Chemerinsky: Some potential blockbusters as new SCOTUS term gets underway
Erwin Chemerinsky
The U.S. Supreme Court begins its October 2017 term with an unusual number of potential blockbuster cases on its docket. The court will have five days of oral arguments covering nine cases during the month. Some of the likely most important cases concern arbitration, immigration, and partisan gerrymandering.
ARBITRATION
The first matter to be heard is three cases that have been consolidated for oral argument: Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris, and National Labor Relations Board v. Murphy Oil USA, Inc. The issue is whether the National Labor Relations Act prevents employers from insisting that employees resolve employment-related disputes through individual arbitration and thus give up their ability to engage in class action or collective proceedings.
In recent years, the Supreme Court in a series of 5-4 decisions–in cases such as Circuit City v. Adams, AT&T Mobility v. Concepcion, and American Express v. Italian Colors Restaurant–has strongly favored enforcement of arbitration clauses in contracts. The issue before the court now is different because Section 7 of the National Labor Relations Act protects a right of employees to engage in “concerted activity,” and Section 8 provides that rights under the statute cannot be infringed by contracts. The question is whether these provisions preclude contractual provisions that preclude employees from engaging in collective actions, such as class action suits.
It is highly unusual, but the Solicitor General’s office and the National Labor Relations Board will be arguing on opposite sides of this case. This is one of the instances where the Trump administration has reversed course from the position taken by the Justice Department under Barack Obama. What makes this different is that the Solicitor General’s client, the NLRB, has not changed its position, so the U.S. government will be arguing on both sides of the case.
IMMIGRATION
Two major cases will be argued in October concerning immigration issues. Both were argued last term, but put over for re-argument likely because the justices were split, 4-4. Sessions v. DiMaya, which will be argued again on Monday, involves whether a provision of the federal Immigration and Nationality Act, 18 U.S.C. § 16(b), which governs an alien’s removal from the United States, is unconstitutionally vague. In Johnson v. United States (2015), the court struck down on vagueness grounds a provision of the Armed Career Criminal Act which defined “crime of violence” to include a crime that “involves conduct that presents a serious potential risk of physical injury to another.” The question in Sessions v. DiMaya is whether a provision in the Immigration and Nationality Act, which uses similar language, is likewise unconstitutional.
On Tuesday, the court will hear re-argument in Jennings v. Rodriguez. The issue is whether non-citizens who are seeking admission to the United States, and who are subject to mandatory detention under 8 U.S.C. § 1225(b), must be afforded bond hearings, with the possibility of release into the United States, if detention lasts six months or longer. The San Francisco-based 9th U.S. Circuit Court of Appeals ruled that such prolonged detention requires a showing that the individual is a flight risk or a danger to the community. The 9th Circuit said it was interpreting the federal statute in a manner to avoid serious constitutional issues. The initial briefs and the oral argument in the Supreme Court focused on this as a statutory question. But after oral argument, the court asked for new briefing on whether the Constitution is violated by such prolonged detentions without a showing of flight risk or danger to the community. On June 26, the court announced that the case was being put over for re-argument.
The court was scheduled to hear another immigration matter in October: challenges to President Donald Trump’s travel ban in Trump v. International Refugee Assistance Project and Hawaii v. Trump. But on Sept. 25, the court removed them from the argument calendar after Trump issued a third version of the travel ban.
On Jan. 27, Trump issued an executive order that has been widely referred to as the “travel ban.” It suspended the refugee program for 120 days, capped the number of refugees at 50,000 instead of 110,000, and barred immigrants from seven designated countries for 90 days. The 9th Circuit upheld a preliminary injunction on the grounds that it was religious discrimination.
Trump then issued a new executive order (EO-2). Like the prior order, the new version suspends the entire refugee program for 120 days. It caps the total number of refugees admitted this fiscal year at 50,000 instead of 110,000. It bars immigrants from Sudan, Syria, Iran, Libya, Somalia and Yemen for 90 days. The prior executive order also included Iraq, which is not on this list. Unlike the earlier order, the new version does not exclude those who have the lawful right to be in the United States, such as those with green cards and visas.
The Richmond, Virginia-based 4th U.S. Circuit Court of Appeals, in an en banc decision, affirmed a federal district court injunction to keep this from going into effect. The 4th Circuit concluded that the travel ban was based on impermissible religious animus. Soon after, the 9th Circuit affirmed a federal district court injunction to keep this from going into effect. The 9th Circuit, though, focused primarily on statutory grounds and said that the discrimination based on nationality was unjustified and violated federal law.
The government asked for a stay of these injunctions and also for the Supreme Court to grant review. The court granted review in both cases. Additionally, the court, in part, granted the government’s request to lift the injunction and partially allow the travel ban to go into effect.
Specifically, the Supreme Court said that the travel ban could go into effect “with respect to foreign nationals who lack any bona fide relationship with a person or entity in the United States.” By contrast, the court came to a different conclusion for those who have a bona fide relationship with a person or entity in the United States. The court said that “For individuals, a close familial relationship is required. … As for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO–2.” Three justices – Clarence Thomas, Samuel A. Alito Jr., and Neil M. Gorsuch – would have allowed the entire travel ban to go into effect and expressed that they believe that it is constitutional and lawful.
The matter was briefed over the summer and ready for oral argument, but on Sept. 24, President Trump issued a new executive order that imposed a travel ban on those coming from Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela and Yemen. The Supreme Court then took the cases off the oral argument calendar “pending further order of the Court.” Perhaps the court will ask for additional briefing and then hear oral arguments, or maybe the court will remand the matter to the lower courts to decide first.
PARTISAN GERRYMANDERING
Partisan gerrymandering—in which the political party controlling the legislature draws election districts to maximize seats for that party—is nothing new. In fact, the practice is named for Massachusetts Gov. Elbridge Gerry, who in 1812 signed a bill that redrew the state senate election districts to benefit his Democratic-Republican party. But what has changed are the sophisticated computer programs that make partisan gerrymandering far more effective than ever before. The political party that controls the legislature now can draw election districts to gain a much more disproportionate number of safe seats for itself.
In Gill v. Whitford, which will be argued Tuesday, the court will decide whether challenges to partisan gerrymandering can be adjudicated in the federal courts and if so, when gerrymandering is unconstitutional. In Vieth v. Jubelirer (2004), the court dismissed a challenge to partisan gerrymandering, and a plurality of four justices said such suits are inherently nonjusticiable political questions. Justice Antonin Scalia, joined by Chief Justice William Rehnquist and Justices Sandra Day O’Connor and Thomas, said that there are no judicially discoverable or manageable standards and no basis for courts ever to decide that partisan gerrymandering offends the Constitution.
Justice Anthony Kennedy, concurring in the judgment, provided the fifth vote for the majority. He agreed to dismiss the case because of the lack of judicially discoverable or manageable standards, but said he believed such standards might be developed in the future. Thus, he disagreed with the majority opinion that challenges to partisan gerrymandering are always political questions; he said that when standards are developed, such cases can be heard.
In November 2016, a three-judge federal district court in Wisconsin found that the partisan gerrymandering there was unconstitutional. A lengthy opinion by Judge Kenneth Ripple of the Chicago-based 7th U.S. Circuit Court of Appeals said it now is possible to measure the effects of partisan gerrymandering by quantifying an “efficiency gap.” The court explained that “the efficiency gap is the difference between the parties’ respective wasted votes in an election, divided by the total number of votes cast.” If the court affirms, it will mean a significant change in the way districting is done in many states and make a huge difference in our political system.
This, of course, is just the beginning of a Supreme Court term that promises to be extraordinary.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).
