1. Introduction: The 2017–2018 Term at the Supreme Court

Kennedy’s concurrence in the Hobby Lobby decision—upholding the liberty of employers to resist paying for forms of birth control that raise religious objections—contains this important line: “In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.” (italics added) Burwell v. Hobby Lobby Stores, Inc. 573 U.S. ___ (2014), Kennedy concurrence, pages 1–2. A brief note on citations in the volume: recent decisions have not yet been printed in the U.S. Reports that collect all Supreme Court decisions at the Library of Congress (so the page number in the volume is still blank, as in 573 U.S.___). To identify quotes from the recent decisions, we will use page numbers from the slip opinions issued immediately by the Court, which are readily available online at the U.S. Supreme Court website (www.​supremecourt.​gov/​opinions). Links to opinions, oral arguments, briefs by each party, and many other details are also available at SCOTUSblog.​com.

Amendment XIV (1868): “No state shall make or enforce any law which shall… deny to any person within its jurisdiction the equal protection of the laws.”

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579 (1952), known as the Steel Seizure Case.

Ibid., page 35. “The reason why is hardly obscure. Religious organizations exist to foster the interests of persons subscribing to the same religious faith. Not so of for-profit corporations. Workers who sustain the operations of those corporations commonly are not drawn from one religious community… For-profit corporations are different from religious non-profits in that they use labor to make a profit, rather than to perpetuate religious values” (pages 16, 18–19).

For example, over half of the authors in this book are state employees.

Janus v. AFSCME, Kagan dissent, page 1.

Ibid., page 48.

Janus Kagan dissent, page 25. See also Wayfair decision: “Reliance interests are a legitimate consideration when the Court weighs adherence to an earlier but flawed precedent” (page 20).

Janus Kagan dissent, page 22.

Ibid., page 12.

Ibid., page 17.

Ibid.

Ibid.

Gill v. Whitford oral arguments transcript, 3 October 2017, pages 15, 40.

Shelby County v. Holder (2013) invalidated the section of the Voting Rights Act that required pre-clearance by the Justice Department of changes in voting procedures in the Southern states. The Justices reasoned that the prevailing racism justifying this exercise of congressional power in 1965 was no longer the case fifty years later, another example of an empirical claim about reality the Court must evaluate.

Husted Sotomayor dissent, page 1.

Trump v. Hawaii, Sotomayor dissent, page 4.

Ibid., page 1.

Trump v. Hawaii decision, page 10. INA §1182(f): “Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend entry of all aliens or any class of aliens as immigrants” (quoted on page 10).

“The Proclamation is expressly premised on legitimate purposes: preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices… five of the seven nations currently included in the Proclamation have Muslim-majority populations. Yet that fact alone does not support religious hostility, given that the policy covers just 8% of the word’s Muslim population.” Ibid., page 34.