Things could have been so different. The Supreme Court’s 2016–17 term, which ended with a flurry of activity on June 26, underscores how much liberals and progressives lost by not coming out for Hillary Clinton in the 2016 election in the numbers that had earlier come out for Obama. The Court’s term opened in October with eight justices, evenly divided between liberals and conservatives. Virtually everyone expected Clinton to win. In short order, she would appoint the late Justice Antonin Scalia’s successor, and the Court would have a liberal majority for the first time since 1972. The possibilities were endless. But Clinton did not win, and the term ended with a nine-member Court featuring Neil Gorsuch, appointed by President Donald Trump to fill Scalia’s seat.
It’s still early, but initial signs are that Gorsuch will be every bit as conservative as his predecessor, and possibly more so. Thus, as they have been for more than a decade, the Court’s rulings in closely divided cases will likely be determined by Justice Anthony Kennedy, a conservative Republican appointed by Ronald Reagan, who is open to argument and has cast deciding votes in cases recognizing marriage equality, ending the death penalty for juveniles, and preserving affirmative action. But if Trump gets an opportunity to replace Kennedy—or Ruth Bader Ginsburg or Stephen Breyer, all of whom are near or over 80—that moderating influence will disappear, and the Court will be as conservative as it has been in a century.
The most encouraging decisions of the recently concluded term involved free speech. In Matal v. Tam, the Court ruled unconstitutional a federal law denying registration to trademarks that “disparage” individuals. The trademark office had refused to register “The Slants,” the name of an Asian-American rock band that sought to repurpose and reclaim an ethnic slur. In language that seemed as directed at campus speech controversies as at the case at hand, Justice Samuel Alito wrote for the Court: “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.’” Every justice agreed that the law was invalid.
In 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 use social-networking sites that permit children to become members or to create personal Web pages. The law had been applied to a man who celebrated a victory in traffic court by posting a message on Facebook thanking God. In a decision that will almost certainly be cited in every Internet speech case that follows, Justice Kennedy maintained that the Internet has become a critical venue in the marketplace of ideas, and invalidated the North Carolina law as far too sweeping.
A third significant First Amendment case, Trinity Lutheran Church v. Comer, involved the religion clauses, and specifically whether a state could decline to give financial assistance for playground renovation to an otherwise eligible recipient merely because it was a church. The Court’s 7–2 decision marks the first time in its history that it has required a state to provide financial assistance to a church. The majority opinion, written by Chief Justice John Roberts, stressed that the aid was for a secular purpose—refinishing a playground surface—and not for religious activities, which is why he may have been able to attract the support of Justices Elena Kagan and Stephen Breyer.
The Court ruled for the defendants in several criminal cases involving egregious constitutional violations. In Pena-Rodriguez v. Colorado, the Court held that when a juror indicates that his vote to convict rested on racial prejudice, the general rule barring any consideration of juror statements to impeach verdicts must give way to the Sixth Amendment right to a fair trial. In Moore v. Texas, the Court held that a Texas court erred in substituting its own, nonscientific standard instead of following contemporary medical standards in assessing whether a defendant sentenced to die was too mentally disabled to be executed. And in Buck v. Davis, the Court held that the use of expert testimony suggesting that a defendant would be a greater risk of posing future danger because he was black was sufficiently extraordinary to warrant reopening his case and finding his defense attorney—who, remarkably, had introduced the expert testimony—constitutionally ineffective.
In other cases, however, a conservative majority blessed procedural obstacles to the vindication of constitutional rights. In Davila v. Davis, the Court ruled that when an indigent criminal defendant’s lawyer failed to pursue a meritorious constitutional objection on appeal, the defendant, not the lawyer, would suffer the consequences by losing any opportunity to raise the issue in later reviews of the conviction. In another case, Weaver v. Massachusetts, the Court held that even a lawyer’s failure to object to a “structural” constitutional error—one that affects the entire trial—may not amount to ineffective assistance of counsel justifying relief for the defendant. In these cases, the Court continued its unfortunate practice of visiting the sins of deficient and underfunded lawyers on the indigent defendants they represent.
Most troubling, the Court ruled that high-level executive officials cannot be sued for damages in national-security cases, even when they authorize blatant constitutional violations. The case, Ziglar v. Abbasi, stemmed from the Bush administration’s sweeps of Arab and Muslim men in the wake of the 9/11 attacks. (I was involved in the case at its outset, as a cooperating attorney with the Center for Constitutional Rights.) For purposes of its decision, the Court accepted as true the allegations of the complaint, namely that then– Attorney General John Ashcroft and others authorized the detention under brutal conditions of Arab and Muslim men because of their ethnicity or religion. But it nonetheless ruled that no lawsuit for money damages could be heard, even though it had previously allowed suits against federal officials for discrimination and abusive prison conditions. The national-security context and the high rank of the officials involved, the Court reasoned, precluded any remedy. But as Justice Breyer argued in dissent, it is precisely in such moments that constitutional limits are most important. The Court’s decision, while formally limited to lawsuits for money damages, essentially invites high-level officials to violate constitutional rights in the name of national security with impunity.
Whether this hostility to accountability is limited to suits for money damages or extends more broadly will be tested next term, when the Court will hear the government’s appeal 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.) Thus far, the ban has been enjoined by lower courts on constitutional and statutory grounds, because Trump has made clear that he intends it to fulfill his campaign promise to ban Muslims. The government asked the Court to allow the travel ban to go into effect while the appeal is pending. But the Court did so only with respect to a small set of foreign nationals who have no connection to any person or entity in the United States. The plaintiffs all have such connections and remain protected, as do all foreign nationals connected to a US person or entity. In reaching this result, the Court was careful not to telegraph its views on the merits. But in order to uphold the ban once it hears arguments in October, the Court would have to blindly defer to the president, closing its eyes to what everyone sees: that he intended the order to ban Muslims. The Court engaged in such blind deference once before—in upholding the World War II internment of Japanese Americans in Korematsu v. United States. It should not make that mistake again.