Supreme Court Starts A Momentous Term With Gorsuch In A Stolen Seat And Democracy At Risk
It’s the first Monday in October which means it’s the first day of the new session of the Supreme Court. After a number of split 4–4 decisions last term after Antonin Scalia’s death and Mitch McConnell’s refusal to fulfill the Senate’s constitutional duty to even vote on a successor, the Court will be back to its full complement of nine members, with Neil Gorsuch filling the seat stolen from Merrick Garland.
The theft of the Garland seat leaves the conservatives once again in control of the Court and it could not come at a more inauspicious time for those who believe in civil, workers, and voting rights and restraining the power of corporations. As Justice Ginsburg says, “There’s only one prediction that’s entirely safe about the upcoming term. It will be momentous.”
To my mind, the most important case the Court will hear this year will be the challenge to Wisconsin’s extreme partisan gerrymandering. In the 2012 election, Democrats won 53% of the vote but only ended up with 40% of the seats in the Wisconsin Assembly. Extreme partisan gerrymandering effectively dilutes the voting power of one group which is packed together in a single district and enhances the votes of others who get distributed more evenly, but still as a majority, in others. The Court has never struck down a gerrymander on purely political grounds, although it has with racially gerrymandered districts. These days, one could make a pretty good case that political gerrymandering is also, partly, racial gerrymandering, looking at the current occupant of the White House. Part of the reason for refusing to consider a political gerrymander has been a lack of a standard by which to determine whether and how much a district has been politically gerrymandered. The lawyers in the Wisconsin case believe they have found a way for the Court to determine such a standard.
A second voting rights case involves the state of Ohio where at least 2 million voters have been purged from the rolls over the last few years. Many of those purged are simply removed because they did not respond to a notice they received after not voting for two years and then are purged if they did not vote in the next two years. Of course, many of those purged are poor and minority voters. Current law makes it illegal to remove someone from the rolls “by reason of the person’s failure to vote”, meaning that many of those purged have been removed illegally. This case will determine that laws constitutionality.
The Court could also make another ruling that would finally provide some Fourth Amendment protections to private data that is willingly turned over to third parties. In the past, the Court has ruled that you lose your right to privacy when you willingly turn over your private information to third parties. This has become increasingly problematic with the widespread use of cell phones and GPS. The Court looks ready to rule that the government and law enforcement authorities will now actually need to get a warrant to obtain that third party data.
Workers rights are also under attack this term, as the Court will decide two important cases that could further decimate unions and restrict workers ability to fight employer abuse. The union case revolves around whether government unions can require workers who opt out of being union members but still receive the benefits of the union’s collective bargaining agreements to pay dues to finance that collective bargaining effort. This case is a re-hearing of the case that was heard last year and ended in a split 4–4 decision after Scalia died. If the unions lose this case, as it appears they will, it will cost government unions millions of dollars and further decimate their bargaining power. Of course, that will also have a political impact.
The second case involves whether forced arbitration clauses are legal in employment contracts. These mandatory arbitration clauses prevent employees from joining in a class-action suit against an employer and forces each individual worker to waste time and perhaps even money in an effort to get redress from the company for whatever the corporation has done. Worker are claiming that class action suits are “concerted actions” that is allowed under current labor law and therefore invalidating these forced arbitration clauses.
Lastly, the Court will also take up another expansion of religious rights in the public sphere. This case involves the Colorado cake-makers who refused to provide their services to a gay couple that was marrying. It is almost bizarre that this case has made it so far when you consider how little difference there is between refusing to serve gay people and refusing to serve African-Americans. But the Court has already give corporations constitutional religious rights in the Hobby Lobby case and seems intent on carving out a specific category of law for companies run on religious principles, however that may be determined. That may be the result again in this case.
Besides the case involving privacy, it is quite possible that the liberal positions on all these cases will be found unconstitutional. And the fact that these cases will probably be decided by a seat that was stolen should make everyone uneasy about the ultimate authority of the Court. Especially in the cases involving voting rights, the result could be devastating for our democracy. A Court, where the swing vote was determined by the purposeful abdication of its obligations by one political party, that rules that voter suppression of the opposing party is perfectly constitutional is in effect giving license to destroy our democracy.
Originally published at tidalsoundings.blogspot.com on October 2, 2017.