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American Constitution Society Supreme Court Review TABLE OF CONTENTS Introduction .......................................................................... 1 Steven D. Schwinn Foreword ................................................................................ 5 David A. Strauss Masterpiece Cakeshop v. Colorado Civil Rights Commission: What Was and Wasn’t Decided ......................................... 17 Mary L. Bonauto and Jon W. Davidson Husted v. A. Philip Randolph Institute — To Vote, or Not to Vote: That is the Question. ................. 49 Gilda R. Daniels Janus and the Future of Unions ......................................... 77 Catherine L. Fisk Jesner and the Supreme Court’s Ongoing Assault on International Human Rights ..........................111 Martin S. Flaherty Epic Systems v. Lewis: The Return of Freedom of Contract in Work Law? ............................................... 137 Charlotte Garden Trump v. Hawaii and the Future of Presidential Power over Immigration ............................ 161 Cristina M. Rodríguez Carpenter Fails to Cabin Katz as Miller Grinds to a Halt: Digital Privacy and the Roberts Court ............................................................. 211 Marc Rotenberg Lucia v. SEC and the Attack on the Administrative State .............................................. 241 Steven D. Schwinn Introduction Steven D. Schwinn* We’re thrilled to bring you our Second Annual American Constitution Society Supreme Court Review. Building on our First Edition, this volume includes yet another outstanding collection of essays by some of the nation’s top constitutional scholars and practitioners, exploring the key cases and other highlights from the Court’s October Term 2017. By any measure, this was an overwhelmingly conservative term, with a Court that tilted decidedly to the right in nearly every major case it decided. For example, the Court upheld President Trump’s infamous “travel ban.”1 It overturned a ruling that a “cake artist” unlawfully discriminated against a gay couple when he declined to make them a wedding cake.2 It made it easier for states to purge registered voters from their voting rolls.3 It struck down a state law designed to inform women of their right to an abortion.4 And it snatched the rug out from under public-sector unions by invalidating a state’s mandatory fair-share fee in the name of free speech.5 The Court also extended its trend to limit access to the courts in labor and human-rights cases by strictly enforcing • Steven D. Schwinn is Professor of Law at The John Marshall Law School, Chicago and serves on the Board of Advisors for the Chicago Lawyer Chapter of the American Constitution Society. 1 Trump v. Hawaii, 138 S. Ct. 2392 (2018). Christina Rodriguez covered this case for us. 2 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). Mary Bonauto and Jon Davidson wrote on Masterpiece for this volume. 3 Husted v. A. Philip Randolph Inst., 138 S. Ct. 1833 (2018). Gilda Daniels contributed a piece on Husted 4 Nat’l Inst. of Family and Life Advocates v. Becerra, 138 S. Ct. 2361 (2018). 5 Janus v. Am. Fed’n of State, Cnty., & Mun. Emps., Council 31, 138 S. Ct. 2448 (2018). Catherine Fisk wrote about this case. 1 ACS Supreme Court Review employment contract arbitration clauses6 and further limiting the application of the Alien Tort Statute.7 In lower-profile, structural cases, too, the Court lurched to the right. Thus, the Court again permitted Congress in effect to dictate the outcome of pending litigation, trading on the independence of the federal judiciary.8 It also expanded its atextual, states-rights- affirming “anticommandeering principle” to cases where Congress tells a state what not to do.9 And it ruled that Securities and Exchange Commission administrative law judges are “officers” under the Appointments Clause,10 inviting broader challenges to congressionally imposed, merit-based appointment restrictions in the civil service. Some of these cases drew some of the progressive justices in the majority. Others drew some of the conservatives in dissent. But here’s a measure of just how conservative this term was: Justice Kennedy did not side with the progressives in a single, significant, ideologically divided 5-4 decision. Still, there were some bright spots for progressive constitutionalists in the areas of criminal procedure. In the most important of these cases, the Court ruled that the government’s acquisition of cell-site records from a wireless carrier was a “search” under the Fourth Amendment.11 The Court also ruled that a driver in lawful possession of a rental car has a reasonable expectation of privacy for Fourth Amendment purposes,12 and that the Fourth Amendment’s automobile exception does not allow the 6 Epic Systems Corp. v. Lewis, 138 S. Ct. 1612 (2018). Charlotte Garden wrote on arbitration at the Court this term. 7 Jesner v. Arab Bank, PLC, 138 S. Ct. 1386 (2018). Martin Flaherty wrote on this case for us. 8 Patchak v. Zinke, 138 S. Ct. 897 (2018). 9 Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461 (2018). 10 Lucia v. SEC, 138 S. Ct. 2044 (2018). I’m thrilled to cover this one myself. 11 Carpenter v. United States, 138 S. Ct. 2206 (2018). Marc Rotenberg contributed a piece on Carpenter. 12 Byrd v. United States, 138 S. Ct. 1518 (2018). 2 ACS Supreme Court Review Introduction warrantless entry of a home or its curtilage in order to search a motorcycle sitting under a carport, right outside the home.13 In an offbeat case involving repeat and eccentric Supreme Court litigant Fane Lozman, the Court held that the existence of probable cause for Lozman’s arrest did not bar his First Amendment retaliatory arrest claim.14 In a Sixth Amendment case, the Court held that a criminal defendant has the right to choose the objective of his defense and to insist that his attorney refrain from admitting guilt, even when the attorney thinks that admitting guilt gives the defendant the best chance of avoiding the death penalty.15 Finally, there were a couple of important cases that defy conventional left-right labeling. For example, the Court ruled that a state’s ban on wearing political apparel at a polling place violated the First Amendment.16 The ruling favored the politically conservative challengers of the state law, but the holding necessarily sweeps more broadly to protect any political apparel— right, left, or otherwise—at a polling place. And in one of the most important and politically charged issues this term—whether political gerrymandering violates the Constitution—the Court simply punted.17 Our very talented authors examine many of these cases in the excellent essays that follow. I’m honored to be able to share these pieces with you; I hope you enjoy them as much as I have. I want to thank our authors for contributing these essays. I also want to thank Caroline Fredrickson, President, for her continued support for this project, and Kara H. Stein, Vice President of Policy and Program, Christopher Wright Durocher, Senior Director of 13 Collins v. Virginia, 138 S. Ct. 1663 (2018). 14 Lozman v. City of Riviera Beach, Fla., 138 S. Ct. 1945 (2018). 15 McCoy v. Louisiana, 138 S. Ct. 1500 (2018). 16 Minn. Voters Alliance v. Mansky, 138 S. Ct. 1876 (2018). 17 Gill v. Whitford, 138 S. Ct. 1916 (2018); Benisek v. Lamone, 138 S. Ct. 1942 (2018). 3 ACS Supreme Court Review Policy and Program, and Law Fellows Melissa Wasser and Tom Wright for their tireless efforts to keep this Review going strong in its second year, and beyond. 4 Foreword David A. Strauss * We didn’t know it at the time, but the 2017 Term was a transitional year for the Supreme Court. It was, of course, the last Term in which Justice Anthony Kennedy had the deciding vote on many high-profile issues. It is not hard to predict that Justice Kennedy’s replacement, Brett Kavanaugh, will make the Court more conservative. But as the essays in this collection show, the 2017 Term anticipated that conservative trend. When the Term began, progressives could be a little optimistic. There were cases in which, if the Court had done its job well, it would have moved the law in a progressive direction—protecting minority groups that are subject to unfair discrimination and making sure that the democratic process is truly democratic. But the Court did not do that. And then in other cases, in which there was little realistic basis for hope, the Court did what was expected—continuing to move the law in a conservative direction, sometimes very aggressively so. In these and other respects, the 2017 Term seems likely to be a toned-down trailer for the movie that we will see in the next few years. In Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission,1 the owner of a bakery refused to sell a cake to a couple that wanted it for their same-sex wedding. That violated a Colorado law forbidding discrimination in public accommodations. * David A. Strauss is the Gerald Ratner Distinguished Service Professor of Law and Faculty Director of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School and serves on the Board of Directors of the American Constitution Society. 1 Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S. Ct. 1719 (2018). 5 ACS Supreme Court Review The owner of the bakery claimed that by applying the law to him, Colorado had infringed his rights to freedom of speech and the free exercise of religion. Colorado courts rejected that claim. As Mary Bonauto and Jon Davidson explain, it was not clear why the Supreme Court even agreed to hear the case. No lower court had ever accepted such a claim. The religious freedom argument was pretty clearly foreclosed by precedent, and the free speech claim, if taken seriously, would undermine antidiscrimination laws that have been a central part of the law in the United States for more than a half century.
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