The Supreme Court’s Next Term Will Be One for the Books. Here’s Why.

COMMENTARY Courts

The Supreme Court’s Next Term Will Be One for the Books. Here’s Why.

Sep 29th, 2017 4 min read

Commentary By

Elizabeth Slattery @EHSlattery

Legal Fellow and Appellate Advocacy Program Manager, Meese Center for Legal and Judicial Studies

Meagan Devlin

Fall 2017 member of the Young Leaders Program at The Heritage Foundation

The court’s 2017-2018 term promises to be one for the history books. iStock

Monday, Oct. 2 marks the start of a new Supreme Court term.

While the arrival of Justice Neil Gorsuch made major headlines, the cases last term did not gain much attention. The court’s 2017-2018 term, however, promises to be one for the history books.

In their first few weeks back, the justices will tackle several important issues, including partisan gerrymandering, the Waters of the U.S. rule, and corporate liability under the Alien Tort Statute. Here’s a look at these upcoming cases.

Partisan Gerrymandering

On Oct. 3, the Supreme Court will be pulled into the political thicket of legislative redistricting in Gill v. Whitford. This case out of Wisconsin involves the Republican-controlled legislature’s 2011 redistricting plan.

A three-judge panel invalidated the plan, finding that the Republican legislature intended to “entrench” its power—despite the fact that the plan complied with traditional criteria, such as compactness and contiguity, and that the Supreme Court has previously declined to hear cases involving partisan gerrymandering, as opposed to racial gerrymandering challenges.

In this case, the challengers have come up with a new theory for challenging a plan that otherwise meets the Supreme Court’s criteria.

This new theory—the “efficiency gap”—claims that votes for one party over a certain threshold are “wasted” and shows that a plan has been drawn to pack voters of one party into a small number of districts.

Another explanation is that like-minded voters simply tend to live near one another.

Will the Supreme Court decide to intervene? Or will the justices say that political disputes are better left to the political branches?

Given that the “efficiency gap” theory could spell doom for 1 in 3 redistricting plans, the court may be reluctant to endorse it.

Alien Tort Statute 

On Oct. 11, the Supreme Court will look at whether the Alien Tort Statute applies to corporations.

The law, which was part of the Judiciary Act passed by the first Congress in 1789, allows district courts to hear tort actions brought by non-U.S. citizens for violations of the law of nations or a treaty of the United States.

In the early years of our republic, this law provided foreign ambassadors an avenue for legal redress in the event they were harmed while in the United States. Since the 1980s, it has been used as the basis for lawsuits alleging human rights violations.

The issue the court will hear in Jesner v. Arab Bank PLC is whether corporations may be liable under this law. The court previously considered this very issue in Kiobel v. Royal Dutch Petroleum (2013), but ruled that American courts lacked jurisdiction since the alleged misdeeds took place outside the United States.

Jesner involves claims brought by victims of Hamas against Jordan’s Arab Bank for holding accounts for terrorists and sending large sums of money from its New York branch to support attacks in Israel, the West Bank, and the Gaza Strip.

Now, the Supreme Court is poised to answer the question it left open in Kiobel: Does the Alien Tort Statute apply to corporations?

Waters of the U.S.

Also on Oct. 11, the Supreme Court will look at a challenge to the Obama administration’s “Waters of the United States” rule.

The Environmental Protection Agency and the Army Corps of Engineers issued the rule in 2015 defining which “waters” are subject to regulation under the Clean Water Act. It extends federal control over just about every puddle in America.

Property owners, businesses, and several states went to court to challenge this power grab.

The issue before the Supreme Court is whether the challengers filed suit in the right court. They argue that under the Clean Water Act, most challenges to EPA and Army Corps actions must be brought in district court, and only a limited number of actions should be filed directly in an appeals court.

But the multiple challenges were consolidated and heard by the 6th U.S. Circuit Court of Appeals.

The challengers argue that the lower court’s interpretation of the Clean Water Act’s jurisdictional provision muddies the water and departs from the clear text of the statute Congress enacted. This approach, the challengers argue, has led to wasteful litigation and delayed a resolution of the merits of this case.

Though EPA Administrator Scott Pruitt announced the government will withdraw the Waters of the U.S. rule, it has not yet done so.

Other Cases

The court was supposed to hear arguments in the travel ban case, but after the Trump administration issued a new order, the justices canceled the oral argument and asked the parties to file briefs addressing whether the case is now moot. Thus, the court ultimately may dismiss the case without issuing a decision.

In addition, the court has agreed to hear more than 40 other cases, including:

  • Masterpiece Cakeshop v. Colorado Civil Rights Commission, deciding whether a state can force a baker to make custom cakes for same-sex weddings.
  • Husted v. A. Philip Randolph Institute, a challenge to Ohio’s voter roll cleanup process.
  • Carpenter v. United States, which looks at police’s warrantless seizure of cell phone location records.
  • Janus v. American Federation of State, County, and Municipal Employees Council 31—a challenge to public unions forcing nonmembers to subsidize the costs of collective bargaining.

The justices will continue to add cases to their calendar, and they will end up hearing around 70 cases from October to April. They will issue opinions from as early as October through the end of June.

Based on what the court has already announced it will hear, this will be a term you don’t want to miss.

This piece originally appeared in The Daily Signal

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