2017-2018 Supreme Court Review: Foreword

We didn’t know it at the time, but the 2017 Term was a transitional year for the Supreme Court. It was, of course, the last Term in which Justice Anthony Kennedy had the deciding vote on many high-profile issues. It is not hard to predict that Justice Kennedy’s replacement, Brett Kavanaugh, will make the Court more conservative. But as the essays in this collection show, the 2017 Term anticipated that conservative trend. When the Term began, progressives could be a little optimistic. There were cases in which, if the Court had done its job well, it would have moved the law in a progressive direction—protecting minority groups that are subject to unfair discrimination and making sure that the democratic process is truly democratic. But the Court did not do that. And then in other cases, in which there was little realistic basis for hope, the Court did what was expected—continuing to move the law in a conservative direction, sometimes very aggressively so. In these and other respects, the 2017 Term seems likely to be a toned-down trailer for the movie that we will see in the next few years.

In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,[2] the owner of a bakery refused to sell a cake to a couple that wanted it for their same-sex wedding. That violated a Colorado law forbidding discrimination in public accommodations. The owner of the bakery claimed that by applying the law to him, Colorado had infringed his rights to freedom of speech and the free exercise of religion. Colorado courts rejected that claim.

As Mary Bonauto and Jon Davidson explain, it was not clear why the Supreme Court even agreed to hear the case. No lower court had ever accepted such a claim. The religious freedom argument was pretty clearly foreclosed by precedent, and the free speech claim, if taken seriously, would undermine antidiscrimination laws that have been a central part of the law in the United States for more than a half century. But claims like the baker’s had been cropping up in the wake of the Court’s decisions recognizing the rights of LGBT people, and maybe—some of us thought—the Court just wanted to make it clear that those claims would not succeed.

The Court did not do that. Instead, the Court ruled in favor of the baker for a very odd reason—because of supposed anti-religious bias shown by the Colorado authorities in this particular case. The claim of bias was weak and, more to the point, having taken the case, the Court decided it in a way that did not establish any general principle. As Bonauto and Davidson show, some of the language in the opinion will be helpful in the future in rebutting claims that there is a constitutional right to discriminate against gay people. But the Court did not close the door to those claims.

Protecting the right to vote has, for a long time, been a central progressive priority. Recently, various techniques of vote suppression—voter ID laws, purging voting rolls, manipulating registration requirements—have become more and more popular among conservatives. In Husted v. A. Philip Randolph Institute,[3] the Court dealt with a procedure adopted by Ohio that removed people from the list of registered voters because they did skipped voting in a few elections and did not return a postcard. The Court rejected the argument that that procedure violated the National Voter Registration Act. As Gilda Daniels explains, the decision in Husted, based on an interpretation of the NVRA that was at least highly questionable, encourages even more aggressive efforts to suppress voting.

Early in the Term, though, Husted did not even seem to be the most important case about the kind of democracy we will have. In Gill v. Whitford,[4] it looked as if the Court might do something about partisan gerrymandering. The question whether there are constitutional limits on partisan gerrymanders had come before the Court before. There was not much doubt that this was one of those questions on which Justice Kennedy’s vote would be decisive. Justice Kennedy had suggested before that he was open to an argument that partisan gerrymandering is unconstitutional, but he said that he had not yet seen a standard that could be applied in resolving that question.

After spending practically the whole Term considering the case—it was one of the first cases argued and one of the last decided—the Court again left the central issue undecided. Instead, the Court ruled, without dissent, that the plaintiffs had not shown that they had standing to sue and remanded the case to the district court to give the plaintiffs a chance to do that. The effect of the Court’s ruling was, probably, to preclude some but not all of the theories the plaintiffs had offered as workable standards for determining the constitutionality of partisan gerrymanders; there was some skirmishing in separate opinions by the justices about what avenues, if any, were left open for a future challenge. But with Justice Kennedy’s retirement, the likelihood that such a challenge will succeed in the future has certainly diminished, to say the least.

In other important cases last Term, the outcome was, unfortunately, predictable, and the Court continued on a regrettable path. Janus v. American Federation of State, County and Municipal Employees Council 31[5] was probably the most high-profile example. Some of the justices seem openly hostile to public employee unions, and several years ago they had invited a challenge to agency fees—fees that public employees who are represented by a union pay to the union to defray the cost of the services the union provides. Unions have a duty to represent all employees in a bargaining unit, whether or not they are union members. As Catherine Fisk explains, if agency fees were not required, the union would face a potentially fatal collective action problem: each employee, acting out of self-interest, could free-ride by taking advantage of the union’s duty of representation without paying.

The Court ruled that agency fees violated the First Amendment because employees were required to fund speech with which they disagreed. Some public employee unions do engage in political activity, but under a forty-year-old precedent, Abood v. Detroit Board of Education,[6] employees had a right to decline to pay the portion of their fees that went to political activity; they could be required only to pay for the union’s activity as collective bargaining representative. In Janus the Court overruled Abood, despite strong arguments against doing so: an extensive structure of labor relations had built up around Abood; Abood fit comfortably in the fabric of First Amendment law; and there were no severe problems in administering the regime that Abood established. In addition, as Professor Fisk shows, Janus interpreted the First Amendment in a way that is impossible to square with other well-established principles and that, if taken seriously, would undermine many long-standing institutions in which people indirectly support speech with which they disagree. More generally, as Professor Fisk also notes, Janus continued the trend, manifested in several cases in recent years, of using the First Amendment as a way to attack the regulatory state.

Epic Systems Corp. v. Lewis,[7] like Janus, was another step in a series of decisions that undermined the ability of employees to protect their shared interests. As in Janus, the result was not a surprise. And while the result in Epic Systems was not as unprincipled as the result in Janus, it seems quite clearly wrong nonetheless. The question in Epic Systems was whether the National Labor Relations Act (NLRA), which guarantees employees the right to act collectively, meant that an arbitration clause could not prevent employees from bringing class action-type claims against employers. As Charlotte Garden notes, in a series of decisions the Court has ruled that the Federal Arbitration Act (FAA) makes arbitration clauses in employment contracts enforceable and held that state law may not limit their enforceability. As a result, employers increasingly include arbitration clauses in employment contracts, and those clauses often require employees to pursue arbitration as individuals, not as a class.

But a foundational provision of U.S. labor law, §7 of the NLRA, provides that employees have “the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection.”[8] The National Labor Relations Board ruled that the right “to engage in . . . concerted activities for the purpose of . . . mutual aid and protection” meant that an arbitration clause could not bar employees from engaging in collective forms of litigation or arbitration.

The Court disagreed, reading §7 essentially to extend only to activity in the workplace. As Professor Garden explains, the Court’s decisions on arbitration have systematically limited the ability of employees to pursue collective relief, which—because an individual employee’s claim is often for a small amount, compared to the cost of litigation—is frequently the only effective remedy that an employee has. Professor Garden shows that it is far from clear that the Court was right in the first place to say that the FAA even applies to employment contracts. Even assuming the Court was right about that, it is not clear that the FAA preempts state laws to the extent the Court has said it does, or—the issue in Epic Systems—that it should prevail over the protection of “concerted activities” in §7 of the NLRA. At each step, the Court has chosen the course that insulates employers from being effectively challenged for breaching their contracts or violating the law. And Professor Garden identifies troubling language in the Court’s opinion in Epic Systems that suggests that some justices may be receptive to a Lochner era view of the employment relationship, in which employees are simply assumed to have enough bargaining power to protect their own interests.

Jesner v. Arab Bank[9] continued yet another trend in the Court’s decisions—to limit the use of the Alien Torts Statute (ATS) against violations of human rights. The Alien Torts Statute, which was part of the Judiciary Act of 1789, provides that “[t]he district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.”[10] As Martin Flaherty explains, for almost 200 years the ATS was more or less ignored, but beginning in 1980 victims of human rights violations used U.S. courts at least to establish the truth of their claims (it was often impossible to recover damages).

In 2004, in Sosa v. Alvarez-Machain,[11] the Supreme Court dealt with the ATS for the first time. The Court interpreted the statute somewhat narrowly, but it reaffirmed the basic point that it could be used against egregious violations of human rights. When plaintiffs sued corporations under the ATS, however, the Court took a different turn. First the Court held that the ATS did not extend outside the territory of the United States, and then it held, in Jesner, that the ATS applies only to natural persons, not to corporations. As Professor Flaherty says, ATS plaintiffs have alleged that corporations worked hand-in-glove with foreign individuals and nations that are among the worst human rights violators. While the ATS can still be used to sue for violations of human rights, even after Jesner, that case forecloses important avenues of accountability. And opinions of some of the justices call the ATS into question on even more fundamental grounds.

Trump v. Hawaii[12] was the most high-profile case of the last Term. The Court, of course, upheld the travel ban issued by President Trump. As Cristina Rodríguez shows, on one level, the decision was unsurprising. The travel ban was an action by the president, not just an administrative agency; it invoked an exceptionally broadly-worded statute; and it concerned both immigration and national security, areas in which the courts have been highly deferential to the executive. In a normal administration, the combination of those things would leave no doubt about the outcome of a challenge to the president’s action.

We do not live in normal times, though, and the travel ban was accompanied by truly extraordinary evidence of President Trump’s hostility to Muslims. In that way, the case involved one of the central commitments not just of progressives but of U.S. constitutionalism: the special responsibility of the courts to protect minority groups from unfair discrimination. So there was, maybe, some reason to hope that the Court would find a way to avoid endorsing the travel ban.

The Court, of course, did not. Professor Rodríguez concludes that the statutory challenges to the travel ban should not have succeeded, given the breadth of the provision on which they were based and the tradition of deference to the executive. But the Court’s decision to “elide[ ] powerful evidence of discriminatory motive,” she says, amounted to “an abdication of judicial responsibility.” The Court treated the evidence of anti-Muslim animus in a way that is inconsistent with basic principles of antidiscrimination law and, for that matter, inconsistent with common sense. The Court concluded that the travel ban should survive because it contained no explicit reference to religion; it did not apply to all majority-Muslim countries; and it was justified, by the executive branch, by a plausible-sounding rationale. Someone who wanted to engage in even the most malign form of discrimination—and who had a little bit of creativity—would be able to satisfy criteria like that.

Still, Professor Rodríguez shows Trump v. Hawaii was not as bad as it might have been. The Court did not endorse the position, suggested by language in some infamous cases decided in the wake of World War II, that the Constitution simply does not apply to a decision to exclude noncitizens from the United States. More specifically, she says, Trump v. Hawaii did nothing to undermine Due Process Clause challenges to coercive actions against noncitizens, and that allows lower courts to continue to protect noncitizens in important ways.

Two other important decisions from last Term, while relatively narrow, engaged with long-standing issues that are certain to recur. In Carpenter v. United States,[13] the Court held that the government must obtain a warrant before it acquires, from a telecommunications company, historical information about the location of a cell phone. It has been clear for a while that established Fourth Amendment doctrine is not well adapted to deal with technology that has developed in recent years. One example is the “third-party” doctrine, according to which the government does not “search” an individual within the meaning of the Fourth Amendment—and therefore does not have to conform to the amendment’s requirements, such as (in some circumstances) showing probable cause and getting a warrant—when it obtains information from a third party to whom the individual has voluntarily disclosed it. The principal application of that doctrine is the use of informants; the Court extended it, in the 1970s, to the use of a pen register (a device that records the numbers dialed from a phone; the idea was that the individual disclosed that information to the telephone company) and to the government’s seizure of an individual’s financial records from a bank.

As Marc Rotenberg explains, it is hard to see how Carpenter can be reconciled with the third-party doctrine. But the Court avoided overruling the key third-party doctrine cases, leaving the law in an uncertain state (although, to be fair, simply overruling some of the cases would still have left it unclear when the government can obtain information about a suspect from a third party). More generally, Carpenter is only the latest example of how the Court has struggled, understandably, to adapt doctrines developed decades ago to a world in which it is much easier for the government both to obtain and to retain information about individuals, and effectively impossible for individuals to live a normal life without disclosing vast amounts of sensitive personal information to third parties like telecommunications companies, internet service providers, credit card companies, and the like. As Professor Rotenberg says, Carpenter raises questions not just about the third-party doctrine but about the foundations of Fourth Amendment law. And he describes a path forward for both the courts and Congress.

Finally, Lucia v. SEC,[14] another relatively narrow decision on its face, also may turn out to be part of a larger trend—in this instance, a more troubling trend. The Court in Lucia ruled that Securities and Exchange Commission Administrative Law Judges (ALJs) are “inferior officers” within the meaning of the Appointments Clause, so that they must be appointed by the president or Commission, not (as had been the case) by Commission staff. The decision itself does not have very significant consequences—it is an easy matter for the Commission to ratify the decisions of the staff—and the narrow terms in which it was cast do not by themselves suggest that the decision will have major doctrinal significance. But the narrow nature of the ruling may have been a form of damage control by justices who understood—what Steven Schwinn explains—that the challenge to the appointment of ALJs was part of an attack on the regulatory state that has been an agenda item for some of the justices for several years.

There were no real surprises in the 2017 Term, except, perhaps, for the Court’s failure, in Masterpiece Cakeshop and Gill v. Whitford, to decide important issues that were before it and that should have been decided. In those cases, and in the travel ban case, the Court passed up opportunities to develop the law in ways that the Constitution actually demanded and that would have struck a blow against discrimination and made the nation more democratic. In other cases, the Court continued on a course—often a very questionable course—that it had already set. The 2017 Term was consistent with what went before; it also may have given us an idea of what the future will look like.

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[*] David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School and serves on the Board of Directors of the American Constitution Society.

[2] Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018).

[3] Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018).

[4] Gill v. Whitford, 138 S. Ct. 1916 (2018).

[5] Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018).

[6] Abood v. Detroit Bd. of Educ., 431 U.S. 209 (1977).

[7] Epic Sys. Corp. v. Lewis, 138 S. Ct. 1612 (2018).

[8] 29 U.S.C. § 157.

[9] Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018).

[10] 28 U.S.C. § 1350.

[11] Sosa v. Alvarez-Machain, 542 U.S. 692 (2004).

[12] Trump v. Hawaii, 138 S. Ct. 2392 (2018).

[13] Carpenter v. United States, 138 S. Ct. 2206 (2018).

[14] Lucia v. SEC, 138 S. Ct. 2044 (2018).