On April 25, the Supreme Court heard its final argument for the current term—fittingly, in Trump v. Hawaii, the challenge to President Trump’s so-called “Muslim ban.” That case will provide the first direct Supreme Court test of this administration’s excesses. But it is only one of the many blockbuster cases still to be decided this term—in nearly all of which the administration has urged the Court to adopt radical positions, overruling or disregarding precedent to further the White House’s political ends. By the end of June, when it recesses for the summer, we will have a much better sense of whether the newly reconstituted Roberts Court, joined by Neil Gorsuch last term, will prove a brake on the president, or an aider and abettor in his radical schemes. (Disclaimer: The ACLU, where I serve as national legal director, is counsel in several of the cases discussed here and has filed friend-of-the-court briefs in most of the others.)
In the Muslim-ban case, the administration argues that the Court should simply ignore abundant evidence that Trump intended to ban Muslims by using nations as proxies for religion. This argument breaks from precedent instructing that, in assessing whether the government has violated the establishment clause by favoring or disfavoring a particular religion, judges must review all “publicly available evidence” and cannot “turn a blind eye to the context in which [the] policy arose.” Solicitor General Noel Francisco sought to close his oral argument with a flourish by claiming that Trump had been “crystal-clear…that he had no intention of imposing the Muslim ban.” But the opposite is true, and the following week Trump insisted, yet again, that he would not apologize for the ban. To side with the president and uphold an unprecedented bar to entry for 150 million people, virtually all of them Muslim, would mark a radical and disturbing departure from the Court’s establishment-clause precedent.
In Carpenter v. United States, the Trump administration’s position would mark the end of privacy in the digital age. The specific dispute concerns whether the government needs a warrant to obtain records of the cell towers that an individual’s phone connected to over the course of several months. The data allows the government to construct a map of everywhere an individual traveled 24/7 as long as he or she was carrying the phone. The administration argues that because we “voluntarily” give this information to our cell-phone service providers when we use a phone, there is no Fourth Amendment protection for it. By that reasoning, all information shared digitally—including e-mails, Web searches, and the Internet sites one reads or views—would become an open book for the government. It would end privacy as we have known it for the past 200 years.
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Trump administration yet again broke with precedent to further its political agenda. Never before in its history has the Justice Department supported a constitutional exemption from a nondiscrimination statute. One of the department’s principal responsibilities is to enforce civil-rights laws, and it has always opposed arguments that businesses have a constitutional right to discriminate. But not this time. The Trump administration filed a brief arguing that bakers should have a First Amendment right to refuse to make a cake for a same-sex wedding, even if they would make the same cake for an opposite-sex wedding.