Despite rumors swirling around Washington and the internet, Justice Anthony Kennedy did not retire from the Supreme Court Monday. He could still announce his retirement at any time, but the last day of the Court’s session came and went without hearing from him, meaning it’s unlikely in the immediate future. For now, liberals can rest easy that the justice who provides the slim margin on the court for gay rights, abortion rights and affirmative action will remain on the Court and not (yet) be replaced by a second justice nominated by President Trump.
Also, the end of the term showed us that anyone who thought that new Justice Neil Gorsuch might have a moderate centrist hiding within him was delusional. Since he joined the Supreme Court, he has agreed with the most conservative justice, Clarence Thomas, in every single case decided by the Court. They are, so far, jurisprudential twins at the far-right of the judicial spectrum. If there’s an extreme right-wing legal position, we can be assured that Gorsuch will take it.However, Monday morning proved, yet again, that even though Justice Kennedy sometimes sides with the Court’s left, he is still a conservative – and that a Supreme Court with Kennedy as the swing justice is still a mostly conservative Supreme Court.
Here’s a rundown of the busy morning at the Court. After this, unless Justice Kennedy surprises with a retirement announcement, we won’t hear from the Court again until the fall. However, with these big cases decided or set to be argued, the Court, with Kennedy in the middle, will remain important in the coming months.
The Court agreed to hear the travel ban case and allowed part of Trump’s order to go into effect.
Both of the federal appeals courts to have considered Trump’s travel ban found that it was unconstitutional because it discriminated based on religion. As a result, they both struck down the order and barred the president from enforcing it.
On Monday, the Supreme Court agreed to hear the case about the order when it starts its new term in October. That’s not too surprising given the gravity of the issues in the case.
What is surprising is that a unanimous Court decided parts of the order could go into effect between now and then. The entire Court ruled that the order could take effect for people who have no bona fide relationship with the United States; thus, people from Iran, Libya, Somalia, Sudan, Syria and Yemen who have no relationship with the United States cannot come into the country for the next 90 days, and no refugees from any country without a relationship with the United States can for 120 days.
There’s already debate about how many people this will effect, with immigrants’ rights advocates arguing that refugees do in fact have a relationship with American refugee organizations. This will get sorted out by agencies and the courts, but we know one thing for sure: The Trump administration is interpreting this as a big win and will ban as many people as it can under the order.
The Court did make it clear that the order cannot apply to people who have legitimate relationships with people in the United States, such as students already admitted to or attending college, lecturers, employees of American companies and those with family members in the U.S. On this point, Justices Thomas, Gorsuch and Alito dissented, arguing that the ban should take complete effect between now and when the case is argued.
It ruled in favor of a Missouri church that claimed it was allowed to receive state money. Missouri, like almost every other state, has a provision saying no state funds can directly pay for religious activity. When the state applied that rule to the Trinity Lutheran Church, which had applied for state dollars to upgrade its playground surface, the church sued, arguing that the state cannot discriminate against religious institutions.
On Monday, the Court ruled 7-2 that the state has to fund the church. Chief Justice Roberts wrote the majority opinion, finding that the state cannot exclude religious institutions from general programs, and that doing so would violate the church’s right to freely exercise its religion. In other words, according to the Court, this was a discriminatory policy that could not stand.
Justice Sotomayor wrote a powerful dissent that Justice Ginsburg joined. According to Sotomayor, this was a case not about discriminating against religious institutions but rather about Missouri protecting the separation of church and state. By requiring the state to send money to a church, Sotomayor believed that this separation was breached in an unprecedented way.
It agreed to hear the case of the baker who refused to serve a gay couple.
In a highly anticipated ruling, the Court agreed to hear the case involving Masterpiece Cakeshop, a bakery in Colorado run by a religious Christian man who believed it was against his faith to make a cake for a gay couple’s wedding. The gay couple sued, and like most other couples around the country who have been denied service by religious florists, bakers and photographers, they won their case in the lower court.
This case raises an incredibly important issue about religion and equality. On the one hand, gay people have won the right to marry based on important constitutional principles of privacy and equality, and many states have protected gay people in their laws that prohibit discrimination by private businesses. On the other hand, small-business owners say they have the right to serve who they want, especially when doing so goes against their religious beliefs.
In announcing that it will take the cake shop case, the Supreme Court is entering the fray on this increasingly important issue. And if Justice Kennedy is still on the bench when the Court ultimately decides the case, he will be the deciding vote. Kennedy has been very favorable to gay rights in the past, but he has also been very solicitous to religious rights in cases such as the Missouri case described above and Hobby Lobby a few years ago. He has also ruled against gay people when First Amendment rights have run up against gay equality, finding that the Boy Scouts and the Boston St. Patrick’s Day parade can deny access to gay people.
It ruled in favor of two gay couples who wanted both parents’ names on their children’s birth certificates.
This case came about when two different married lesbian couples had children in Arkansas, and the state refused to put each of the women’s names on the children’s birth certificates. The state insisted that the only names that could be on the certificate were those of the mother and father, or, if the child was conceived by artificial insemination (which these children were), the mother’s husband. Since there was no father or husband, Arkansas only listed the birth mother on the certificate.
In a summary ruling without hearing argument in the case, the Supreme Court told Arkansas that it has to put both women’s names on the birth certificate. The Court based its ruling on the 2015 Obergefell decision that found a constitutional right to same-sex marriage. It stated that by denying these women their names on the birth certificate, the state was denying them one of the rights associated with marriage, and that was unconstitutional. Justice Gorsuch wrote a dissenting opinion that Justices Thomas and Alito joined, saying that the state had good reason to list only the birth mother on the birth certificate.
It refused to hear a case about the right to carry guns in public for self-defense.
In 2008, the Supreme Court ruled that the Second Amendment protects an individual’s right to own a gun. This was a huge victory for the NRA and its supporters. However, since then, the Court has not heard any cases dealing with just how far this right goes. Lower courts have repeatedly upheld restrictions on gun possession and ownership in various situations. In each of those cases, the NRA has asked the Supreme Court to review the case, but the Court has refused.
The same thing happened Monday in a case that involved California residents who claimed they had a right to carry a weapon in public for self-defense. The lower court said that the Second Amendment doesn’t go that far, and that ruling now stands. Justices Thomas, joined by Justice Gorsuch, wrote a forceful dissent arguing in favor of the challengers.