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The US Supreme Court has reconvened, and this season promises to be more contentious than the spring as the justices take on tough cases that may result in closely divided decisions, according to Richard Pacelle, a UT professor of political science.

Richard Pacelle
Richard Pacelle

The high court will deliver opinions that could redefine the boundaries between equal rights and religious liberty, reshape our digital privacy, and affect election outcomes based on how district lines are drawn.

“The court typically holds over closely divided cases when there are eight judges,” said Pacelle. “That means key cases get held over, and there are double the important cases in a sense.”

In the spring, the Supreme Court largely ruled on cases with eight justices before the confirmation of new justice Neil Gorsuch. As such, they avoided controversial cases that could result in a 4–4 decision, said Pacelle, who has written extensively about the Supreme Court.

With all nine justices now seated, they will tackle prominent cases that include:

Masterpiece Cakeshop v. Colorado Civil Rights Commission (refusal of service to same-sex couples)

In 2012, baker Jack Phillips, owner of Masterpiece Cakeshop in Lakewood, Colorado, refused to create a cake for the wedding reception of David Mullins and Charlie Craig, a same-sex couple who planned to marry in Massachusetts and have a reception in Colorado. The couple filed discrimination charges, and they won in the lower courts.

“This case will likely get the most attention,” Pacelle said. “This is a case with lots of ramifications for different areas of law. It involves civil rights and freedom of religion.

One side will lose and have to give way. Either free exercise of religion or civil rights gets pushed backwards a little. One side has to lose.

“These are difficult cases because they pit important rights. A decision in favor of the baker sends a message to LGBT individuals.”

Carpenter v. United States (Fourth Amendment case of digital privacy)

In 2011, the government obtained several months’ worth of cell phone location records for suspects in a criminal investigation in Detroit without getting a warrant. One of those suspects was Timothy Carpenter, who was subsequently convicted—based in part on the cell phone location evidence from his carrier. He appealed the conviction, arguing that the government had violated his Fourth Amendment rights.

“This is potentially the most important case for the average individual,” Pacelle said.

He said the court’s decision will define what the government needs to do to procure information and what obligations cell phone companies—who have a huge incentive to protect their customers—have to provide it.

“This will define the parameters,” he said.

 Gill v. Whitford (Constitutionality of partisan gerrymandering)

In 2010, Wisconsin Republicans drew district boundaries that strongly favored their party along electoral lines and gave them an advantage, decreasing the Democrats’ ability to regain a legislative majority in the state.

Pacelle noted that redistricting along racial and ethnic grounds is unconstitutional.

“Race issues get the highest form of protection, so any discrimination on racial grounds has to survive the highest form of scrutiny,” he said.

On the other hand, gerrymandering on partisan grounds gets a much lower form of protection. Thus it is easier to discriminate on those grounds.

Pacelle noted that Earl Warren was chief justice when Brown v. Board of Education was decided, the Voting Rights Act was declared constitutional, libel law was changed to strengthen the First Amendment, organized teacher-led school prayer was banned, people’s right to exercise their freedom of religion was given its broadest protections, and free speech had its greatest expansion.

Of all the decisions he participated in, Warren said to his dying day that reapportionment was the most important.

“A decision on reapportionment affects every single election and who gets elected in statehouses and in Congress,” Pacelle said. “The people who are elected in turn make policy for the city, state, region, nation. The definition of gerrymandering and reapportionment will affect the entire scope of American government and all the decisions that emerge from the elected branches.”


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