Trump Looms Large Over New Supreme Court Term

Nation’s highest court set to hear gay rights, redistricting and immigration cases

Members of the U.S. Supreme Court are pictured earlier in 2017. (Rex Features via AP Images)
Members of the U.S. Supreme Court are pictured earlier in 2017. (Rex Features via AP Images)
Posted October 2, 2017 at 8:00am

For a Supreme Court that guards against being perceived as political, the new term starting Monday is poised to show just how President Donald Trump and Republicans have shaped what will happen in the courtroom.

The court avoided high-profile contentious cases and otherwise laid low during partisan fights over the seat left vacant by the death of Antonin Scalia in 2016. Majority Leader Mitch McConnell and Senate Republicans went to historic lengths to block President Barack Obama’s pick for Scalia’s seat for months until the presidential election.

Trump’s appointment of Justice Neil Gorsuch preserved the Supreme Court’s 5-4 conservative advantage. And the court has reawakened with a docket this term loaded with potential blockbuster cases on divisive issues such as employee rights, gay rights, voting rights, immigration and union dues.

“There is only one prediction that is entirely safe about the upcoming term, and that is it will be momentous,” Justice Ruth Bader Ginsburg said in a speech last month at Georgetown University Law Center.

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This is the first full term for Gorsuch, who quickly aligned himself on key issues with the court’s conservatives in the final months of the last term. He would have let the Trump administration fully implement the president’s March 6 travel ban, and disagreed with the majority in a ruling that required Arkansas to list same-sex parents on birth certificates. He also disagreed with the court’s decision that left in place California’s restrictions on permits for concealed weapons.

But Trump’s influence on the court goes beyond Gorsuch. The Justice Department under Trump has flipped positions on several cases before the court, meaning the government changed sides from what a Democratic administration might have argued in cases about workers’ rights, a voting rights case out of Ohio and the religious beliefs of a Colorado baker.

Legal experts say the justices could have questions about the reasons for such a turnabout on the positions of the United States, which has often taken a longer view on issues and sought to protect the nation’s institutional interests beyond just one president.

In the Ohio case, Husted v. A. Philip Randolph Institute, the justices will consider whether a state can use a list of who hasn’t voted in recent elections to trigger a process that would clean up voter registration rolls. The case has special salience now, with Trump often raising questions about voter fraud and civil rights groups saying voter purges are a way to suppress voters. More than a dozen states have similar laws.

At the U.S. Court of Appeals for the 6th Circuit, the Justice Department argued the Ohio law violates a 1993 national voter registration law and the way the DOJ has interpreted it since 1994. The appeals court blocked the state’s process.

But the Justice Department filed a brief in August with the Supreme Court supporting the state law, stating it had “reconsidered the question” after the “change in Administration.” 

The Justice Department under Trump also, for what civil rights groups say is the first time ever, sided with a party seeking exemption from nondiscrimination law. That happened in a brief in a case at the heart of the social debate about religious liberty and gay rights, where the justices will decide whether a Colorado businessman can decline to bake a cake for a same-sex wedding because of his First Amendment rights.

Forcing the baker to “create expression for and participate in a ceremony that violates his sincerely held religious beliefs invades his First Amendment rights,” the Justice Department stated in a brief filed in September. “Colorado has not offered, and could not reasonably offer, a sufficient justification for that compulsion here.”

David Cole, the national legal director of the American Civil Liberties Union, said one of the Justice Department’s primary duties is to enforce nondiscrimination laws, including their application to businesses.

“And so you would think its institutional interest would not be in supporting an open-ended exemption,” Cole said.

‘Trump effect’

Trump, just by being Trump, could have an influence on the justices themselves. They will also have just as hard of a time ignoring Trump’s presidency as the rest of us, as his controversies permeate nearly every part of American life, including professional football, nightly talk shows and happy hour conversations.

Orin Kerr, a law professor at George Washington University and a former clerk of Justice Anthony Kennedy, said there has been discussion of a “Trump effect,” with justices or judges “thinking we’ve got a different situation here in the White House and we should be modifying how we approach certain issues and respond.”

“I wouldn’t be surprised if we see a couple big cases this term that reflect some sort of ‘Trump effect’ at some level,” Kerr said at a panel discussion on the 2017-18 term. 

The court isn’t immune to the racial context of the controversies Trump has involved himself in, from the NFL protests about police discrimination during the national anthem to his “both sides” reaction to the white nationalist demonstration in Charlottesville, Virginia, that left one counter-protestor dead.

The court in some opinions about fair housing and affirmative action in 2016 already expressed an unease about the state of equality when police shootings, police use of force and the Charleston, S.C., church shooting were in the spotlight, said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund.

The justices can now see many issues as “democracy-threatening, not just being something about civil rights and black people but really that there are problems with the levers of their democracy,” Ifill said.

“I do think the Trump administration has cranked up the heat around the importance of the court standing for the strengthening of democratic principles and pillars that will hold this country together,” Ifill said. “It would be surprising to me if they didn’t all feel the press of that.”

Any evidence of a “Trump effect” might only be found, however, in the secret chambers and conference room at the Supreme Court and not laid bare in any opinions.

“These are very contentious issues and the court is jealous of its own reputation,” Ifill said. “And it doesn’t want to ruin its reputation by going farther than it feels it should go or it needs to go in trying to stand up for those principles.”

The new term ends at the end of June.