NICK EICHER, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 25th of June, 2018.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Well, the Supreme Court is in its final week. Six rulings remain. It’s possible the court will hand all of them down today and call it a term. Or not.
But last week, a whopping 14 rulings came down on Monday, Thursday, and Friday.
So hang on to your gavel. We’re going to do a rundown.
Political gerrymandering was at the heart of two of those cases.
EICHER: And it appears the rulings will not bring an end to the fighting, because neither one of the cases got to the merits.
The justices tossed the cases mainly on procedural grounds.
In one of them, twelve Wisconsin Democrats argued Republicans had drawn unfair advantages for themselves. Democrats argued for a mathematical formula called the “efficiency gap” to measure that unfairness.
Several justices expressed doubt about that approach.
Back in October, when the court held oral arguments, you can hear Chief Justice John Roberts on the illusion of precision:
ROBERTS: The whole point is you’re taking these issues away from democracy and you’re throwing them into the courts pursuant to, and it may be simply my educational background, but I can only describe as sociological gobbledygook.
Although some justices seemed intrigued by a mathematical solution, they were unanimous on this: that the plaintiffs here lacked sufficient standing to sue. In other words, they needed to show direct, individual harm, and only within their own voting district, not the entire state. And they didn’t do it.
Bottom line, the case is remanded. That gives those plaintiffs another chance to show specific harm.
REICHARD: The other gerrymandering case arose out of Maryland, where several Republican voters accused Democrats of mischief in map drawing.
A unanimous court in this case as well agreed the Republicans waited too long to vindicate their rights, and the lower court was right to stop that lawsuit.
The net effect of both rulings, as Nick said, leaves current maps in place for the November elections, and punts the larger battles into the future. Again.
EICHER: The next ruling was 8 to 1 for a Florida man who rose to speak at the Riviera Beach City Council meeting only to have council leaders order him arrested and jailed.
That man, Fane Lozman, sued the officials. He claimed his arrest was in retaliation for prior criticism he lobbed at the city council.
You can hear the eventual ruling in this comment from Justice Anthony Kennedy during argument in February:
KENNEDY: In this case there is evidence that there was a predetermined plan to arrest somebody on account of his political speech in a political forum. And it seems to me that this is a very serious First Amendment problem.
The city claimed that Lozman couldn’t sue for retaliatory arrest because they had probable cause to have him arrested. But not so, said the Supreme Court. And this is Lozman’s second win at the high court!
REICHARD: The next ruling involves a man whose term in prison was wrongly calculated. He received more prison time than he deserved under the sentencing guidelines. A majority seven justices decided that a miscalculation like that deserves a resentencing hearing in ordinary cases.
A second sentencing opinion says judges who impose sentences need only have a reasoned basis for the term they choose, and can use a boilerplate form to do so. No need for detail beyond that.
EICHER: This next case is a big one: In this, the court considered whether police need a warrant to obtain cell-phone information on a criminal suspect.
A narrow majority said, yes, they do.
Quick background: A trial court convicted Timothy Carpenter of committing armed robberies in Ohio and Michigan. Prosecutors cited cell-phone location histories to place him near the scene of the crimes. The cell tower his phone was connected to was in the vicinity of those crimes.
Problem was, police didn’t obtain a warrant before accessing Carpenter’s records.
Back in November during oral arguments, you can hear the shape of the eventual ruling in this comment by Justice Sonia Sotomayor:
SOTOMAYOR: Most Americans, I still think, want to avoid Big Brother. They want to avoid the concept that government will be able to see and locate you anywhere you are at any point in time.
The constitutional issue here is the Fourth Amendment, which protects against unreasonable search and seizure. The majority opinion says authorities violated Carpenter’s rights under the Fourth Amendment.
But the opinion was explicitly narrow in scope. For example, this precedent does not apply to security cameras or real-time site records.
The ruling was 5 justices to 4. Each of the four dissenting justices filed his own separate dissent. And that may explain why the case took seven months to decide.
REICHARD: Ok, on to cases that all involve members of the armed forces convicted of crimes by military courts-martial.
In one case, airman Keanu Ortiz received convictions related to child pornography. One of his judges served on two different military panels: one at a Guantanamó Bay review court; the other, a criminal court. Ortiz argued this isn’t allowed under federal law and the Constitution, so he’s entitled to a new appeal.
A majority of seven justices disagreed. They clarified the Supreme Court has jurisdiction to review decisions by the Court of Appeals for the Armed Forces, and that simultaneous service by judges in this manner is permissible.
The other two similar cases were DIGs—dismissed as improvidently granted. I presume that’s the result of the Ortiz ruling. As I read it, the logic of that case rendered the two others moot.
EICHER: This next ruling is a win for a Brazilian man who overstayed his visa, and has lived in the United States for the past 18 years.
Wescley Fonseca Pereira has been a landscaper on Martha’s Vineyard since the year 2000.
In traffic court in 2006, he received a notice to appear for a deportation hearing. The notice contained no date and no time for that hearing. It said simply that the hearing time was “to be set.”
Later, the immigration court mailed the specifics, but Pereira didn’t receive that one. The hearing went on without Pereira, and the court ordered him deported in absentia.
A few years later, Pereira found himself back in traffic court, where that deportation order was awaiting him.
Pereira seeks to appeal that order. He cites a law that gives him the right to an appeal if he can show he’s been in the country for 10 continuous years.
If you don’t count that nonspecific 2006 notice he easily meets that 10 year requirement.
You can hear the eventual ruling from Justice Stephen Breyer’s comment in April’s oral argument:
BREYER: A human being who was over at DHS would go to his computer, found out what dates were available, and fill them in the Notice to Appear. Now that wouldn’t seem too tough. We do have computers today. It would seem to be possible…
Eight justices agreed that the 2006 notice was insufficient, and so Pereira’s 10-year presence in this country entitles him to appeal the deportation order.
REICHARD: OK, now this is the 10th case today: a Virginia man who agreed to have two separate trials cannot claim double jeopardy when he actually receives two separate trials.
Here, Michael Currier of Virginia was indicted for theft of a safe that had guns in it. State law provides for a separate trial when one of the charges is “felon in possession of a firearm,” unless the parties agree to just one trial.
Well, Currier was found not guilty of the theft at trial one, so he argues there’s nothing left to prove as far as his being a felon in possession of a firearm.
But a split 5-to-4 court disagreed, saying his consent to have two trials settles the matter and is not double jeopardy.
EICHER: The next ruling is a win for railroads and hands the IRS a big loss.
Railroads are subject to special laws. One is the Railroad Retirement Tax Act from the 1930s. It was meant to provide railroad workers with assistance in old age.
In the current case, three railroad lines gave their employees stock options, and you can probably see where this is going: IRS considered the options taxable just as though they were wages, and proceeded to collect $13 million in taxes. The position of IRS is anything that could be turned into cash money is taxable.
But not so fast. Here’s what Justice Neil Gorsuch said during oral arguments in April:
GORSUCH: Lots of companies issue lots of things to their employees that are forms of compensation that could be reduced readily to money. You mention lifetime passes for riding the rails, for example. Sports tickets might be another, home technology might be another … why aren’t all those kinds of benefits, childcare? Why don’t all those qualify as money remuneration…or do they?
The conservative majority won out in this 5-to-4 vote. Simply put, according to railroad law, stocks don’t meet the definition of “money remuneration.”
REICHARD: The next case involves a patent dispute.
Normally, patent enforcement stops at the borders of the United States.
But here, the patent infringer made component parts in this country, then shipped those parts abroad for assembly into the final, patented device.
The question is whether the domestic patent holder can recover not just royalties, but also profits that would have come had the infringement not occurred.
By a 7-to-2 vote, the answer is yes. Patent holders are very happy with this ruling.
EICHER: Next, a win for investment adviser Raymond Lucia, known for his “Buckets of Money” presentations to retirees.
Someone complained about him to the Securities and Exchange Commission, and agency judges fined him $300,000 and banned him from the industry forever.
But Lucia argued that the judges judging him were improperly appointed, because the Constitution actually lays out a process to follow for such administrative law judges.
Seven justices agreed, and now Lucia will receive a new hearing with a constitutionally appointed judge.
REICHARD: And that is a really, really big deal! The ruling likely means a whole lot of federal agencies have installed administrative law judges in an unconstitutional way.
Some see this as a welcome slap-down of an administrative state that’s out of control and hurting citizens.
EICHER: Alright, well, let’s do our final ruling from last week, and it’s one that received a lot of press attention: It’s a 5-to-4 ruling that threw out a half-century of precedent. It allows states to tax sales from retailers that have no physical presence in a state. In other words, internet sales.
The old rule required a physical, brick-and-mortar store before the state could impose a sales tax. The opinion noted how internet purchases have upended the economic landscape and the distribution of taxes.
As a result, physical presence is now defined as “economic and virtual contact” in a state that allows it to require tax collection from retailers.
REICHARD: For states, it will theoretically mean more revenue.
For brick-and-mortar stores, it seems to level the playing field.
For those of us who buy things online, it’ll mean higher prices.
And that’s this week’s Legal Docket!