Legal Docket - The final five

MARY REICHARD, HOST: It’s Monday, July 5th and you’re listening to The World and Everything in It. Thank you for joining us today! I’m Mary Reichard.

NICK EICHER, HOST: And I’m Nick Eicher. It’s time for Legal Docket.

The U.S. Supreme Court wrapped up its term and went into July for the second year in a row and you can probably blame it on Covid. Because prior to that, the court hadn’t gone into July since 1996.

But operating as per normal, the court did save perhaps its most controversial decisions to last and we’ll do the same as we tell you about the Supreme Court’s final five.

REICHARD: Right, we’ll bat them back and forth as we did last week. And then I want to talk about an intriguing report I saw, about the number of years spent behind bars by innocent people.

EICHER: Yes, an interesting interview—lots to think about.

Well, let’s get to those opinions before we do that.

And you no doubt remember the frightening shutdown of the Colonial Pipeline system that supplied almost half of the energy for America’s east coast. This first case has to do with creating more pipelines to supply the fuel we need.

A five-justice majority cleared the way to build a pipeline from Pennsylvania to New Jersey.

A consortium of energy companies obtained a certificate of public necessity for the pipeline from the federal agency that regulates the transport of fuel. Then the companies sought to seize land along the proposed route using the power of federal eminent domain. New Jersey objected to that, citing its sovereign immunity against such a taking.

But the majority justices sided with the pipeline companies. They read the Natural Gas Act as giving states or private parties the power to condemn all necessary rights of way—after the energy commission grants a certificate of need. The opinion says states consented to federal eminent domain when they joined the union—(back when they did).

REICHARD: I’ll add that this is the first time—that I could find —the majority lined up in this way. Quite an ideological surprise! Chief Justice John Roberts, then justices Brett Kavanaugh and Samuel Alito, plus liberals Stephen Breyer and Sonia Sotomayor.

The dissenting justices did not think the federal government could delegate its power to a private party to take state-owned land. And some think this invites mischief because almost anything can arguably be “in the public interest.”

EICHER: On to the second opinion, this one dealing with immigration. Six justices ruled that people who sneak back into the United States after being deported and get caught have to stay in detention while their cases are pending.

You can hear the eventual reasoning in the opinion from the government’s lawyer, Vivek Suri, during oral argument:

SURI: Our point is simply because these particular aliens have come back into the country illegally and been caught, there’s a particularly strong basis for concluding that those aliens are a flight risk.

Because of that flight risk, non-citizens cannot get out of detention on bond while they contest their deportation orders.

The ruling affects relatively few people. The question in these cases is only to what country a person can be deported, not whether the person is deportable.

Bottom line: they stay in detention.

REICHARD: Okay, third opinion now in a patent case.

This one split 5-4 and says you can’t challenge your own patents once you’ve assigned them to someone else. In doing that, the court upholds an old doctrine called “assignor estoppel.”

Here, an inventor assigned his patent, then went on to create a similar device. That got him sued for patent infringement. He defended himself, saying the patent he’d assigned earlier had discrepancies in how it was described in the paperwork.

That didn’t persuade the majority. If what he said at the time of assignment contradicts what he says about it now, he loses.

EICHER: Fourth opinion upholds voting laws in Arizona. The state does not count votes cast on Election Day in the wrong precinct, nor does it allow for ballot harvesting. Meaning, that the state doesn’t allow political operatives collect up a bunch of absentee ballots from the homes of voters—harvest absentee ballots—and take them to the election office. The concern of course is to place barriers in the way of unscrupulous harvesters who might commit fraud.

The Democratic National Committee and the Arizona Democratic Party sued, arguing the rules were passed with discriminatory intent and hurt minority voters.

The conservative six justices found that the law is perfectly in harmony with the federal Voting Rights Act. They found that Arizona’s voting rules protect the integrity of elections and are equally open to participation in voting.

REICHARD: The dissenters pointed out that some minority voters have a hard time getting to the polls. In response, Justice Alito for the majority wrote, quoting now: “A procedure that appears to work for 98% or more of voters to whom it applies—minority and non-minority alike—is unlikely to render a system unequally open...”. He goes on: “The dissent is correct that the Voting Rights Act exemplifies our country’s commitment to democracy, but there is nothing democratic about the dissent’s attempt to bring about a wholesale transfer of the authority to set voting rules from the States to the federal courts.”

Justice Kagan wrote a caustic dissent, going so far as to invoke the ghost of the Dred Scott decision. Joining Kagan were Justices Breyer and Sotomayor saying that the opinion undermines the Voting Rights Act.

One thing this ruling will do for sure is stymie challenges to similar rules in other states.

EICHER: Now for the final ruling that slaps down a California requirement that charities must disclose details about their donors.

Here, two charities followed the rules and filed Form 990s that contain general information about charitable contributions. That sufficed for years. When then California attorney general Kamala Harris came to that office, she asked for Schedule Bs that contain detailed information with names, addresses, and total contribution. And she threatened the charities with suspension and fines if they didn’t comply. She said her office needed that information to ferret out fraud, even as massive data leaks compromised her promise to keep the information confidential.

Six justices say the disclosure requirement is unconstitutional and chills the right to free association.

You can hear the echo of that in this exchange between Justice Amy Coney Barrett and the lawyer for the charities, Derek Shaffer, during argument:

BARRETT: Do you think the right to anonymously associate is an inherent part of the freedom of assembly?

SCHAFFER: Yes, it is. It was precious to the Framers. Anonymity was a core concern of theirs that’s reflected in this court’s precedents but, also, the right to assemble is the right to assemble privately and peaceably. And when the government comes asking us who your donors are, that is a direct infringement.

The liberal justices in dissent put trust in the state’s claim that it had plugged the leaks. They were not persuaded that the charities showed any real burden on their freedom to associate.

Nevertheless, this is yet another reversal of the 9th Circuit Court of Appeals. Case is remanded.

REICHARD: Opinions now complete!

And now for that report about innocent people behind bars. You may have heard that expression, better a guilty man go free than an innocent go to prison.

In June, a grim milestone reached: 25,000 years behind bars, collectively served by innocent people.

Tracking all this is the Newkirk Center for Science and Society along with the three universities and a law school. The Center uses data based on decisions made in court by people authorized to make decisions about exonerations, like prosecutors who dismiss a case. Sometimes it’s new evidence that comes in.

The project only looks at data since 1989 in this country.

I spoke to Maurice Possley, a senior researcher for the project. He said he hopes the data will evoke changes in the criminal justice system.

POSSLEY: The 25,000 year report is another way of looking at the data that we collect, and a way of assessing the cost of wrongful convictions. This report looks at two issues. One is the time lost between the date of conviction and the date of release of people who are convicted of crimes they did not commit. As well as compensation based on a study that's ongoing at university, George Washington University Law School, on whether and how people are compensated.

Possley said $3 billion has been paid out in various forms of compensation - through state compensation schemes or lawsuits. But more than half of these people were not compensated.

He told me the problem of wrongful convictions can be expressed in different ways. One is in time lost. Another way is in the number of wrong convictions: 2,800 as of June 1. About 200 a year are added to that number.

Possley said it’s important to think about this, and not only from the perspective of the innocent prisoner.

POSSLEY: When you look through this this way, you see 25,000 years lost. You say, well, how many of those involve people who not only shouldn't have been imprisoned, but the real perpetrator went on to commit crimes, and, and how many of those cases and actually, this is kind of an astonishing number to me, always. About 30% of these crimes never occurred. They were convicted of a crime that never occurred, they were convicted of a drug crime, and which later lab tests showed there was no controlled substance. They were convicted of an arson and it was an accident, they were convicted of a murder and it was a suicide.

As Possley puts it, this report only tells the ones the researchers know about, and that he doesn’t know how many people were wrongly convicted but never exonerated.

POSSLEY: Our purpose, our intention is to provide sunlight in a way that no other organization has before. And we admit that we only know about the ones we know about... We have a list on our website of everyone who served more than 25 years before their exoneration. We had a recent case that went to the top of the leaderboard, if you want to call it that: 47 years. Now, the fact that he was exonerated after 47 years is remarkable. It's even more remarkable, I think, that he lived. And you wonder how many people whose pleas fell on deaf ears died, knowing that they were innocent, but no one ever believed them, or they never got their day. You talk about a voiceless group of people.

Well, the Bible does tell us that the Lord hears the needy—as Psalm 69:33 says—and does not despise his own people who are prisoners.

And that’s this week’s Legal Docket.

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