The October 2017 term of the Supreme Court ended last week, in a blizzard of opinions, 15 since my last post (6/21), including Carpenter (the cell phone Fourth Amendment case), the Travel Ban 3.0 case, and Janus (the employee shop fee/First Amendment case). And I promised in my last post on Wayfair (who now has “just what I need” plus applicable sales tax) to talk about Gill v. Whitford, the Wisconsin gerrymandering case, and Benisek v. Lamone, the gerrymandering case out of Maryland (or Election Week, Part 2). And to top it all off. Justice Kennedy announced his retirement. That’s a lot for one post, so I’ll post about the travel ban case separately; the rest is here, in brief.
Gill/Benisek: The Gerrymandering Cases
Many Court observers and even Justice Ginsburg thought that Gill, the Wisconsin gerrymandering case, would be one of the most important cases of the term. I thought so too in my post last fall. The thought that the Court might give a definitive ruling on partisan gerrymandering was bolstered when the Court took Benisek, a gerrymandering case out of Maryland. And it helped that Gill was a challenge to a Republican gerrymander, Benisek a Democratic one (although the case was only about one district, not the whole state). The hope was that clarity would be added to this issue, either by the Court coming up with a standard for lower courts to use in evaluating them or by saying that partisan (but not racial) gerrymandering cases were not issues that the courts should address (see my post on justiciability to get more or this issue), both issues left open by Vieth v. Jubelirer, 541 U.S. 267 (2004), the leading case on partisan gerrymandering.
Hopes and expectations were dashed when the Court punted. Twice. They sent the Wisconsin case back to the lower court for a new look at whether the challengers in the case have the legal right (standing) to bring their challenge at all; they also declined to disturb a ruling by a federal court in Maryland that refused to grant an injunction and left the congressional map in place for the 2018 election. The vote in Gill was 9-0 on standing, 7-2 on remanding the case to let the plaintiffs prove they have it (Justices Thomas and Gorsuch would have dismissed the case). Benisek was unanimous also.
The good news is that the Wisconsin plaintiffs get another chance: normally a finding of lack of standing results in dismissal of a case, not a remand (a fancy way of saying sending it back). And to be sure, this stuff is not easy. Take for example this summary by Amy Howe in SCOTUSblog:
In an opinion by Chief Justice John Roberts, the court explained that the Wisconsin challengers’ claims rest on the argument that their votes have been diluted because the Republican-controlled legislature has either “cracked” Democratic voters (dividing them up among different districts so they don’t form a majority in any) or “packed” them (concentrating them in a few districts in which they form an overwhelming majority). But the harm from vote dilution, the court reasoned, stems from how a particular district has been drawn, which in turn causes a voter’s vote “—having been packed or cracked—to carry less weight than it would carry in another, hypothetical district.” The remedy for that harm, the court continued, does not require the state to redraw the entire map, as the challengers have requested; instead, the state would only need to redraw enough of the districts to fix the cracking or packing in a specific district….The court acknowledged that it would normally dismiss a case in which the plaintiffs have not shown that they have a legal right to sue. Describing this case as an unusual one, involving “an unsettled kind of claim this Court has not agreed upon,” the court instead sent the case back to the lower court to give the challengers an opportunity to present evidence “that would tend to demonstrate a burden on their individual votes.”
These issues are sure to return to the Court, perhaps even in these same cases.
Carpenter v. United States: The Cell Phone Fourth Amendment Case
Back in October, I posted about the Carpenter case, noting that it was an important case dealing with cell phones and the Fourth Amendment right against unreasonable searches and seizures, and in December I posted about the oral argument in the case. The facts are fairly simple. The government obtained 127 days of location records for Carpenter’s cell phone (12,898 points of location data), data which showed Carpenter being within 1/2 to two miles of armed robberies when they were occurring. Based in part on this evidence, Carpenter was convicted of nine armed robberies. Carpenter argued that the government’s collection of these records constituted a warrantless search under the Fourth Amendment. The law of the Fourth Amendment is anything but simple: entire books, law school courses, and academic careers have been based on it. So how did it turn out? And was my prediction right? I predicted (with caveats) a vote of 6-3 for Carpenter, that is, that the government’s acquisition of Carpenter’s cell-site records from his wireless carriers was a Fourth Amendment search. I also predicted the three dissenters to be Thomas, Kennedy, and Alito.
Well, I was close. By a vote of 5-4, with Justice Gorsuch joining my three dissenters, the Court held that the government’s acquisition of Carpenter’s cell-site records from his wireless carriers was a Fourth Amendment search for which the government must obtain a warrant supported by probable cause before acquiring those records. Chief Justice Roberts. who wrote the majority opinion, emphasized that the ruling was narrow, and applies only to historical cell-site location records. The “third party doctrine”, which I spelled out in my original Carpenter post, still exists, but the Court found an exception for historical cell-site data, stating that the digital age overtook the Court’s case law, and that cell phones are with us all the time: it was not a normal third-party case.
The majority also made clear that it was not expressing a view on any other privacy issue, including whether cell-site records collected in real time needed a warrant. Carpenter gives significant Fourth Amendment protection to cell-site location information, but it gives little guidance on how or whether the Fourth Amendment protects other types of information in the digital era. This issue is only getting started.
Janus v. American Federation of State, County, and Municipal Employees, Council 31
I have discussed precedent (stare decisis) before on this blog. It played a large role this term at the Court, primarily because the Court overruled two long-standing precedents. In Wayfair, the Court overruled Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and thus allowed states to collect sales taxes on companies that have no physical presence in the state, which Quill did not allow. And in Janus, the Court, in a 5-4 vote, held that Illinois’ extraction of agency fees from nonconsenting public-sector employees violates the First Amendment, overruling Abood v. Detroit Bd. of Education, a unanimous decision from 41 years ago, which concluded otherwise. As SCOTUSblog reported:
In an opinion by Justice Samuel Alito, the court concluded today that the fees violate the First Amendment. No one would doubt, Alito wrote, that the First Amendment bars a state from requiring its residents to “sign a document expressing support for a particular set of positions on controversial public issues.” Requiring someone to pay for speech by someone else also raises First Amendment concerns, Alito noted. And whether the constitutionality of agency fees is reviewed using the most stringent test (known as “strict scrutiny”) or a more permissive test, Alito concluded, the union fees are unconstitutional.
In Abood v. Detroit Board of Education, the 1977 decision upholding agency fees, Alito explained, the Supreme Court pointed to the state’s interest in “labor peace” and in avoiding the problem of “free riders” – people who reap the benefits of union representation without paying for them. But any worries about “conflict and disruption” in the absence of union fees have been proven wrong in the 41 years since Abood, Alito suggested.
Nor is the possibility of a “free rider” problem enough to justify the fees, Alito continued: “Many private groups speak out with the objective of obtaining government action that will have the effect of benefitting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?” For example, he posited, could the government require all senior citizens to subsidize the AARP, because it lobbies on their behalf? “It has never been thought,” Alito wrote, “that this is permissible.” He concluded: “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”
Having concluded that the fees violate the First Amendment, Alito turned to the next question: Whether the court should overrule the Abood decision. Alito acknowledged “the importance of following precedent unless there are strong reasons for not doing so” –a legal doctrine known as stare decisis. Stare decisis is “at its weakest,” Alito reminded his readers, in cases involving the interpretation of the Constitution, “because our interpretation can be altered only by constitutional amendment or by overruling our prior decisions.” Moreover, he added, the doctrine “applies with perhaps least force of all to decisions that wrongly denied First Amendment rights.” Because “[f]undamental free speech rights are at stake,” Alito concluded, there are “very strong reasons” to overrule Abood.
Justice Elena Kagan wrote the main dissent in the case, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Kagan emphasized that, for over four decades, the Abood decision “struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper.” Kagan complained that there “are no special justifications for reversing Abood”: ”To the contrary,” she argued, “all that is ‘special’ in this case—especially the massive reliance interests at stake—demands retaining Abood.” Kagan stressed that the Abood ruling “is deeply entrenched,” as over “20 States have statutory schemes built on the decision” that “underpin thousands of ongoing contracts involving millions of employees.” Kagan criticized the majority for acting, in her view, “with no real clue of what will happen next—of how its action will alter public-sector labor relations. It does so even though the government services affected—policing, firefighting, teaching, transportation, sanitation (and more)—affect the quality of life of tens of millions of Americans.”
Two longstanding cases overruled in two weeks. Add the Travel Ban 3.0 case and Masterpiece you have one consequential term.
Justice Kennedy’s Retirement
And if the cases were not enough, Justice Kennedy announced his retirement from the Court. The president reportedly will announce his nomination on July 9. Long termed the “swing vote” on the Court (a term that Kennedy is said to have disliked) there is no doubt that if Trump gets his pick, whoever that is, the Court will veer to the right, with a firm 5 member conservative majority. Several of the decisions this term were very divisive, generating fierce dissents. Expect a lot more of that during the next term.
Of course, I will bring you the news on the nominee when we know who it is.