MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 9th of April, 2018.
Good morning to you, I’m Mary Reichard.
NICK EICHER, HOST: And I’m Nick Eicher. Good morning to you.
Before we get into the arguments, we have a ruling to report.
The Supreme Court last week decided a case it had to hear twice.
It has to do with overtime pay for certain classes of employees who work at car dealerships.
You’ll remember this one as the case involving service advisers, the people with the clipboards, the first ones you encounter after you drop off your car at a dealer for service.
This ought to refresh your memory. Remember the chief justice providing the context when the court heard the case a couple of months ago?
ROBERTS: …. if you over several years dropped your car off whenever you’re supposed to or whenever it’s broken and — and you talk to Fred about getting it fixed, and – and somebody comes to you later and says something — I’ve got a problem with my car, you would say my service guy is Fred, go see him.
So “Fred” says he’s entitled to overtime pay because federal law exempts the following people, quoting the law here: “any salesperson, mechanic, or partsman primarily engaged in selling or servicing a vehicle.” They are not entitled to time and half.
Service advisers argued they don’t sell vehicles, and they don’t service them. Therefore they’re outside the exempted group.
Well, the Supreme Court disagreed five justices to four. The majority said that “service advisor” falls within the plain meaning of the law’s overtime pay exemptions. In other words, no overtime pay.
REICHARD: Now, two oral arguments the court heard in March.
For context, think back to the year 1812. That’s when the governor of Massachusetts did something that we still fight over today.
Elbridge Gerry, spelled G-E-R-R-Y, rigged up a political district map that favored his party. It was such a convoluted, meandering boundary line that people put his name together with salamander to create the word “gerrymander.” Now, we pronounce it “jerrymander.”
Gerrymandered maps concentrate into a few districts, voters who prefer the minority party. That dilutes their clout so that they can’t be a majority.
EICHER: The justices already heard a gerrymander case this term, arising from Wisconsin. In that case, Democrats cried foul after Republicans redrew the political district boundaries after gaining power in 2010 with a full sweep.
No ruling on that case yet.
REICHARD: This time, it’s Republicans crying foul over the way Democrats redrew political district boundaries in Maryland in 2011. Democrats had some newfound gains in the statehouse after that- that left a lot of people scratching their heads.
Enough so that several Republican voters sued, alleging they were targeted and their voting strength diluted. And in a way — in their view — that violates the First Amendment’s retaliation doctrine. That means government must not punish you for exercising your First Amendment rights, such as free speech.
Listen to the way Michael Kimberly put it. He represents the Republicans.
KIMBERLY: …It’s making it more difficult for citizens to achieve electoral success because their views are disapproved by those in power. In this case, Annapolis.
Annapolis, the Maryland state capital. Kimberly says it’s the power grab by those in Annapolis that now injures the rights of the Republican voters.
But Justice Samuel Alito seemed skeptical about solving the problem of partisanship.
ALITO: I really don’t see how any legislature would ever be able to redistrict….Hasn’t this court said time and again you can’t take all consideration of partisan advantage out of districting?
The High Court has never created a standard for just when partisan gerrymandering goes too far — that is, so far that it violates the Constitution.
Not so with racial gerrymandering. With race, the court has said considering race too much is unconstitutional.
Justice Ruth Bader Ginsburg asked a pointed question about that. Here she addresses the lawyer defending Maryland’s boundary map, state solicitor general Steven Sullivan.
GINSBURG: [I]n the racial gerrymandering case, there was a period when max black was the effort. And it seems to me that what we have here is max Democratic. And if max black was no good, why should max Democratic be ok?
Sullivan argued the map has no particular language to show partisan intent.
But that didn’t go over well at all. Listen to the way that Justices Anthony Kennedy and then later Chief Justice John Roberts responded:
KENNEDY: So — so, if you hide the evidence of what you’re doing, then you’re going to prevail? (Laughter.) …
ROBERTS: … I mean, part of the issue here is you have people from, you know, Potomac joined with people from the far west panhandle. I mean, they both have farms but the former, hobby farms. Laughter. And the others are real farms.
SULLIVAN: There’s a lot in the record that you’ll find uh that census considers most of the people in that western Maryland part of the state to actually live in urban areas according to the census…
The Chief Justice acknowledged some physical boundaries make sense.
ROBERTS: … going over into Chesapeake Bay and drawing a district. And that makes a lot of sense. But it’s not just water that separates people. And part of the objection here and the way it was redrawn is that it doesn’t seem to have any internal logic.
Justices both ideologically left and right agreed the Maryland gerrymandered map is overtly partisan, that those who drew it, drew it strictly to turn the district blue.
Listen to Justice Elena Kagan in this montage, addressing the map defender. He’d just tried to make a distinction between partisan intent and retaliation. And he argued the other side hadn’t laid out how much partisanship is too much:
KAGAN: … But we don’t have to say something like that to deal with this case because, however much you think is too much, this case is too much. (Laughter.) … People were very upfront about what they were trying to do here which was to create another Democratic district, and they did that…
… I mean, how much more evidence of partisan intent could we need? …
… I mean, Democrats have now prevailed in three straight elections including an election which was a wave Republican election. So the effects are exactly what the intent would suggest … . I mean it appears the Maryland legislature got exactly what it intended … But here when you look at this kind of maneuvering and it’s all about, what else is it? Except about politics…
Justice Kennedy took it as far as he could in this hypothetical to Maryland’s lawyer Sullivan:
KENNEDY: Suppose the Maryland Constitution had a provision that required that partisan advantage for one party be the predominant consideration in any districting. Lawful or not?
SULLIVAN: That would be viewpoint discrimination, Your Honor…
The problem is nobody really knows how to fix this problem. That requires politicians to refrain from using their power to draw boundaries in a way that gives themselves an advantage.
Perhaps this is a little bit like Justice Potter Stewart back in 1964 struggling for a legal definition of obscenity: “I shall not today attempt further to define the kinds of material I understand to be embraced… [b]ut I know it when I see it.”
Justice Stephen Breyer wondered whether wisdom dictates a way forward:
BREYER: You could have a blackboard and have everyone’s theory on it. And then you’d have the pros and the cons and then you’d be able to look at them all and then you’d be able to see perhaps different ones and different variations. Maybe different parts of gerrymandering arise in different circumstances and da-da-da. You see the point….
Maybe the justices will put some limits on partisan gerrymanders this time around. But maybe they won’t. The question remains of just how to accomplish a task that requires human beings not to be self-serving.
And if that weren’t hard enough, it needs to be done before November’s mid-term elections.
This second case deals with that yawner of legal issues, statutes of limitations.
That is, the time in which you have to sue or lose your right to sue.
I won’t go into the details of this case involving a Chinese company that shareholders want to sue in a class action. But here is the legal question: whether one or two failed class-action lawsuits extends the time available for other kinds of lawsuits involving the same actions by the same company.
Justice Breyer calls our attention to little cards in the mail that say you’re eligible to join a class action:
BREYER: Let us focus on someone like me. A common person. What you do is you sit home and go to your office. And one day this complicated letter comes and it says there’s a class action being filed. Did you buy some pencils from so and so during a period of time? And if so, you are entitled to some damages. And you know what I do about that? Nothing. It tells me I have a right to opt out. Nothing. Do I finish reading it? No. Alright? Now, think of people who are like that.
Now what happens is that first letter came in plenty of time to file a suit. Then there was a class action. Then it got dismissed. Then some individual people filed because they were told…
Know what he did the second time? Nothing. Did he read the letter? No. Did he throw it in the wastebasket? Probably. Alright. So as to that he is saying it is not equitable to give that person that didn’t even read the letter a second chance again to be the person who didn’t read the letter.
Or as country artist Randy Travis might put it: “Since my phone still ain’t ringing, I assume it still ain’t you.”
IS IT STILL OVER: Is it still over? are we still through?
Since my phone still ain’t ringing, I assume it still ain’t you
… If I repeat myself it’s ’cause I’ve nothing else to do
But I’m not too sure that I’m still over you
And that’s Legal Docket for this week!