How Far Will the Court Go?

This article originally appeared in The New York Review of Books.

The 2016-2017 term, which concluded on Monday, opened with eight justices and every expectation that, after Hillary Clinton was elected, the Court’s balance would soon tilt liberal for the first time in four decades. Then Donald Trump won, Neil Gorsuch was appointed to fill the late Justice Antonin Scalia’s seat, and the Court once again had a five-member conservative majority. The Court had fewer headline-grabbing cases this term than in prior years, but it nonetheless decided several important cases—certainly enough for Gorsuch to show his colors, which thus far are deep red. As Adam Liptak of The New York Times has noted, the Court was more united than ever this term, largely because, with eight justices for much of the time, it strove to achieve consensus by deciding cases narrowly. On constitutional matters, it was especially united in defense of First Amendment speech rights. But other issues continued to spark controversy—including state support of religion and the availability of damages for federal officials’ violations of basic constitutional rights.

The Court decided two important speech cases. In Matal v. Tam, it struck down a federal law denying registration to trademarks that “disparage” individuals or groups. The challenge was brought by an Asian-American rock band that took the name “The Slants” as a way of reappropriating a racial and ethnic slur. But the Patent and Trademark Office used the same law to deny a trademark to the Washington Redskins.

In language that seemed directed as much at campus speech controversies as at the current case, Justice Samuel Alito wrote for the majority: “Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express ‘the thought that we hate.’” The Court has long held that the fact that speech offends is a reason to protect it, not to suppress it. In some sense, then, the Court’s unanimity is less surprising than the fact that the federal law it struck down had remained on the books for seventy-one years.

In a second speech case, Packingham v. North Carolina, the Court was again unanimous, striking down a state law that made it a crime for individuals who had once been convicted of a sex offense to access Internet sites that permit children to become members or to create personal web pages. In 2002, Lester Packingham, then twenty-one years old, pleaded guilty to having sex with a thirteen-year-old girl. That made him a sex offender under North Carolina law. In 2010, when a traffic court dismissed a vehicle citation against him, Packingham posted a message on Facebook stating, “Praise be to GOD. WOW! Thanks JESUS!” He was prosecuted for the posting. Justice Kennedy, writing for the majority, eloquently recognized the central place that the Internet now has in the “free marketplace of ideas,” and insisted that laws excluding individuals from accessing such an important forum of expression must be carefully tailored. North Carolina’s law, which imposed an absolute bar on access to sites as important as Facebook, Twitter, and LinkedIn, was far too sweeping.

The Court has long struggled with how to reconcile the twin dictates that the government may not establish religion but must also not discriminate against religion. Where the government supports similarly situated entities, can or must it support religious institutions as well, or does such support amount to an establishment of religion? In prior cases, the Court had permitted across-the-board secular services, such as fire and police protection, as well as vouchers to private citizens that are then used at religious schools. But it has drawn the line at states providing direct financial aid to churches. In Trinity Lutheran v. Comer, the Court for the first time not only permitted, but mandated, direct financial support to a church.

The case arose when Missouri deemed the Trinity Lutheran Church ineligible to receive state funding to refurbish its playground surface because the state constitution forbade direct financial support to churches—even though the playground was otherwise eligible for state funding. The Supreme Court ruled that Missouri violated the church’s right to the free exercise of religion by denying it funding for its playground simply because of its status as a church. Chief Justice Roberts, writing for the majority, emphasized that the decision was limited to state funding for non-religious uses; that limitation presumably led Justices Elena Kagan and Stephen Breyer to concur in a 7-2 result, with only Justices Sonia Sotomayor and Ruth Bader Ginsburg dissenting, arguing that the Court should not require states to provide direct financial assistance to churches, and that in any event, the playground would be used for religious purposes. Justices Clarence Thomas and Gorsuch would have gone further than the majority, requiring the state to fund even direct religious practices where it funds similar non-religious practices. But significantly, no one else on the Court was willing to go that far.

The Court’s most disappointing and far-reaching decision of the term was Ziglar v.Abbasi, a case dating from the sweeping roundups of Arab and Muslim men carried out by the Bush administration in following the September 11 attacks. The administration put more than five thousand Arab and Muslim immigrants in preventive detention in the first two years after September 11, not one of whom turned out to have been connected to the attacks or to have been convicted of terrorism. The Ziglar case, with which I was involved as a cooperating attorney with the Center for Constitutional Rights in its early stages, challenged the government’s imposition of harsh and punitive conditions of confinement on persons “of interest” to the 9/11 investigation, based not on evidence of terrorist involvement, but on their ethnicity or religion. The plaintiffs were Arab and Muslim men detained for months, much of it in solitary confinement, denied access to counsel or the outside world, shackled, and slammed against walls. All were cleared of any terrorist connections, but not before they had suffered grievous injury. They sued Attorney General John Ashcroft and others for money damages, under a 1971 precedent allowing victims of constitutional injuries to sue federal agents for such relief.

The case was decided by the unusual vote of 4-2, because two justices (Kagan and Sotomayor) were recused, and the case was argued before Gorsuch joined the Court. Writing for the majority, Justice Anthony Kennedy ruled that the claims could not even be heard, because they sought to hold responsible high-level government officials acting in the ostensible interests of national security. The Court had previously allowed damage suits for discrimination and harsh prison conditions, but Kennedy reasoned that this case was different because it involved national security. Had the individuals been able to get their case to court while they were incarcerated, Kennedy acknowledged, they could have sued to stop the violations. But for reasons Kennedy never adequately explained, the Court ruled that a damages remedy after the fact was absolutely barred. As Justice Breyer noted in dissent, this is particularly troubling in a case involving national security issues, both because individuals often face insurmountable barriers to getting into court while detained, as was the case here, and because after the fact courts can review the cases with the perspective and deliberation that promotes good judgment. By immunizing high-level officials from after-the-fact judicial review of their actions in times of crisis, the Ziglar decision threatens to free up executive officials to act without regard to the constitutional consequences precisely when the pressure to overreach is greatest.

On its final day, the Court announced that it would grant review in two cases challenging President Trump’s travel ban. (I am counsel with the ACLU in one of the cases, International Refugee Assistance Project v. Trump). Lower courts have consistently barred the ban from going into effect, on grounds that it violates the Establishment Clause by targeting Muslims, and exceeds the president’s powers under the immigration laws. The government had asked the Court to stay the injunction pending its review. But the Court left the injunction in place for all foreign nationals with a connection to a person or entity in the United States, and allowed the travel ban to go into effect only for foreign nationals with no connection to the United States (as determined in the first instance by federal government officials). By reaching this result, a middle ground that does not tip its hand regarding the merits of the appeal, the Court was able to achieve relative consensus and issue a “per curiam” opinion joined in full by six justices and in part by the whole Court. Justices Alito, Thomas, and Gorsuch wrote separately to say that while they agreed with the partial stay, they would have gone further, giving the government all it requested. Significantly, however, the other six justices declined to do that—and instead chose to leave the lower court injunctions in place for all the plaintiffs before the Court, and all other foreign nationals with similar ties. The case will be argued in October, and is the first constitutional test to the Trump administration to reach the Supreme Court. The Trump administration has thus far argued for blind deference, urging the courts to ignore what Trump has repeatedly said about the order—namely, that it is designed to ban Muslims. That could be a tough argument for the Court, an independent branch charged with defending constitutional rights, to accept.

The best news of the term was that Justice Kennedy did not retire, after widespread rumors that he might. Kennedy sits at the Court’s ideological center, and has been the swing vote in politically charged cases ever since Justice Sandra Day O’Connor retired in 2006. He is a Republican and a conservative, and often votes with his more conservative colleagues, but on this Court he has been a moderating influence. He has cast decisive votes to recognize same-sex marriage, to strike down sodomy statutes, to save affirmative action, to uphold the right to choose to terminate a pregnancy, to prohibit punishment of flag-burning, and to end the death penalty and mandatory life without parole for juveniles. He has lamented the harshness of the criminal justice system and invited a constitutional challenge to solitary confinement. If he steps down and is replaced by a hard-right conservative, vetted and approved by the Federalist Society, the Court will shift dramatically to the right—at a time when, given the Oval Office’s current occupant, the judiciary’s check on the executive branch is more essential than ever.

The travel ban won’t be the only big case before the Court next term. It has already agreed to hear cases concerning the rights of same-sex couples to equal treatment from businessmen who object to serving them on religious grounds, the rights of all of us to preserve the privacy of our whereabouts even when we carry a cellphone, the constitutionality of prolonged detention of immigrants, and whether there are any limits on egregiously partisan gerrymandering. It’s a heady lineup. No wonder Justice Kennedy isn’t retiring.