busy final days for an often divided 2017-2018 Supreme Court

The last week of any Supreme Court term is usually pretty packed as the justices put the finishing touches on the last of their opinions. This last term’s final week was particularly rough. Several closely watched cases disappointed by avoiding broader issues on technical or procedural grounds, especially with regard to gerrymandering. Other cases made sweeping reversals whose effects might take time to see. Perhaps most controversially, the Court upheld Trump’s travel ban as a lawful exercise of executive power. And a lot of last-minute decisions were 5-4 splits right down the Court’s well-accepted ideological fissure.

Front row from left: Ginsburg, Kennedy, Roberts, Thomas, Breyer. Back row from left: Kagan, Alito, Sotomayor, Gorsuch.

Following are some highlights (mostly gleaned from Oyez’s lengthier summaries and supplemented in places by additional sources) from only the last ten calendar days of the Court’s term, organized by topic and presented in the form “case — vote (majority author) — holding” with details on facts and opinions.


  • Gill v. Whitford — 9-0 (Roberts) — plaintiffs alleging an unconstitutional partisan gerrymander in Wisconsin lacked standing to sue
    • writing for a unanimous Court, Roberts dodged all the thorny issues around whether partisan gerrymandering is illegal by ruling that the plaintiffs had not demonstrated actual individual harm, thus denying them standing [1] and remanding for reconsideration
    • Thomas concurred in judgement, joined by Gorsuch, but wrote separately to disagree with the decision to remand; for these justices, the plaintiffs simply blew their chance
    • Kagan wrote a concurring opinion joined by all the liberals coaching the plaintiffs to make a First Amendment freedom of association argument in their remand proceedings to try to dodge the individual standing requirement
  • Benisek v. Lamone — 9-0 (per curiam) — a district court did not err in denying a preliminary injunction against the use of an alleged partisan-gerrymandered redistricting plan in Maryland which favoured Democrats
    • the district court had denied the motion and stayed the case pending the outcome of Gill v. Whitford
    • the unsigned but unanimous opinion of the Supreme Court stated that the plaintiffs had not demonstrated their likelihood to prevail on the merits and that they had unreasonably delayed filing the injunction to reject a redistricting completed in 2011 in order to affect the 2018 midterms
  • Abbott v. Perez — 5-4 (Alito) — regarding racial gerrymandering, one district in Texas was guilty; but otherwise the burden to defend was wrongly placed with Texas
    • holding that the presumption of good faith on the part of the legislature in drafting congressional districts is not undermined by past discrimination, the plaintiffs needed to demonstrate gerrymandering with a three part test that was found to indict only one of the accused districts; otherwise, the case is remanded to properly apply the burden of proof
    • Thomas concurred, joined by Gorsuch, writing to underscore established precedent that one particular section of the Voting Rights Act doesn’t apply to redistricting
    • a united dissent from the liberals written by Sotomayor disagreed that the Supreme Court even had cause to hear the case and, besides, found the lower court had properly discovered discriminatory intent on the part of the Texas legislature

Business and economics

  • South Dakota v. Wayfair, Inc. — 5-4 (Kennedy) — states may compel online retailers to collect and remit sales taxes for purchases made by their residents regardless of whether the retailers have a physical presence in those states
    • Kennedy was joined by the interesting coalition of Thomas, Ginsburg, Alito, and Gorush to overturn two controlling precedents, both of which were more than 25 years old:
      • Bellas Hess v. Illinois (1967) held that the dormant Commerce Clause (doctrine preventing States from interfering in interstate commerce) prohibited States from imposing the duty of collecting tax across state lines
      • Quill v. North Dakota (1992) partly overruled Hess by introducing the physical presence rule
    • The majority found that Quill’s physical presence rule is an outdated proxy for activity with a “substantial nexus” in the state (part of a test laid out in Complete Auto Transit Inc. v. Brady [1977]), that the rule creates (rather than resolves) market distortions, and that it is at odds with modern Commerce Clause jurispudence
    • Thomas concurred to lament that he should have joined Justice White’s lone dissent in Quill rather than joining Scalia’s concurrence (also joined by Kennedy) in that case
    • Gorsush concurred to gripe about the dormant Commerce Clause generally
    • Roberts dissented, joined by the liberals other than Ginsburg, arguing that the rise of the internet was a reason to save the rule in Quill rather than discard it; and asserting that Congress alone should attempt to alter the regulatory scheme of “such a critical segment of the economy”
  • Ohio v. American Express Co. — 5-4 (Thomas) — American Express’s “antisteering” provisions limiting merchants’ point-of-sale options do not violate antitrust laws
    • a united conservative majority found that the plaintiffs failed, under a three-part test called the “rule of reason”, to demonstrate sufficient anti-competitive effects from AmEx’s contractual policies to shift the burden of proof to AmEx to instead show that those policies are pro-competitive
    • based only on the syllabus — further analysis is likely warranted — Thomas appeared to undertake a fairly complex analysis of market facts, including clearly defining for the Court the nature of the market itself in order to apply the “rule of reason”
    • a united dissent from the liberals written by Breyer asserted that the majority ignored detailed factual findings from the district court, applied a definition of the market at odds with existing precedent, and reached a decision “contrary to the basic principles of antitrust law”
  • Wisconsin Central Ltd. v. United States — 5-4 (Gorsuch) — employee stock options are not taxable compensation under the Railroad Retirement Tax Act of 1937
    • a united conservative majority found that stock options were not included in the scope of the Act because they were not understood as “money” in 1937, a premise it said was borne out both by the text of the Act and by the broader statutory context of the time, and remanded for reconsideration
    • a united dissent from the liberals written by Breyer argued that while the Act’s language was vague, its purpose suggested that the intent was to include things like stock options, that the Government had so interpreted the Act for decades, and that Congress had never suggested otherwise despite amending the Act many times since the 30s

Civil liberties

  • Carpenter v. United States — 5-4 (Roberts) — warrantless cell phone location data seizure violated Fourth Amendment reasonable search and seizure rights
    • this surprising alliance between Roberts and the liberals deserves deeper analysis but turns on the expectation of privacy in the digital age having no clear precedent; see the relation of this case to the impact on digital privacy that the recent evolution of self-incrimination jurisprudence has had
    • Kennedy dissented, joined by Thomas and Alito, and would not have distinguished cell-site records from other business records
    • Thomas dissented, arguing that cell-site data is not the property of the subject of the data search and hence he has no protection against it
    • Alito dissented, joined by Thomas, distinguishing the cell-site data request from an “actual search” as opposed to a request for document production, and in a vein similar to Thomas’s asserted that the data really belongs to a third party
    • Gorsuch dissented to gripe at length about the Court’s departure from the “original understanding” of the Fourth Amendment
  • Currier v. Virginia — 5-4 (Gorsuch) — separate trials for criminal charges severed by mutual agreement don’t violate Fifth Amendment protections against double jeopardy
    • a united conservative majority found that the petitioner, earlier indicted on three felony charges and acquitted of two, was later properly tried and convicted on the third notwithstanding the protection against double jeopardy because a) both prosecution and defense had agreed to sever that charge when trying the first two and b) the civil notion of “issue preclusion” doesn’t apply in criminal cases
    • Kennedy refused to join Gorush and the other conservatives on the subject of issue preclusion; for Kennedy, the petitioner’s agreement to severance opened the door to the second trial and no exploration of the bounds of the Double Jeopardy Clause was necessary
    • a united dissent from the liberals written by Ginsburg found the majority’s analysis of issue preclusion misread modern precedent to varying degrees of subtlety and that the petitioner could invoke it to block the second case

Potential free speech issues

  • Janus v. [Illinois] State — 5-4 (Alito) — public sector unions may not compel fees for contract negotiation because of possible free speech issues
    • a united conservative majority found that non-members of public sector unions may not be compelled to pay union dues because to do so could violate their free speech rights in the event that the union uses the money for political lobbying
    • overturned the 1977 case Abood v. Detroit Board of Education (which held that even non-union-members were required to pay dues to underwrite collective bargaining efforts) due to allegations of that decision’s poor reasoning, unworkability, and disgraceful aging
    • a united dissent from the liberals written by Kagan countered that this will be deeply disruptive to numerous existing contracts and that deference to existing precedent was waived here for no special reason
  • Family and Life Advocates v. Becerra — 5-4 (Thomas) — California’s anti-abortion clinic disclosure compulsion law likely violates clinic’s free speech
    • a united conservative majority reversed and remanded a district court refusal to grant a preliminary injunction against California’s disclosure law (mandating that “crisis pregnancy centers” [2] inform patients of the availability of state-funded reproductive health services), rejecting that court’s reliance on the theory of regulating “professional speech” and identifying an undue burden on free speech justified by merely speculative harms
    • Kennedy concurred, joined by all conservatives save Thomas, emphasizing general fear of government-compelled speech
    • a united dissent from the liberals written by Breyer countered, noting precedents upholding state mandates to advertise abortion alternatives such as adoption, objecting to the “hypothetical” characterization of the harms California sought to avoid, and alleging that the constitutionally undue free speech burden identified by the majority was itself speculative


  • Trump v. Hawaii — 5-4 (Roberts) — Trump’s travel ban is lawful and constitutional
    • a united conservative majority found that the so-called “travel ban” against nationals of several countries is constitutional under the president’s broad statutory authority to suspend immigration over national security concerns and cited former presidents doing the same
    • separated Trump’s bombastic anti-Muslim campaign rhetoric from the order, judging the ban to be neutral on its face since many majority-Muslim countries were not targeted
    • Kennedy concurred but wrote separately to underscore the deference that must be granted to the President in matters of foreign affairs; but noted that with such deference comes an even greater duty to adhere to the “meaning and promise” of the Constitution
    • Thomas concurred, but despite the majority declining to decide whether the Hawaii district court’s injunction against the ban was improper, wrote separately to express concern about a trend of district courts issuing national injunctions
    • Breyer dissented, joined by Kagan, citing concern that waivers against the ban were not actually being applied, and would have maintained the injunction and remanded to the district court for fact finding
    • Sotomayor dissented, joined by Ginsburg, alleging the majority “ignored the facts, misconstrued precedent, and turned a blind eye” to the suffering of individuals, including US citizens; and in particular disagreed that Trump’s campaign rhetoric could be so easily separated from consideration of the ban


[1] Without having read the opinion, it is unclear to me how anyone could demonstrate individual harm resulting from partisan gerrymandering except to identify a sudden and distinct concentration of political power among the party alleged to have carried out the gerrymandering that arguably eliminates meaningful individual representation in government. The difficulty in doing this suggests to me that the Court, or its conservatives at least, is determined to leave questions about partisan gerrymandering to Congress alone.

[2] The law provides for the two flavours of private reproductive health “clinics”: licensed clinics must advertise the availability of state-funded family planning services, and unlicensed clinics (essentially counselling services) must disclose that they are unlicensed. The facts of the case make quite clear that the “crisis pregnancy centers” of the National Institute of Family and Life Advocates filing suit here are anti-abortion propaganda facilities masquerading as family planning clinics.

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