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The Upcoming Supreme Court Cases That Matter Most to States and Localities

In the term that starts Oct. 2, the justices will hear cases that could drastically alter the country's political, financial and social landscape.

Group shot of the U.S. Supreme Court justices
Seated, from left: Associate Justice Ruth Bader Ginsburg, Associate Justice Anthony M. Kennedy, Chief Justice John Roberts, Associate Justice Clarence Thomas, Associate Justice Stephen Breyer. Standing, from left: Associate Justice Elena Kagan, Associate Justice Samuel Alito Jr., Associate Justice Sonia Sotomayor, Associate Justice Neil Gorsuch.
(AP/J. Scott Applewhite)
Update: Since this story first ran, the U.S. Supreme Court agreed to hear another case that will have major implications for public-sector unions. Read about it here.

Every summer, Lisa Soronen writes a short summary of upcoming U.S. Supreme Court cases for her clients -- state and local governments across the country. Because the court often decides to take its most controversial cases after the October term begins, her early summaries rarely include high-profile cases that garner broad public interest, says Soronen, who is the executive director of the State and Local Legal Center. 

This year, she says, is different.

“It is hard to get more interesting than partisan gerrymandering, the travel ban, religious liberty and sports gambling,” she wrote in July.

The case on partisan gerrymandering "could be explosive," says Chuck Thompson, general counsel and executive director of the International Municipal Lawyers Association. "Depending on how the court reaches its decision, we could see a significant, dynamic change in the makeup of state legislatures and Congress." 

With the addition of Justice Neil Gorsuch, the court has taken more controversial cases that it may have avoided after Justice Antonin Scalia's death last year left the court ideologically split in half 4-4.

Beyond what is already on the docket for the 2017 term, the Supreme Court is likely to hear “the biggest state and local government case since I don’t know when,” says Soronen. That case involves a dispute over South Dakota’s law requiring online retailers to collect sales taxes. The South Dakota legislature passed the law hoping it would invite legal challenges, and it did.

Ultimately, state lawmakers want the U.S. Supreme Court to reverse a 1992 decision that said states cannot require retailers with no in-state physical presence to collect sales taxes. At the time of the ruling, the internet was in its infancy. With the growth of online commerce in the past 25 years, some estimate that states now miss out on more than $23 billion a year in potential online sales tax revenue.

Both Justices Anthony Kennedy and Neil Gorsuch have openly questioned the 1992 decision. In a 2015 concurring opinion, Kennedy called it “a case questionable even when decided” and welcomed legal challenges that might allow the court to re-examine the issue.

There is speculation, though, that Kennedy may step down in 2018 before the midterm elections. That could hurt states' chances of reversing the 1992 decision and could impact the outcome of other cases.

Beside the online sales tax dispute, Soronen and Thompson say state and local governments should keep an eye on the following six cases.

Is there a constitutional limit to partisan gerrymandering?

Redistricting -- the drawing of electoral district maps -- happens every 10 years, and it's almost always controversial because it can affect the outcome of elections and thus the political landscape for years.

The U.S. Supreme Court has ruled against racial gerrymandering repeatedly -- but never against partisan gerrymandering, in which the maps are drawn to give an unfair advantage to one party. 

The case before the court this year deals with the redistricting plan passed by Wisconsin’s Republican-controlled legislature in 2011. The plaintiff, retired law professor William Whitford, argues that the plan violated the Fourteenth and First Amendments of the U.S. Constitution "because it treats voters unequally, diluting their voting power based on their political beliefs" and "because it unreasonably burdens their First Amendment rights of association and free speech."

The case will test whether the efficiency gap -- a measure used by political scientists -- is an objective method for states to determine when partisan gerrymandering violates voters' constitutional rights. (For more on this case, read Alan Greenblatt's analysis.)

Oral arguments for Gill v. Whitford are scheduled for Oct. 3. 

Can businesses refuse service to gay couples?

In 2012, a Denver-area bakery refused to make a wedding cake for Charlie Craig and David Mullins, a gay couple. Craig and Mullins complained to the state that the bakery discriminated against them on the basis of their sexual orientation -- which is illegal under anti-discrimination laws in nearly half the states, including Colorado.

But the bakery owner, Jack Phillips, is a devout Christian who contends that he has a free-speech right to not make wedding cakes for gay couples because the cakes are an artistic expression of his beliefs, and he believes gay marriage is wrong.

The case could settle heated debates across the country.  

Oral arguments for Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission haven't been scheduled yet. 

Can states permit and regulate sports betting?

In 1992, Congress passed a law prohibiting state-sponsored sports gambling -- except in a handful of states that already allowed it. New Jersey was not one of those states, but it passed two laws that would pave the way for sports gambling in the state anyway.

New Jersey Gov. Chris Christie argues that the 1992 law is unconstitutional and regulates an area that should be determined by states. Other states, including Mississippi, are eager to legalize sports betting, hoping to reap its economic benefits

Oral arguments for Christie v. National Collegiate Athletic Association haven't been scheduled yet. 

At what point can a state remove people from its voter rolls?

Although Ohio is the state being sued in this case, 12 other states use a similar process for cleaning up their voter registration lists. The state identifies registered voters who have not voted in two consecutive federal elections and sends them a notice by mail. If they don't respond and don't vote in the next four years, the state cancels their registration.

At issue is whether that process is legal. The challengers argue the state violated federal law, which explicitly prohibits states from purging registered voters because they have failed to vote. The Trump administration, however, says it is legal and filed a brief in support of Ohio, reversing the Obama administration's stance in the case.

Oral arguments for Husted v. A. Philip Randolph Institute are scheduled for Nov. 8. 

Can police arrest you for not believing your story?

This case involves a party and a person named Peaches.

Responding to a noise complaint, police officers in the District of Columbia found partiers in a vacant building and arrested them for trespassing. The partiers told police that they had been invited by a woman named Peaches who had permission from the landlord to host the party. Peaches was not at the party, but when contacted by phone, she confirmed with police that she was in the process of renting the apartment and had given permission to the partygoers.

The landlord, however, told police that he had not given permission for the party, and Peaches had not yet signed a lease.

The question in this case is whether officers, when assessing probable cause to arrest, must believe a suspect’s version of the story, even when circumstantial evidence conflicts with that account. 

"There are tons of instances where people will give officers an explanation for why they shouldn't be arrested, and it's a good explanation, but it may not be true or believable," says Soronen, giving the example of a guy telling police his girlfriend fell down the stairs when he actually pushed her.

Oral arguments for District of Columbia v. Wesby are scheduled for Oct. 4. 

Will the Supreme Court strike down President Trump’s travel ban?

Update at 2:44 p.m. EST on Sept. 25: On Sunday, Trump issued a new travel ban, which prompted the Supreme Court on Monday to remove this case from the calendar and order both sides to file new briefs.

Original text:

In March, President Trump issued a revised executive order that banned travelers from six predominately Muslim countries from entering the United States for 90 days. The order also froze decisions on refugee applications for 120 days and capped total refugee admissions at 50,000 for fiscal year 2017.

The plaintiffs in the case include the state of Hawaii, and more than a dozen other states -- mostly led by Democrats -- filed amicus briefs in support of the lawsuit.

Part of what's at issue is the breadth of presidential power: Can courts review and block the executive branch from denying visas? Another question before the court is whether the order, which singled out predominantly Muslim countries, violates the Establishment Clause, a part of the First Amendment that prevents governments from giving priority treatment to one religion over another. (The original executive order in January gave priority to religious refugees who were in the minority in their country, which was, in effect, a policy benefiting Christians. The revised March order does not include the same language about religious minorities, but some court observers say the historical context reveals the real intent behind both travel bans.)

Oral arguments for Trump v. Hawaii; Trump v. International Refugee Assistance Project are scheduled for Oct. 10.

*This story has been updated to reflect the latest developments with the travel ban.

J.B. Wogan is a Governing staff writer.
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