If you are an MCBA member and a fan of Michael Krasny on KQED, you might have heard Professor Rory Little twice in one day. In the hour between Professor Little’s appearance on Forum, commenting on the opinions the U.S. Supreme Court released in the final days of its term, and his popular annual commentary on the Supreme Court term for MCBA’s June membership luncheon, Justice Kennedy announced his retirement (which a number of us heard on the radio as breaking news as we drove to the luncheon), giving Professor Little no shortage of things to talk about. This despite the fact that the Court issued the fewest number of signed majority opinions after full briefing and argument since the Civil War or earlier. Professor Little noted that the Court has granted review for next term at a higher pace so far, perhaps chagrined by criticism of its low output.

Professor Little observed that it was a term of narrow decisions and that the Court “punted” on several major cases. Two of these punts stood out. In Masterpiece Cakeshop (where a baker refused to bake a wedding cake for a gay couple), the court reversed a decision in favor of the gay couple after finding that the Colorado Human Rights Commission that first heard the case had expressed hostility to religion, thus not giving the baker a fair hearing that acknowledged a sincere religious belief. That was still a significant ruling but without making clear how far the cakeshop owner’s free exercise right extends. Indeed, it appears that an appropriately neutral Commission may be able to rule against a baker under similar circumstances. The other standout was the dismissal of the two partisan gerrymandering cases on the basis the petitioners had no standing (decided the morning of the luncheon.) For those unfamiliar with the background of the cases, Justice Kennedy had suggested in an earlier gerrymandering case that he was open to finding partisan gerrymandering unconstitutional if there were a method to determine when it had occurred. That method may now exist based on the work of certain mathematicians. But for reasons unknown, the Court did not rule on the merits and with Kennedy’s retirement, it is possible that the issue will remain undecided for a long time even though the decisions left open the possibility of standing to challenge one’s own political district rather than a state’s districts as a whole.

In addition to ruling narrowly, the Court was also, perhaps not surprisingly, polarized, with nearly one-third of its decisions decided by a vote of five to four. Of those decisions, Justice Kennedy voted with the more conservative justices in all but two. Nonetheless, his replacement is expected to be a hardline conservative and in those areas where Kennedy strayed from conservative doctrine such as gay rights and abortion, his replacement is unlikely to do so. Professor Little pointed out that Gorsuch’s replacement of Scalia has already shifted the court to the right. Scalia sometimes voted with the more liberal justices in criminal cases and free speech cases, among other areas, and Gorsuch has consistently voted to the hard right. Gorsuch was in the majority in all but two five-four decisions. He has also written a lot of opinions—17. Professor Little also referred to Justice Kagan as “leading from the side,” writing concurrences in the punted cases, among others, that offer future guidance as to what the law could be.

Professor Little spent the remaining time discussing just a few of the major cases, starting with Trump v. Hawaii, the travel ban case. The Court upheld the Trump administration’s third try at a travel ban on citizens from certain, mostly Muslim-majority, countries. The majority used a deferential standard of review because of the national security concerns involved, finding that there was ample legitimate basis for the ban and that Trump’s anti-Muslim statements did not invalidate that basis. Of note was the majority’s comment that Korematsu (the decision upholding the internment of Japanese during World War II) was “gravely wrong” and had “no place in law under the Constitution.” Also of note were comments in the majority’s opinion in Masterpiece Cakeshop not strictly necessary to the decision, noting that “it is a general rule that [religious and philosophical] objections do not allow business owners and others in the economy and in society to deny protected persons equal access to goods and services.”

The Court also decided several Fourth Amendment cases, foremost among them Carpenter v. U.S., which broke major new ground in Fourth Amendment law. The issue in Carpenter was whether the government needs a search warrant for “cell-site location information” (i.e., information from telephone companies about the location of an individual’s phone.) Past Fourth Amendment cases have held that information in the hands of third parties, such as phone companies and banks, had already been “shared” and thus did not require a warrant. Justice Roberts, joining the Court’s more liberal justices, held that in the modern era, vast amounts of data held by third parties raised “great privacy concerns” and that in certain circumstances, including the case at hand, a large amount of data obtained from third parties could still require a warrant. He took pains to comment on many circumstances where this would not be the case, including cell-site data from a shorter time period, but of course there will be many questions now on when a warrant is required. Professor Little used another Fourth Amendment case to comment that he hypothesizes that petitioners have the best shot at changing existing law when our “everyday experience” produces expectations that conflict with the law, referring to a case (Byrd v. U.S.) where the Court held (9 – 0) that the driver of a rental car (with permission from the renter) had a legitimate expectation of privacy even though he was not on the rental agreement.

Finally, Professor Little discussed NIFLA v. Becerra, decided the day before the luncheon, where the Court struck down a California law requiring certain notices from “pregnancy crisis centers” on First Amendment grounds. These centers are run by anti-abortion groups and sometimes provide medically-licensed services and sometimes do not. The Court found for both types of centers that California’s law requiring them to provide notice of the potential availability elsewhere of abortion services, including publicly funded services, violated the First Amendment as “compelled speech.” Thomas’ opinion for the five-member majority throws into question vast areas of First Amendment doctrine, not to mention government regulation, despite the Court’s statement that, “We do not question the legality of health and safety warnings long considered permissible, or purely factual and uncontroversial disclosures about commercial products.” Professor Little pointed out that it is hard to square this statement with the reasoning of the majority, noting the large number of legally required notices in many circumstances. [Editor’s Note: From my perhaps cynical perspective, I wonder if the Court, while claiming the opposite, is deliberately opening up large amounts of government regulation to question on First Amendment grounds never before envisioned.]

If you missed this lively and entertaining luncheon, you can still learn a bit more about the Supreme Court’s term (and some cases granted for the upcoming term as well) from the brief notes Professor Little prepared that morning and has kindly allowed us to post as a pdf for you to download here.