NICK EICHER, HOST: It’s Monday morning and Christmas week! This is The World and Everything in It. Today is the 21st of December, 2020.
Good morning to you, I’m Nick Eicher.
MARY REICHARD, HOST: And I’m Mary Reichard. Very good morning to you! Well, lots of news from the Supreme Court last week.
On Friday, the court brought a quick ruling in a case argued just three weeks ago. Some state and local governments were seeking to challenge President Trump’s plan to exclude illegal aliens from the census and the court tossed out those challenges. Now, this opinion was less on the merits and more on the speculative nature of the harm. In other words, the Census Bureau has yet to finish its work and there’s no real way to know the injury the court’s being asked to remedy.
This puts an end to the litigation for now. The blue state and local governments that sued to stop the plan could well return to court—if the Trump administration manages to implement the plan over the final few weeks in office.
EICHER: The census count matters for a lot of reasons, and possibly the most significant is that the census determines how to apportion congressional seats. The larger population a state has relative to the others, the more seats it gets in Congress.
Liberal justices Stephen Breyer, Sonia Sotomayor, and Elena Kagan would have ruled on the merits, and allowed apportionment based on the number of all persons in each state, without taking into account whether all persons are legally present.
REICHARD: And one final decision, just briefly here: the Supreme Court sent a message to states, you better tread carefully on religious groups during this time of pandemic. The justices threw out lower court rulings in New Jersey and Colorado that imposed limits on religious gatherings they didn’t impose on secular activities. That’s a fundamental First Amendment principle the court has rediscovered.
EICHER: Now on to oral arguments going back to the last day of November.
First one looks to the Big Dance—the NCAA March Madness tournament—specifically “bracketology.” Here’s a question: Have you ever filled out a March Madness bracket on your work computer? If you have, you might unwittingly have committed a felony, depending upon how the Supreme Court interprets a law signed back in 1984 by President Ronald Reagan.
The law is the Computer Fraud and Abuse Act. We’re going to need to refer to it several times in the next few minutes, so remember the initialism CFAA. Congress wrote the CFAA to discourage computer hacking.
Here’s the pertinent language: “Whoever intentionally accesses a computer without authorization or exceeds authorized access, and gets information from a protected computer, shall be punished.”
Here are two concepts to remember about that:
One, the phrase “without authorization,” and that means getting onto a computer without proper credentials. And two, the term “exceeds authorized access,” meaning you’re on the computer but going beyond the permissions you have for using that computer.
REICHARD: So you can see, depending upon how the Supreme Court decides the case, unless your business is filling in basketball tournament brackets, you may have a problem.
This case arises from something much more serious: A police officer in Georgia named Nathan Van Buren took a $6,000 bribe to run a license plate search for a shady friend. Van Buren didn’t realize he was the target of an FBI sting operation. He ran the search on police computers and accessed the government database.
Then the FBI took him to court. The court found Officer Van Buren guilty under the CFAA. But he challenges that, saying he was authorized both to be on that computer and access that information.
That he used it for a bad purpose isn’t something the CFAA addresses. Other laws, of course. Just not the CFAA.
Justice Amy Coney Barrett laid out a scenario to test the theory. Now, you know it’s purely a hypothetical because, well, she drives a minivan!
BARRETT: So, for example, my babysitter might have a key to my car so she can pick up my kids from school, but then she uses the car to go run some personal errands. She’s exceeded the scope of her authority. And I guess what I’m trying to get at is, why should we understand entitlement or authorization to be just an on/off switch and not to have a scope component?
FISHER: Well, I think for two reasons. One is that the statute itself doesn’t have a scope component or a purpose component or anything like that.
EICHER: Van Buren’s lawyer Jeffrey Fisher answered, the CFAA doesn’t talk about scope or purpose.
And he pounded on the danger of this law:
FISHER: It is no overstatement to say that this construction would brand most Americans criminals on a daily basis. The scenarios are practically limitless, but a few examples will suffice. Imagine a secretary whose employee handbook says that her e-mail or Zoom account may be used only for business purposes…any employee who used a Zoom account over Thanksgiving to connect with distant relatives would be subject to the grace of federal prosecutors.
REICHARD: But on the other side, the federal government. Its lawyer, Deputy Solicitor General Eric Feigin underscored the problem with Fisher’s argument:
FEIGIN: I mean, let me give you some examples of things that, on his reading, wouldn’t be covered by this or any other federal statute so far as we know. A police officer tipping off a friend with insider information that he got from a database; he knows the friend is a criminal, but he doesn’t know the purpose to which the friend’s going to put it, so he can’t — we can’t get him for an attempt, we can’t get him for conspiracy.
As in so many legal disputes, a single word can change everything.
Here, it’s the word “so,” in the CFAA. As in, getting information the officer was “not entitled so to obtain.” Listen to Justice Elena Kagan ask Feigin for the government about that.
KAGAN: Mr. Feigin, if — if I understand your brief correctly, you would concede, wouldn’t you, that if the word “so” wasn’t there, you would lose this case?
FEIGIN: I think it would be a much tougher case for us without the word “so,” Your Honor.
In other words, the government’s argument hangs on the meaning of “entitled so to obtain.” So, meaning in that manner, for nefarious purposes. Nothing ambiguous about it.
But Justice Sotomayor thought otherwise:
SOTOMAYOR: You said that there is no ambiguity in this statute, but let me give you an example. Imagine a law that says anyone who drives on Elm Street who is not authorized so to drive shall be punished. The “so to drive” to me could mean if you’re not authorized to drive on Elm Street. But, under your theory, it could be and might very possibly be read as saying you can’t ride on Elm Street if you’re driving on it with an illegal purpose, you’re speeding, you’re breaking the law on curfew, you’re texting….So, to me, if all you’re relying on is that word “so,” I don’t get around the ambiguity.
And it matters in the law whether a law is ambiguous. The point is to make clear to people what behavior is allowed and what isn’t; an ambiguous law fails the test. And courts will rule in favor of the defendant when there’s a question about ambiguity. That’s called the doctrine of lenity, or leniency.
It’s a tossup how this will go; either way, Congress can clarify its intent if it chooses.
This last case today is a direct result of a messy Supreme Court ruling from April of this year. I say messy because the justices disagreed on the reasoning and on the final result.
That 6-3 opinion found that the Sixth Amendment right to trial by jury means a jury must reach a unanimous verdict in order to convict. Louisiana and Oregon didn’t require that. Going forward after that ruling, they will.
But the question now is what happens to people convicted under the prior system?
Case in point: Thedrick Edwards received a life sentence for rape on a split 10-2 jury verdict. Now he wants a new trial that requires a unanimous jury.
Here’s how his lawyer, Andre Belanger, made the case:
BELANGER: We want people to come together as a community to be convinced beyond a reasonable doubt that this person needs to be deprived of their liberty. There are studies that suggest that the effectiveness of deliberation is simply cut short when you don’t have to have a unanimous jury, and that systemically leads to the possibility of an inaccurate conviction.
But Louisiana’s lawyer, Elizabeth Murrill, reminded the court that its own precedent for years explicitly allowed for non-unanimous jury verdicts. When she mentions “Ramos,” that means the new rule that requires unanimity.
MURRILL: But there can be no doubt that declaring the Ramos rule retroactive unsettles thousands of cases that involve terrible crimes…Requiring new trials in long-final criminal cases would be impossible in some and particularly unfair to the victims of these crimes.
Around fifteen hundred people are in Louisiana state prisons on a split jury verdict. Quite a task to sort those out at this late date.
Much argument time was devoted to whether the new rule in Ramos was a “watershed” rule. That’s a doctrine that lets prisoners reopen their closed cases based on new protections in certain situations.
The federal government sides with Louisiana in this case, against applying the rule to closed cases. Here’s Assistant to the Solicitor General Christopher Michel in an exchange with Justice Clarence Thomas: (I’ve edited for flow)
MICHEL: And the rule is not watershed because it is not essential to accuracy or a fair trial. After all, … the right to a jury trial itself is not watershed; trial itself is not watershed, so subsidiary rights like that of a unanimous jury cannot be either.
THOMAS: And what role do you think that the sordid roots of the non unanimous jury rule in Louisiana should play in our analysis?
MICHEL: Well, I think the Court—at least some members of the Court took that into account in the decision last time …
What Justice Thomas was getting at was that Louisiana’s old rule aimed to take away power from minorities who might differ from majority whites sitting on a jury.
Michel didn’t shy away from that hard truth; he said the court considered those sordid roots in Ramos. But that’s not the issue in this case.
Belanjer for Edwards came in at the end with a powerful summation.
BELANJER: In the end, the state has no legitimate interest in avoiding retroactivity but for its desire to let Mr. Edwards languish in Angola for the rest of his life. On what grounds can we let this happen when we know his conviction is unconstitutional? The answer to that question is none.
This is another one difficult to predict. Justice Thomas and Justice Samuel Alito seemed to doubt that the high court has authority to apply Ramos backwards in time.
But Justice Sotomayor and Justice Neil Gorsuch seemed to lean the other way, and they were in the majority for that new rule in Ramos, messy reasoning and all.
So no prediction from me on this one, either!
And that’s this week’s Legal Docket.