Legal Corner

AAC LEGAL CORNER

Keeping an eye on the 2017-2018 term of the U.S. Supreme Court

The 2016-2017 U.S. Supreme Court (SCOTUS) term saw a number of split decisions and even a few somewhat awkward attempts at “compromise” decisions. The death of Justice Antonin Scalia left the Court split with what most would agree was four conservative and four liberal justices, with one conservative, Justice Anthony Kennedy sometimes joining the “liberal four.” Whether due to the Court’s difficulty in achieving a majority decision, or to the Court’s recognition that there was little political appetite for major precedent-changing decisions without nine sitting justices, the Court delivered fewer majority opinions than normal, and the whole term seemed lackluster.

In April 2017, Justice Neil Gorsuch was confirmed, widely known as taking a conservative position behind the bench. With this change, we can expect the Court to hear and rule on an array of controversial, ripe, policy-altering cases in the 2017-2018 term. Of the approximately 50 cases the court will hear this term, I have highlighted a few worth following. • Gill v. Whitford (Wisconsin) — This case involves the constitutionality of partisan gerrymandering in voting districts. Wisconsin’s Republican-led legislature passed a redistricting plan in 2011. It later was struck down in federal court as unconstitutional for allegedly purposely drawing district lines in a manner that favors one party and disadvantages another and would have continued to do so for years to come. The state, defending its redistricting plan, argues for the SCOTUS to overturn the federal court’s “unprecedented intervention in the American political process.” • District of Columbia v. Wesby (D.C.) — Probable cause and qualified immunity are at issue in this case. The first issue is whether police had probable cause to arrest multiple partygoers for trespass in a vacant home when the owner told police no one had permission to enter the home. Partygoers said one person had told them the homeowner had given them permission to enter, which the homeowner denies. The lower courts ruled in favor of the partygoers, stating police had no reason to believe the partygoers knew or should have known they were trespassing. The second issue is whether the police officers are entitled to qualified immunity from suit by the partygoers. Traditionally, law enforcement is entitled to qualified immunity so long as they do not violate “clearly established law.” • Patchak v. Zinke (D.C.) — Dealing with the separation of powers between Congress and federal courts, the SCOTUS will hear arguments from David Patchak, a landowner who prevailed in a previous SCOTUS case over the government. In the previous case, the Court ruled the government had waived its sovereign immunity from suit when it confiscated Patchak’s land in order for a local Indian tribe to build a casino on the property. The case was then remanded to the lower courts to determine the merits of the case. While the lower court cases proceeded, Congress passed a law that “ratified and confirmed” the federal government’s decision to take the land, and ordered the lower courts to “promptly dismiss” any and all pending suits related to the land. Patchak argues that Congress unconstitutionally violated the separation of powers, specifically encroaching upon and exercising powers reserved for the judicial branch. Patchak has been unsuccessful in the lower courts. • Carpenter v. U.S. (6th Circuit) — At issue is whether the Fourth Amendment allows law enforcement to seize and search cell phone records revealing the location and movements of the phone’s user over a 127-day period. The Court has previously held that cell phone records do not require a warrant, as there is no expectation to privacy since users voluntarily subject them to third party viewing by their service provider. • Masterpiece Cakeshop v. Colorado Civil Rights Comm’n (Colorado) — This case will determine whether Colorado’s anti-discrimination law, which prohibits businesses that sell to the public from discriminating in its sales based on sexual orientation, is an unconstitutional infringement on the business owner’s right to uphold his own religious beliefs. • Husted v. A. Philip Randolph Institute (6th Circuit) — Ohio’s Secretary of State is tasked with maintaining the voter registration lists. When a registered voter does not vote during a two-year period, the state sends a confirmation notice to the voter. If the voter does not respond and subsequently does not vote over the next four years, the state removes that voter from the voter registration list, and the former voter is required to register again before he or she is permitted to vote. The court will determine whether this practice violates the National Voter Registration Act (NVRA) of 1993, which prohibits states from removing a voter from the registration list for not voting. The lower court ruled for the state, but the 6th Circuit found the practice to be in violation of the NVRA. • Collins v. Virginia (Virginia) — The Court will clarify the scope of the automobile exception to the Fourth Amendment’s warrant requirement. Specifically at issue is whether law enforcement, without a warrant, may enter the driveway of a home and inspect a motorcycle beneath a tarp in order to inspect the vehicle identification number (VIN) and license plate information.

LINDSEY BAILEY General Counsel