Keeping an eye on the 2017-2018 term of the U.S. Supreme Court

the Court split with what most would agree was four conserva- tive and four liberal justices, with one conservative, Justice An- thony Kennedy sometimes joining the “liberal four.” Whether due to the Court’s difficulty in achieving a majority decision, or to the Court’s recognition that there was little political ap- petite for major precedent-changing decisions without nine sit- ting justices, the Court delivered fewer majority opinions than normal, and the whole term seemed lackluster. In April 2017, Justice Neil Gorsuch was confirmed, widely


known as taking a conservative position behind the bench. With this change, we can expect the Court to hear and rule on an array of controversial, ripe, policy-altering cases in the 2017-2018 term. Of the approximately 50 cases the court will hear this term, I have highlighted a few worth following. • Gill v. Whitford (Wisconsin) — Tis case involves the con- stitutionality of partisan gerrymandering in voting districts. Wisconsin’s Republican-led legislature passed a redistricting plan in 2011. It later was struck down in federal court as un- constitutional for allegedly purposely drawing district lines in a manner that favors one party and disadvantages another and would have continued to do so for years to come. Te state, defending its redistricting plan, argues for the SCOTUS to overturn the federal court’s “unprecedented intervention in the American political process.” • District of Columbia v. Wesby (D.C.) — Probable cause and qualified immunity are at issue in this case. Te first issue is whether police had probable cause to arrest multiple partygo- ers for trespass in a vacant home when the owner told police no one had permission to enter the home. Partygoers said one person had told them the homeowner had given them permis- sion to enter, which the homeowner denies. Te lower courts ruled in favor of the partygoers, stating police had no reason to believe the partygoers knew or should have known they were trespassing. Te second issue is whether the police officers are entitled to qualified immunity from suit by the partygoers. Traditionally, law enforcement is entitled to qualified immu- nity so long as they do not violate “clearly established law.” • Patchak v. Zinke (D.C.) — Dealing with the separation

of powers between Congress and federal courts, the SCO- TUS will hear arguments from David Patchak, a landowner who prevailed in a previous SCOTUS case over the govern- ment. In the previous case, the Court ruled the government had waived its sovereign immunity from suit when it confis- cated Patchak’s land in order for a local Indian tribe to build


he 2016-2017 U.S. Supreme Court (SCOTUS) term saw a number of split decisions and even a few somewhat awkward attempts at “compromise” decisions. Te death of Justice Antonin Scalia left

a casino on the property. Te case was then remanded to the lower courts to determine the merits of the case. While the lower court cases proceeded, Congress passed a law that “ratified and confirmed” the federal government’s decision to take the land, and ordered the lower courts to “promptly dismiss” any and all pending suits related to the land. Patchak argues that Congress unconstitutionally violated the separation of powers, specifically encroaching upon and exercising powers reserved for the judicial branch. Patchak has been unsuccess- ful in the lower courts. • Carpenter v. U.S. (6th Circuit) — At issue is whether the

LINDSEY BAILEY General Counsel

Fourth Amendment allows law enforcement to seize and search cell phone records revealing the location and movements of the phone’s user over a 127-day period. Te Court has previ- ously held that cell phone records do not require a warrant, as there is no expectation to privacy since users voluntarily subject them to third party viewing by their service provider. • Masterpiece Cakeshop v. Colorado Civil Rights Comm’n (Colorado) — Tis case will determine whether Colorado’s anti-discrimination law, which prohibits businesses that sell to the public from discriminating in its sales based on sexual ori- entation, is an unconstitutional infringement on the business owner’s right to uphold his own religious beliefs. • Husted v. A. Philip Randolph Institute (6th Circuit) —

Ohio’s Secretary of State is tasked with maintaining the voter registration lists. When a registered voter does not vote during a two-year period, the state sends a confirmation notice to the voter. If the voter does not respond and subsequently does not vote over the next four years, the state removes that voter from the voter registration list, and the former voter is required to register again before he or she is permitted to vote. Te court will determine whether this practice violates the National Vot- er Registration Act (NVRA) of 1993, which prohibits states from removing a voter from the registration list for not voting. Te lower court ruled for the state, but the 6th Circuit found the practice to be in violation of the NVRA. • Collins v. Virginia (Virginia) — Te Court will clarify the scope of the automobile exception to the Fourth Amend- ment’s warrant requirement. Specifically at issue is whether law enforcement, without a warrant, may enter the driveway of a home and inspect a motorcycle beneath a tarp in order to inspect the vehicle identification number (VIN) and license plate information.


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