The Court addressed an array of contentious constitutional questions, including gay rights versus religious liberty, public sector unions and coerced speech , digital privacy , voting rights , and, of course, the Trump travel ban. Some rulings focused on constitutional principlesâtheir existence and applicationâwhile others focused on social facts , or the prevailing circumstances the Court must recognize in order to apply constitutional principles, especially when those facts are in contention. The changes in the membership of the Court may be the most important events of this year, with the arrival of Justice Gorsuch and the departure of Justice Kennedy. The disturbing confirmation hearings of Brett Kavanaugh as Anthony Kennedyâs replacement were the final chapter of an eventful year. In the chapters that follow, noted scholars on constitutional law and American politics discuss the seven major decisions of the year, followed by three concluding discussions of Justice Gorsuch â future, Justice Kennedyâs legacy, and the confirmation of Justice Kavanaugh.
To summarize this yearâs major rulings in the briefest way possible, they
- 1.Allow for greater presidential power over U.S. borders and immigration,
- 2.Provide greater protection for religious belief as a basis for denying service to LGBT citizens (though the decision is narrow, leaving the extent of those protections an open question when they conflict with the dignity of other citizens),
- 3.Recognize the right of public sector employees to not pay fees to unions they do not wish to support,
- 4.Protect the privacy of cell phone location data from government search without a warrant,
- 5.Allow states to levy sales tax on Internet companies who do business with state residents, regardless of the geographic location of the company,
- 6.Allow states to purge voter rolls of infrequent voters, and
- 7.Allow state legislatures to gerrymander legislative districts in a way that creates partisan disparities, outside of the oversight of the Court.
This introduction begins to identify the constitutional concepts and controversies underlying those rulings, while the chapters to follow provide more detailed discussion and perspective.
Dignity
One of the most anticipated rulings of the year responds to competing claims of gay rights and religious liberty. When a same-sex couple in Colorado attempted to order a custom wedding cake, the baker refused on religious grounds. The Colorado Civil Rights Commission found him in violation of the state law banning discrimination in public accommodations. The political or partisan meaning of the controversy is clear: greater respect and public acceptance of LGBT citizens (which liberals and Democrats favor) or greater regard for public religiosity and the liberty of religious believers to dissent from participation in secular institutions (which conservatives and Republicans favor). But the constitutional meaning of the controversy in regard to citizen rights and government powers is more complex.
The couple asserts the right of dignity, which is both powerful and difficult to define. It is not found in the Constitution itself, but is found in influential precedents of the Court on abortion , gay rights , capital punishment, and religious liberty. As Stephen Engel of Bates College argues in the chapter on Masterpiece Cakeshop, the ruling illustrates the limits to the doctrine of dignity championed by Justice Kennedy and the growing focus of the Court on the protection of freedom of religious expression, also as a reflection of dignity as well as an explicit constitutional right.1 In this dispute, the Justices must also deal with the distinction between claims of rights against the state and claims of rights against fellow citizens. The Equal Protection Clause of the Fourteenth Amendment applies to government action alone; the Constitution contains no explicit guarantee that citizens must treat each other equally or without discrimination.2 The state must do so, but citizens are more free, especially when a recognized liberty to religious exercise justifies their actions.3 Is dignity ârather than rights that are clear in the text of the Constitutionâa strong foundation for disputed claims to constitutional protection?
Rights in Commerce
Masterpiece Cakeshop and several of the other cases this year raise another core question: do rights shift when citizens engage in commerce? When a citizen clearly holds a right that would be protected while they were in their own home or even out in the public square, does that right lessen or yield to the interests of others when that same citizen engages in commerce? In other words, do commercial relations with fellow citizens shift rights?
It is important to remember that the Civil Rights Act of 1964, which outlawed racial segregation in restaurants and hotels, was upheld under the Interstate Commerce Clause of the Constitution. Congress does not have the direct power under Article I, or even under the Equal Protection Clause , to order individual citizens to treat others equally. The Court ruled that federal regulation of race relations was allowed because segregation impeded commerce, which Congress can regulate under the Commerce Clause . While the power of Congress and of state legislatures rises when commerce occurs, this does not mean that citizens no longer hold rights when they engage in commerce or that the need for economic regulation automatically overrides the assertion of a right.
Perhaps the best way to understand the debate is to focus on the crucial distinction between government powers and individual rights. For government to act at all, it must have that power (and the Constitution explicitly assigns and limits government powers); then that action must not violate a right of citizens (and the Constitution recognizes many specific and broad rights). Sometimes, a government power is clear, as in the power of Congress to levy taxes (assigned in Article I, Section 8), while sometimes a power is uncertain, as in President Trumanâs claim during the Korean War that he could nationalize the steel industry under presidential war powers as Commander in Chief of the Army and Navy (assigned in Article II, Section 2). The Court determined that executive war powers do not extend to seizing industries so far from the theater of war.4 Under different circumstancesâlike wartime, or in this case, commerceâgovernment powers may rise. However, even if government does possess the requisite power, a citizen still may hold a right that cannot be violated. In the case of segregation, there is no citizen right to discriminate recognized by the Constitution, so any claim against government powers is weak. But what about circumstances in which a clear right of citizens does exist, yet overlaps with their engagement in commerce over which government has legitimate powers?
A famous recent example is the Hobby Lobby case (mentioned in footnote 1). The owners of the store are practicing Christians and publicly intend to run the store grounded in religious principles (including being closed on Sundays). But given that they hire employees in an open economy, are their religious rights limited by that engagement? Justice Ginsburg argued that âone personâs right to free exercise must be kept in harmony with the rights of her fellow citizens.â5 Hence, religious rights only apply to religious organizations, but not to those that engage âin the exchange of goods or services for money beyond nominal amounts.â6 Justice Kennedy disagreed, arguing that free exercise of religion includes âthe right to express those beliefs and to establish oneâs religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community.â7 In Kennedyâs view, rights are not lessened by economic connections with fellow citizens. The majority of Justices agreed with Kennedy, argu...