On Wednesday afternoon, the Supreme Court’s 2017 term came to an end along with the tenure of one of the nation’s most consequential jurists — Anthony M. Kennedy. The 2017 term saw a decisive conservative shift on the bench, in large part because Justice Kennedy, often a swing vote, joined the conservatives in all 14 of the court’s 5-4 decisions. The court decided a range of historic cases that significantly expanded as well as contracted our fundamental freedoms. Of the 72 cases heard by the justices, the American Civil Liberties Union was involved in 17, directly arguing four.

Here are five of the most significant decisions, along with the role we played, the outcomes, and what it means for Americans’ civil liberties and civil rights. 

Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission

ACLU Role: Counsel
Result: Partial Loss, 7-2

What It Means: Equality may have lost this battle, but it won the war. The court ruled in favor of a bakery that refused to sell Dave Mullins and Charlie Craig a cake for their wedding reception because they are a same-sex couple. But it did so solely because it concluded that the state civil rights commission that adjudicated the case was infected by religious bias. It declined to hand the bakery the First Amendment right to discriminate that he — and the Trump administration — sought. And the court went out of its way to reaffirm that philosophical and religious objections do not provide a justification for a business to violate a neutral nondiscrimination law. 

The bakery, backed by the Trump administration, had claimed that freedom of religion or freedom of speech should give it a blank check to violate Colorado’s Anti-Discrimination Act and turn away same-sex couples. The court didn’t accept that unprecedented theory. While it expressed concerns about the way one state’s civil rights commission handled this particular case, it reaffirmed that civil rights commissions across the country can continue to enforce our nation’s laws against discrimination, including discrimination against people who are LGBT. And that’s something to celebrate.

Carpenter v. U.S.

ACLU Role: Counsel
Result: Win, 5-4

What It Means: In a groundbreaking expansion of privacy rights in the digital age, the court held that police need a search warrant to obtain a person’s historical cell phone location data from their cellular service provider. The majority opinion, written by Chief Justice John Roberts, recognized that the comprehensive record of our locations and movements generated whenever we carry a cell phone is highly sensitive and private. His majority opinion rejected the government’s sweeping argument that a person’s Fourth Amendment privacy rights are eliminated any time their sensitive information is shared with or held by another party, such as the phone company or an internet service provider. Because we necessarily share everything we do online or on a cell phone with some third-party company, the government’s argument — which had consistently prevailed in the lower courts — would have marked the end of privacy in the digital age.

Although the case is most directly about recognizing the serious privacy implications of law enforcement access to people’s location data, it has opened space for future cases to protect many other kinds of highly private digital-age data. These include the contents of our emails and search query histories held by Google or Microsoft, the data about our health or news reading habits generated by apps on our phones, and the information about our bodies and homes created by internet-connected “smart” devices.

Jennings v. Rodriguez

ACLU Role: Counsel
Result: Loss in part, 5-3

What It Means: This case involved a challenge to the immigration service’s practice of prolonged mandatory detention without a hearing of many foreign nationals seeking asylum or other relief from deportation. The Supreme Court overturned a ruling that required the federal government to give immigrants an opportunity to ask a judge for release on bond when they had been in immigration detention for more than six months and their deportation cases remained ongoing. Two lower courts had interpreted federal immigration detention statutes to require hearings after six months of detention, while four others had interpreted the laws to require hearings after a "reasonable time."

Writing for the majority, Justice Samuel Alito found that the immigration statutes prohibited such bond hearings for immigrants. However, the immigrants had also argued that their prolonged detention without bond hearings was unconstitutional. Despite ordering supplemental briefing and a second oral argument on that issue, the court declined to decide it. Instead, it sent the case back for the Ninth Circuit Court of Appeals to address the constitutional issues. The court’s failure to address that question suggests that, with Justice Kagan recused, the Court was equally divided on the question.  

The ACLU has already submitted briefing in the Ninth Circuit and other lower courts arguing that the government’s practice of locking up immigrants for more than six months without a hearing violates the Due Process Clause. Through this case and others, we will continue the fight for due process for immigrants.

Hawaii v. Trump

ACLU Role: Amicus (but counsel in IRAP v. Trump, a companion case)
Result: Loss, 5-4

What It Means: The Supreme Court allowed the third version of President Trump’s Muslim ban to stay in effect, rejecting constitutional and statutory challenges brought by the state of Hawaii. The American Civil Liberties Union and partner organizations had successfully challenged every version of the ban in a separate lawsuit, International Refugee Assistance Project v. Trump.  The lower courts held that the ban violates both the Establishment Clause and U.S. immigration law prohibiting national-origin discrimination.

President Trump had repeatedly vowed to ban Muslims, openly admitting his anti-Islam animus. The Establishment Clause absolutely forbids government action targeting a particular religion.  Nonetheless, applying extraordinary deference to the president, the court applied only “rational basis” scrutiny and upheld the order because it was “plausibly” related to national security. Despite overwhelming evidence that the ban was targeted at Muslims, the court found that it had “a legitimate grounding in national security concerns, quite apart from any religious hostility.”

As Justice Sotomayor wrote in her dissenting opinion, the majority could reach this conclusion only by “ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals.”   

Husted v. A. Phillip Randolph Institute

ACLU Role: Counsel
Result: Loss, 5-4

What It Means: In a setback for voting rights, the court upheld an Ohio voter purge program that targets registered voters who do not vote in a two-year period for removal from the rolls and removes them if they fail to respond to a mailed notice and fail to vote in the next two elections. The program erroneously purged thousands of voters, and as Justice Sonia Sotomayor noted in a pointed dissent, “disproportionately affected minority, low-income, disabled and veteran voters.” The court’s decision effectively sanctions similar programs already on the books in six other states and may encourage others to join that group.

The court, however, did not green light wholesale purges of registered voters without first them providing notice and an opportunity to contest their removal. Although the court permitted Ohio’s purge program, it did so because the targeted voters are removed only after they receive a notice and subsequently do not vote or respond to the notice for another four years. As the majority opinion, written by Justice Samuel Alito, acknowledged, “the NVRA is clear about the need to send a ‘return card’ (or obtain written confirmation of a move)” before a state may remove a registered voter.

Justice Anthony Kennedy, who announced his retirement on Wednesday after more than 30 years on the Supreme Court, was a Republican appointee who over time became the swing vote on many of the court’s most controversial decisions. Especially after Justice Sandra Day O’Connor retired in 2006, as Kennedy went, so went constitutional law. Sometimes he swung right, other times left. But whichever way he went, more often than not, his was the deciding vote. We’ve called it the Roberts Court, after Chief Justice John Roberts, but it’s been the Kennedy Court in all but name. 

Kennedy was a conservative. One study identified him as the 10^th most conservative justice to serve in the last century. But he was open to considering arguments on the other side, and not infrequently ruled in favor of liberty for the marginalized. For example, Kennedy wrote all the court’s major cases recognizing the rights of gay men and lesbians, many in 5-4 decisions. In Romer v. Evans, the court struck down a Colorado referendum barring protection against discrimination on the basis of sexual orientation. In Lawrence v. Texas, Kennedy wrote for the court as it struck down a law making same-sex “sodomy” a crime. And perhaps most importantly, he wrote Windsor v. United States and Obergefell v. Hodges, both 5-4 decisions extending constitutional protection to the marriage of same-sex couples. In these and other decisions, he saw in anti-LGBT measures a direct affront to the equal dignity of all persons. 

As these votes indicate, Kennedy was committed to the idea of an evolving Constitution, not limited to the specific (and historically constrained) ideas of those who adopted it more than two hundred years ago. As he wrote in Obergefell: 

The nature of injustice is that we may not always see it in our own times. The generations that wrote and ratified the Bill of Rights and the Fourteenth Amendment did not presume to know the extent of freedom in all of its dimensions, and so they entrusted to future generations a charter protecting the right of all persons to enjoy liberty as we learn its meaning. When new insight reveals discord between the Constitution's central protections and a received legal stricture, a claim to liberty must be addressed. 

In keeping with his belief that we may not always recognize injustice, he strived to maintain an open mind. Because, unlike some of his colleagues, he was not committed to a rigid world view, he was persuadable. In preparing cases for argument before the court, many advocates sought to address Kennedy, not only because he was so often the deciding vote but also because he seemed “gettable,” unlike other justices who could be counted on to vote in more predictable ways. 

Kennedy showed this openness on two of the most contentious issues of the day. Despite having been a critic of both abortion rights and affirmative action, when cases came before him in which the question was whether to overturn Roe v. Wade or to end affirmative action, he chose not to do so.  With Justices O’Connor and David Souter, he played a pivotal role in the preservation of Roe v. Wade when, in Planned Parenthood v. Casey, the court directly addressed whether to overturn Roe. And although Kennedy was an early harsh critic of affirmative action, he voted with the liberal justices to preserve it in Fisher v. University of Texas, when it seemed most vulnerable to being declared unconstitutional. 

Kennedy also was a necessary fifth vote (along with Justice Antonin Scalia) in two cases striking down laws making it a crime to burn the flag. And he wrote groundbreaking opinions banning the death penalty and life-without-parole sentences in non-homicide cases for juvenile offenders. In the war on terror, Justice Kennedy wrote the majority opinion in Boumediene v. Bush, which extended the constitutional right of habeas corpus to Guantanamo detainees. 

Still, Kennedy was a strong conservative, and in plenty of opinions he voted with the conservatives to restrict criminal defendants’ rights, to gut the Voting Rights Act, to limit lawsuits against corporations, to strike down portions of the Affordable Care Act, to nullify campaign finance restrictions on corporations, and to uphold states’ rights. This term he voted with the conservatives in all 14 of the court’s 5-4 decisions, including voting to uphold the Muslim ban, to allow states to purge voters for failing to vote, and to end public sector union dues. And perhaps most consequentially, he voted with the Republicans in Bush v. Gore to stop the recount and ensure George W. Bush’s election. 

Nonetheless, he was a moderating force. In Justices Roberts, Clarence Thomas, Samuel Alito, and Neil Gorsuch, there are now four sitting justices who are among the most conservative to have ever served on the court. If President Trump names another right-wing justice, the court will become far more conservative than the country at large. Kennedy’s swing vote allowed the Supreme Court to remain within the mainstream. We should demand that any successor show the same open mind, the same moderating temperament, and the same sensitivity to the equal dignity for all. 

Antwon Rose Jr. was a Black 17-year-old honors student at Woodland Hills High School near Pittsburgh. He died last week because an East Pittsburgh police officer shot him three times from behind. Rose’s story is at once terrifying and all too familiar, in a nation where hundreds of people of color die from police violence every year and where even 10-year old Black children are so afraid of police that their first reaction is to run even if they have done nothing wrong. 

On the day he died, Rose was one of two passengers in a “jitney”— a sort of unofficial taxi — in East Pittsburgh, a suburb just outside of Pittsburgh. An East Pittsburgh police officer pulled over the car because it matched the description of a car that drove away from the scene of a shooting 13 minutes earlier. 

According to an official police statement, the officer ordered the driver out and directed him to the ground. A cell phone video taken by a bystander shows what happened next.  As a second police cruiser parked behind the first cruiser, Rose and the other passenger got out of the right-hand side of the jitney and started running away from the officers. While the other passenger was eventually charged with a crime, the district attorney has stated, “Antwon Rose didn’t do anything in North Braddock other than be in that vehicle.” 

Less than two seconds later, the first officer gunned down Rose, who was unarmed. The other passenger continued running away. Later that night, the jitney driver was questioned and released. Since then, community members and people from across the nation have taken to Pennsylvania’s streets in daily protests calling for justice for Antwon Rose Jr. 

On June 27, Allegheny County District Attorney Stephen Zappala announced that he is charging Officer Michael Rosfeld —who shot Rose — with murder. He also made clear that Rose had not committed any criminal act and had in fact held his hands above his head — showing he was unarmed — when he began running. District Attorney Zappala deserves credit for taking swift action to hold Rosfeld and his department accountable.

But the criminal charge for Rosfeld is only the first step in accountability.

In his press conference announcing the charges, District Attorney Zappala stated that the East Pittsburgh Police Department has no policy governing use of force. That is a gross dereliction of duty by police department leadership, especially when the Police Executive Research Forum and other organizations have provided clear guidance to police departments on use-of-force policies that help prevent unnecessary loss of life. The department must work with community members to adopt a use-of-force policy that makes the sanctity of human life a top priority and incorporates best practices to prevent unnecessary police violence.

The East Pittsburgh Police Department also needs to take responsibility for how its decision to hire Rosfeld contributed to Rose’s death. Rosfeld left his previous job (the third police department he’d left in seven years), at the University of Pittsburgh Police Department, after authorities “discovered discrepancies” between Rosfeld’s sworn statement and other evidence — in other words, that he was dishonest. Yet the East Pittsburgh Police Department chose to hire Rosfeld, and he went on to kill Antwon Rose Jr. just hours after being sworn in to his new job.

Police departments hiring the rejects and washouts from other departments is a nationwide problem, and it puts the public at risk.

As we know, Rosfeld is not the first such officer to receive nationwide attention for gunning down a Black child. In Cleveland, Officer Timothy Loehmann — the officer who shot 12-year-old Tamir Rice — was described by supervisors at a previous department as being unable to “follow simple directions” and that he showed a “pattern of a lack of maturity, indiscretion and not following instructions.” He was rejected by at least five different police agencies in the region. But then the Cleveland Police Department hired him and gave him a gun. Tamir Rice died alone on a playground because of the department’s negligence.

We give police officers one of the most significant powers, and certainly the most final power, we confer on the government — the power to kill. Police departments need to exercise immense care in deciding who will wield this power and how they wield it. The East Pittsburgh Police Department has done neither.

The ACLU is supporting the community’s call for justice for Antwon Rose Jr. and will be working with the community on reform proposals to prevent other young people of color from suffering his fate. The East Pittsburgh Police Department and the elected officials who oversee it have a decision to make: Will they stand with the community, or will they stand in the way? For justice, there is only one answer.