Earlier today, the Supreme Court handed down a decision in one of the biggest cases of the term, dealing with redistricting in Texas. Only a handful of questions put before the court this term remain unanswered, but we’ll likely have those answers by the end of this week.
One case, Janus v. AFSCME, asks the court to decide whether employees whose interests are represented by public-sector unions, but who are not themselves part of a union, have to pay fees that go toward collective bargaining. Many states have laws that allow unions to collect these “fair-share fees,” which the conservative, anti-union movement has sought to eliminate. This one looks likely to end in victory for those forces; the court split on a similar case 4-4 two years ago, before Justice Neil Gorsuch was on the court. His addition is unlikely to help unions.
Another big case remaining before the court deals with the third iteration of Trump’s travel ban, barring travelers from five predominantly Muslim countries — Iran, Syria, Libya, Yemen and Somalia — and two others, North Korea and Venezuela. This case, like many others, will likely hinge on Justice Kennedy and on how far the judges are willing to go in considering Trump’s motives.
But the biggest decision we’re waiting to learn about this week won’t come in the form of a ruling from the court itself. It’s whether Justice Kennedy, the court’s swing vote, will retire. If he does, he’ll likely announce his decision at the end of the term, or a few days after.
Kennedy will be 82 years old next month and is the longest-serving member of the Supreme Court. Though a swing vote, he is a conservative, and, many speculate, more likely to retire during a Republican president’s term. If he steps down, Trump will be able to pick his second Supreme Court justice; if another comparatively young justice in the mold of Neil Gorsuch — a former Kennedy clerk — is confirmed, it will likely put the already conservative court more firmly in conservative hands for years to come. We could then see the court revisit past decisions the continue to enrage conservative culture warriors, including Roe v. Wade and cases relating to gay rights.
But whoever Trump nominates will have to make it through the confirmation process first. In that way, Kennedy’s decision, which we’ll likely learn this week, could set up a key political battle that will unfold during the second half of 2018.
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