Legal Docket: Honoring the laws of other nations

MARY REICHARD, HOST: All right. Well, this morning, I expect the Supreme Court justices to hand down rulings, and so today, I’ll whittle down the remaining oral arguments. I have a half dozen left to do and today, I’ll cover two of them.

NICK EICHER, HOST: If this first case sounds familiar to you, it’s because this year, the justices have already heard two cases like it — one from Maryland, one from Wisconsin. This third one is a redistricting dispute from Texas, an argument over the way governments draw political boundaries. How you draw the lines, where you draw the lines can skew the political results.

Texans voted on March 6th, and those same voters may be voting in a different district come November, depending on how the justices decide this one.

REICHARD: This case has a long history with a painful backdrop.

The Voting Rights Act of 1965 placed a requirement on states with a history of racial discrimination. Certain states had to get the permission of the federal government before adopting legislative maps.

Texas was one of those.

But in 2013, the Supreme Court removed the preclearance requirement because racial conditions had improved.

EICHER: Now we need to talk about the year 2010. That’s when the government conducted the last census.

It’s these population counts that make it necessary to draw new political boundaries, because people come and go. Eighteen states saw the size of their congressional delegation change: 10 states lost House seats and eight states gained them. And no state gained more than Texas did.

Its delegation to the U.S. House grew by four.

So after that 2010 census, majority Republican lawmakers in Texas drew up new maps.

But lawsuits alleging racial discrimination prevented the maps taking effect.

A panel of lower court judges made a new map, a temporary one to fix some of the questionable districts, and to get the state through the upcoming 2012 elections.

REICHARD: Now we’re to 2013. That’s the same year I said that the Supreme Court ruled Texas no longer needed pre-clearance from the feds.

So state legislators made that temporary map permanent.

And that’s what the fight is about now.

Challengers say the original racial taint is still there.

At the Supreme Court, Texas Solicitor General Scott Keller said, no, it isn’t.

KELLER: There is no basis to find that the Texas legislature was somehow invidiously racially discriminatory when what it did is it adopted the entire congressional map and virtually all the state house map that it had been ordered to use.

Keller noted that state legislators had debated at length over the maps, and obviously wanted to stop the endless litigation that cost the state so much time and money.

Lawyer Allison Riggs represented some of the challengers. She argued ending litigation is just a diversion from what’s really going on.

But she ran into pushback from Chief Justice John Roberts. Listen:

RIGGS: And they wanted to end the litigation by maintaining the discrimination against black and Latino voters, muffling their growing political voice in a state where black and Latino voters’ population is exploding. They’re poised to take over in all of these districts. 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.  

Edwin Kneedler argued on behalf of the federal government in support of Texas. That’s a turnabout from the Obama administration that said the maps are discriminatory.

You’ll hear Kneedler lauding the state legislature’s efforts, and then he runs into a rejoinder from Justice Sonia Sotomayor:

KNEEDLER: The plaintiffs suggest that there’s something pernicious about ending litigation, but, to the contrary, the state Legislature’s acknowledging that there was prior discrimination, accepting what the district court did as a remedy…and enacting a new law, that’s something to be commended when a state Legislature proceeds in that manner…(later)…

SOTOMAYOR: Are you ending the litigation or are you ending the possibility of a court stopping you from discriminating?

Another lawyer arguing on behalf of the map challengers was Renea Hicks.

He argued that Republican-controlled Texas is trying to get away with using district maps with intolerable taint, dating all the way back to that original 2011 map. The one the lower court found intolerably discriminatory.

HICKS: They had achieved everything they wanted with this map with respect to these districts, with regard to…the tamping down of racial voting rights and so no…. In 2013, they knew they had succeeded….…(later)…um about a week ago in the Dimaya case this Court repeated a quip –I guess you could call it a quip– from Justice Scalia, and it said insanity is doing the same thing over and over again and expecting a different result. Well, the Texas legislature is not insane….it knows how to do redistricting maps and we believe it knows how to do them fairly well with respect to diminishing minority voting rights. So I would ask the Court to look at it this way:  If you’ve done it in 2011 and you know the outcome of it, discrimination is doing the same thing over and over again and expecting and achieving exactly the same results. And that’s what happened here, Your Honor.

Keller, again, defending the maps, laid out the legal errors the lower court had made. For one thing, the law requires a presumption of good faith. The court didn’t grant that presumption. Second, there was no proof the legislature acted with intent to harm minority voting power.

KELLER: …and this brings me to my third major legal error, which was the test applied was the wrong question.  It was, was taint removed, even though there had been no finding of taint by the district court at that time.

Much discussion revolved around whether the Supreme Court should even be hearing the case at this point.

That’s because the lower court didn’t issue what is called a “final injunction,” meaning, a formal ruling to block the maps from going into effect.

But Texas says the hour is late, the 2018 elections are nearly here, and the state’s running out of time to prepare.

The Court has several options, but arguments sounded like a lot of he said, she said. I noticed a few justices leaning toward remand — that is, send it back to the lower court to flesh out more facts.

If that’s how things go, the 2012 maps stay in place. For now.

This second case asks how much deference American courts ought to pay to a foreign nation’s interpretation of its own laws.

Here we have two American food companies. They sued makers and exporters of vitamin C from China, alleging violation of American antitrust laws against price fixing.

The Chinese companies admitted to it. But their argument was, they had no choice because Chinese regulations require them to fix prices. Nevertheless, in 2013, the American companies won, and a jury awarded nearly $150 million in damages.

But an appeals court reversed. That court said the lower court should have extended “international comity” to China. Comity, c-o-m-i-t-y, meaning courtesy and respect for China’s interpretation of its own laws.

So now the case is at the Supreme Court.

The American companies ask the justices to throw out the appellate court’s reasoning and restore their millions of dollars in damages.

Their lawyer, Michael Gottlieb, argued comity must have limits. After all, the jury thought China’s explanations for its price fixing tactics were nonsensical and inconsistent.

GOTTLIEB: U.S. courts should not give up their responsibility to say what the law is in cases and controversies before them, even when that law is foreign. And courts in this country have been interpreting and construing foreign law for two centuries and not outsourcing that task to other entities simply because those questions are difficult.

In a first in American courts, China was permitted to intervene even though it isn’t a named party in the lawsuit. Carter Phillips argued on behalf  of China in support of the Chinese companies.

Phillips argued that the United States would be quite irate if another country disregarded what the United States said about its own laws. The comity rule must prevail.

PHILLIPS: I mean, the — the notion that this was a respectful analysis of – of China’s, you know, when you say at the end, this is a post-hoc attempt to shield somebody’s behavior, that’s not respect. That’s the opposite of respect.

Justice Elena Kagan asked what was on everyone’s mind: whether other countries treat the United States’ interpretation of its laws with comity or respect.

KAGAN: Is there any country that you can identify that uses that rule?

PHILLIPS: The United States up until this case.

KAGAN: Yes, is there any country…You say you don’t know whether China uses that rule. Is there any country that you do know that uses that rule?

PHILLIPS: I don’t know any that uses that rule. But I don’t know any that rejects it either.

KAGAN: I mean it seems as though if some country used that rule, you’re a great lawyer, you would be able to tell us that some country uses that rule.  

Lawyer for the Chinese Companies, Jonathan Jacobson, argued the United States should extend respect to China and affirm unquestioned comity. He managed to get a big laugh even as he got nailed by Justice Kagan and the Chief Justice.

KAGAN: But how — how can you say that the only thing that shows respect to foreign governments is to do something that we don’t know that any other foreign nation does? …

ROBERTS: …I — I have -­ I don’t understand this constant emphasis on respectful. It doesn’t mean that you can’t disagree, right? I mean, you know, “with all due respect” usually means the person’s about to say you don’t know what you’re talking about. (Laughter.)

JACOBSON: Respectfully, Your Honor -­ (Laughter.)

You can hear the lack of, shall we say, respect the justices had for China’s arguments.

This is all within the political context of escalating trade tensions between the United States and China.

I think some American vitamin C importers are likely to be very happy by end of June, when all the rulings have to be in.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) The Supreme Court is seen in Washington, April 20, 2018. Spring is the season of mystery at the Supreme Court.

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