By Sara Gold, Editor-in-Chief
California Western professors provided insight into the 2017-2018 Supreme Court docket at a panel discussion Friday, Sept. 29 in the Auditorium. The event, hosted by the CWSL American Constitution Society and the CWSL Federalist Society chapter, featured presentations by current professors Glenn Smith, William Aceves, and Jessica Fink, along with emeritus professor Michal Belknap.
“The students got a macro appreciation for the kinds of cases before the Supreme Court and a clear, but not simplistic, micro assessment of the context behind and legal issues at stake in some of the most controversial and high-profile constitutional disputes on the Court’s docket,” said Prof. Smith, who organized the event.
This case surrounds President Trump’s latest travel ban, known as “Travel Ban 3.0,” originally set to take effect Oct. 18.
On Oct. 10, the Court dismissed Trump v. International Refugee Assistance Project, on the basis that this lawsuit was moot because it contested the validity of Travel Ban 2.0, which expired in September. However, its companion case, Trump v. Hawaii, remains pending. On Oct. 17, the day before Travel Ban 3.0 was scheduled to enact, the U.S. District Court for the District of Hawaii granted a nationwide temporary restraining order blocking the travel ban until the Supreme Court reaches a decision.
The ban, as drafted, places restrictions on travelers entering the United States from eight countries: Iran, Libya, Syria, Yemen, Somalia, Chad, North Korea, and Venezuela. The extent of these restrictions ranges from total bans on entry from North Korea and Syria to less severe restrictions on other nations, such as exemptions for foreigners with a student or exchange visitor visa. Unlike past travel bans, the current travel ban has no set expiration date.
Prof. Smith discussed justiciability and presidential-power issues. Justiciability (whether this type of case can be heard by a federal court, including the Supreme Court) is debated, because the travel ban’s implications reach foreigners, and the government contends that courts cannot review decisions affecting the rights of non-citizens. With respect to presidential power, another debated issue is whether President Trump exceeded his authority by lowering the annual cap on refugees to 45,000 without consulting Congress. Prof. Aceves also mentioned that the President’s unilateral decision might violate the Immigration and Nationality Act.
Next, Prof. Aceves addressed the travel ban’s potential Establishment Clause implications. He suggested that Travel Ban 3.0’s addition of some non-Muslim countries, such as North Korea and Venezuela, is merely “window-dressing” to conceal the ban’s main purpose of excluding Muslim travelers from the United States.
“The new travel ban overwhelmingly targets individuals from predominately Muslim countries,” Prof. Aceves said. “No individual in any of those targeted countries has ever been connected to a terrorist attack in the U.S. in at least 40 years . . . so one can continue to question whether national security is the primary motivator for this proclamation.”
This case asks whether states can require public accommodations to serve same-sex couples without violating the free speech and free exercise rights of business owners who oppose homosexuality.
Prof. Belknap explained that in 2012, a same-sex couple that had been legally married in a different state was denied service at Masterpiece Cakeshop in Denver, Colorado, due to the company’s policy of not designing cakes for same-sex couples. The same-sex couple alleged that the bakery’s refusal violated the Colorado Anti-Discrimination Act, which prohibits discrimination on the basis of sexual orientation. In response, the bakery owner claimed that being forced to make a cake celebrating a same-sex marriage, despite his personal disapproval, would violate his freedom of expression.
The Supreme Court will have to decide whether Colorado’s Anti-Discrimination Act targets expressive speech, which could violate the First Amendment, or whether it permissibly regulates conduct, Prof. Belknap said. He believes that the Court should rule in favor of the same-sex couple.
“Significantly, the owner of Masterpiece didn’t ask for any details at all about the cake or what it would look like, so the claims relating to artistic expression are difficult to fathom,” he said. “No reasonable observer would understand that making a cake in order to comply with state law somehow implies an endorsement of same-sex marriage. Ruling otherwise would give purely commercial enterprises like Masterpiece a loophole to avoid having to comply with state law.”
This case asks whether the reshaping of voting districts based on partisan affiliation is a legal issue that courts can adjudicate, or a “political question” ineligible for judicial review. Prof. Fink explained that up until now, the Supreme Court has declined to set a legal standard regarding partisan gerrymandering, classifying it as a “political question” that should be instead be handled by the legislative branch. However, that classification could change as a result of this case.
The dispute arose in 2010 when Republicans gained control of the Wisconsin legislature for the first time in 40 years, despite earning just under 50 percent of the statewide votes. Earlier that year, the legislature had redrawn district lines, which Wisconsin Democrats alleged was purposeful gerrymandering.
If the Supreme Court decides to formulate a manageable standard for partisan gerrymandering, it may consider an “efficiency gap” formula defining gerrymandering as a redistricting plan generating more than a certain number of “wasted” votes.
This case concerns whether U.S. corporations can be held liable in the U.S. legal system for causing human rights violations abroad. To decide this question, the Supreme Court will have to interpret the Alien Tort Statute, codified in 1789 as one of the first statutes passed by Congress.
The Alien Tort Statute provides: “The district courts shall have original jurisdiction of any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” Although corporations such as Nestle and Exxon Mobile have been implicated in litigation over international human rights violations since the 1990’s, this case will be the first to formally decide whether the Alien Tort Statute applies to corporate defendants.
“Corporations have free speech and other basic rights, but why shouldn’t there be responsibilities attached to those rights?” Prof. Aceves asked. “If we allow corporations to commit these abuses without liability, it allows governments to delegate human rights abuses to corporations.”