Travel ban, playground case bring a big finish to sleepy Supreme Court term

Monday became the most headline-generating day of an otherwise modest term – with the White House's travel ban largely allowed to take effect and a case with implications for religious liberty.

After every US Supreme Court term, Ralph Rossum typically adds upward of 10 of the court’s most significant constitutional law decisions to a constitutional law website he edits.

This year, it looks like he’s only going to add five – and one of those came down only on Monday, as the justices sided 7-2, along narrow lines, with a Missouri church that had been denied state funding to resurface its preschool playground because of its religious affiliation.

Monday thus became the most headline-generating day of an otherwise sleepy term. A by-product of that, experts say, is the mammoth nature of next fall's term, starting with a hearing on President Trump’s travel ban executive order, which restricts the entry of immigrants from six Muslim-majority countries into the United States. The justices handed Mr. Trump his first major legal victory by taking up the case, which has been mired in court battles since February, while allowing most of the controversial order’s provisions to go into effect immediately. Three conservative justices argued in a partial dissent that the ban should be allowed to take full effect.

Many court watchers predicted this term would be underwhelming before it even started. In the fall, the US Senate was in the midst of toxic partisan battle over replacing Justice Antonin Scalia, who died in February 2016. The vacancy would last more than 400 days, and it had a visible effect on the court, experts say, with landmark decisions on thorny constitutional questions notable by their absence.

Justice Scalia’s unexpected passing saw two contentious 2016 cases end with 4-4 votes, which simply upheld the lower court ruling and set no Supreme Court precedent. Lawyers, litigants, and the justices themselves appear to have sought to avoid such ambiguous outcomes this term. Roughly half the court’s decisions have been unanimous, and there have been no tie decisions so far despite six months with a bench split ideologically down the middle.

“They didn’t take up a lot of the sort of controversial things where they knew they would probably end up with an evenly split court,” says Professor Rossum, who teaches at Claremont McKenna College in California.

Monday brought more examples, as the justices opted to re-hear several potentially divisive cases next term, including one examining whether immigrants who have been held in detention more than six months are entitled to a bond hearing.

That doesn’t mean the past term has been without its highlights. These include the playground case and Peña-Rodriguez v. Colorado, a decision that saw the justices rule that defendants have a right to a new trial if their first is tainted by racial bias on the jury.

“Being short one justice [this past term] has shaped the docket and shaped some of these decisions that I think have accounted for, yes, a less headline-generating term,” says Stephen Vladeck, a professor at the University of Texas School of Law, but “I’m skeptical that that means there’s less impact from these decisions.”

Here is a quick look at some of the big decisions and takeaways:

Trinity Lutheran

Trinity Lutheran is arguably the most significant decision of the term. As Chief Justice Roberts read the majority opinion, “he tried really strenuously to say they are merely applying generations and generations of binding precedents of the court,” says Lyle Denniston, the Supreme Court reporter at the National Constitution Center.

“The reality is,” he says, “the court has never, never before allowed a direct payment of taxpayer funds to an activity that will in part be religious.”

At its core, the majority opinion in the 7-2 decision ruled that Missouri’s policy (which has since been altered) violated Trinity Lutheran’s Free Exercise rights. “Trinity Lutheran is put to the choice between being a church and receiving a government benefit. The rule is simple: No churches need apply.”

But at the end of that second sentence, a footnote directs the reader to two more crucial sentences: “This case involves the express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”

That footnote could be easily sidestepped in the future, says Mr. Denniston, particularly given the fact that only four justices agreed with the full majority opinion. Justice Stephen Breyer wrote in a concurrence that he only agreed with the final judgment and thought it should be narrower. Justices Gorsuch and Thomas wrote in a concurring opinion that they disagreed with that footnote specifically.

“If you want to argue that Trinity Lutheran is a sweeping decision,” adds Denniston, “all you have to say is the part of the opinion that is supposedly narrowing [its scope] doesn’t have the support of the majority, because Justices Thomas and Gorsuch don’t join it.”

“The Supreme Court can do one thing, and how people use that can make it come out differently, in a more expansive or less expansive way, when the next case comes along,” he continues.

Justices Sonia Sotomayor and Ruth Bader Ginsburg made an argument for how it could be narrowed. In a dissent, they detail the long history of state provisions restricting government aid to parochial schools that the majority ignored. (Missouri is one of 38 states with such a provision in its state Constitution – laws that have been placed for more than a century.)

The majority opinion, “all but invalidate[s]” the provisions of those three dozen states, writes Justice Sotomayor.

“The weighty interests they protect, and the history they draw on deserve more than this judicial brush aside,” she adds. “Today’s decision discounts centuries of history and jeopardizes the government’s ability to remain secular.”

Indeed, perhaps the only true consensus in the Trinity Lutheran decision is that its fragile and heavily footnoted majority will be tested soon. One footnote, near the end of Justice Sotomayor’s dissent, cites Justices Gorsuch and Thomas in stating: “In the end, the soundness of today’s decision may matter less than what it might enable tomorrow.”

Abbasi

Another court decision with long-term significance is a technical statutory case that has largely flown under the radar. Furthermore, it was decided by a court even more shorthanded than usual.

Four justices – the minimum required to reach a decision – ruled in Ziglar v. Abbasi that non-citizens caught up in a post-9/11 roundup of Muslim (and other young men of Arab descent) immigrants couldn’t bring suit against federal officers for damages related to the arduous conditions of their confinement.

“Allowing a damages suit in this context … would require courts to interfere in an intrusive way with sensitive functions of the Executive Branch,” wrote Justice Anthony Kennedy. “The risk of personal damages liability is more likely to cause an official to second-guess difficult but necessary decisions concerning national security policy.”

Furthermore, the opinion made it clear that it would be even more improper for courts to allow suits seeking money damages than suits seeking “injunctive or other equitable relief” – like the travel ban litigation, for example.

By erecting a new obstacle to bringing damages suits against federal officers, the ruling “stands out because of its implications,” says Professor Vladeck.

“Abbasi is such a general structural decision about government accountability and the role of the courts,” he adds. “It’s hard for me to think that there could be a decision with a greater long-term impact legally.”

Free speech

The court also delivered a pair of important decisions that bolster free speech protections.

In a case that attracted attention in large part because of its potential implications for trademark lawsuits against the Washington Redskins, the justices ruled unanimously in Matal v. Tam that a federal law that bars the government from approving trademarks “which may disparage … persons, living or dead, institutions, beliefs, or national symbols” violates the First Amendment.

The ruling was nominally in favor of an Asian-American rock band called “The Slants” – who chose the name in an effort to reclaim a derogatory slur.

The second case, Packingham v. North Carolina, also saw free speech advocates cheering for a traditionally unpopular plaintiff: a sex offender who had been barred from using Facebook by a North Carolina law that prohibits access to “commercial social networking” sites. The justices ruled, again unanimously, that the North Carolina law violates the First Amendment by impermissibly restricting free speech.

“That’s the court taking a strong line on freedom of speech, even on two cases where you could say the issues involved are ones where the censor’s position would have some emotional resonance: sex offenders and racially insensitive speech,” says Ilya Somin, a professor at George Mason University’s Antonin Scalia Law School.

Civil rights

The term was a fruitful one not just for free speech advocates, but for civil rights advocates as well.

“In a number of cases the court has actually protected civil rights in a pretty meaningful way,” says Steven Schwinn, associate professor at the John Marshall Law School in Chicago.

In one case stemming from the foreclosure crisis, Bank of America v. City of Miami, the justices ruled 5-3 that cities are entitled to bring suit under the Fair Housing Act. Miami had sued two banks, Bank of America and Wells Fargo, charging that foreclosures had a disproportionate impact on majority-minority neighborhoods because the banks had engaged in discriminatory conduct.

In Peña-Rodriguez, another 5-3 decision, the court crafted a new exception to the “no-impeachment” rule that prohibits trial courts from reconsidering cases based on statements from jurors during deliberations. If there is evidence that a juror relied on racial stereotypes or animus in convicting a defendant, the opinion said, the trial court can consider that evidence in deciding if the defendant can receive a retrial.

And in a victory for inmates diagnosed with intellectual disabilities, the court ruled in Moore v. Texas – another 5-3 decision – that the Texas Court of Criminal Appeals used the wrong standards to determine that Bobby James Moore, who had been convicted of shooting a supermarket employee during a 1980 robbery, was not intellectually disabled and thus could be executed.

Some may argue, however, that the biggest civil rights victory of the term came in a case the Supreme Court declined to hear at all.

Last month, the court refused to take up a challenge from the North Carolina to a lower court decision that had found unconstitutional the state’s restrictive voter identification law, a decision that prompted Dale Ho of the American Civil Liberties Union to declare that “an ugly chapter in voter suppression is finally closing.”

'The story this year'

With so few landmark legal decisions, some experts believe that the larger significance is in terms of personnel – namely, the arrival of Justice Gorsuch.

Three months into his tenure, the new justice has already begun to make his presence felt – and his voice heard – on the bench. He began his first day with vigorous questioning of lawyers during oral arguments, and last week he authored a dissent that turned a pedestrian case about employment grievances among federal employees into a cheery, conversational treatise on textualism and the appropriate role of the judicial branch in government.

“Here is a dissent in some obtuse statutory personnel case, and Gorsuch’s dissent could be readily understood by any college freshman,” says David Garrow, a professor at the University of Pittsburgh School of Law. “He is so transparent, so consistent, so articulate.”

“To me Gorsuch is the story this year, without question,” he adds. “I think he’ll go down in history as one of the court’s greatest justices, and perhaps its best writer since [Justice Robert] Jackson.

Next term could be historic

While this term may have been a relatively uneventful one for the Supreme Court, it seems that it is poised to make up for it next term.

Besides the travel ban case, which will be argued in October, the court will also hear a major case on partisan gerrymandering, a religious liberty case involving a Colorado cake-shop owner who refused to serve a gay couple, and a case that asks whether the Fourth Amendment requires the government to obtain a warrant before searching and seizing historical cellphone records. It also includes several cases from this past term that the justices have decided to re-hear, including whether immigrant detainees who have been held for more than six months are entitled to bond hearings.

“Next term’s going to be a blockbuster,” says Vladeck. “The number of major constitutional cases the court is going to hear next term is going to put recent terms to shame.”

This is partly because, he adds, “both directly and indirectly, lawyers, litigants, and the court itself have sort of shaped the procedures in these cases to push them into next fall.”

The travel ban will see the Trump administration's first foray to the Supreme Court. The legal implications for the travel ban specifically may be diminished since the court allowed parts of the ban to go into effect this week, but its symbolic importance – in terms of how courts should be expected to handle such an unorthodox presidency, and in terms of a potential broader recalibration of judicial deference to the executive branch – will be tremendous.

And the partisan gerrymandering case, Gill v. Whitford, is expected to bring a landmark decision no matter how the justices align.

“We just can’t overstate the importance of that case given the state of politics today and where we are with partisan gerrymandering at the state level. It’s going to be an enormously important decision one way or the other,” says Professor Schwinn.