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Travel ban, gerrymandering top Supreme Court’s closing flurry of cases

The U.S. Supreme Court (Dreamstime/TNS)

The Supreme Court is moving toward the end of its nine-month term with some of its biggest cases still to be decided, led by the fight over President Donald Trump’s travel ban. The justices also will rule on gerrymandering, union fees, internet sales taxes, credit card fees and cellphone privacy.

The term could end with even bigger news if a justice announces retirement plans.

The justices began this month with a narrow ruling favoring a Colorado baker who refused to make a cake for a same-sex wedding. With 25 cases awaiting decisions, the court is on pace to issue 48 percent of its opinions in June, the highest percentage in history, according to Adam Feldman, a scholar who runs the website.

The court will issue its next opinions Monday. Here’s a look at what it’s scheduled to decide by the end of the month:

–– Trump travel ban: The last argument of the term will produce the most anticipated ruling. Hawaii is leading an effort to overturn Trump’s travel ban, which indefinitely bars more than 150 million people from entering the country. The latest version affects seven countries, five of them predominantly Muslim.

Opponents say the president overstepped his authority and was unconstitutionally motivated by anti-Muslim bias. Trump argues that the policy is needed to prevent terrorists from entering the country.

Arguments in April suggested the court was ready to uphold the policy. Associate Justice Anthony Kennedy indicated he was reluctant for the court to second-guess the president on a national security question.

That would be a major victory for Trump, upholding a policy that set an assertive tone for his presidency when he announced the first version of the ban a week after taking office.

–– Gerrymandering: The Supreme Court has never struck down a voting map as being so partisan it violates the Constitution. Critics of gerrymandering hope the court is ready to take that step in a fight over a Republican-drawn state legislative map in Wisconsin.

But the Oct. 2 argument, the first of the term, suggested that swing vote Kennedy and his colleagues hadn’t yet found a manageable standard to separate unconstitutional gerrymanders from legitimate political considerations.

The court then complicated matters by accepting a second case, a challenge to a single, Democratic-drawn congressional district in Maryland. That case opened the possibility of a limited decision that would allow challenges only district by district. Both cases also could get sidetracked by procedural issues.

A broad ruling against gerrymandering could bolster Democrats, letting them attack Republican-drawn maps around the country, but probably wouldn’t affect the November midterm elections.

–– Internet sales taxes: Traditional retailers and cash-strapped states are eager to overturn a 1992 Supreme Court ruling that lets many internet retailers avoid collecting sales taxes from their customers. That ruling, Quill v. North Dakota, says merchants don’t have to collect taxes unless they have a physical presence in the state.

The court accepted a South Dakota appeal that takes direct aim at that ruling. But arguments in April were inconclusive, with some justices indicating that they would prefer to leave the issue to Congress.

Such a ruling would be a victory for internet retailers that don’t always collect taxes. Those include the three companies fighting South Dakota: Wayfair, and Newegg., the biggest online retailer, isn’t directly involved.

–– Union fees: The court’s conservative majority appears ready to allow public-sector workers to refuse to pay their share of the cost of union representation. Opponents of those so-called agency fees say workers have a free speech right not to contribute to a union that doesn’t represent their views on important public policy issues.

A 1977 Supreme Court ruling says workers can be required to pay for the cost of collective bargaining as long as they don’t have to fund ideological or political activities. Right-to-work advocates are seeking to overturn that ruling.

The issue divided a shorthanded court 4-4 two years ago. The newest justice, Trump appointee Neil Gorsuch, is positioned to break the tie.

The case could affect 5 million workers in about two dozen states.

–– Mobile phone privacy: The justices are considering requiring prosecutors to get warrants before obtaining mobile-phone records that show a person’s location over the course of weeks or months.

The case involves a man convicted of taking part in a string of armed robberies near Detroit. At trial, prosecutors used months of data acquired from the man’s wireless carriers to show he was near the locations of four of the robberies when they occurred.

Prosecutors seek location information from telephone companies in tens of thousands of cases a year. The case also has implications for the growing number of personal and household devices that connect to the cloud, including virtual assistants, smart thermostats and fitness trackers.

–– Credit card fees: The court is considering reviving government allegations that American Express thwarts competition by prohibiting merchants from steering customers to cards with lower fees.

At issue is whether the U.S. government and 11 states must show that the American Express rules hurt cardholders, not just merchants.

Retailers are looking to reduce the $50 billion in fees they pay to credit card companies each year. The case is also being closely watched in Silicon Valley because of the prospect that the court’s reasoning could insulate tech giants like Facebook and from some antitrust suits.

–– Voter purges: The court is using an Ohio case to decide how far states can go in purging their election databases of people who might have moved away. Critics say Ohio is violating a federal law that bars people from being removed from the rolls because they didn’t vote.

Ohio mails notices to people who haven’t voted in two years, asking them to confirm their addresses. If someone doesn’t respond and then doesn’t vote during the next four years, the state removes that person.

The case has become a proxy for the highly partisan fight over election rules. Republicans are calling for stepped-up efforts to prevent voter fraud, while Democrats say those moves are a thinly veiled campaign to stop liberals and minorities from voting.

Nineteen states use voter inactivity in the process of purging their databases, though only a few make nonvoting as central as Ohio does.

–– Other cases: A few of lower-profile cases could also produce important rulings. The court is considering the fate of a California law that requires pregnancy-counseling clinics that oppose abortion to tell patients they might be eligible to get the procedure free or at a discount.

The justices are also set to decide whether people have a constitutional right to wear political apparel –– including “Make America Great Again” hats and #MeToo buttons –– when they vote.

And the court is considering whether the judges who handle cases at the Securities and Exchange Commission were appointed in accordance with the Constitution. That case could upend administrative hearing systems across the federal government.

Retirement Watch: Three of the past seven justices to retire have done so shortly after the court issued its final opinions of a term. Departure speculation this year is focused on Kennedy, 81, and Justice Clarence Thomas, 69.

Neither man has given any public indication of plans to step down. But either could see 2018 as the last clear chance to have Trump nominate a successor while Republicans control the Senate.

A Kennedy retirement could herald a seismic shift given his pivotal role. A Trump-appointed successor could create a far more conservative court, one that might even overturn the 1973 Roe v. Wade abortion-rights ruling.


© 2018 Bloomberg News

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