Legal Docket: Supreme Court preview

NICK EICHER, HOST: It’s Monday morning. New week. New month. It’s October 1st, 2018. Good morning to you, I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard.

Well, this year October 1st is also the first Monday in October! That’s meaningful to us legal beagles, because that’s the traditional starting day for a new term of the United States Supreme Court.

This is the honorable court’s 229th year.

At 10 a.m. Eastern Time this morning, the knock of a gavel and then the chant of the Marshall of the Court opens up the proceedings.

Here’s the most-famous intonation of it:

MARSHALL: Oyez, Oyez, Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!

EICHER: Mary, I’ve heard that recording over and over. He’s not the one who will open the proceedings this morning.

REICHARD: No, he won’t. In fact, he’s not done it since 1994. That was the last of his 18 years as Marshal of the Court.

His name was Alfred Wong. He was the son of Chinese immigrants, a native of New York. His service was from 1976 to ’94, as I mentioned, and he passed away in the year 2010.

But I love his rendition of that ancient call, as do many people. It’s probably the one most people are familiar with.

EICHER: Describe what’s likely to happen this morning at the court.

REICHARD: Yes, I’ve got a little more sound to help explain it. Justice Ruth Bader Ginsburg gave C-SPAN a guided tour several years ago, and it’s really interesting. But here she talks about the moments just before the justices enter the courtroom, when they put on their black robes.

GINSBURG: As we enter the robing room, the first thing we do is go around the room, each justice shaking hands with every other. And it’s a way of saying “We’re all in this together.”

REICHARD: After they shake hands and put on their robes, and after the gavel sounds and the marshal makes that announcement we just heard, the justices enter the courtroom.

They settle into their leather chairs on an elevated dais.

The chief justice sits in the middle. To his right sits the senior associate justice. That’d be Justice Clarence Thomas. And to his left sits the second senior justice, Justice Ginsburg. It alternates like that by seniority.

And so farthest away is Justice Neil Gorsuch and even farther away, literally, is Brett Kavanaugh, but that’s a whole other story.

And the court opens today with eight justices, not nine. So on your traditional liberal versus conservative cases, you’ll have a 4-to-4 split.

But as far as today’s concerned, the court will continue operating according to custom, according to tradition.

The first to speak at this point is the chief justice, who opens each argument like this from a case last term:

ROBERTS: We’ll hear argument first this morning in case 16-1519, Lagos v the United States. Mr. Geyser?

REICHARD: Then that lawyer, who represents the aggrieved party who lost in the court below, has 30 minutes to argue his or her side. And every lawyer has to start exactly like this:

GEYSER: Thank you, Mr. Chief Justice, and may it please the court…

EICHER: So, six arguments scheduled for this week, and as you say, six cases at risk of being tied 4-to-4. But our process, your process, is to obtain audio from those arguments, when the court releases the audio on Friday afternoon. Then you plow through it and bring us argument highlights and summaries each Monday.

Back to your usual fun weekends!

REICHARD: Right, I’ve always been a bit of a nerdy girl.

But my commitment, and we’ve kept this going for years, our aim is to cover every single argument, spread out over the weeks through late spring.

We’ll get to them all eventually.

EICHER: Now, the court hears around 70 oral arguments each term, give or take.

Talk about how you chose the five you’ll preview today.

REICHARD: Yes, very scientific process.

EICHER: [laugh]

REICHARD: Yeah, I went with what piqued my curiosity, to be honest.

But so far the court’s accepted 43 cases to hear. And to your point about 70 cases, that’s right, and so the justices will probably agree to hear another 30 cases or so as the term progresses.

For analysis, I called up Elizabeth Slattery. She’s a young lawyer who writes about the Supreme Court for the Heritage Foundation in Washington.

We started with the very first case the court will hear this morning.

It’s about a kind of frog, the Dusky Gopher Frog. It’s on the endangered species list. The case is Weyerhaeuser Company versus U.S. Fish and Wildlife Service.

SLATTERY: The U.S. government decided to designate private land in Louisiana as critical habitat for an animal that actually can’t live on that land and hasn’t been present in that area for more than half a century, the Dusky Gopher Frog. In the early 20th century, the frog could be found in Louisiana. Alas, today, they are not found outside of a small area of Mississippi. Now, the U.S. Fish and Wildlife Service can, under the Endangered Species Act designate privately owned land as critical habitat. But the land owners are challenging that designation because it will cost them millions of dollars to make the land habitable for these frogs.

REICHARD: So now we move from frogs to cemeteries!

The case, Knick v. Township of Scott, Pennsylvania, deals with the rights of private property owners.

SLATTERY: This involves one of the most central aspects of the right to own private property. And that’s the ability to exclude people from your property, to decide who is allowed on your property and who is not. Now the Township of Scott, Pennsylvania, passed an ordinance requiring that any land that has a cemetery on it, whether it’s private land or public land, must be accessible to the public during daylight hours. So now Rosemary Knick, she owns 90 acres in the Township of Scott to her surprise enforcement agents arrived at her property.  They got a tip that there might be a private cemetery on her land. And she says that there is no such thing, but the the enforcement agents found, I guess, a couple of stones that they decided that were grave markers, and she disputes that.

REICHARD: The Supreme Court won’t be interested so much in the dispute, but instead the constitutional principle that’ll be used to tip the balance one way or the other.

SLATTERY: But the real legal issue that’s before the Supreme Court has to do with this prior case that the court decided in the 1980s where it said that in order to challenge the government taking of your property, you have to exhaust your claims in state court before you can pursue that claim in federal court. Now, Ms. Knick argues that she shouldn’t have to go to state court. She went to state court and the court was unwilling to rule on her claims.

REICHARD: Another case the court will hear this term is Gundy v. United States. This has to do with the separation of powers and who can delegate what. But this one’s got an unsavory context. Elizabeth Slattery explains:

SLATTERY: Yeah. So the Gundy case, not that exciting and not exactly what we call a sympathetic plaintiff—we have here as a sex offender, but there’s a very important, a constitutional issue lurking in this individual’s case. So generally speaking, you know, in our constitutional separation of powers, Congress is prohibited from delegating its lawmaking authority to the other branches of government. But in practice, Congress gets away with this. The Supreme Court allows it to do so. And Congress routinely delegates its authority to executive branch officials and administrative agencies.

So that brings us to the Sex Offender Registration and Notification Act of 2006. So this is an important law that required that sex offenders who were convicted after this law was passed, that they have to register in every jurisdiction where they live, work, or go to school. Now, Congress didn’t decide how they were going to treat pre-2006 offenders. Congress said we’re going to delegate that to the attorney general to decide how, when, and whether the registration requirements would apply.

REICHARD: So I asked her to bring this back to the petitioner, Herman Gundy.

SLATTERY: He was convicted of drugging and raping an 11-year-old girl before 2006. He argues that Congress went too far when it granted this unfettered authority to the attorney general to decide, you know, how and whether to apply a law that has criminal sanctions to an estimated 500,000 individuals.

REICHARD: Two other cases to preview deal with the Bill of Rights. The Fifth Amendment protects citizens from being prosecuted twice for the same offense: double jeopardy.

In Gamble v. United States, Slattery explains it’s a little tricky.

SLATTERY: Yeah, the double jeopardy clause, that you can’t be prosecuted for the same crime more than once. But there is an exception to this, and it’s called the “separate sovereigns” or “dual sovereigns” exception, which is that if you commit a crime, that is a crime under state law, but also a crime under federal law, you can be prosecuted successively in state and federal court or the other way around. So, Mr. Gamble, he was a felon in possession of a firearm, and so he was charged under state law, and he got a pretty minimal sentence, and then he was charged under federal law, and it extended his sentence quite a bit. 

And he argues that it doesn’t make sense to sort of let the state and federal government get two bites at the apple.

REICHARD: The final case to preview today is Timbs v. Indiana deals with the 8th Amendment, the prohibition against cruel and unusual punishment. That amendment also includes a ban on excessive fines. Who among us hasn’t been hit with a fine and wondered who dreamt up this seemingly arbitrary dollar amount?

First, Slattery explains the doctrine behind this dispute.

SLATTERY: Yeah. So most parts of the Bill of Rights have been applied through a process called incorporation, have been applied against the states. So, for example, the First Amendment says Congress shall make no law respecting an establishment of religion. It also applies to the states through the 14th Amendment.

So not all parts of the Bill of Rights, however, have been incorporated. And there are three different provisions of the Eighth Amendment, including the excessive fines clause. Now, the other two provisions of the Eighth Amendment have been incorporated clearly by past Supreme Court cases. And so this case involves an individual who was subject to a monetary fine and that he says was grossly disproportionate. And he says that this part of the Eighth Amendment should be incorporated against the states, just like the other parts there’s really no argument for allowing the states to not have to follow this part but they have to follow the other parts of the Eighth Amendment.

REICHARD: Next Monday, we’ll dive into oral arguments with audio from the courtroom.

And that’s this week’s Legal Docket.

(AP Photo/J. Scott Applewhite) The Supreme Court is seen in Washington, Friday, Sept. 21, 2018. 

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