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Speaking at the judicial conference of the U.S. Court of Appeals for the 2nd Circuit in June, Justice Ruth Bader Ginsburg told her audience that Justice Anthony Kennedy’s 2018 retirement was “the event of greatest consequence for the current Term, and perhaps for many Terms ahead.” Less than three weeks later, Ginsburg’s assessment proved accurate when the Supreme Court issued its ruling in a pair of cases involving allegations of partisan gerrymandering. Last year, with Kennedy still on the bench, the justices declined to reach the merits of two partisan-gerrymandering cases, or to say whether federal courts should play a role in reviewing partisan-gerrymandering claims at all. Instead, they sent those cases back to the lower courts. But with Kennedy replaced by Justice Brett Kavanaugh, a closely divided Supreme Court shut the door to partisan-gerrymandering claims altogether.

Last opinion day of OT2018 (Art Lien)

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In March 2018, Secretary of Commerce Wilbur Ross announced that the 2020 census would ask whether each person being counted by the census is a U.S. citizen. Ross explained that the Department of Justice’s civil rights division wanted the data to better enforce federal voting rights laws, and he characterized the decision as routine: From 1820 until 1950, the census had generally included a question about citizenship, and from 1960 until 2000, the census asked some respondents whether they were U.S. citizens. But in January a federal district court in New York barred the government from including the question on the census, concluding that the voting-rights explanation was simply a rationale that the government came up with after it had already decided to add the question. On April 23, the Supreme Court will hear oral argument in the dispute.

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In 2016, Justice Anthony Kennedy provided the fifth vote to strike down a Texas law that required doctors who perform abortions to have “admitting privileges” – the right to admit patients – at a local hospital. But Kennedy retired last year. So when two doctors who perform abortions, along with an abortion clinic, came to the Supreme Court in January, asking the justices to bar Louisiana from enforcing a similar law, many court-watchers saw the case as a bellwether for the Supreme Court’s abortion jurisprudence in the post-Kennedy era. Last month a divided court granted the doctors’ request and agreed to put the law on hold while the doctors seek review on the merits; if the justices take up the case, which they could do next term, they could tip their hands further.

The law at the heart of the challenge was passed in 2014, but it has never gone into effect. It requires doctors who perform abortions in Louisiana to have admitting privileges at a hospital within 30 miles of the clinic where they work.

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Every 10 years, the federal government conducts a census. The states then use the data from the census to draw new maps for their state legislatures and federal congressional districts. The maps often take politics into account – for example, to protect incumbents. But in March, the Supreme Court will hear oral argument on whether state officials can go too far, so that they actually violate the Constitution, when they draw maps that favor one political party at another’s expense. And with the retirement last year of Justice Anthony Kennedy, the justices could be poised to rule that this issue – known as partisan gerrymandering – is one that the courts should leave to politicians and the political process.

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This spring the Supreme Court will hear oral argument in Kisor v. Wilkie, a case that arises from a dispute over benefits for a Marine who served in the Vietnam War. Although it may sound dry, the case could be one of the most consequential ones of the term, because the justices will decide whether to overrule a line of cases instructing courts to defer to an agency’s interpretation of its own regulation – a doctrine sometimes known as “Auer deference.” The Supreme Court’s ruling could have a significant impact far beyond veterans’ benefits, from the environment to immigration, and it could also shed more light on when and whether the justices are willing to overrule their prior cases.

Congress makes the laws. But there will inevitably be gaps to fill in those laws. Under federal immigration law, for example, someone who is not a U.S. citizen can be deported if he is convicted of “child abuse” – but the law does not say exactly what kind of conduct constitutes “child abuse.” Under a doctrine known as the Chevron doctrine, when a law that a federal agency administers is not clear, courts will generally accept the agency’s interpretation of that law as long as the interpretation is reasonable (and even if the court might interpret the law differently). At least one rationale for the rule is that the agency has more expertise in the subject covered by the law than courts do.

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Over the years, the Supreme Court has sometimes struggled to explain when and why religious symbols are permitted in the public sphere and when they are not. Sometime early in 2019, the justices will hear oral argument in a dispute over the constitutionality of a cross that sits on a traffic median in the suburbs outside Washington, D.C. The challengers say that the cross is an illegal government endorsement of Christianity, while its defenders counter that the cross is simply a secular war memorial. The justices’ eventual opinion will likely decide the fate of the cross, but the ruling could also clarify – or potentially even revamp – the Supreme Court’s test for resolving these kinds of challenges.

The Constitution’s establishment clause bars the government from both establishing an official religion and favoring one religion over another. In 1971, in a case called Lemon v. Kurtzman, the Supreme Court struck down state programs that provided financial support for private schools, including religious ones. At the same time, the justices also outlined a test for courts to use to determine whether a government law or practice violates the establishment clause. They concluded that the law or practice will pass constitutional muster if it has a secular purpose, its principal effect does not advance or inhibit religion, and it does not create an “excessive entanglement with religion.”

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In 1986, when Congress passed the Stored Communications Act, the World Wide Web did not yet exist; that would not happen until three years later, when British scientist Tim Berners-Lee invented it in Switzerland. Electronic mail did exist, but – although Queen Elizabeth II had used it to send a message in 1976 – it was nowhere near as ubiquitous as it would later become. The SCA gives the government, if it obtains a warrant, the power to require an email provider to turn over the contents of emails. When the Supreme Court returns to the bench at the end of this month, the justices will consider a question that Congress likely didn’t think about 32 years ago: Is an email provider located in the United States required to turn over emails that it is storing overseas?

The case now before the Supreme Court began in December 2013, when the federal government applied for a warrant that would require computer giant Microsoft to turn over information for an email account that the government believed was being used for drug trafficking in or into the United States. When the warrant was served on Microsoft at its Washington state headquarters, the company agreed to provide records that were stored in the United States, including the email customer’s electronic address book. Citing a presumption that U.S. law does not generally apply outside the country, however, it refused to provide the contents of the emails, which were stored in Ireland. After the U.S. Court of Appeals for the 2nd Circuit ruled for Microsoft, the Supreme Court agreed last year to weigh in.

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In 2015, California lawmakers enacted the Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act. The law, known as the Reproductive FACT Act, responded to concerns that crisis pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion – were posing as full-service reproductive health clinics and providing pregnant women with inaccurate or misleading information about their options.

The act imposes two different sets of requirements. Nonprofits that are licensed to provide medical services (such as pregnancy tests and ultrasound examinations) must post notices to inform their patients that free or low-cost abortions are available and provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. Centers that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear, in up to 13 languages, that their services do not include medical help. California’s attorney general and local government lawyers can sue facilities that don’t comply with the law; the penalty is a $500 fine for the first offense and $1000 for any later violations.

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Colorado’s anti-discrimination law bars places of public accommodation – that is, businesses that sell to the public – from discriminating based on (among other things) sexual orientation. In 2012, Charlie Craig and David Mullins went to Masterpiece Cakeshop, a Denver-area bakery, to order a cake to celebrate their upcoming wedding. But the couple left empty-handed … and upset. Masterpiece’s owner, Jack Phillips, is a Christian who closes his business on Sundays and refuses to design custom cakes that conflict with his religious beliefs – for example, cakes that contain alcohol, have Halloween themes or celebrate a divorce. And because Phillips also believes that marriage should be limited to opposite-sex couples, he told Craig and Mullins that he would not design a custom cake for their same-sex wedding celebration.


Craig and Mullins went to the Colorado Civil Rights Division, where they accused Phillips of discriminating against them based on their sexual orientation. The agency initiated proceedings against Phillips, who responded that he had turned down the couple not because of their sexual orientation as such, but because “he could not in good conscience create a wedding cake that celebrates their marriage.” The agency, however, dismissed that explanation as “a distinction without a difference,” and it ruled both that Phillips’ refusal to provide the custom cake violated Colorado anti-discrimination laws and that Phillips had “no free speech right” to turn down Craig and Mullins’ request. The Colorado Civil Rights Commission upheld that ruling and told Phillips – among other things – that if he decided to create cakes for opposite-sex weddings, he would also have to create them for same-sex weddings. A Colorado court affirmed, and Phillips asked the Supreme Court to take his case, which it agreed to do in June.

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Most Americans are familiar with some parts of the Bill of Rights, such as the First Amendment’s guarantee of free speech and the Second Amendment’s protection of the right to bear arms. Other provisions, however, are less well known – for example, the 10th Amendment, which provides that the “powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” But the 10th Amendment is at the heart of an important Supreme Court case this fall, in which New Jersey and a group of horse-owners will argue that a federal law that bars virtually all states from legalizing sports betting violates the Constitution.

The federal law is the Professional and Amateur Sports Protection Act (known as PASPA), which Congress passed in 1992. PASPA makes it illegal for states to “authorize” “a lottery, sweepstakes, or other betting, gambling, or wagering scheme based” “on one or more competitive games in which amateur or professional athletes participate.” PASPA grandfathered in four states – Delaware, Montana, Nevada and Oregon – that already had sports gambling, and it also carved out an exception for New Jersey that would have allowed sports betting at the state’s casinos, as long as the state set up the scheme within one year after PASPA went into effect.

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