Sports betting, cellphones and a wedding cake are at the center of three potential blockbuster challenges that the U.S. Supreme Court will examine during its December round of arguments.
Since John Roberts Jr. became chief justice in 2005, just a handful of terms has lacked a blockbuster ruling that divided the court along ideological lines. The Roberts Court has waded—some would say jumped—into such contentious issues as school desegregation, guns and the Second Amendment, Guantanamo Bay detainees, the Affordable Care Act, abortion, voting rights, and same sex marriage.
Remember: it only takes the votes of four of the nine justices to grant review in a case. The court doesn’t disclose who voted for or against reviewing a case, but sometimes it seems obvious.
Last year, for example, the justices deadlocked in a challenge to the “fair share” fees that nonunion members must pay public employee unions that are required to represent all workers, to cover the costs of collective bargaining. During arguments in that case, it appeared that the court’s five conservative justices were ready to strike down the fees and reverse a 40-year-old decision upholding them. With Justice Antonin Scalia’s death, the eight-justice court divided 4-4, failing to resolve a First Amendment issue.
The high court has agreed to consider another case raising the same issue in the current term. It’s unlikely that the four liberal justices would have voted to take up the issue again now that the conservatives are back to a majority.
Much harder to predict are the possible outcomes in the three challenges likely to capture headlines during the two-week argument session that begins Nov. 27. And each has important ramifications going beyond their facts.
Cell phones and privacy rights
First up — cellphone location data on Nov. 29. In the last few terms, the justices increasingly have been faced with the intersection of new technology, the Constitution and privacy rights. Cell phones aren’t new, but law enforcement’s desire to access their data and other aspects raises new issues for the courts.
In Carpenter v. United States, Timothy Carpenter was suspected by Detroit police in 2011 of masterminding a series of Ohio and Michigan armed robberies. Police sought and obtained—without a warrant—cellphone location data on Carpenter from his wireless carrier that covered a period of 127 days.
Magistrate judges approved the police requests under the Stored Communications Act of 1986. Under the act, the government can require disclosure of certain telecommunications records when “specific and articulable facts show that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation.” No warrant supported by probable cause to believe a crime has been committed is required.
The cell site data from Carpenter’s phone showed that he had been within a half mile to two miles of the location of each of the robberies. Carpenter tried and failed to block the government’s use of this evidence in his trial. He argued that under the Fourth Amendment, the police were required to get a warrant based on probable cause. He was convicted and sentenced to 116 years in prison.
Carpenter makes the same Fourth Amendment argument in the Supreme Court, where he has drawn support from privacy groups and the Electronic Frontier Foundation, among others. The government’s supporters include a coalition of states and the National District Attorneys Association.
In recent GPS and cellphone-related cases, a majority of the justices has been concerned about the privacy rights of users. The government argues that users have no expectation of privacy in cell site data kept by their carriers.
Sports betting and the division of powers
On Dec. 4, a week after the justices wrestle with cellphone site data, they will hear arguments in New Jersey’s constitutional attack on the federal ban on sports betting. New Jersey’s Governor Chris Christie and the New Jersey Thoroughbred Horsemen’s Association argue that the 1992 federal ban violates the Tenth Amendment under the “anti-commandeering” doctrine. The National Collegiate Athletic Association disagrees.
That doctrine doesn’t come up very often in the high court. Its purpose is to protect our system of dual sovereignty—the division of powers between the national and state governments. The argument in this case is that the federal gambling ban unconstitutionally bars the states that have their own sports betting prohibitions from changing their laws to allow some betting—which is what New Jersey wants to do.
So this is a federalism, or states’ rights case, and that’s why it could be the term’s “sleeper” blockbuster. As Christie and his supporters tell the court, states have enacted some policies that the federal government does not view favorably, for example, legalization of medical marijuana and adoption of so-called sanctuary city policies in the immigration context.
Whatever the justices say in this case could have major implications for federal-state relations. And also, of course, for sports betting—a $150 billion-a-year industry.
The wedding cake case
Finally, the most talked-about case of three goes before the justices on Dec. 5: Masterpiece Cakeshop v. Colorado Civil Rights Commission. Colorado baker Jack Phillips refused to bake a wedding cake for a same-sex couple because, he said, it was contrary to his religious beliefs. The baker violated the state’s anti-discrimination law.
Colorado’s Anti-Discrimination Act forbids businesses engaged in sales to the public from denying service because of a customer’s sexual orientation. In the Supreme Court, the baker argues that applying the state law to him violates his First Amendment speech and exercise of religion rights. Colorado counters that the case is “about the integrity of a 150-year-old principle: when a business opens its doors to the general public, it may not reject customers because of who they are.”
Nearly 100 “friend of the court” briefs have been filed by religious and civil rights groups across the political spectrum. The Trump administration supports the baker. Keep an eye on this one. A decision has the potential to affect many more individuals and businesses than the baker and same-sex couple at the center of the case.
Remember: you can read the transcript of the arguments on the same day on the court’s website. The transcripts usually are posted mid to late afternoon. The audio is available on the Friday after the argument day.