Legal Docket: A series of 5-4 rulings


MARY REICHARD, HOST: It’s Monday the 2nd of July, 2018.

Glad to have you along for today’s edition of The World and Everything in It. Good morning, I’m Mary Reichard.

We begin by noting all the rulings last week were split 5 to 4. Of note, departing Justice Anthony Kennedy provided the margin of victory in each case.

EICHER: The first (Ohio v American Express Company) says the credit card company American Express does not violate federal antitrust laws with its peculiar business model.

American Express competes against much larger credit-card companies such as Visa and Mastercard. One way it distinguishes itself is with perks and rewards for its cardholders. And retailers would lose business if they refused American Express.

But the issue is American Express’s requirement that merchants not tell customers that other card companies charge less to use their cards.

In other words, retailers cannot give people an incentive to use those less-expensive cards. That’s called an “anti-steering” rule. That is, merchants cannot “steer” consumers to use one of those other card companies.

Here’s how AmEx lawyer Evan Chesler laid it out during oral arguments in February:

CHESLER: The district court described competition for credit card transactions as fierce…(later) …Amex offers consumers what they want …(later)… Amex requires merchants …not to work against Amex if it’s going to be Amex’s representative to consumers.

Bottom line, American Express can continue to run its business the way it has in the past.

REICHARD: This next ruling (Abbott v Perez) means Texas voters will cast their midterm election votes in November in the same place they did during the primary in March.

The issue was whether the Texas legislature impermissibly used race to draw up the political district map. Racial gerrymandering is illegal under the Equal Protection Clause of the Fourteenth Amendment. In the opinion, the justices noted other laws that require states to consider race in drawing up districts.

You can hear the contours of the eventual ruling from oral argument in April.

The lawyer for the map challengers argued that the real motivation of Texas to adopt its map was NOT to stop the seemingly endless litigation. Instead, the state’s motives were nefarious. They were racial motives.

But Chief Justice John Roberts pushed back hard.

RIGGS: It was that intent that they wanted to muffle.

ROBERTS: …don’t you have to suggest that that was the intent that the district court had when it imposed the interim plan? Because keep in mind this evil intent that you’re attributing comes from adopting the plan that the district court adopted, and let the elections go forward on for two cycles.  

In the end, five justices agreed Texas had struck the proper balance except for one congressional district near Ft. Worth. As such, the case is reversed in part and remanded to figure out how to fix that district.

EICHER: Now the third ruling doesn’t resolve the case. It just sends it back for further proceedings.

Here, Florida sued Georgia over water supply. Florida claimed Georgia is taking too much water from a specific interstate river basin. It flows into Florida’s Apalachicola Bay in the panhandle.

At one time, the bay was the leading source of the country’s oysters. The industry collapsed in 2012 as a result of drought and mismanagement.

The Supreme Court asked a Special Master to examine all the evidence and make a recommendation what to do.

That recommendation denied Florida’s request to reapportion the waters, because it failed to make an important proof: that divvying up the waters differently would fix the injury.

During arguments in January, that aspect dominated. Listen to Justice Elena Kagan.

KAGAN: Is that you have common sense on your side….(later)… But there seems to be a real dearth of record evidence specifically quantifying how much more water you would have gotten, exactly what benefits would have followed from that.

The majority returned the case to lower court, and there the Special Master could figure out answers to questions still unanswered.

This, despite a trial that lasted a full month, heard from 30 witnesses, and considered 2,000 exhibits the first go-round.

REICHARD: Side note: this is the rare case that actually begins right at the Supreme Court. That’s called “original jurisdiction.” That just means it didn’t come to the high court from an appeal.

Now, for the three rulings that dominated the headlines last week: First, President Trump’s travel restrictions he issued back in September. They passed Constitutional muster, but barely — in yet another split 5 to 4 ruling.

At issue was his third iteration of the travel ban. This one said citizens of six nations with Muslim majorities, plus Venezuela and North Korea, were temporarily limited in their travel to the United States.

The state of Hawaii and the Muslim Association of Hawaii among others argued this was unconstitutional. They pointed to statements Trump made during his presidential campaign. Statements, they said, that revealed a religious bias against Muslims. And because that bias figured in to the travel ban, it ran afoul of the Constitution’s establishment clause. In other words, that the government cannot favor one religion over another.

Chief Justice Roberts wrote the opinion disagreeing with that.

Quoting here: “[T]he issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular president, but also the authority of the presidency itself.”

The court used the lowest standard of legal review, that of rational basis. That is the easiest standard for the government to meet, and so the court ruled the challengers to the travel restrictions weren’t likely to succeed on the merits of their claims.

But to be clear, the court did not address the concerns of the Department of Justice: which was to limit the power of trial judges to issue national injunctions like this in the first place.

EICHER: Next up, the majority five justices ruled in favor of pro-life pregnancy centers in California. The decision tossed out California’s law that forced the centers to provide free advertising for the abortion industry. In the court’s view, the state imposed requirements that were too onerous on both medical and non-medical crisis pregnancy centers. That included a requirement that their advertisements carry so many disclaimers in so many different languages that they obscured the point of the pro-life ads.

It was Justice Samuel Alito’s question during oral arguments in March that pointed to the eventual ruling:  

ALITO: If you have a law that’s neutral on its face but then it has a lot of crazy exemptions and when you apply all the exemptions what you’re left with is a very strange pattern and, gee, it turns out that just about the only clinics that are covered this are are pro life clinics. Do you think it’s possible to infer intentional discrimination in that situation?

KLEIN: Yes…

ALITO: So, when you put all this together, you get a very suspicious pattern.

Bottom line: California illegally targeted pro-life centers in violation of their free-speech rights. 

The case goes back to the 9th circuit now, with marching orders for the legislature to strike the law from the books. Similar cases are pending elsewhere such as Illinois, Florida, and Hawaii.

REICHARD: The next ruling means an estimated 5 million non-union workers who pay agency fees to unions will no longer have to.

Mark Janus of Illinois challenged his state’s law that requires him to hand over part of his paycheck to a public-sector union he doesn’t belong to.

He asked the High Court to overturn four decades of law and practice. The old rule emphasized the need for peace within the labor force, recognizing the work of unions to carry that out, and not allowing employees to “free ride” on union negotiations without paying in a fair share of the costs for it.

But part of that deal was that those fees weren’t to be used for political purposes.

The opinion noted that time has shed “new light on the issue.”

No doubt that’s a reference to overwhelming union support for the Democratic party. During the 2016 election cycle, for example, public sector unions spent 90 percent of their total political activity on Democrats.  

During arguments in February, Justice Kennedy was particularly forceful. Here he addresses a lawyer on the side of the union:

KENNEDY: What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.

And this:

KENNEDY: Suppose that 80 percent of the fees of the union dues went to matters that were highly political in nature and 20 percent to negotiations and grievances.  Would that change your view?

FRANKLIN: I — I don’t know that it would, Your Honor.  You know, the Abood case, the Keller case, Beck, Ellis, all of them

KENNEDY: Then it seems to me your argument doesn’t have much weight.

This ruling wasn’t a surprise in many ways. Justice Alito hinted in two recent cases it was time to overrule the precedent. It was just a matter of finding the right case at the right time with the right justices. This was that case.

And that’s this week’s Legal Docket.


(AP Photo/Carolyn Kaster, File) In this Oct. 5, 2015 file photo, the Supreme Court is seen in Washington. 

WORLD Radio transcripts are created on a rush deadline. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of WORLD Radio programming is the audio record.

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