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Penn Law ACS hosts discussion of recent SCOTUS decisions and upcoming term

October 18, 2018

By Vandana Menon

On October 17, the Penn Law chapter of the American Constitution Society hosted a panel discussion on how cases touching upon issues like immigration, free speech, gerrymandering and the separation of powers may be decided during the U.S. Supreme Court’s 2018-2019 term, which began this month.

On the panel were Professor Anil Kalhan and Associate Professor Tabatha Abu El-Haj from the Drexel University Thomas R. Kline School of Law, and Penn Law Sharswood Fellow Bridget Fahey. Largely focusing on doctrinal issues, the panel discussed several high-profile cases from the Court’s prior term before talking about decisions they expected would be issued in the coming year.

Professor Kalhan began by addressing the tension between the government’s political branches and the courts over immigration issues. “This past term, there have been two major [immigration] cases, which are unusual for the Supreme Court,” he said, referring to Trump v. Hawaii and Jennings v. Rodriguez, noting that the Court usually takes only one immigration case each year. “Here you have two significant cases in which the Court has come down pretty firmly on one side of that tension.”

In Trump v. Hawaii, popularly known as the ‘Travel Ban’ case, the Court ruled that President Trump had the legal authority to restrict travel from predominantly Muslim nations. Meanwhile, in Jennings v. Rodriguez,the court ruled that immigrants in detention facilities do not have the right to periodic hearings to decide whether they may be released on bail.Kalhan noted the “Trumpian inflection” of these cases is a reflection of what he called “#MAGAprudence.” He predicts that this trend will accelerate in the years to come with Justice Kavanaugh’s confirmation.

Professor Abu El-Haj then discussed Gill v. Whitford, which she said was designed as an “equal protection case to save us from gerrymandering.” The court declined to decide the case on the merits, instead finding that the plaintiffs lacked standing, and ultimately sending the question of redistricting Wisconsin’s legislative map back to the lower courts. The other case of partisan gerrymandering was Benisek v. Lamone, in which the court ruled against a plan to redraw a congressional district in Maryland.

“I don’t think both cases, and this is somewhat controversial, were a dead loss. If you read the actual opinions, it looks like more of the same. Maybe we have justices now who don’t even believe that partisan gerrymandering should be justiciable at all,” she said. She highlighted Chief Justice John Roberts’s comments, adding that his will be a pivotal vote in the future, and that it is an open question to how gerrymandering cases will play out.

She also talked about Janus v. American Federation of State, County and Municipal Employees (AFSCME), which she believes was the most important case to come out of the term. The case was about labor unions, and the court ruled that government emplyees who are not union members do not need to help pay for collective bargaining — which means that public sector unions stand to lose both money and efficacy. “Its significance is that it has wiped out a diversity of views about public sector unions …, and it has already led to a flood of litigation,” she said.

Professor Fahey’s comments focused on Masterpiece Cakeshop c. Colorado Civil Rights Commission, where the court ruled in favor of a baker who refused to make a wedding cake for a gay couple, finding that the baker had been mistreated by the Colorado Civil Rights Commission on the basis of his religious beliefs. Prof. Fahey said that the case had seemed like it would further the rights of homosexual couples, but said that it was “unlikely to ever result in a constitutional ruling” as it was about a Colorado statute.

The panel acknowledged that the separation of powers will be an important issue in the coming term. Abu El-Haj predicted a shift toward a “more expansive executive power,” as newly-seated Associate Justice Brett Kavanaugh is a strong proponent of the unitary executive. The panel also agreed that the Chief Justice’s decisions should be watched closely, as his voice will most likely be the most decisive one and will provide an indication for which direction the court is headed in its new term.