Legal Docket: Four of last week’s opinions

MARY REICHARD, HOST: It’s The World and Everything in It for this 24th day of June, 2024. We’re so glad you’ve joined us today. Good morning! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher.

Before we get going today, a reminder that we’re down to our final week for the June Giving Drive. We do these drives twice a year and they are crucial reality checks for us: they tell us whether the WORLD audience perceives that we’re delivering on our mission.

And so in a very real way, we’re renewing our commitment to one another. We commit publicly to do the work, and you commit to making it possible.

REICHARD: Another way to think of it: Your gift in the June Giving Drive is like a vote. It says, yes, I’m willing to support the kind of journalism I believe in. Government support or big foundational support tends to erode the tie between the journalist and the community—and we see that in public broadcasting, as you have pointed out, Nick. But I think it’s more than even that. You can see that overall mainstream news media are in crisis. They’ve broken faith. And the public has lost trust.

EICHER: Oh, I think so. This is really a problem across the industry. None other than Peggy Noonan had a column in The Wall Street Journal about it last week. There’s nobody more mainstream media than she is, and I’d like to quote a few sentences:

“The past two decades, accelerating over the past four years, newsrooms have increasingly become distracted from their main mission, confused about their purpose. Really, they’ve grown detached from their mission. … More disturbing, major stories go unreported because they don’t relate to the personal obsessions of the editors and reporters, or to their political priors.”

Isn’t that something?

REICHARD: Well, this is why we’re here. We believe there’s an important and really ought to be a prominent place for Christian journalism in the marketplace of ideas. Genuine journalism that starts from a perspective with Christ at the center.

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Many have already done that, and we’re grateful. But so many wait right up to the end, and maybe that describes you. If so, would you during this last week, think deeply, pray earnestly, about your part in the June Giving Drive.

EICHER: wng.org/donate.

It’s time for Legal Docket.

We’re in the final week of the term of the U.S. Supreme Court. Opinions are coming down fast and furious.

Last week, nine opinions, and we’re NOT doing them all today—otherwise, we’d have to take too light a touch.

So we will break these up over today and tomorrow.

REICHARD: Easier on the listener — haha — and the reporter.

So I’d like to begin with the biggest splash: a gun case called US v Rahimi. You can be forgiven if you don’t remember last week. We had a gun case where we stressed it was a matter of interpreting a statute and so was not a fundamental Second Amendment case.

This one today, this one is a bona fide Second Amendment case. And it went 8-to-1 to uphold a law that bans domestic abusers from owning guns.

This was what’s known as a “facial challenge” meaning the challengers are saying the law violates the Second Amendment on its face. That it’s unconstitutional at all times and under all circumstances.

For example, imagine a law that prohibits news outlets from publishing any political opinion pieces critical of the government. That’d be unconstitutional on its face, because it directly violates the First Amendment.

EICHER: Here, a court placed a restraining order on a man named Zackey Rahimi. A man, who, to put it charitably, is not what you’d call a good guy.

Under federal law that restraining order said Rahimi could not possess a firearm for the duration of the order. The law is section 922 of 18 United States Code. So remember, section 922, for a reason that will become clear in a moment.

But Rahimi sued, arguing that taking away his guns under 922 before he’d even been convicted violated his Second Amendment right to keep and bear arms.

As mentioned, Rahimi is not the guy you’d trot out as your spokesman for your cause.

You can hear that’s what was on the mind of Chief Justice John Roberts when he said this back in November to the lawyer for Rahimi.

CHIEF JUSTICE ROBERTS: You don’t have any doubt that your client is a dangerous person, do you?

WRIGHT: Your Honor, I would want to know what ‘dangerous person’ means at the moment.

ROBERTS: Well, it means someone who’s shooting, you know, at people. That’s a good start. (laughter)

Rahimi had a documented history of assaulting, you know, people, of multiple random shootings, and of drug dealing.

REICHARD: On the other side was a much more sympathetic group: The Battered Women’s Justice Project. This group joined a friend of the court brief supporting the government in opposition to Rahimi. The brief noted that a woman living with a domestic abuser is five times more likely to be murdered if he has access to a gun.

Christina Jones is a lawyer with that organization. I called her up.

CHRISTINA JONES: Collective sigh of relief at this 8:1 decision. And the court had no trouble concluding that this statute survives Rahimi’s challenge to its constitutionality.

Jones said the decision clarifies the conditions that have to be met before a court removes firearms from someone:

JONES: And the court held that an individual found by a court to pose a credible threat to the physical safety of another may be temporarily disarmed, consistent with the Second Amendment. The ruling emphasized that the Second Amendment right was not a right to keep and carry any weapon whatsoever, in any manner whatsoever, for whatever purpose. Noting, from the earliest days of common law, firearm regulations have included provisions barring people from misusing weapons to harm or menace others.

One argument on Rahimi’s side was that suspending constitutional rights requires due process. That’s more than what’s required for orders of protection.

Jones says that’s not the proper focus here.

JONES: We're not talking about taking someone's rights away permanently in most cases. We're talking about for the time in which the protection order is in place, the time in which we know that women are most in danger. This is a public safety issue for us.

EICHER: This is a major clarification of a decision two years ago that said Americans have a right to bear arms outside the home, a right that’s well-established in the nation’s history and tradition of firearm regulation.

This ruling in Rahimi shows the high court will uphold some restrictions; it means gun laws don’t have to stick precisely to historical precedent to be valid.

REICHARD: Now back to Section 922 before we leave this case. 922 is the law under which Hunter Biden was convicted this month, another subsection of it. As for Rahimi, he’s serving 6 years in prison.

EICHER: Next opinion … it’s a dispute that has taken a decade for the courts to resolve, and we’ll explain it in about 45 seconds.

Texas v New Mexico and Colorado. It’s a water-rights case, huge controversy in the American west. The chief justice and Justice Brett Kavanaugh agreed with the court’s three liberals, and that allows the federal government to intervene in an agreement among states.

The ruling was 5-4 upholding the federal government’s challenge to a consent decree among Texas, New Mexico, and Colorado. They’d agreed on how to apportion the waters of the Rio Grande. But the Supreme Court sets that agreement aside, explaining that the federal government has a stake here, in part because of treaties with Mexico.

REICHARD: Dissenters Neil Gorsuch, Clarence Thomas, Samuel Alito, and Amy Coney Barrett said the ruling “defies 100 years of this Court’s water law jurisprudence.”

Opinion three with one more to follow: Gonzalez v Trevino. It involves a self-described feisty old lady who tangled with city hall.

It’s good news for that lady, Sylvia Gonzales. She claimed authorities arrested her in retaliation for her criticism of the city manager of Castle Hills, Texas.

Gonzalez spent a day in jail on a charge of mishandling paperwork. She said the whole thing was trumped up and had the effect of violating her right to free speech—the government retaliating because it didn’t like what she said.

So I gave her a call the afternoon that she got the news:

GONZALEZ: Oh, I was so happy that that they saw the truth of what happened to me, and even though we never went to discovery with my attorney, I had a lot of evidence on what they did. … They hid behind qualified immunity, and they broke the law and put me in jail when I did nothing criminal.

EICHER: The lower court had ruled against her, finding she’d not given good-enough evidence to prove her arrest was political retribution.

One of her lawyers at the Institute for Justice Marie Miller explains the Supreme Court’s decision:

MARIE MILLER: The bottom line is that the Fifth Circuit's decision in Sylvia Gonzalez's case limiting the type of evidence that she can present to only comparator evidence, which is basically evidence that another person did the same thing, but wasn't arrested. Limiting the evidence to that is not permissible. You have to consider other types of evidence that retaliation took place here, including Miss Gonzalez's data that she presented in court.

What this case does is refine a precedent that’s been in force for five years. That said if an officer has probable cause to arrest someone, that person cannot sue on grounds that the real reason was retaliation.

But the court tweaked that a bit to say there have to be exceptions, and requiring Gonzalez to give examples of people who also mishandled paperwork but weren’t arrested “goes too far.”

So now Sylvia Gonzalez goes back to lower court, and she’ll be allowed to present her evidence that she says will prove she was retaliated against.

She’s ready:

GONZALEZ: I'm an old lady. I'll be 78 in August, but I’m feisty. I believe in what is right, and I believe in standing up, even if I stand alone, even if I'm scared, I'm going to stick with it. It hasn’t been easy, though.

REICHARD: This final opinion for today is a win for the government in a tax dispute.

A majority of seven justices in Moore versus U.S. says a provision of the 2017 Tax Cuts and Jobs Act is constitutional.

Here, a couple named Charles and Kathleen Moore invested in a company that provides equipment to poor farmers in rural India. The company did well, and reinvested profits back into the business instead of paying dividends to investors. But that 2017 law levies a tax on the marginal increase in the value of the stock even before the taxpayer sells it and enjoys the profit.

The Moores balked at paying $14,000 in taxes on money they hadn’t received. So they sued.

I called up constitutional scholar Ilya Shapiro for analysis:

ILYA SHAPIRO: The Supreme Court said that tax is okay. It's constitutional, because there's long standing precedent that the court can attribute income either to the corporation or to the individual taxpayer without them necessarily seeing any of that money.

EICHER: Seems unfair, but Shapiro says there’s a shred of good news:

SHAPIRO: In dissent, Justices Thomas and Gorsuch pointed out that the court sidestepped the issue that it took the case to resolve, which is whether realization is necessary for an income tax to be constitutional.

I think that's right. Gut anyway, the way that the Court wrote up its opinion makes it very narrow. So this case got a lot of attention because people were thinking that the court would pronounce on the constitutionality of a potential wealth tax or a tax on paper profits. Those that you don't make it into your bank account, but let's say you own shares or your house that appreciates on paper. Can the government tax you on that? The court did not answer that question. Did not say the government can't do it. Did not say the government can. And so just a very narrow ruling on that particular quirky 2017 provision about profits from U.S. controlled foreign corporations.

REICHARD: But what if a taxpayer doesn’t have the money on hand to pay taxes on income he or she hasn’t actually received?

SHAPIRO: Well, presumably most people investing in foreign corporations do have an extra, in this case, $14,000 lying around. That's the presumption at least. But just like you can be land rich and cash poor, if you can't pay your assessed property tax, you have to figure out a way.

In other words, too bad! But that’s on Congress, not necessarily the courts.

And that’s this week’s Legal Docket!

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