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Über dieses Buch

Each year, the Supreme Court of the United States announces new rulings with deep consequences for our lives. This inaugural volume in Palgrave’s new SCOTUS series describes, explains, and contextualizes the landmark cases of the US Supreme Court in the term ending in 2018, covering issues such as gay rights, religious liberty, public sector unions, coerced speech, digital privacy, voting rights, and the Trump travel ban. Bringing together notable scholars of the Court in one volume, the chapters in Scotus 2018 present the details of each ruling in its specific case, its meaning for constitutional debate, and its impact on public policy or partisan politics. Finally, SCOTUS 2018 offers a big-picture look at Justice Neil Gorsuch’s first full term in office, the legal and political legacy of former Justice Anthony Kennedy, and the controversial nomination and confirmation of Justice Brett Kavanaugh.



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

The opening chapter discusses the significance of the last term of the Court, which included rulings on free speech, digital privacy, gerrymandering, Internet taxation, religious rights, the Trump travel ban, and voting rights. Major themes include dignity, rights in commerce, coerced speech, reliance interests, the third party doctrine, social facts, and the four corners doctrine. The rulings foreshadow a substantial shift in the Court’s understanding of rights as a result of the emerging conservative majority.
Morgan Marietta

Chapter 2. Carpenter v. U.S. on Digital Privacy Under the Fourth Amendment

Is the location of a cell phone something that is private and protected from warrantless search by the Fourth Amendment, or are the electronic data that indicate a person’s location owned by the phone company, which can offer them to law enforcement if they choose? The multiple layers of constitutional questions about the nature of electronic data, personal privacy, and law enforcement are addressed in the Court’s decision in Carpenter, reflecting our changing conceptions of the nature and ownership of electronic data.
David Klein

Chapter 3. Gill v. Whitford on Partisan Gerrymandering

Challenges to gerrymandering by state legislatures raise questions of whether the Constitution mandates equal representation of all voters, or whether partisan sorting into geographic enclaves is a reality the Constitution does not prohibit, even when it results in unequal representation. Extreme partisan gerrymandering seems to contradict the concept of “one person one vote,” but the greater controversy is about how the Court can know if representation is unequal enough to trigger a constitutional violation. Do we have a measurable standard or is this a political question the Court cannot decide on a reasonable basis? Gill v. Whitford illustrates the deep divisions on the Court over trust in social science expertise and the ability of the Court to engage in the debate over gerrymandering.
Alex Keena, Michael Latner, Anthony J. McGann, Charles Anthony Smith

Chapter 4. Husted v. A. Philip Randolph Institute on Voting Rights

The Constitution leaves the regulation of about voting procedures to individual states, but also recognizes that individuals have rights to equal representation without discrimination. The tensions between these two principles have arisen several times in recent constitutional controversies, especially regarding the continued constitutionality of the Voting Rights Act of 1965. Husted addresses the state of Ohio’s decision to purge voter rolls of infrequent voters. Is this a legitimate regulation or a veiled attempt to disenfranchise minority citizens? The 5-4 decision in Husted raises further barriers to citizen claims that voting rights have been violated.
Richard Pacelle

Chapter 5. Janus v. AFSCME on Mandatory Fees to Public Sector Unions

Public-sector unions—such as those for firefighters and public school teachers who work for state governments—have been authorized by law in several states to compel the payment of service fees from non-members, a practice upheld by a long-standing precedent of the Supreme Court. Recent challenges argue that forced payments are the equivalent of coerced speech, forcing state employees to fund political positions they oppose, in violation of the First Amendment. The Court’s ruling limiting the power of unions will lead to important changes in labor relations as well as in the constitutional law of free speech.
Brett Curry

Chapter 6. Masterpiece Cakeshop on Gay Rights Versus Religious Liberty

This landmark ruling addresses the competing claims of gay rights and religious liberty. The Colorado cake case illustrates the limits to the doctrine of dignity championed by Justice Kennedy and the growing focus of the Court on the protection of religious expression. The crux of the Masterpiece Cakeshop dispute is that the Equal Protection Clause applies to government action alone; the Constitution contains no explicit guarantee that citizens must treat each other equally or without discrimination, especially when they have an explicit rights of freedom of religion justifying their actions. However, the ruling does not address this core debate, but instead focuses on the actions of the Colorado Civil Rights Commission in disparaging the religious beliefs of the baker. Because the state government was not a neutral arbiter of the competing claims, seven Justices ruled that the government’s actions against the baker could not stand.
Stephen M. Engel

Chapter 7. Trump v. Hawaii on the Travel Ban

The travel ban imposed by President Donald Trump raised constitutional challenges to the exclusion of immigrants and visitors from several Muslim countries such as Libya, Syria, and Somalia. The constitutional question is whether the ban is legitimately grounded in the President’s broad powers as Commander in Chief under Article II as well as specific powers over immigration granted by Congress, or is the ban instead grounded in animus against Muslims, in violation of the First Amendment? The Court’s decision to uphold the travel ban as a reasonable security restriction will increase the power of the presidency, but does not provide a blank check when First Amendment rights are implicated.
Anthony A. Peacock

Chapter 8. Wayfair on Internet Taxation

Can states charge sales tax on purchases their citizens make online, even when the retailer is located outside the state? This question has tremendous ramifications for American commerce in the Internet era. The constitutional question revolves around the limits of the Commerce Clause—or specifically the Negative or Dormant Commerce Clause—as well as the facts of the contemporary economy in the internet era. The Court ruled that these facts have changed, creating a company’s presence in a state even when there is no physical presence. In this sense, “the Internet’s prevalence and power have changed the dynamics of the national economy.” The Court corrected the “false constitutional premise” of prior decisions, arguing that the social facts of the Internet—and hence of commerce—have clearly changed.
Morgan Marietta

Chapter 9. Justice Neil Gorsuch Joins the Court

In his first year on the Court, Justice Gorsuch has been a reliably conservative voice. His vote made the difference in several major decisions, usually ruling alongside Justices Alito, Kennedy, Roberts, and Thomas in 5–4 cases such as Janus v. AFSCME, NIFLA v. Becerra, Husted v. A. Philip Randolph Institute, and Trump v. Hawaii. President Trump’s promise to appoint someone in the vein of Antonin Scalia—from his originalist judicial philosophy, to his stature and intellect, to his engaging writing—was kept. Given his age, Justice Gorsuch will likely be a major force on the Court for the next three to four decades.
Carol Nackenoff, Gilbert Orbea

Chapter 10. Justice Anthony Kennedy Retires (1988–2018)

More than any single ruling, the retirement of Justice Kennedy may be the most influential event of the last term. Kennedy offers dual legacies: often described as a swing vote, but on the whole more conservative than not; defender of free speech and of gay rights, which came into conflict in one of his last major decisions in Masterpiece Cakeshop; loved and hated by many as author of both Obergefell and Citizens United; Justice Kennedy emerged in the tumultuous conflict over the nomination of arch-conservative Robert Bork, and his departure spurred the public conflict over the nomination of Brett Kavanaugh. Kennedy’s legacies are a reflection of the divided political and constitutional culture of contemporary politics.
Morgan Marietta

Chapter 11. The Troubled Confirmation of Justice Brett Kavanaugh

In September and October 2018, a nation primed by the #MeToo movement’s revelations of past sexual misconduct divided bitterly over Christine Blasey Ford and other women’s claims that nominee Brett Kavanaugh was a sexual assailant. Prior to those accusations, Kavanaugh—a former clerk to Justice Kennedy, aide to President George W. Bush, and federal judge on the D.C. Circuit Court—seemed assured of confirmation to the Court. This concluding chapter details the conflict leading to the 50-48 confirmation vote, its similarities with the Hill-Thomas confirmation battle in 1991, and it potential ramifications for U.S. politics.
Julie Novkov


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