Supreme Court

3 Supreme Court Cases to Watch in Fall 2017

What's at stake in the new SCOTUS term

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Fred Schilling, Collection of the Supreme Court of the United States

The U.S. Supreme Court is back in session today after its summer break, and the new term is already shaping up to be an explosive one. Here are three cases to watch in the coming months:

1. Carpenter v. United States

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." Yet according to the U.S. Supreme Court's 1979 decision in Smith v. Maryland, "a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."

Otherwise known as the third-party doctrine, this legal rule has been a great gift to law enforcement agencies on both the federal and state levels. Let's say the police want to know the email addresses of your correspondents, or the URLs of the websites you have visited. Under the third-party doctrine, the police do not need a search warrant (issued upon probable cause) to get that information from your internet service provider.

But doesn't the idea of granting vast warrantless search powers to the police run afoul of the bedrock protections enshrined in the Fourth Amendment?

The Supreme Court will grapple with those questions this term in Carpenter v. United States. At issue is whether the FBI violated the Fourth Amendment when it obtained, without a search warrant, the cellphone records of suspected armed robber Timothy Carpenter. With those records, law enforcement officials identified the cell towers that handled the suspect's calls and then proceeded to trace back his whereabouts during the time periods in which his alleged crimes were committed. That information was used against Carpenter in court.

According to Carpenter and his lawyers, "carrying a smartphone, checking for new emails from one's boss, updating the weather forecast, and downloading directions ought not license total surveillance of a person's entire life."

According to the Trump administration, "a cell-phone user has no reasonable expectation of privacy in business records created by his provider documenting the cell sites used to document his calls."

Oral arguments in Carpenter v. United States have not yet been scheduled.

2. Christie v. National Collegiate Athletic Association

According to the terms of the federal Professional and Amateur Sports Protection Act of 1992 (PASPA), it is illegal for "a governmental entity to sponsor, operate, advertise, promote, license, or authorize by law or compact" sports betting.

The state of New Jersey, however, went ahead and legalized sports betting in certain casinos and racetracks by partially lifting its existing ban on the practice. According to the National Collegiate Athletic Association, the National Basketball Association, the National Football League, the National Hockey League, the Office of the Commissioner of Baseball, and the Trump administration, the state's legalization effort is illegal under PASPA.

Put differently, Christie v. N.C.A.A. presents a clash between federalism and federal power.

"Never before has congressional power been construed to allow the federal government to dictate whether or to what extent a State may repeal, lift, or otherwise modulate its own state-law prohibitions on private conduct," New Jersey told the Supreme Court in its petition for certiorari. "And never before has federal law been enforced to command a State to give effect to a state law that the State has chosen to repeal."

PASPA is "an unremarkable exercise of Congress' settled power to regulate commerce in sports gambling," the sports leagues counter in their brief in opposition to the state's petition. "PASPA is a straightforward exercise of Congress' power to preempt the operation of state laws that conflict with federal policy on matters within Congress' purview."

The Trump administration favors federal power in this matter too. PASPA "does not violate the Tenth Amendment because it neither compels States to regulate according to federal standards nor requires state officials to administer federal law," the administration told the Court in an amicus brief.

Oral arguments in Christie v. N.C.A.A. have not yet been scheduled.

3. Janus v. American Federation of State, County, and Municipal Employees, Council 31

In 1977's Abood v. Detroit Board of Education, the Supreme Court said it was permissible for state and local governments to require public-sector workers to pay union fees as a condition of government employment even if those workers are not union members. The Court reasoned that such mandatory fees passed muster because they prevented non-members from "free riding" on the union's collective bargaining efforts.

At issue in Janus v. American Federation of State, County, and Municipal Employees, Council 31, is whether Abood should be overturned.

The case originates with Mark Janus, an Illinois state employee who objects to paying mandatory fees to a union that he refuses to join. Janus argues that by making him contribute to the union's coffers, the state is violating his First Amendment rights by forcing him to support political speech and activism that he does not wish to support.

"The Court should take this case," Janus and his lawyers argue in their petition for certiorari, "to overrule Abood and declare [mandatory public-sector union] fees unconstitutional."

The American Federation of State, County, and Municipal Employees takes the opposite view. "Abood's rule is sound and underlies important and longstanding tenets of this Court's First Amendment jurisprudence," the union told the Court in its brief in opposition to that petition. "At its core, Abood acknowledged that certain labor-relations interests justify the small intrusion on employees' First Amendment interests that fair-share payments represent."

If the basic contours of this dispute sound familiar, that's because the Supreme Court tackled a nearly identical matter last term in the case of Friedrichs v. California Teachers Association. But after the death of Justice Antonin Scalia, the Court stalemated in that case and tied 4-4. It is quite likely that if Scalia had not died, Abood would have been overturned by a 5-4 decision.

That means the decisive vote in Janus is almost certainly in the hands of Scalia's replacement. All eyes will be on Justice Neil Gorsuch when this case comes around.

Oral arguments in Janus v. AFSCME, Council 31, have not yet been scheduled.

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  1. I look forward to being disappointed on at least two of these three cases.

    1. Which will be 5-4 decisions?

    2. I would guess that Carpenter loses 9-0 and then we can all see that Gorsich isn’t exactly what we might have hoped and dreamed.

      I don’t understand all the details behind PASPA, but I’m sure that it will get upheld.

      Overturning Abood will happen, and this is a great thing.

      As I alluded, the most interesting thing to come out of this session will be to understand where Gorsich will fall on issues of liberty.

        1. This is one area where we need to be more like Europe.

          1. “we need to be more like Europe.”

            I’ll take phrases no one has ever said before for $1000 Alex.

              1. I’m making over $7k a month working part time. I kept hearing other people tell me how much money they can make online so I decided to look into it. Well, it was all true and has totally changed my life.

                This is what I do… http://www.startonlinejob.com

        2. A bad law in the USA?
          That can’t be right.

  2. “a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties.”

    That’s why I never mail anything.

    1. Pen Pals hardest hit.

  3. 1) I’m all for privacy, but I don’t see how you stretch the 4th to cover third parties.

    2) No one should tell Christie he’s right about anything, so when they rule that the feds overreached, let’s just not tell him.

    3) Overturn Abood.

    1. I’m all for privacy, but I don’t see how you stretch the 4th to cover third parties.

      How about e-mailing me your bank and credit card records, your doctor’s records, and copies of your latest paycheck stub, birth certificate, Social Security card and your driver’s license? After Snowden, nobody’s got any reasonable expectation that those things are private.

      And if that’s the standard we’re using now, “reasonable expectation”, nobody’s got any reasonable expectation that the law and the Constitution are still operative.

      1. “How about e-mailing me your bank and credit card records, your doctor’s records, and copies of your latest paycheck stub, birth certificate, Social Security card and your driver’s license?”

        OK…something about your font says I can trust you.

      2. I’m all for privacy, but I don’t see how you stretch the 4th to cover third parties.

        It’s called minding your own business. If you’re a phone company, your job is to provide a service, not listen in on your customers’ calls. If you’re the postman, your job is deliver the mail, not read it – and in fact, I seem to recall my postman uncle commenting back in the 70’s that even reading a postcard was not allowed. The service provider is not your mother, and unless the cops or whoever GET A WARRANT, they aren’t either.

        1. I am sympathetic. However, just to be clear, the analogy would be the phone company isn’t sharing the content of the calls. Just to whom the calls were placed. And the postman wouldn’t be sharing the information in the mail. Just the mailing address.

        2. It’s called minding your own business. If you’re a phone company, your job is to provide a service, not listen in on your customers’ calls.

          They don’t listen to your calls. NSA might, but your cell provider lacks the manpower to do so. Also, they lack the give-a-fuck to do so.

          But they HAVE to see the routing of your calls. Want to know how they find out there is an outage in your area? Either people call in and bitch or, more commonly, they notice that the traffic to one tower is having a problem and they have to track it down and send out repair crews.

          For basic functionality, they know, fairly closely, where you are. They don’t know — and, legitimately, don’t care — what was said.

          Your location isn’t covered under any privacy protection.

          The service provider is not your mother, and unless the cops or whoever GET A WARRANT, they aren’t either.

          The person was outside. How is your location outside covered under any concept of “privacy”? They didn’t turn over what was said (“I was texting my boss”…sure, I buy that), just where it was said.

          1. They don’t listen to your calls. NSA might, but your cell provider lacks the manpower to do so. Also, they lack the give-a-fuck to do so.

            All it takes is a shifted incentive structure. Comcast, et al., sure have no qualms about turning over customer IP addresses for DMCA shakedowns.

            1. True. But I work for a very major cell phone provider and, honestly, nobody really cares who you talk to. We have even less desire to know what sites you visit on your phone (if you say “I have a virus”, we know you went to a porn site). Trying to sift through thousands and thousands of calls and markedly more texts is just a hassle.

              But if the cops ask us to tell where this call originated from, I doubt we’d have any reason to provide them that. Anything more invasive and, well, our law enforcement won’t even talk to you unless you can provide a subpoena first. Won’t even talk to fellow employees without one.

      3. At least as far as email goes, we aren’t talking about content. Only the addresses of the sender and receiver.

        Doesn’t this really come down to contracts? (doesn’t everything?) If you enter into a contract with your ISP, and they explicitly state that they don’t share any information with other parties, than a strong case could be made that this should include the government, in the absence of a valid warrant. (In the case of government being able to MAKE an ISP provide info without a warrant, I would totally agree that is a violation of the 4th Amendment both against you AND the ISP).

        However, I don’t believe this is the case. When you voluntarily use an ISP, you are agreeing to their terms.

        Just curious, if I ship something via UPS, would UPS voluntarily give information such as to what addresses you sent packages? Or received?

        1. “Doesn’t this really come down to contracts?”

          Yes.

    2. “I’m all for privacy, but I don’t see how you stretch the 4th to cover third parties”

      Because if the government can’t get it from me directly, why would it be allowed to get it from somebody else just because I shared it with them?

      The fourth does cover it.

      1. Because if the government can’t get it from me directly, why would it be allowed to get it from somebody else just because I shared it with them?

        The fourth does cover it.

        …then don’t share it with them.

        You have a right to not incriminate yourself. You don’t have a right to make nobody else do so for you.

  4. Odd that an amendment to a state law prohibiting a certain type of action, limiting its application regarding certain sub-types of such action, would be construed as a state’s “authorizing” some portion of such action. Do the details matter of how that bit of legisl’n was written? Like it’s 1 thing if it simply causes some language to be deleted from the state code, but another if it adds to the state code some “nothwithstanding” provision?

  5. I’ve never been giddy about law-stuff before but #3 is so huge I can’t help it. The possibility that the taxpayers might be able to take back control from the thieving scum who run every city and state in the country is just amazing.

    1. Overturning Abood would be monumental to destroy the public sector unions. I hope they rule the right way.

      1. See my comment on Janus v. Federation. Aside from bile at public employee unions, I can’t see any justification for treating them differently from any other association of individuals (e.g., Citizens United).

        If we are to treat people (or groups) differently based on whether we agree with them or not, is anybody’s free speech safe?

  6. I predict Ruth Gingsburg will croak soon, so Trump will get to nominate another good justice like Gorsuch.

    Kennedy might retire soon but I don’t think he wants trump to nominate a conservative justice, so Kennedy might just stay until he croaks.

    As with typical bureaucrats, they have narcissism where they think the court would not be able to function without them.

    1. Trump needs to find a married gay conservative judge who he could plausibly name to Kennedy’s seat, and watch just quickly it’s vacated.

  7. 1) I think the Court should rule against Carpenter. If you’re involving a third party, i.e a cell provider, your expectation of privacy is null and void. Techs at the provider can look up the towers (indeed need to do so in order to fix certain problems with service) so your privacy is already nullified there. Perhaps don’t bring your cell phone with you while committing crimes. They weren’t accessing what he texted or said — just where he was.

    2) Don’t get why the law is even there. Since when is it the feds job to govern gambling on sports? Seems like a really spurious use of interstate commerce or whatever other jackass defense they have for it.

    3) I don’t see how the Court can rule for the union here. It violates free speech and, in my eyes, free assembly. If you don’t want to be part of a union at all, then it seems unconstitutional to rule that you HAVE to be part of a union, even if it’s “only” financial. Nothing in the Constitution even mentions unions for “free riders” seems to be a union problem, not a legal one.

    1. I tend to agree with you on all three. The only nits I might pick are:
      1) I would think it would ride on what the contractual agreement between user and cell provider. Having techs who work for the provider be able to see certain information, shouldn’t automatically make it “public”. But if the provider has no contractual requirement not to provide this type of information, than the user should know that.

      2) This is actually even worse than the interstate commerce bs. This law actually forbids ANY government agency at any level from allowing legalized gambling on athletic competitions (with the grandfathered exception of Nevada, a limited pool in Montana and the sports lotteries in Oregon and Delaware since they operated between 1976 and 1990). So it is one thing for the Feds to say, “We don’t care what the States do, but it is illegal under Federal law” (similar to marijuana). But the Feds are actually stating they have the power to prevent States from allowing something.

      1. Another comment on the Christie v NCAA case… If I had my druthers, I’d amend the Constitution to expand (or clarify) the equal protection clause of 14A to apply to federal laws as well. It’s ridiculous to me that the feds in this case can say, we recognize that Nevada has a legal sports book, but nobody else is allowed. How is that right?

        Any time you hear about how legislators get more votes on board, it’s generally by carving out segments of the population from the law’s applicability. Think of all the bad legislation which could have been stopped if laws had to be equally applied to the states/people?

  8. “At its core, Abood acknowledged that certain labor-relations interests justify the small intrusion on employees’ First Amendment interests that fair-share payments represent.”

    Huh???

    1. The needs of the union bosses outweigh the rights of the one…

      Duh

  9. RE: 3 Supreme Court Cases to Watch in Fall 2017

    I’m sure the Soviet Supreme Court will rule in favor of the people instead of the individual.
    After all, what is more important?
    The State or individual rights?
    We all know the answer to that one.

  10. I want to start taking bets on the outcome of Christie v. NCAA just to confuse folks.

  11. La Suprema Corte looked at the 0,01% of the electoral vote gotten by the fledgeling LP and promptly copied the LP abortion plank as the header of Roe v. Wade. That was when the party was only on the ballot in a couple of states. Today that court will be mindful of the 4 million spoiler votes gotten in the presidential race. With any luck theironners will again act to save the parties that appointed them by quietly and without fanfare striking down idiotic laws and jurisprudence lest individualists realize that their spoiler votes cause looters and their appointees to change bad laws.

  12. I have never understood public sector employees to need a union. All jobs are classified and wages set to classification that make collective bargaining irrelevant. Even without the union it almost takes an act of congress to fire an ineffective or even a negligent employee so the need for union protection of ones job is unnecessary. So forcing someone to pay to be represented by an unnecessary, irrelevant entity is an act of futility.

  13. 1. Carpenter v. United States: Obviously I think Carpenter’s lawyers are correct here.

    2. Christie v. National Collegiate Athletic Association: I’m with Christie here, although I think he’s a piece of ____ (work?). Even better would be if NJ (and all other states) simply legalized gambling.

    (more to come)

  14. (continued)

    3. Janus v. American Federation…:

    I’m not satisfied with either side of this argument. On the one hand, a union is at its heart a voluntary association of employees. And the contract between the state and the union is like any other contract between an employer and a union: both sides have negotiated the best deal they can get. That contract should be treated like any other contract: enforceable except for the few narrow exceptions provided in law (e.g., for an unlawful purpose, or against “public policy” (e.g., the doctrine of evasion, contracts prohibiting or restricting marriage).

    One might argue that public employee unions are a special case: in addition to their direct bargaining power (the ability to get their members to stop work — a “strike” — or various slowdowns — “blue flu”, “work to rule”), these unions are also able to use their considerable treasuries to pay for ads favoring one candidate over another, or to favor or oppose a particular initiative legislation/amendment. So they are able to use the dues from non-members for political positions that those non-members oppose.

    But if “excessive (or concentrated) political power” is to be a reason for restricting contracts, would not the same reasoning apply to cases like Citizens United v. FEC? Why should an entity formed primarily for political purposes have more rights than one formed to enhance the bargaining power of employees vis a vis their employer?

  15. (continued)

    Besides, those who disagree with the union’s political views are _already_ allowed to the option of “financial core” dues — they would pay only that part of the union dues that is used for “collective bargaining activities” (bargaining, contract administration, grievance handling), not that part that is used for political or other purposes.

    So overall, I would come down on the side of the union federation. I cannot see a consistent reason for placing limits on public employee unions (or unions in general) that is not imposed on other collective entities (for-profit organizations, fraternal organizations, 501(c)(4) organizations, etc.)

    If the government (or in this case the courts) can say that one group is to be disadvantaged because it has “too much speech power”, then what protection is there for anybody’s free speech right rights?

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