Maryland involved in two big pending SCOTUS cases

Listen to this article

OCEAN CITY — Two cases out of Maryland are among the most anticipated opinions yet to come from the Supreme Court’s fall session.

Attorneys gave a rundown of the “Supreme Court Term in Review” Friday at the Maryland State Bar Association’s Legal Summit and Annual Meeting and highlighted International Refugee Assistance Project v. Trump (the travel ban) and Benisek v. Lamone (gerrymandering).

Kelsi Corkran, partner at Orrick, Herrington & Sutcliffe LLP in Washington D.C., said the travel ban case is likely the biggest case of the term. The 4th U.S. Circuit Court of Appeals upheld an injunction in February, and the case was joined with one originating in Hawaii.

At oral arguments, Corkran said, Justice Anthony Kennedy’s remarks stood out to her. He focused on prior executive orders by Presidents Ronald Reagan and Jimmy Carter impacting travel from certain countries but seemed unconvinced by the government’s argument that the court cannot look behind the language of the order to discern intent.

Maryland’s gerrymandering challenge, which is being considered along with one from Wisconsin, may be the most important one in years, according to Shon Hopwood, a professor at Georgetown University Law Center. Justice Ruth Bader Ginsburg remarked that it might be the most important case of the term.

“If political parties can gerrymander so that they stay in power forever, that imperils democracy,” he said.

Hopwood said because Maryland’s case was based on First Amendment retaliation, it may give the court an easier framework for analysis than other gerrymandering challenges. Maryland officials were clear in their intent to change congressional districts to unseat longtime incumbent Republican Roscoe Bartlett, he said.

“I think the reason why they are doing this is the court has struggled with how to draw the lines in the equal protection context,” he said.

The Wisconsin case is a broad equal protection challenge that shows how lower courts have struggled to draw the line between permissible considerations of partisanship and unconstitutional maltreatment of the opposition party.

A third case discussed, Carpenter v. United States, deals with whether a warrant is required to obtain cell location data from the service provider.

Beth Brinkmann, partner at Covington & Burling LLP in Washington D.C., said the case focuses on the third-party doctrine and the court’s recent ruling on privacy and cell phones. Chief Justice John Roberts, who wrote the 9-0 ruling in 2014 that police need a warrant to search the cell phone, is likely to write this opinion, too, Brinkmann said.