Oct 2, 2017

SCOTUS conservatives get a chance to flex their muscles

Justice Neil Gorsuch speaks at the Trump hotel in Washington. (AP Photo/Pablo Martinez Monsivais)

The Supreme Court today kicks off a term that's already loaded with exceptionally important and politically charged issues — including gay rights, workers' rights, privacy in the smartphone era, and even the political process itself.

What to watch: All of those rulings will reverberate deeply throughout American life. Many of them give the court's right-leaning majority a chance to flex its muscles. And they'll be colored by a changing dynamic on the court itself, as the hard-charging conservatism of its youngest justice, Neil Gorsuch, meets the moderating influence of its oldest, Anthony Kennedy.

The major issues:

  • Workers' rights: The court won't waste any time jumping into its high-drama cases. It will kick off the term this morning with oral arguments over whether employers may use mandatory arbitration clauses to prevent workers from taking employment-related disputes to court. When employees and employers clash at the high court, employers tend to win.Later in the term, the court will also hear a fresh suit over whether labor unions representing government workers can collect fees from non-members to support their collective bargaining work. Those fees were thought to be at death's door before the late Justice Antonin Scalia died, and are likely there again now that Gorsuch is on the court.
  • Gerrymandering: The justices will hear arguments Tuesday in a case that asks whether partisan gerrymandering is unconstitutional. It's a big claim — bigger than most of the court's election-related cases — and one that would reshape the redistricting process nationwide.
  • Electronic privacy: The Supreme Court's precedents about technology and privacy are, for the most part, decades old and tied to outdated tools like landline phones. Now, it will wrestle with a new and critically important question: whether the police have to get a warrant before they can retrace a criminal suspect's steps using the location of his smartphone.
  • Gay rights vs. free expression: Two years after ruling that same-sex couples have a constitutional right to marry, the court will take up the case of a baker who refused to bake a cake for a same-sex wedding. Colorado law prohibits discrimination on the basis of sexual orientation, but the baker says cake decoration is artistic enough that it should be protected as a form of artistic expression — and the First Amendment allows you to choose what you do or don't want to express.

Gorsuch: The court stuck to small-ball cases while it was down a justice, but now it's back to full strength — and even in his first few days on the bench, Gorsuch made clear he won't be easing gently into his new role. He's an active questioner. He's already willing to write frequently on his own, rather than joining other justices' opinions (something he shares with the late Antonin Scalia). He's a strong and confident force on the court, and his first full term is full of blockbuster cases where he can distinguish himself.

Kennedy: Retirement rumors continue to swirl around Kennedy, the court's longest-serving justice. But, at least for now, he remains the most powerful justice. The wedding-cake and gerrymandering cases are almost certainly his to decide, and if anyone's going to save public-sector unions — which seems unlikely — it would be Kennedy.

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