Wednesday, June 13, 2018

Supreme Cases Awaiting Decision

With less than two weeks left before the Supreme Court finishes its term and begins its summer recess, there remain several major--i.e., possibly blockbuster--decisions yet to be announced. They deal with presidential power to restrict foreign entry, partisan gerrymandering, privacy from technological surveillance, union dues, and internet taxation.

Here's a brief recitation:
Presidential Power and Foreign Entry
Trump v. Hawaii. This, of course, is the challenge to President Trump's so-called "travel ban"--the 3rd one. The core substantive issues are whether the ban is overly broad (i.e., whether it restricts the entry of a larger category of foreigners into this country than is reasonably necessary for the purported national security purpose), whether it violates constitutional non-establishment principles by taking sides against Muslims, and even whether the president has the authority to issue such an order under the Constitution or congressional legislation.

Partisan Gerrymandering
Gill v. Whitford. The Court must decide whether courts may even hear cases that challenge a redistricting drawn by a state legislature that favors the majority political party.  If the answer to that is yes, then the Court must decide whether hyper-partisan gerrymandering is constitutional--e.g., where the party in power carves districts so that it wins a significant disproportion of the state's district elections, even though the other party actually wins most of the votes statewide.

Privacy from Technological Surveillance
Carpenter v. United States. This case presents the Court with an ever increasing concern about privacy rights amidst the current technological revolution. The issue involves government surveillance of someone's whereabouts and movements, without a warrant and without probable cause, through the use of data obtained from a company. This critical question involving privacy rights arises largely because of two 4th Amendment doctrines created by the Court.
The first is the so-called "third party" doctrine." Under that doctrine, the Court has ruled that someone has no constitutional rights against the government searching through any information if anyone else lawfully has that information--e.g., information about someone's spending obtained through credit card company records; information about phone calls someone has made and received through a phone company's records. So here, the cell-phone company lawfully has data about the location and movements of someone's cell phone and, thus, under the "third party" doctrine, government may search that data without a warrant or probable cause.
The second is the "trespass" theory of the 4th Amendment, recently revived by the late Justice Scalia in a majority opinion over a blistering concurring opinion by Justice Alito. In that case (U.S. v. Jones, 2011), the unanimous Court held it was unconstitutional for government to monitor a driver's movements, without first obtaining a warrant, through means of a GPS device attached to the driver's car. Scalia declared that the surveillance was an unconstitutional search because the government had trespassed on the driver's private property, his car, by attaching the GPS without his consent. Justice Alito criticized Scalia's reasoning on the ground that the trespass-upon-property theory of the 4th Amendment had long been discarded and because it is entirely inadequate to protect legitimate privacy concerns today inasmuch as most technological surveillance requires no trespass at all--e.g., drones, satellites, cameras, etc.
We'll see if a majority of the Court rejects, limits, or retains those doctrines.

Union Dues
Janus v. American Federation of State, County, and Municipal Employees. The question here is the validity of "agency fees." These are the reduced union dues imposed on public employees who are not members of the public sector union which, nevertheless, is obligated to represent the non-members in collective bargaining and other worker-related matters. The competing interests here are, on the one hand, the fairness to the union and its members to have non-members contribute their "fair share" to help defray the costs incurred by the union in representing them. On the other hand, there are the First Amendment rights of the non-members who do not wish the union to speak for them and do not wish to associate with the union.
At stake is the 1977 precedent, Abood v. Detroit Board of Education, where the Court upheld such non-member dues.

Internet Taxation
South Dakota v. Wayfair, Inc. At stake in this case is another precedent, this one, the 1992 decision in Quill Corp. v. North Dakota, where the Court invalidated state sales taxation on internet sales unless the seller-company had an actual physical presence in the state. The issue for the Court is whether the extraordinary increase in internet commerce and the omnipresence of "virtual storefronts"--on smartphones and tablets and other modern technological devices--makes the physical presence requirement outdated. Also of concern is the unfairness to traditional retailers with actual storefronts who have been subjected to state sales taxes while internet businesses have not.

The decisions in these cases could bring significant change to the law in several enormously important areas of government power, politics, business, working arrangements, and privacy. Indeed, by all accounts, some real blockbusters are expected as the Supreme Court's comes to a close.