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Session Summary: Supreme Court Update – Individual Rights

submitted by Lou Virelli

On Monday afternoon, August 6th, the SEALS conference included a panel titled Supreme Court and Legislative Update: Individual Rights. The panel offered a recap of some of the more important individual rights cases featured in the Supreme Court’s October 2017 term. The moderator was Professor Ray Diamond from Louisiana State University Paul M. Hebert Law Center. The panelists were, in order of appearance, Professors Lou Virelli from Stetson University College of Law, Catherine Hancock from Tulane University Law School, Margaret Hu from Washington and Lee University School of Law, and Christopher Lund from Wayne State University Law School.

Professor Virelli kicked off the proceedings with a discussion of the Court’s gerrymandering opinions from the 2017 Term, Gill v. Whitford and Abbott v. Perez. Professor Virelli introduced the Wisconsin redistricting plan at issue in Gill and recapped the procedural history of the case, in which the three-judge district court found that plaintiffs had standing to challenge the plan as an unconstitutional partisan gerrymander. On appeal, Professor Virelli explained, the Court reversed the district court decision, finding that the plaintiffs lacked standing. Because the Court found that individual vote dilution only occurs on a district-wide basis, it rejected plaintiffs’ claims that the statewide effects of their vote dilution as a result of the gerrymander caused them sufficient harm to establish Article III standing. Breaking from tradition, however, the Court remanded the case to the district court for additional hearings on individual plaintiff’s district-wide standing claims. Justice Kagan concurred with the standing decision, but wrote separately to note that a First Amendment right to association claim could, on remand, present a different standing calculus and vehicle for plaintiffs to pursue claims based on the statewide effects of the partisan gerrymander.

Abbott v. Perez is a complex racial gerrymandering case from Texas that was resolved in a 5-4 decision by the Court. Professor Virelli focused on the jurisdictional issue in the case, as he believed that was the portion of the opinion most likely to impact future redistricting litigation. The jurisdictional issue involved 28 U.S.C. § 1253, which allows for direct appeals to the Supreme Court from district court injunctions. The majority argued that, although the district court did not call its decision an injunction, its finding of liability and statements about needing to find a remedy for Texas’s conduct had the “practical effect” of an injunction, thereby satisfying the statute. The dissent objected, arguing that the text of the statute does not justify such a broad reading of § 1253. Professor Virelli pointed out that this question may be most likely could be a recurring issue going forward, as the majority’s reading could lead to a wide range of liability holdings being treated as injunctions for jurisdictional purposes under § 1253.

Professor Hancock next discussed the Court’s criminal procedure cases from last term, including Byrd v. US, which held that the driver of a rental car can still have an expectation of privacy in the vehicle despite not being listed on the rental contract; Collins v Virginia, holding that the automobile exception to the warrant requirement does not permit the warrantless search of a vehicle within a home or its curtilage; District of Columbia v. Wesby, where police were found to have probable cause to arrest partygoers who claimed to, but the police had reason to believe did not, have permission to throw a party in a house while its owner was absent; and Carpenter v. United States, in which the Court held that the government’s acquisition of a defendant’s cell phone records from a wireless service provider was an unconstitutional warrantless search. In the process of discussing these and other Fourth Amendment cases, Professor Hancock noted some connecting themes, including the influence of technology on Fourth Amendment doctrine and the justices’ evolving use of the concept of curtilage.

Professor Hu summarized the Court’s opinion in the Travel Ban case, Trump v. Hawaii, decided June 26, 2018. Professor Hu first framed the historical context for the case, including then-presidential candidate Trump’s statements on the need for a “Muslim Ban” while on the campaign trail. In an opinion by Chief Justice Roberts, the Court held that the President’s Travel Ban was lawful under the Immigration and Nationality Act (INA) provision that allows the President to bar entry of aliens who are determined to be “detrimental” to U.S. interests. The Court rejected the argument that the Travel Ban violated a competing provision of the INA that prohibits discrimination in the visa issuance process, finding that there was an important distinction between the President’s authority to set admission boundaries and visa issuance policies. The Court concluded that the Travel Ban fell within the former—that the President is vested with the broad power to impose restrictions on entry to protect national security objectives. The Court also found that Hawaii had not shown a likelihood of success on the Establishment Clause claim. The Court concluded that the Travel Ban was neutral on its face and that alien exclusion was a “‘fundamental sovereign attribute exercised by the Government’s political departments largely immune from judicial control.’”

Professor Lund finished the event with a discussion of the First Amendment cases. He opened with Minnesota Voters Alliance v. Mansky, where a 7-2 Court struck down a ban on political apparel in polling places, and Lozman v. City of Riviera Beach, where the Court held (8-1) that at least some First Amendment retaliatory arrest claims could proceed despite the existence of probable cause. He then discussed the blockbuster cases of the term: the First Amendment rulings in Janus v. American Federation (which struck down agency fees in public-sector unions and overruled the Supreme Court’s earlier decision in Abood), National Institute of Family and Life Advocates v. Becerra (which invalidated disclosure requirements placed on pro-life pregnancy clinics), and

Masterpiece Cakeshop v. Colorado Civil Rights Commission (which exempted a religious cake maker from having to provide a cake at a same-sex wedding). He ended with some reflections on the term as a whole—concerns about complicity, the forced carrying of government message, and an increasing emphasis on anti-discrimination norms combined with an increasing divergence on the issue of when discrimination is present.

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