NICK EICHER, HOST: It’s Monday morning and we’re back at it for another week for The World and Everything in It. Today is the 9th of December, 2019. Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Last week the Supreme Court heard the biggest Second Amendment case of the term.
The case is from New York, where firearm restrictions allow you to have a pistol or revolver in your home. But the license that allows you to have that pistol or revolver is tied to your address, not to you and wherever you may go, except in very limited situations.
For example, say you want to take your gun to the shooting range, as gun owners tend to do. You can do that, but under these conditions: you have to lock up the gun unloaded and in a container, and then carry the ammunition separately.
EICHER: It’s important to note those restrictions are not in place now.
Let’s listen to the lawyers on each side, speaking outside the courtroom.
First, Paul Clement, lawyer for the gun owners:
CLEMENT: My clients have been litigating this case for over five years. The reason they filed this lawsuit… was to vindicate their rights under the Second Amendment. Up until the point that the Supreme Court granted certiorari in this case, the city of New York had resisted their efforts to vindicate their rights at every turn.
Jim Johnson is a lawyer for the city of New York:
JOHNSON: New York City and New York State actually gave them everything that they had asked for before this argument. That was made very plain in this argument today. The case is moot.
If you smell a whiff of legal chicanery in the backstory, it’s because, well, there’s a bit of legal chicanery in the backstory.
In this case, three gun owners, as well as the New York State Rifle and Pistol Association, sought to have the city’s gun restrictions declared unconstitutional. They made claims under the Second Amendment for gun rights, and claimed the rules restricted their rights of free association and of travel.
They lost in lower courts and so the city left the restrictions in place.
REICHARD: Left the restrictions in place until the Supreme Court agreed to take the case. Then New York scrambled to undo the restrictions, so it could argue the case is now moot.
Moot, meaning nothing left to decide. That would avoid risking victories upholding other gun restrictions won in the lower courts. And the liberal justices all seemed to think the case is moot.
But conservative Justice Samuel Alito did not.
Listen to this exchange with lawyer for the city, Richard Dearing. Suppose the gun owners had won a judgment below that the old law violated the Second Amendment?
ALITO: And suppose that after that one of the plaintiffs had made a trip to a firing range in let’s say New Jersey and while there decided to stop to visit his mother for a couple of hours to take care of a few things for her. Would there be any law that that would violate?
DEARING: I don’t think it’s—it’s at all clear because that question—those kind of questions were never put at issue or litigated in the case. And so—
ALITO: Well, what—you don’t know what—you don’t know whether there’s any city law that that would violate?
DEARING: I’m not aware of any city law that that—
ALITO: So then why is this case moot? Because they didn’t get all that they wanted. They wanted a declaration that the old law was unconstitutional, period.
REICHARD: Maybe they didn’t get that declaration, but they did get everything else they wanted, such as traveling outside city limits.
But pinning down exactly how direct and continuous that travel had to be was a sticking point. A coffee stop? That’s OK.
But Justice Alito’s visit to mother caused Dearing to stumble over how far to take that.
Here’s Justice Gorsuch taking it further:
GORSUCH: So we have no representations to us as to what is direct and continuous. Other than ‘coffee’s OK.’
DEARING: Coffee . . . what I can represent because it’s come up before, coffee, restrooms, food, gas, the kinds of things that you ordinarily would stop for in the course of travel, I hadn’t considered the mother or mother-in-law example before.
Dearing said those other situations are for another case.
Justice Gorsuch didn’t let go:
GORSUCH: But you’re asking us to say that there is no controversy now.
Chief Justice John Roberts is the likely deciding vote. He asked relatively few questions, but seemed to cast about for a way to call the case moot without limiting the gun owners in some other way.
I don’t think this is a case in which Second Amendment advocates are going to score a big win.
OK, number two case today (Ritzen Group Inc v Jackson Masonry, LLC). It’s a bankruptcy matter.
When you file for bankruptcy, creditors have to stop trying to collect the debt directly from you. They must follow a specific process to work out among many creditors who gets paid what. To get around that general rule, a creditor has to get a bankruptcy judge to allow it.
Those judges have to make tons of little decisions within the case before it’s all over.
The question is when can those little decisions be appealed? In legal parlance, when is a little decision “final” for purposes of appeal?
The justices were trying to get at the meaning of the word “final.” Listen to an incredulous Justice Samuel Alito:
ALITO: So what if the order … says, ‘And this is the final word on this subject. This is not going to be reexamined.’ It’s not final?
LAWYER: No … because …
There you have it. “Final” doesn’t always mean “final.”
The Supreme Court took the case because lower courts disagree about this. Clarity is needed. Finally!
This last case arises from the beautiful western shores of Maui. But even paradise has to deal with less pristine matters, such as sewage and pollution.
Environmental groups sued Maui County for polluting the ocean. They say the county’s big wastewater plant dumps millions of gallons of treated sewage into the Pacific. The county should get a permit to do this, per the Clean Water Act.
That forbids putting pollutants into the ocean from any point in the treatment process.
Here’s how lawyer for the environmental groups, David Henkin, put it:
HENKIN: This prohibition is not limited to pollutants that flow directly from a point source to navigable waters. The word ‘directly’ is nowhere in the text. …When you buy groceries, you say they came from the store, not from your car, even though that’s the last place they were before they entered your house.
But Maui County says that analogy doesn’t apply because the Clean Water Act doesn’t apply to what it does. That law is for treated water that goes directly into the ocean. Maui County’s treated water doesn’t do that.
The county injects the treated water into special underground wells. Then it mixes with groundwater, which then eventually makes its way to the ocean. But the groundwater carries it there. Ergo, the Clean Water Act doesn’t apply. No permit required.
County lawyer Elbert Lin warned against applying the Clean Water Act too broadly. It involves massive fines—$50,000 per day.
Justice Samuel Alito picked up on that on behalf of rural Americans in a challenge to Henkin, again lawyer for the environmental groups.
ALITO: Let’s take an example of the ordinary family out in the country that has a septic tank, and they buy it from somebody who installs them, and they get the building permit that’s required by that rural municipality. And then it turns out that some things are leaching out of the septic tank 10 years later and making its way into waters of the United States.
So those poor people would get socked with penalties for want of a permit? Not to worry, Henkin responded, because other regulations govern septic tanks.
But the justices pressed him for some limiting principle that wouldn’t ensnare the little guy.
Listen to Justice Stephen Breyer hearken to what he learned in junior high:
BREYER: I learned in the eighth grade, and it may be wrong, that water does run downhill—[Laughter]—and that virtually every little drop of rain that falls finds its way to the sea. And—and that’s an overstatement, but not too much. So it’s not just the septic tank; the miner gets up and every morning he throws his shaving water outside the house at Pikes Peak, OK? Now there’s a very good chance that that will end up in a river, and the brief on the—of the scientists, really convinced me they’re geniuses and they can trace all kinds of things.
The “traceability” of pollutants is one test put forth by the environmental groups as the link for liability for pollution. But the justices pressed for some test aside from that because everything can be traced.
Lots of competing interests for the justices to juggle here, with no obvious connection to the competing judicial philosophies represented by the justices on the bench. So, I’ve got no prediction on this one.
And that’s this week’s Legal Docket.