruled that the law violates the First Amendment’s free speech and free exercise clauses.

Sessions v. Dimaya
(Decided 5–4, April 17)
In striking down a law allowing the government to deport immigrants who commit serious crimes, the Court said the statute was unconstitutionally vague. The Immigration and Nationality Act’s “crime of violence” provision violates the Due Process Clause of the Fifth Amendment.

South Dakota v. Wayfair
(Decided 5–4, June 21)
In a narrow decision, the Court ruled that states could require online retailers with no physical presence in a state to collect sales and use taxes. The justices overturned the 1992 decision blocking states from forcing sales or use taxes on businesses outside state borders.

Trump v. Hawaii
(Decided 5–4, June 26)
The majority upheld the statutory and constitutional grounds for President Trump’s ban on travelers from eight Muslim-majority nations. The Court found: “The admission and exclusion of foreign nationals is a ‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’” The decision also rejected a claim that the “Muslim ban” unconstitutionally discriminated against individuals based on their religion.