Legal Docket: Split rulings

MARY REICHARD, HOST: It’s Monday morning, start of a new work week for The World and Everything in It. Today is the 27th of August, 2018.

Good morning to you, I’m Mary Reichard.

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

Alright. Five weeks from this moment, one month and one week from today, we’ll have a new Supreme Court term. With, I imagine, a newly confirmed justice, but we’ll see about that.

So today’s a good day for your report on the top rulings from the term that just ended.

REICHARD: Right. It is a good day for that.

We’ll have plenty of time to dive into the drama of the confirmation hearing later. As in, when it gets started.

But this week, I chose five rulings that I thought would have the widest impact. That’s my top five out of the 63 arguments the justices heard this past term. Obviously, all the rulings are important to somebody, but some cases soar above others in principle.

EICHER: So your first high-flyer, so to speak, is Carpenter v. United States.

This one is interesting in that it deals with police access to digital information. And the court came down on the side of privacy here.

REICHARD: It did.

This is the case where a jury convicted a man of masterminding robberies in Ohio and Michigan. Law-enforcement got ahold of his cellphone records, and with them pinpointed the man’s location in the vicinity of those robberies.

The man argued the police should have gotten a warrant first, based on probable cause. And he won his case, barely, by a 5-to-4 ruling.

To talk about the implications of these rulings, I called up two lawyers.

First, Ilya Shapiro. He’s a senior fellow in constitutional studies at the Cato Institute. We pick up where I asked him whether the court sort of just kicked the bigger problem down the road—that of bright line rules around privacy and technology.

SHAPIRO: Well, the Supreme Court treads gingerly when it’s evaluating new technology that doesn’t want to issue a rule that will look silly or become unworkable two, three, five, 10 years down the line. Here this is a world of smartphones where we’re carrying around basically homing beacons, wherever we go, in our pockets and purses. And our cell phone providers, AT&T, Sprint, Verizon, etc. are recording our movements as we’re pinging around cell towers while we walk around.

The court did not issue some sweeping decision about what is and is not protected by an interest in privacy or in property. It just basically said that it is a search. We do have an expectation that as we’re moving around creating these records that we have some interest in that.

I think we’ll see that in the future the justices that are going to rethink this 50-year-old standard of the reasonable expectation of privacy.

REICHARD: And so for now, police have to get a warrant first.

NE: OK, Mary, next case: Now, I make a lot of my purchases online, and I know I’m not alone in that. And this next case may mean we’ll be paying taxes we’d been able to avoid in the past without consequence. The case name is South Dakota v. Wayfair.

REICHARD: In this one, the justices upheld South Dakota law that requires online vendors to charge its residents a sales tax when they buy online. That was a split ruling, too.

Back to Ilya Shapiro, I asked him whether for the average person this just means we’ll end up with less money in the bank.

SHAPIRO: Right, it’s going to cost you a little bit. You’re not going to be able to avoid paying tax on what you buy from, say Wayfair, which is a big furniture, a seller online, and others, not Amazon. Amazon is one of the winners from this case, because it has been paying sales tax for a long time in part because it does have physical presence and in part just because it’s large enough it decided to pursue that policy. So it wins against these smaller competitors.

What the court did was overrule a 50-year-old precedent and another precedent from about 25 years ago that imposed this physical presence rule for the collection of state sales tax. It’s unclear exactly how this is going to work. Different states might implement it in different ways. Here, this case is out of South Dakota, which says that you have to collect tax if you get more than $100,000 of revenue or more than 200 annual transactions in the state. How will that work? There’s a lot of confusion from these moderate sized sellers, not necessarily the granny who’s selling the occasional thing on eBay. But if you’re a moderate store and you’re not really necessarily marketing to especially some of the smaller states, you’re going to have to invest, I guess, in some new software to track all of this sales tax.

So that’s really the biggest winner. Software companies that are better building tax compliance software now.  So, the real effect here is going to be practical, indeed, as we all pay a little bit more and all these retailers rush to figure out to make sure that they’re complying with whatever new rules all these different states are going to set up.

REICHARD: OK, I also asked about the Janus ruling. This was another 5-to-4 ruling, and it says public sector unions can’t assess fees to nonunion members.

But first, let’s listen to the man who brought that case, Mark Janus of Illinois, tell why he sued on this issue all the way to the Supreme Court:

JANUS: You know, the First Amendment is a contract with the people of the United States. And it says that I have the right of freedom of association. And unfortunately with these agency fees and the way it was set up in Illinois and also many other states—there’s 22 across the country—you know, we don’t have that right. We’re forced into this. Nobody asks. The fee just started coming out of my paycheck.

REICHARD: So I asked Ilya Shapiro first for his take on the significance of the ruling in Janus, and then just overall, how this term will be remembered.

SHAPIRO: Well, I do think the Janus case, that’s going to have a significant political impact in terms of money flowing, especially to the Democratic Party.

But, ultimately, I think this term will be remembered as Justice Kennedy’s final term. And so the legacy of Kennedy and the fact that this particular term, he never sided with the liberals in a 5-to-4 decision and 15 times sided with the conservatives in that circumstance. That hasn’t happened since he became the median vote since Justice O’Connor retired over a decade ago. So it’s going to be a new era with Gorsuch having completed his first full term and then presumably Brett Kavanaugh joining the court.

REICHARD: Next, I spoke to Jim Bopp. He’s general counsel for the James Madison Center for Free Speech. I figured I’d get some spicy commentary from someone who worked at a place like that!

I asked about the big religious liberty case this term, Masterpiece Cakeshop. Baker Jack Phillips was vindicated, but not to the extent many expected… And now we know Jack Phillips has been slammed again by the same commission.

I asked Bopp for his thoughts, and here’s what he had to say:

BOPP:Well, that’s going to be a problem going forward, but the principle is very important. That is, government neutrality with respect to various assertions of religious beliefs or practices. And of course,  people can lie and… so obviously the second one, you can expect a sanitized hearing, where they’re all very careful not to express their latent prejudices which of course, many of them already expressed just a few months ago against the same baker. And so then we’ll get to the underlying merit of the First Amendment claim that is, can the government force over religious objections, someone to engage in a religious practice that violates core religious principles?  

This is a persistent problem. I mean, the big picture here is uh there is gross hostility on the left for any dissent, any disagreement. Anybody that is not going to conform to their orthodoxy.

REICHARD: Last case I asked about was National Institute of Family and Life Advocates v. Becerra. This is the big case California put onerous advertising requirements on crisis pregnancy centers.

Bopp said the high court considered this a case of compelled speech, forcing pro-lifers to communicate a pro-choice message that violated their free-speech rights:

BOPP: And again, the Supreme Court came down on the side of freedom against government coercion and struck that requirement down.

We don’t seem to fully recognize how intolerant the left is, this is a very dangerous time when it is only the conservatives or the dissidents that understand that in order for us to have, you know, a free society certainly, and a peaceful and civil society also, is to respect people’s differences and disagreements.

REICHARD: I asked Jim Bopp whether he thinks the Supreme Court’s trend toward expanding First Amendment protections will continue—assuming Brett Kavanaugh takes a seat replacing Justice Kennedy.

BOPP: We saw a Supreme Court this year which was uniformly in favor of freedom, constitutional rights, free speech, religious freedom and, and frankly, Justice Kennedy who retired, voted correctly in all those cases. You know he’s been one of those justices where when he’s good, he’s very, very good. And when he’s bad, he’s horrendous. You know, this is a legacy that I think we can see the court continuing in the future.

The Kavanaugh confirmation hearing begins a week from tomorrow, on September 4th. Given the stakes, and given that Democrats sense political blood in the waters where the White House is concerned, I’m expecting this one to be especially contentious.

And that’s this week’s Legal Docket.  

(AP Photo/J. Scott Applewhite, File) In this Jan. 25, 2017, file photo, the Capitol in Washington at sunrise. 

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