A “view” from the courtroom: Strength in numbers

A “view” from the courtroom: Strength in numbersAfter the court put a major dent in its pending caseload last week, with five relatively significant decisions, including the much-discussed ruling favorable to sports betting in Murphy v. NCAA, the odds on this week’s lone opinion day is that we’ll get fewer decisions. We had to jump on a plane right after decisions last […]

The post A “view” from the courtroom: Strength in numbers appeared first on SCOTUSblog.

A “view” from the courtroom: Strength in numbers

After the court put a major dent in its pending caseload last week, with five relatively significant decisions, including the much-discussed ruling favorable to sports betting in Murphy v. NCAA, the odds on this week’s lone opinion day is that we’ll get fewer decisions.

We had to jump on a plane right after decisions last Monday to get to a conference in Los Angeles, where the weather was sunny and in the 70s. Did it rain here last week?

The court takes the bench at 10 a.m., with Justices Clarence Thomas and Stephen Breyer absent. Justice Sonia Sotomayor has returned to the bench for the first time since her shoulder replacement surgery on May 1. The justice evidently had to cancel her scheduled visit last week to the University of California at Davis, where she was to address the law school commencement, because of her recuperation.

Justice Ruth Bader Ginsburg is wearing her “dissent jabot” this morning, the bejeweled dark collar she showed off in the documentary “RBG.” We’ll soon learn why.

Justice Ginsburg dissents in Epic Systems v. Lewis (Art Lien)

Chief Justice John Roberts opens this morning’s session by welcoming a special guest. “We are very pleased to have visiting with us this morning the chief justice and president of the Supreme Court of Republic of Kenya, David Maraga,” Roberts says. “On behalf of our court, welcome.”

Maraga, seated in the guest box to the left of Roberts, stands about three-quarters of the way and takes a brief bow.

The chief justice (of the United States, that is), then announces that Justice Neil Gorsuch has the opinion of the court in Epic Systems Corp. v. Lewis and its consolidated cases. (Those are Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA, Inc.)

This is one of the major cases of the term, about whether, as the question presented in Epic Systems puts it, “an agreement that requires an employer and an employee to resolve employment-related disputes through individual arbitration, and waive class and collective proceedings, is enforceable under the Federal Arbitration Act, notwithstanding the provisions of the National Labor Relations Act.”

This is a rather plum assignment for a justice who is just completing his first full term in office. Gorsuch dives into his opinion announcement that courts are required under the FAA to enforce arbitration agreements providing for individualized proceedings, and neither a saving clause in that act nor provisions of the National Labor Relations Act suggest otherwise.

He pretty quickly moves to answering the dissent, which “sees things a little differently,” he says, without revealing the author of that opinion. In the dissent’s view, Gorsuch says, the court’s decision “ushers us back to the Lochner era when this court regularly overrode legislative policy judgments.”

“The dissent even suggests we have resurrected the long-dead ‘yellow dog’ contract,” he says, referring to the dissent’s description of the early-20th-century practice of employers’ requiring workers to abstain from joining labor unions.

Gorsuch goes on at some length with his rebuttal of the dissent before noting that Congress can act, as the dissent urges, to “amend” this judgment, but because the court can read Congress’ statutes to work in harmony, “that is where our duty lies.”

Gorsuch announces the lineup, with Roberts and Justices Anthony Kennedy, Thomas and Samuel Alito joining him (with Thomas writing a short concurrence). Ginsburg has written a dissent, joined by Breyer, Sotomayor and Justice Elena Kagan.

There is then the brief, slightly awkward pause when a justice starts reading a dissent. Ginsburg’s dissent from the bench is the second of the term, with Breyer having read from his dissent in Jennings v. Rodriguez on February 27. Those may well not be the last dissents from the bench in this blockbuster term.

Ginsburg methodically reads from her dissenting statement, noting that the individual claims of the employees involved in the three cases are small and various factors would likely dissuade the employees from seeking redress alone. By joining their claims together in collective action, the employees can spread the costs of litigation, lessen fears of retaliation, and gain effective redress for wage underpayment, she says.

But the forced arbitrations agreements block such collective action.

“The court today holds enforceable these arm-twisted, take-it-or-leave-it contracts,” Ginsburg says.

Gorsuch mostly looks down during the dissent. Ginsburg continues.

“Over 80 years ago, Congress recognized that for workers striving to gain from their employers decent terms and conditions of employment, there is strength in numbers,” she says. Congress passed the Norris-LaGuardia Act and the NLRA “to protect workers’ rights to band together when confronting employers about working conditions,” she adds.

The dissenters would hold that those two statutes “render the employer-dictated collective-litigation bans unlawful, therefore unenforceable,” Ginsburg says.

She does not mention in her bench dissent her single reference to the “Lochner era” in her written dissent. She concludes by saying, “The inevitable result of today’s decision is that there will be huge underenforcement of federal and statutes designed to advance the well-being of vulnerable workers. Congressional action is urgently needed in order to correct the court’s elevation of the Arbitration Act over workers’ rights to act in concert.”

With no real “Gins-burn” zinger in her statement, some of her colleagues look her way and the chief justice pauses to make sure Ginsburg has finished. She has, so Roberts turns to the next case.

Gorsuch also has the second opinion today, in Upper Skagit Indian Tribe v. Lundgren, the chief announces.

This is a case about a whether a court’s exercise of “in rem” jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when an Indian tribe has not waived immunity and Congress has not unequivocally abrogated it. That question nonetheless made for an interesting oral argument back in March, on a day when a snowstorm had shut down most of the federal government, but not the court.

The case involves a roughly one-acre strip of land in Washington state, which a family contends it acquired by adverse possession from a larger tract of land later acquired by the Upper Skagit tribe. The family filed a quiet-title action against the tribe, which asserted a defense of sovereign immunity that was rejected by the Washington Supreme Court.

Gorsuch’s opinion holds that a 1992 decision involving Indian tribes, County of Yakima v. Confederated Tribes and Bands of Yakima Nation, addressed only an interpretation of a federal Indian statute and not the scope of tribal sovereign immunity. Because the family’s alternative, common law theory for holding that the tribe cannot assert sovereign immunity emerged late in the case, the justices remand the case to the Washington Supreme Court.

“I will spare you the details, which I promise will bore you,” Gorsuch says from the bench, as he gives a very brief summary of his opinion, which is joined by Roberts, Ginsburg, Breyer, Sotomayor and Kagan. The chief justice has written a concurrence, joined by Kennedy.

Thomas has written a dissent, joined by Alito.

Gorsuch does not repeat a line from the seven-page opinion that counters a criticism by the dissent that his modest opinion has not accomplished as much as it could have.

“The source of confusion in the lower courts that led to our review was the one about Yakima, and we have dispelled it,” Gorsuch writes. “That is work enough for the day.”

Gorsuch has the strength in numbers that he needs in two decisions this morning, and that is work enough for the court on this day.

The post A “view” from the courtroom: Strength in numbers appeared first on SCOTUSblog.

from http://www.scotusblog.com

A “view” from the courtroom: An audience of luminaries for the final argument of the term

A “view” from the courtroom: An audience of luminaries for the final argument of the termIt’s a warm but drizzly day in Washington as people line up for the last argument of October Term 2017. Some have spent a night or two in the public line, while the well-connected have tickets. Today, the latter will include one star of the Broadway stage, a few members of Congress and at least […]

The post A “view” from the courtroom: An audience of luminaries for the final argument of the term appeared first on SCOTUSblog.

A “view” from the courtroom: An audience of luminaries for the final argument of the term

It’s a warm but drizzly day in Washington as people line up for the last argument of October Term 2017. Some have spent a night or two in the public line, while the well-connected have tickets. Today, the latter will include one star of the Broadway stage, a few members of Congress and at least one senior White House official.

The first familiar face we spot in the courtroom today is Scott Keller, the Texas solicitor general, who argued his state’s redistricting case yesterday and is the counsel of record on the amicus brief of Texas and 14 other states (or their governors) in support of President Donald Trump’s proclamation restricting travel to the United States by nationals of certain countries.

The case, Trump v. Hawaii, is the only one for argument today.

Wide-shot of courtroom during travel ban argument, Solicitor General Noel Francisco at lectern (Art Lien)

Sen. Mazie Hirono, Democrat of Hawaii, arrives and takes a seat in the front row of the public gallery. She is one of 31 senators and dozens of House members who have signed an amicus brief supporting Hawaii’s challenge to the president’s proclamation.

Sen. Orrin Hatch, Republican of Utah, who has not signed on to that brief, arrives and takes a seat in the bar section. But he soon stands up to gladhand a bit and chat with another bar member.

At 9:35 a.m., the courtroom receives a touch of true celebrity and talent when Lin-Manuel Miranda, the author (and original player of the title role) of the Broadway hit “Hamilton” arrives, accompanied by his wife, Vanessa Nadal, a lawyer and scientist. They are seated in the third row of the public gallery. Later, Josh Blackman, a professor at South Texas College of Law in Houston and frequent observer of the court, will tweet a picture of the Miranda autograph he got before the argument on his pocket copy of the U.S. Constitution, a version published by the libertarian Cato Institute. (Miranda will also take to Twitter, writing, “I was @VAMNit’s +1. Honored to be in the room where it happened today. Proud of our friend @neal_katyal.”)

The VIP section has some familiar faces today. We spot four spouses of the justices — Mary Kennedy, Joanna Breyer, Martha-Ann Alito and Louise Gorsuch. Absent are Virginia Thomas and Jane Roberts, who accompanied her husband, Chief Justice John Roberts, to the state dinner at the White House last night in honor of President of France Emmanuel Macron.

Also in the VIP section is Harvard Law School professor Richard Lazarus, a close friend of the chief justice. And three staff members and court aficionados from the Heritage Foundation also get prime seats — John Malcolm, Hans von Spakovsky and Tiffany Bates (the co-host of the foundation’s “Scotus 101” podcast).

White House Counsel Don McGahn arrives and is seated in the second row of the public gallery. A few minutes later, Cecelia Marshall, the widow of the late Justice Thurgood Marshall, arrives with a small group of friends and is seated by the court’s staff right next to McGahn. Neither seems to recognize each other. They will observe the argument from virtually the same view, but likely very different perspectives.

When the justices take the bench, Roberts recognizes Hatch to perform the function of introducing several lawyers to be admitted to the Supreme Court bar and to vouch for their qualifications. No one seems upset when Hatch departs from the script slightly to say to the justices, “I’m glad to see all of you this morning.”

After just a couple more bar admissions, and mercifully no large groups of lawyers being inducted as there are on most court days, Roberts calls the entry-ban case. (Hatch is evidently not interested enough in the case to stick around, and he slips out at the end of the bar-induction ceremony.)

What follows is a fast-moving, hard-hitting hour (slightly more, actually) that more than lives up to its billing as a fitting finale for arguments this term. Amy Howe has this blog’s main account of the back and forth.

U.S. Solicitor General Noel Francisco argues passionately for the legality and constitutionality of the third iteration of Trump’s entry ban, this one barring immigration from six majority-Muslim countries: Chad, Iran, Libya, Somalia, Syria and Yemen. (Chad has since been dropped from the list.)

“This is not a so-called Muslim ban,” Francisco says. “If it were, it would be the most ineffective Muslim ban that one could possibly imagine since not only does it exclude the vast majority of the Muslim world, it also omits three Muslim-majority countries that were covered by past orders, including Iraq, Chad, and Sudan.”

Justice Elena Kagan presses him with a hypothetical involving a president “who is a vehement anti-Semite and says all kinds of denigrating comments about Jews and provokes a lot of resentment and hatred over the course of a campaign and in his presidency” before ending up with “a proclamation that says no one shall enter from Israel.”

“This is an out-of-the-box president in my hypothetical,” Kagan says, to laughter in the courtroom.

Francisco responds that it is a “very tough hypothetical,” but “if his cabinet were to actually come to him and say, Mr. President, there is honestly a national security risk here and you have to act, I think then that the president would be allowed to follow that advice even if in his private heart of hearts he also harbored animus.”

Neal Katyal, representing Hawaii and other respondents who have challenged the president’s orders, tells the justices that “if you accept this order, you’re giving the president a power no president in 100 years has exercised, an executive proclamation that countermands Congress’s policy judgments.”

Katyal receives considerable pushback. Justice Samuel Alito tells him that “if you look at what was done, it does not look at all like a Muslim ban. There are other justifications that jump out as to why these particular countries were put on the list.”

When Roberts presses Katyal about how much authority the president has to act in a national security emergency, Katyal says the president would have broad authority.

“But here we are 460 days later, Mr. Chief Justice,” Katyal says. “He’s never even introduced legislation about this.”

“Well,” the chief justice replies, “Imagine, if you can, that Congress is unable to act when the president asked for legislation.” This evokes knowing laughter in the courtroom.

Later, Katyal is able to sum up his central argument.

“Our fundamental point to you,” he says, “is that Congress is in the driver’s seat when it comes to immigration, and that this executive order transgresses the limits that every president has done with this proclamation power since 1918. And to accept it here is to accept that the president can take an iron wrecking ball to the statute and pick and choose things that he doesn’t want for purposes of our immigration code. That can’t be the law of the United States.”

The chief justice, who had indicated that Francisco would be given some time for rebuttal because the last few minutes of the solicitor general’s argument had been eaten up by questions, does the fair thing, as he usually does, and also offers extra time to the respondent.

“Take five extra minutes,” Roberts says to Katyal.

But Katyal, who has argued this case several times in the court below and had seemed satisfied with his closing, is slightly thrown by this offer.

“Okay, okay,” he says, mulling what he might add. The chief justice says, “You don’t have to.”

So, with no further questions from the bench, Katyal declines the extra time.

Francisco returns to the lectern for his rebuttal. After answering a few questions, he seeks to make his conclusion, which ends up coming out a little bit jumbled.

“The president has made crystal clear on September 25th that he had no intention of imposing the Muslim ban,” Francisco says. “He has made crystal clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country and he has praised Islam as one of the great countries of the world.”

He evidently means Muslims who love this country and that Islam is one of the world’s great religions, but he presses on.

“This proclamation is about what it says it’s about: Foreign policy and national security,” Francisco says. “And we would ask that you reverse the court below.”

And with that, arguments for the day, and the term, come to a close.

The post A “view” from the courtroom: An audience of luminaries for the final argument of the term appeared first on SCOTUSblog.

from http://www.scotusblog.com

A “view” from the courtroom: Rod Rosenstein’s brief respite from a rough-and-tumble world

A “view” from the courtroom: Rod Rosenstein’s brief respite from a rough-and-tumble worldThe U.S. solicitor general’s office is particularly busy during this final week of argument, with the government appearing in each of the six cases being argued. Today, the justices will hear three cases in which the federal government is a party. The first is Lucia v. Securities and Exchange Commission, about whether that agency’s administrative […]

The post A “view” from the courtroom: Rod Rosenstein’s brief respite from a rough-and-tumble world appeared first on SCOTUSblog.

A “view” from the courtroom: Rod Rosenstein’s brief respite from a rough-and-tumble world

The U.S. solicitor general’s office is particularly busy during this final week of argument, with the government appearing in each of the six cases being argued.

Today, the justices will hear three cases in which the federal government is a party. The first is Lucia v. Securities and Exchange Commission, about whether that agency’s administrative law judges are “officers” of the United States under the Constitution’s appointments clause. That argument will—arguably—be the most interesting of the day, veering from Montesquieu to President Chester Arthur to the Warren Commission that investigated the death of President John F. Kennedy.

The second case is Pereira v. Sessions, which presents a more technical question about whether the government can stop the clock on an undocumented alien’s accrual of residency time by issuing a notice to appear for removal proceedings that omits key information.

But it is the third case—a rare post-lunch argument—that has reporters and others hanging around. That is not so much because of the question presented in Chavez-Meza v. United States, about whether federal district judges must provide more of an explanation for their sentencing decisions in certain circumstances, as because of who will argue on behalf of the government.

Deputy Attorney General Rod Rosenstein, the second-ranking official in the Department of Justice and someone who has been in the news of late, has chosen this case to participate in the tradition of having the attorney general or other high-ranking department official deliver a Supreme Court argument.

Deputy Attorney General Rod J. Rosenstein (Art Lien)

Recent U.S. attorneys general Janet Reno, William Barr, Michael Mukasey and Richard Thornburgh have all delivered arguments, Marcia Coyle reports in the National Law Journal, as did other senior Justice Department officials who were not in the solicitor general’s office, such as William Rehnquist and Antonin Scalia.

As the court’s lunch break winds down and the 1 p.m. start for the Chavez-Meza argument approaches, Rosenstein stands at the government’s table. One assistant to the solicitor general and one of Rosenstein’s top aides from the deputy attorney general’s office will sit at the table with him, while Deputy Solicitor General Jeffrey Wall will stay in the front row of the bar section. Solicitor General Noel Francisco is not here for this case.

Other members of Rosenstein’s staff are here, including James Swanson, an associate deputy attorney general who is also the author of “Manhunt,” about the search for John Wilkes Booth, and other books, including one about Kennedy’s assassination. (We don’t know whether he was here for the first argument’s references to the Warren Commission, but Swanson once delivered a lecture about the commission in the Supreme Court chamber.)

With about five minutes to go before the case begins, Rosenstein walks to his left to greet a member of the bar he recognizes. This also brings him close to the press section, and he gives a quick nod of recognition to Sari Horwitz, a reporter who covers the Justice Department for The Washington Post.

Mark Sherman of the Associated Press compliments Rosenstein on the “nice cufflinks” he is wearing, a presidential pair that were reportedly a recent gift from White House Counsel Don McGahn. Rosenstein holds up his right arm to show off one of the cufflinks and smiles as he says, “Not bad!”

He is clearly in a loose and comfortable mood, even dressed in the traditional morning coat and striped trousers that he has borrowed from the solicitor general’s office collection.

At 12:59, Rosenstein takes his handkerchief and gives his face a good all-around rub. Seconds later, the justices return to the bench with a mere knock of the gavel by Marshal Pamela Talkin. No repeat of the morning call of “Oyez!” etc.

Justice Neil Gorsuch does not return to the bench, because he is sitting out the case. The case comes from the U.S. Court of Appeals for the 10th Circuit, though Gorsuch was not a member of the three-judge panel that issued an opinion last April. (Rosenstein was last here at the Supreme Court for Gorsuch’s investiture last June. He presented the new justice’s commission from President Donald Trump.)

Todd Coberly, of Santa Fe, N.M., takes up the argument on behalf of Adaucto Chavez-Meza, who was convicted of methamphetamine-distribution charges and is seeking a reduction in his sentence. Coberly argues that a federal district judge should have provided some explanation why his client was not resentenced at the lower end of revised federal sentencing guidelines, as he had been in his first sentencing under stricter guidelines.

“If appellate review for abuse of discretion is to mean anything, it is axiomatic that there must be a reason for the district court’s decision apparent in the record,” Coberly says. “This is particularly true where Congress has channeled the exercise of a district court’s discretion by directing the district court to consider certain factors when making a discretionary choice.”

After Coberly’s argument, Chief Justice John Roberts recognizes “General Rosenstein.” The deputy attorney general, who is considerably taller than Coberly, does not adjust the height of the lectern with the side crank, as he could. He gets in his three reasons why the 10th Circuit opinion should be affirmed before he is interrupted by a steady flow of questions from the justices.

“In the absence of a statutory mandate, federal judges are not required to provide reasons for imposing a sentence within the lawful range,” Rosenstein says. Like Coberly, Rosenstein seems steady and well-prepared throughout his time at the lectern, and he even yields back a few minutes at the end by saying, “If there are no further questions.”

There is certainly no acknowledgement from the court that worlds are colliding or that Rosenstein has been working under an existential threat of being fired by his ultimate boss, the president. Of all the challenges facing an advocate preparing to go before the Supreme Court, working under that kind of threat cannot be easy.

After the argument, Rosenstein moves to the court’s outdoor steps for pictures with his family, just as many other first-time advocates do. Then the deputy attorney general heads toward a car waiting to return him to a less genteel arena.

The post A “view” from the courtroom: Rod Rosenstein’s brief respite from a rough-and-tumble world appeared first on SCOTUSblog.

from http://www.scotusblog.com

Argument analysis: Justices are divided on whether to overrule precedents on sales-tax collection by remote sellers

Argument analysis: Justices are divided on whether to overrule precedents on sales-tax collection by remote sellersAnyone who thought that just because one member of the Supreme Court had invited a test case about whether to overrule Quill Corp. v. North Dakota meant that every justice was prepared to do so quickly got a reality check this morning. In South Dakota v. Wayfair Inc., the court is considering whether to overrule […]

The post Argument analysis: Justices are divided on whether to overrule precedents on sales-tax collection by remote sellers appeared first on SCOTUSblog.

Argument analysis: Justices are divided on whether to overrule precedents on sales-tax collection by remote sellers

Anyone who thought that just because one member of the Supreme Court had invited a test case about whether to overrule Quill Corp. v. North Dakota meant that every justice was prepared to do so quickly got a reality check this morning.

In South Dakota v. Wayfair Inc., the court is considering whether to overrule Quill, a 1992 decision that the Constitution’s commerce clause prohibits the states from requiring out-of-state retailers that do not have a physical presence in the state to collect tax on sales to state residents.

South Dakota Attorney General Marty Jackley explained why he believed the court should reconsider the older ruling.

South Dakota Attorney General Marty J. Jackley (Art Lien)

“There are two very significant consequences brought about by Quill,” said Jackley, a Republican who happens to be running for governor this year. “First, our states are losing massive sales tax revenues that we need for education, health care, and infrastructure. Second, our small businesses on Main Street are being harmed because of the unlevel playing field created by Quill, where out-of-state remote sellers are given a price advantage.”

He quickly ran into a non-stop series of questions from Justice Sonia Sotomayor, who was not slowed by a fall at her home on Monday morning that, according to the court’s public information office, resulted in a broken left shoulder.

“I’m concerned about the many unanswered questions that overturning precedents will create a massive amount of lawsuits about,” she told Jackley.

One concern was about retroactive liability for sellers if the court changes the physical-presence requirement. South Dakota has specifically ruled out retroactivity in the 2016 law it passed that seeks to subject out-of-state sellers to sales tax liability based on an economic presence rather than a physical nexus. But other states could seek such retroactive liability, Sotomayor says.

She had more. “How much contact is enough to justify placing this obligation on an out-of-town seller?” Sotomayor said. And while South Dakota and its allies have pointed to sophisticated software programs that help sellers determine their sales tax obligations from the estimated 12,000 taxing jurisdictions in the United States, Sotomayor asked, “What happens when the tax program breaks down, as it already has for the states who are using it, and merchants can’t keep track of who they’ve sold to?”

The high stakes of the case seemed evident throughout the argument, though the justices took note of the fact that there was wide disagreement about the relevant numbers.

South Dakota contends that it is missing out on about $50 million in sales tax revenue under the Quill rule, a significant sum for a state with no income tax. The state also cites in its brief an estimate from researchers that all the states and local jurisdictions with sales taxes are missing out on $34 billion in revenues because of Quill this year.

The three web retailers who are respondents in this case — Wayfair Inc., Overstock.com Inc., and Newegg Inc. — cite a 2017 Government Accountability Office study that is more conservative, offering an estimate of lost revenue between $8 billion and $13 billion for this year.

“You have wildly different estimates of costs, revenues, and what states are losing or not,” Justice Stephen Breyer pointed out to Jackley. He also asked about retroactivity and the standard for determining sales-tax liability.

“When it comes to retroactivity, the states don’t want to address this retroactively, which is why South Dakota, illustrative of that, has indicated we’re prospective only,” Jackley said. “In the briefing, 38 other states have indicated their laws would prevent retroactivity.”

Chief Justice John Roberts asked Jackley whether the nation was perhaps past the stage when many large Internet retailers were not collecting sales taxes, in part to enjoy a price advantage over brick-and-mortar stores.

“The suggestion in some of the briefs is that this is a problem that has peaked in the sense that the bigger e-commerce companies find themselves with physical presence in all 50 states,” Roberts said. “So they’re already covered. And the work-arounds that some of the states have employed are also bringing more [sellers] in. And if it is, in fact, a problem that is diminishing rather than expanding, why doesn’t that suggest that there [is] greater significance to the arguments that we should leave Quill in place?”

Jackley replied that e-commerce continues to expand, and the states are expected to miss out on some $100 billion in revenue over the next 10 years.

Deputy U.S. Solicitor General Malcolm Stewart took to the lectern on South Dakota’s side, and he pointed out that whether the court overrules Quill or its 1967 predecessor, National Bellas Hess, Inc. v. Illinois Department of Revenue, leaves them in place, or does something in between, “Congress can act.”

Deputy Solicitor General Malcolm L. Stewart (Art Lien)

“Congress can impose whatever solution it believes is appropriate,” said Stewart.

In the courtroom on Tuesday were several members of that body, including Sen. Lamar Alexander, Republican of Tennessee; Sen. Mike Enzi, Republican of Wyoming.; and Sen. Heidi Heitkamp, Democrat of North Dakota. Those three, along with Sen. Richard Durbin, Democrat of Illinois, filed an amicus brief on South Dakota’s side that argues that Quill should be overruled but that “Congress is fully prepared to act when needed.”

The chief justice pressed Stewart on whether there is a constitutional minimum by which a small Internet retailer facing the burdens of complying with state sales-tax obligations might have a claim for relief.

Stewart said there is no such minimum under the court’s dormant commerce clause jurisprudence. A retailer shipping even just one good into a state could be subject to the regulatory burdens of that state’s tax requirements. But in an answer to a question from Justice Ruth Bader Ginsburg, Stewart said that Congress could address that issue.

When George Isaacson, the Lewiston, Maine, lawyer representing the retailers, began his argument time, he quickly ran into a concern from Ginsburg.

“How about going back to the very basic issue?” she said. “The assertion is that asking an out-of-state seller to collect tax on goods shipped in-state discriminates against interstate commerce. But, as I see it, why isn’t it, far from discriminating, equalizing sellers. That is, anyone who wants to sell in-state, whether an in-state shop, an out-of-state shop, everybody is treated to the same tax collection obligation. All who exploit an in-state market are subject to the in-state tax. Why isn’t that equalizing rather than discriminating?”

George S. Isaacson for respondents (Art Lien)

Isaacson replied, “Well, the dormant Commerce Clause takes as its principal objective the maintenance of a single national marketplace that is free and accessible to all participants.” He pointed out that at the time of the Bellas Hess decision in 1967, there were some 2,300 taxing jurisdictions, a figure that had jumped to 6,000 at the time of the Quill ruling in 1992, and to today’s estimate of 12,000. “So the concern that the Bellas Hess and Quill courts had was the notion that a free and open market would be encumbered by that degree of complexity,” Isaacson said. “And that complexity has only worsened over time.”

Justice Neil Gorsuch, who as a member of the U.S. Court of Appeals for the 10th Circuit wrote a concurrence that questioned the vitality of Bellas Hess and Quill, pressed Isaacson on why, when brick-and-mortar stores must comply with sales tax obligations, the court should favor “ a particular business model that relies not on brick and mortar but on mail order?”

“I understand in Bellas Hess the court was concerned about a nascent, small mail order industry,” Gorsuch said. “Those concerns seem a little antiquated today.”

Isaacson replied that “Borders count. States exercise their sovereignty based upon borders, territorial limits.  It’s a key part of horizontal federalism in this country. So, if there’s going to be some standard that determines when is a company subject to the tax jurisdiction of a state, using the territorial limits of that state make sense.”

Isaacson said that Congress would be the best branch to address the issues of sales-tax collection for out-of-state sellers, such as by requiring one tax rate per state for all remote sales. “It can require a clearinghouse that can be used for the processing of payments,” he said. “It can require standard uniform definitions of products so that food and sportswear and clothing doesn’t mean one thing in one jurisdiction and another elsewhere.”

When Sotomayor asked Isaacson whether there was anything the court could do to signal to Congress “to act more affirmatively in this area,” Isaacson said, “I would welcome a decision from this court that would indicate that Congress should move forward with consideration and action upon legislation.”

This prompted an observation from the chief justice that lawmakers perhaps have already decided “that this is something they’re going to leave the way it has been for, whatever it is, 25 years.” “I think it would be very strange for us to tell Congress it ought to do something in any particular area,” Roberts said. “Just a thought.”

Kennedy, who had invited the challenge to Quill with his concurrence in 2015’s Direct Marketing Association v. Brohl, asked only a couple of questions, in which he appeared to be restating the arguments of Isaacson or others. He referred to a proposition, whether it was that of the parties or his own, that “this court has made a statement of constitutional law that … has now, especially in light of the cyber age, proven incorrect.”

There were multiple references to the retail denizens of the cyber age. Roberts and other justices cited Amazon several times, even though the web retailing giant is not involved in the case as a party or amicus. Justice Elena Kagan cited Amazon as well as sites such as eBay and Etsy.com that might seek to take over tax-collection duties for their smaller, affiliated sellers.

Justice Stephen Breyer set himself apart by asking what it would cost “for a mandolin seller who sells mandolins on the Internet to sell them in 50 states?  How much does it cost him to enter that market?”

And Breyer wondered how much it had cost “Sears, Roebuck” to enter the national market. Perhaps sidestepping the recent struggles of the storied catalog and department store retailer, he added, “You know, that’s an ancient name, but they did all right.”

A decision in the case is expected by late June.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. The author of this post is not affiliated with the firm.]

The post Argument analysis: Justices are divided on whether to overrule precedents on sales-tax collection by remote sellers appeared first on SCOTUSblog.

from http://www.scotusblog.com

Argument preview: Justices to reconsider sales-tax collection in internet era

Argument preview: Justices to reconsider sales-tax collection in internet eraIn 1992, the U.S. Supreme Court ruled in Quill Corp. v. North Dakota that the Constitution’s commerce clause prohibits the states from imposing a sales tax on out-of-state retailers that do not have a physical presence in the state, such as a store, warehouse or sales representative. Next Tuesday, the justices will hear oral argument […]

The post Argument preview: Justices to reconsider sales-tax collection in internet era appeared first on SCOTUSblog.

Argument preview: Justices to reconsider sales-tax collection in internet era

In 1992, the U.S. Supreme Court ruled in Quill Corp. v. North Dakota that the Constitution’s commerce clause prohibits the states from imposing a sales tax on out-of-state retailers that do not have a physical presence in the state, such as a store, warehouse or sales representative. Next Tuesday, the justices will hear oral argument in South Dakota v. Wayfair Inc., which could result in overruling Quill and could significantly affect sales-tax collection in the digital age. In Quill, the justices closely weighed an earlier decision that had articulated the physical-presence rule. In 1967, in National Bellas Hess, Inc. v. Illinois Department of Revenue, which also involved mail-order sales, the court ruled that a “seller whose only connection with customers in the state is by common carrier or the United States mail” lacked the requisite minimum contacts with the state to justify “impos[ing] the burdens” of collecting taxes on interstate sales.

The North Dakota Supreme Court, in upholding that state’s law imposing a sales tax on out-of-state retailers such as Quill Corp., a mail-order office-supply provider, had declined to apply Bellas Hess to the North Dakota law. The North Dakota court held that the physical-presence rule was no longer appropriate because of “wholesale changes” in the law and the economy, including that mail-order sales had gone from being a niche enterprise to a sales “goliath.”

The U.S. Supreme Court, in considering the appeal in Quill, questioned the validity of the physical-presence test based on several of its intervening commerce clause rulings. But, citing principles of stare decisis, the justices declined to overrule Bellas Hess. The court in Quill also expressed concern that mail-order retailers faced difficulties in complying with tax obligations from some 6,000 separate state and local taxing jurisdictions nationwide.

Not long after the 1992 Quill decision, the “wholesale changes” in out-of-state sales took on new meaning. The onset of the world wide web brought a revolution in commerce, with internet-based retailers such as Amazon.com becoming popular choices for shoppers. Based on the physical-presence rule, many web-commerce sites declined to collect sales tax, giving them an end-price advantage at the transaction stage. (Consumers who do not pay a sales tax are supposed to pay a use tax in most states, but compliance levels are low.) States and local governments, who say they lost out on $26 billion in sales and use tax just in one recent year (2015), have urged Congress to act, but to no avail.

In 2015, however, the states got a boost from Justice Anthony Kennedy. In a concurrence in Direct Marketing Association v. Brohl, a Colorado case related to state sales and use taxes, Kennedy called for the court to re-examine Bellas Hess and Quill. “There is a powerful case to be made that a retailer doing extensive business within a state has a sufficiently ‘substantial nexus’ to justify imposing some minor tax-collection duty, even if that business is done through mail or the internet,” Kennedy wrote. “This argument has grown stronger, and the cause more urgent, with time.”

Kennedy, who had joined the result in Quill, noted that e-commerce sales were totaling more than $3 trillion per year in the United States. “Because of Quill and Bellas Hess, states have been unable to collect many of the taxes due on these purchases,” Kennedy continued. “States’ education systems, health care services and infrastructure are weakened as a result.” “The legal system should find an appropriate case for this court to re-examine Quill and Bellas Hess,” Kennedy concluded.

South Dakota responded in 2016 by passing a measure known as Senate Bill 106, which looks to a retailer’s economic presence rather than its physical presence within the state. Retailers must collect sales taxes if they have more than $100,000 in sales or more than 200 transactions in South Dakota. The measure also sought to protect retailers from retroactive liability.

The state sued four web-based retailers under the new law. One opted not to assert a Quill defense, while the three others — Wayfair Inc., Overstock.com Inc., and Newegg Inc. —challenged the law. (Amazon is not part of the case, nor has it filed or joined an amicus brief. The giant retailer agreed in 2017 to start collecting sales tax in every state that has one, although it does not do so on sales by its “Amazon Marketplace” partners.)

The retailers moved for summary judgment on the ground that under Quill, they do not meet the physical-presence test and cannot be compelled to collect the state’s sales tax. The state conceded that it cannot enforce SB 106 without the Supreme Court’s overruling Quill, and the South Dakota courts agreed.

In its merits brief in the Supreme Court, the state stresses that “times have changed” in the retail world and that “in the digital age where ubiquitous e-commerce is projected into our homes and smartphones over the internet, traditional ‘physical’ presence is an increasingly poor proxy for a company’s ‘nexus’ with any given market or state.” The state argues that abrogating the physical-presence requirement is now essential to eliminate arbitrary and unclear results, promote interstate commerce, and avoid important, ongoing, and unjustifiable harms to the states.

The state says that 25 years after Quill was decided, it remains “surprisingly unclear” why a seller’s physical presence is significant for sales-tax collection requirements but not for other tax or regulatory burdens of “comparable severity.” Retailing on the internet has made the physical-presence rule more arbitrary and unclear, the brief contends, as “the internet now makes it possible for out-of-state sellers to reach consumers with engaging, interactive virtual storefronts in our homes or on our smartphones at any hour of the day.”

The physical-presence rule is also reshaping American communities and distorting the national economy, South Dakota argues. “Changing conditions mean that Quill no longer props up a retail niche but rather provides a further advantage to companies like respondents on a playing-field already tipped against small, local businesses,” the brief says.

The state also resists the retailers’ claims that compliance with sales-tax obligations remains cumbersome, maintaining that technological advancements have made such collections much simpler and more streamlined. “Rate calculation … is now as easy as typing a shipping address into a search bar” of tax-calculation software, the brief says.

Finally, among other arguments, South Dakota contends that there are no concerns about retroactive tax liability for retailers should the physical-presence rule be eliminated, because SB 106 expressly bars any such retroactive taxation. And if the high court were worried that other states might seek retroactive application, there are significant legal and political barriers to that happening, the brief says.

South Dakota has amicus briefs on its side from the U.S. solicitor general, 41 other states, an association of shopping centers, an association of South Dakota retailers, and numerous law professors and economists.

For their part, the retailers argue primarily that despite efforts to simplify sales-tax collection, “state sales and use tax systems remain inordinately complex and burdensome during the Internet era, just as they were before it began.”

The retailers rely heavily on a U.S. Government Accountability Office report from November 2017, which concluded that state and local governments may, under current law, require remote sellers to collect about 75 to 80 percent of the taxes that would be owed if the physical-presence rule were eliminated. In contrast to the South Dakota brief’s citation of estimate of $33.9 billion in lost sales-tax revenue annually to all states because of Quill, the GAO report estimated a revenue gain of between $8 billion to $13 billion if all states and local taxing authorities had the power to collect sales tax from all remote sellers.

“The GAO Report is consistent with other market trends that indicate the level of uncollected sales tax is steadily declining, not increasing,” the retailers argue. According to the retailers, the GAO report undercuts South Dakota’s “erroneous claim that sales tax collection software is the ‘silver bullet’ to eliminate the burdens of multi-state compliance.” “The non-partisan GAO found … that the costs of sales tax compliance are manifold and significant,” the retailers assert, including software installation, implementation, and integration; mapping of thousands of products to software categories; per-transaction software licensing fees; administrative costs; legal fees in connection with assessments and audits; and the costs of keeping up to date on changes in the laws of thousands of taxing jurisdictions.

The retailers say their fears of retroactive tax liability in states other than South Dakota are not overblown, as some 30 states have laws on their books that might qualify. They point out that the amicus brief filed on South Dakota’s side by Colorado and 40 other states informs the court that the states may choose to “apply their laws retroactively.” (That brief generally contends, though, that there would be multiple factors that would limit any retroactivity.)

The retailers stress in their brief that Congress “is the institution best-suited to resolve the competing interests in remote sales tax collection and to select the proper policy outcome.” If the physical-presence requirement were removed, the states would no longer have the incentive to participate in a political solution, the brief says. “It is only Congress, and not the states or the courts, that has the institutional expertise to weigh the national implications of expanded state taxing authority and to craft legislation that will ensure state tax obligations do not unduly burden interstate commerce,” the retailers argue.

Support for the retailers comes from some of their fellow e-commerce companies (including eBay Inc., Etsy Inc., and America’s Collectibles Network Inc.), as well as the American Catalog Mailers Association, the Cato Institute, and two states that do not collect statewide sales taxes — Montana and New Hampshire.

Despite the wide-ranging estimates of how much sales tax is at stake, there is little doubt that the outcome of the case will be felt across the country. The GAO says that 45 states and the District of Columbia levy sales taxes, and 37 of the states authorize further levies by local governments such as cities and school districts.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. The author of this post is not affiliated with the firm.]

The post Argument preview: Justices to reconsider sales-tax collection in internet era appeared first on SCOTUSblog.

from http://www.scotusblog.com

A “view” from the courtroom: Judicial restraint

A “view” from the courtroom: Judicial restraintThe first case for argument in the Supreme Court this morning has a very interesting underlying issue: whether a policy of shackling all criminal defendants at pretrial appearances in a federal district court is constitutional. But as United States v. Sanchez-Gomez comes before the justices, the questions presented are more procedural in nature, including whether […]

The post A “view” from the courtroom: Judicial restraint appeared first on SCOTUSblog.

A “view” from the courtroom: Judicial restraint

The first case for argument in the Supreme Court this morning has a very interesting underlying issue: whether a policy of shackling all criminal defendants at pretrial appearances in a federal district court is constitutional.

But as United States v. Sanchez-Gomez comes before the justices, the questions presented are more procedural in nature, including whether the U.S. Court of Appeals for the 9th Circuit had the authority to review the “interlocutory” appeal of a group of detainees after the federal district court upheld the U.S. Marshals Service restraint policy in the Southern District of California, which is based in San Diego.

A reporter colleague says before the argument that he doubts that the word “shackling” will even come up. This reminds me of the 2015 case of Kimble v. Marvel Entertainment LLC, an intellectual-property dispute over a Spiderman toy in which the superhero was not mentioned even once during a legally dense oral argument (though Spiderman did make a playful cameo in Justice Elena Kagan’s eventual opinion in the case).

Spiderman will not be mentioned once during today’s argument in Sanchez-Gomez, either. But it doesn’t take long for the justices to at least touch on the underlying issue of the shackling policy.

“It seems to me there may well be a legal violation in shackling people, particularly people with disabilities and so forth, and that doesn’t have anything to do with the trial,” Justice Anthony Kennedy says to Allon Kedem, an assistant to the U.S. solicitor general who is arguing, among other things, that the shackled detainees could have challenged the practice as part of an appeal of their criminal convictions.

Allon Kedem, assistant to the U.S. solicitor general (Art Lien)

To be clear, the so-called five-point-shackling policy, which involves handcuffs, leg irons, and chains, is used only in pretrial proceedings, not in a jury trial. As Justice Stephen Breyer put it in his 2005 opinion in Deck v. Missouri: “The law has long forbidden routine use of visible shackles during the guilt phase; it permits a state to shackle a criminal defendant only in the presence of a special need.” (Deck went on to hold that the Constitution bars the use of visible shackles in the penalty phase of a capital trial, absent a special interest.)

The challengers contend they have a due process right to appear unshackled before a judge. But here they are defending their victory in the 9th Circuit, which held both that it could hear the appeal because the challengers essentially brought a class action-like claim covering a widespread policy and that their claims were not moot even though the four had resolved their criminal cases.

Kedem is facing off this morning against Reuben Cahn, the head of the federal defenders’ office in San Diego. Cahn is representing the challengers, who include an Iraq war veteran charged with making an interstate threat, a woman charged with a drug offense, and two aliens charged with immigration-related offenses.

Watching Kedem, who is essentially acting as a federal appellate prosecutor today, go up against Cahn, a federal public defender,reminds us of “For the People,” the new ABC legal drama that premiered this month from “Grey’s Anatomy” and “Scandal” producer Shonda Rhimes.

The network promotes the show this way: “Talented young lawyers work on opposite sides of the law handling the most high-profile and high-stakes federal cases in the country. In the new Shondaland series, these young lawyers will be put to the test both personally and professionally as their lives intersect in and out of America’s most prestigious trial court.”

That court is the U.S. District Court for the Southern District of New York, in Manhattan, which ABC says is “a.k.a. the ‘Mother Court’.” Those talented young lawyers are new hires in the U.S. attorney’s office, on one side, and the federal defender’s office, on the other.

Of course, neither Kedem nor Cahn quite qualifies as a fresh-faced “new hire.” Kedem is a former Kennedy and Kagan clerk who has argued multiple cases as an assistant to the solicitor general. Cahn has been the executive director of the Federal Defenders of San Diego since 2005 and has argued before the Supreme Court at least once before, in a 2011 case.

The justices and their cadres of four TV writers — er, law clerks — have come up with some tough questions for each side.

Breyer asks Kedem about an “absolutely hypothetical” courtroom security policy in which “people will come in bound and gagged in body armor, hung upside down. Okay, you’re saying even if that’s so, that person in this country has no way of challenging that order?”

Kedem says that would be an abuse of discretion and challengers to such an extreme policy could get a writ of mandamus striking it down. But he pushes back on Breyer’s premise, pointing out that the standard use of restraints is “a practice in roughly half of the U.S. Marshal field offices. Other field offices use leg restraints at initial hearings. So I don’t want to accept the premise that this is something truly exceptional.”

If Kedem comes across as the strait-laced, able Washington lawyer for the prosecution, Cahn has a bit of a Southern California vibe in his voice and manner.

“We believe the courtroom really is a sacred space,” he says, sometimes sticking his hand in his pocket and swaying back slightly from the lectern. “We believe judges control that space and assure that individuals come before the court with dignity and with autonomy and with their liberty interest protected, and that there was a well-established right at common law that, under this court’s precedent, is incorporated in the Due Process Clause to appear before courts free of bonds.”

Cahn mentions the notorious Newgate prison in London, where for centuries detainees faced “terrible conditions, shackled hand and foot, and without question, their bonds would be struck off for their arraignments.”

Chief Justice John Roberts tells Cahn there is a “countervailing interest.”

“Which, of course, is the safety of those in the courtroom and the safety of the judges,” Roberts says. “And your scenario of the person coming in from Newgate, I understand, that’s one individual. Here, according to the record from the marshals, you have many situations where there are a lot of people and the idea that [judges are] going to undertake an individualized determination in every case is just something that they don’t have the resources or time for.”

For a case in which the justices specifically declined to take up the constitutional question of whether the shackling at issue violates the Constitution, the argument over the procedural questions provides a pretty good hour of drama.

Unlike during a television show such as “For the People,” there is no time-editing to propel us to the outcome of the case. For that, we’ll have to tune in sometime later this season, probably in June, at 10 a.m. Eastern time/9 a.m. Central. Check your local listings.

The post A “view” from the courtroom: Judicial restraint appeared first on SCOTUSblog.

from http://www.scotusblog.com

A “view” from the courtroom: Just another (snowy) workday here

A “view” from the courtroom: Just another (snowy) workday hereIn the pre-dawn hours this morning, the website of the Office of Personnel Management delivered the news about whether an impending snowstorm in the Washington area would close executive-branch agencies. “FEDERAL OFFICES in the Washington, DC area are CLOSED,” the notice said. But anyone who has been paying attention knows that the OPM does not […]

The post A “view” from the courtroom: Just another (snowy) workday here appeared first on SCOTUSblog.

A “view” from the courtroom: Just another (snowy) workday here

In the pre-dawn hours this morning, the website of the Office of Personnel Management delivered the news about whether an impending snowstorm in the Washington area would close executive-branch agencies.

“FEDERAL OFFICES in the Washington, DC area are CLOSED,” the notice said.

But anyone who has been paying attention knows that the OPM does not rule the Supreme Court’s decision on whether to open on a day such as this. And, indeed, with opinions and one oral argument scheduled, the court decides to carry on.

“The Supreme Court building is open to the public from 9 a.m. to 4:30 p.m.,” the court’s website announces matter-of-factly, mentioning the one oral argument and that the court “may announce opinions,” with no particular acknowledgment of the weather.

Indeed, inside the court building, one would be hard-pressed to see how this was anything but a normal day when the justices are in public session. Breakfast is being served in the cafeteria. Spectators are lined up to enter the courtroom. Reporters are gathering in the press room.

The last time the court opened on schedule on a day when snow shut the rest of the federal government was on January 25, 2016, a few days after a blizzard had socked the city. The court took the bench to deliver four opinions before an audience of exactly two spectators in the public gallery and a handful of lawyers in the bar section.

Today, the bar section is about half full and the public seating is nearly full. There are quite a few high-school students here, including a group from the Roeper School in Bloomfield Hills, Mich. Your correspondent is invited to speak to the visiting students from that school each year, which some years does not fall on a day when the court is in public session.

Today, teacher Matt Vallus has taken up my suggestion that the severe weather may make it easier for the group to get into the oral argument. Most of the 10 or so students and two teachers do make it in, which is heartening since the spectator line outside was longer than what might be expected on such a snowy day. (On the other hand, most museums and other attractions in the capital are closed.)

As the justices take the bench at 10 a.m., the snow visible through the windows to the courtyards on each side of the courtroom seems to be getting heavier by the minute.

Justice Samuel Alito delivers a summary of his opinion in Ayestas v. Davis, in which the court unanimously revives a Texas death-row inmate’s request for funding for investigative services necessary to prove his claim for federal habeas relief. Justice Sonia Sotomayor has filed a concurring opinion, joined by Justice Ruth Bader Ginsburg.

The second opinion comes from Justice Stephen Breyer in Marinello v. United States, which interprets a clause in the Internal Revenue Code and holds that to convict a defendant under the “Omnibus Clause,” the government must prove the defendant was aware of a pending tax-related proceeding, such as an investigation or audit, or could foresee such a proceeding.

The audience perks up a bit when Breyer suggests that under the government’s theory being rejected today, a taxi passenger or restaurant customer who pays the fare or leaves a tip in cash at the request of the driver or waiter might be at risk of prosecution for a federal felony.

“So could paying a babysitter $41 per week in cash for a year without withholding taxes,” Breyer says as he looks out at an audience of likely taxi passengers, diners and parents interested in a night on the town.

Justice Clarence Thomas has filed a dissent, joined by Alito.

Those who have battled the snow to reach the court today are next treated to a lively argument in Upper Skagit Indian Tribe v. Lundgren, which presents the somewhat daunting question of whether a court’s exercise of “in rem” jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.

The case involves a roughly one-acre strip of land in Washington state, which the Lundgren family contends they acquired by adverse possession from a larger tract of land later acquired by the Upper Skagit tribe. The family filed a quiet-title action against the tribe, which asserted a defense of sovereign immunity that was rejected by the Washington Supreme Court.

Just a few minutes into the argument, three rather loud electronic chimes go off, a sound we haven’t heard in the courtroom before. Sotomayor, who battles diabetes, is soon handing a device that looks like it may be her blood glucose monitor to a marshal’s aide. The aide soon returns and gives something to Sotomayor, perhaps medicine or a piece of candy to balance out her blood sugar.

The argument continues with some references that the high school students present may or may not be studying in their history classes.

“This is the Alexander Hamilton quote from the Federalist Papers: ‘It is inherent in the nature of sovereignty not to be amenable to suit without consent,’” says Ann O’Connell, an assistant to the U.S. solicitor general, who is arguing in support of the tribe with a quote from “The Federalist No. 81.”

Breyer goes back further than “The Federalist Papers” to counter O’Connell with Cornelius van Bynkershoek and his classic 1744 work, “De Foro Legatorum,” which argued that at least since the 18th century, it has been “established that property which a prince has purchased for himself in the dominions of another … shall be treated just like the property of private individuals and shall be subject in equal degree to burdens and taxes.”

Breyer cites some other scholars from the briefs, and seeks to sum up his view that the tribe does not have sovereign immunity from the suit with this: “So, if you were to have a quiz—‘what was the law of sovereign immunity in 1760?’—you know, I guess you’d have to say the law is that [if] the prince buys a department store in Iowa, I’m sorry, he’s just like another Iowan.”

The argument continues with the justices much less testy with each other than they were on Tuesday, during National Institute of Family and Life Advocates v. Becerra. Maybe it’s the snow.

When the argument concludes, Chief Justice John Roberts sees no need to thank the court’s employees for any special efforts to ensure the opening of court this morning, as he did two years ago.

After all, despite closures elsewhere around town, it’s just a regular day here at the Supreme Court.

The post A “view” from the courtroom: Just another (snowy) workday here appeared first on SCOTUSblog.

from http://www.scotusblog.com

A “view” from the courtroom: The dog that didn’t bark

A “view” from the courtroom: The dog that didn’t barkDemonstrators have arrived early this morning to exercise their First Amendment rights about the first case for oral argument, Janus v. American Federation of State, County, and Municipal Employees Council 31. The case was brought by Mark Janus, a child-support specialist for the state of Illinois who does not belong to the union and objects […]

The post A “view” from the courtroom: The dog that didn’t bark appeared first on SCOTUSblog.

A “view” from the courtroom: The dog that didn’t bark

Demonstrators have arrived early this morning to exercise their First Amendment rights about the first case for oral argument, Janus v. American Federation of State, County, and Municipal Employees Council 31.

The case was brought by Mark Janus, a child-support specialist for the state of Illinois who does not belong to the union and objects to paying an agency fee for collective bargaining activities. We spot Janus huddled with his lawyers as we enter the Supreme Court building. In the courtroom, the mild-mannered state employee who may upend union finances for decades to come has been seated in the fourth row of the public gallery, at the far end of the row.

Janus v. AFSCME, William L. Messenger at lectern for petitioner (Art Lien)

Lee Saunders, the president of AFSCME, is not in the courtroom today. He is attending a rally in Massachusetts. (The country’s largest public-employee unions are conducting a variety of rallies, demonstrations and job actions across the country today.)

Randi Weingarten, the president of the American Federation of Teachers and a member of the Supreme Court Bar, is the only union bigwig at the court today. She arrived at the line to enter the bar section quite early this morning, but she will end up in the so-called lawyers’ lounge, a room where Supreme Court Bar members may listen to the audio of the argument.

In The Washington Post this morning, there is a front-page headline that says, “Justices to see a familiar face in battle over speech rights.” It turns out the story by the Post’s Supreme Court correspondent, Robert Barnes, is a site-visit preview of one of Tuesday’s cases, Lozman v. City of Riviera Beach, Fla., about gadfly Fane Lozman’s suit over being arrested at a city council meeting. Lozman was in the Supreme Court about five years ago with his separate dispute with the city over whether his floating home was a vessel under federal maritime law.

The Post headline would apply just as much to two of the lawyers arguing the Janus case today. William Messenger of the National Right to Work Legal Defense Foundation argued the 2014 case of Harris v. Quinn, which was a victory for Messenger’s clients — home healthcare aides who did not wish to pay agency fees to a union — but stopped just short of overruling the key 1977 precedent, Abood v. Detroit Board of Education, that authorized public-employee unions to collect such fees from nonunion members.

On the other side, David Frederick is representing AFSCME today, just as he represented the National Education Association and its affiliate two terms ago in Friedrichs v. California Teachers Association. That case resulted in a 4-4 tie after Justice Antonin Scalia died just weeks after the argument.

Shortly before 10 a.m., U.S. Solicitor General Noel Francisco, who will argue in support of Janus, greets Messenger, Frederick, and David Franklin, the solicitor general of Illinois who will argue for the state in favor of not overruling Abood.

Franklin’s boss, Illinois Attorney General Lisa Madigan, a Democrat, is here is well. She will move the admission of some Illinois attorneys to the Supreme Court Bar, will get a brief shoutout from Franklin during the oral argument, and will address the pro-union rally outside afterwards.

We couldn’t possibly go into all the nuances of Illinois politics at play in this case, but Gov. Bruce Rauner, a Republican, is here today as well. We’re not sure whether he made it into the courtroom, but he will address the press on the plaza after the argument. Rauner, who has been stymied in his legislative efforts to reduce the influence and power of public-employee unions, is the one who filed a suit to challenge agency fees. The governor was found to lack standing, but by then Janus and two other state employees had intervened in the case. (Janus alone is the petitioner in the Supreme Court, and his Illinois lawyer, Jacob Huebert of the Liberty Justice Center in Chicago, is at the counsel table with Messenger.)

Also, at some point, U.S. Secretary of Education Betsy DeVos has slipped in for the argument. The Janus case does not present questions under the auspices of the U.S. Department of Education, but DeVos has been sympathetic to reducing the power of the teachers’ unions.

As the justices take the bench and the Janus argument gets going, eyes are naturally fixed on Justice Neil Gorsuch, because he is widely perceived as the one who will break the deadlock of the Friedrichs tie. Amy Howe has the main account of the argument for this blog.

The main news, of course, is that Gorsuch asks no questions, and so his views remain unknown.

The other justices pretty quickly make it clear that they have stuck to positions that they recorded in the Harris decision and were presumed to hold in the Friedrichs tie. That is, Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Samuel Alito leaning toward overruling Abood, and Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan speaking up in defense of agency fees.

To those legal analysts who have questioned how Kennedy can square his apparent views on the First Amendment right of public employees to not face compulsory fees with his majority opinion in Garcetti v. Ceballos that such workers lack free speech rights in their employment-related speech, he has a concise answer.

“Garcetti involved government speech,” Kennedy tells Franklin sharply. “What we’re talking about here is compelled justification and compelled subsidization of a private party, a private party that expresses political views constantly.”

Frederick urges Kennedy to read the concurring opinion of Justice John Marshall Harlan in the 1961 decision in Lathrop v. Donohue, which upheld compulsory dues for a so-called integrated state bar (meaning membership was required to practice law) in Wisconsin, where Harlan “addressed every single one of those considerations” about First Amendment objections to compelled fees.

“I read it, I think, last night between 7 o’clock and 8:30,” Kennedy says.

During this week’s runup to the Academy Awards, Alito has a question for Franklin about the 1966 winner of the Oscar for best picture.

“Do you remember the movie and the play A Man For All Seasons?,” Alito says. “So Thomas More didn’t insist on saying that he thought the act of supremacy was wrong, but he drew a line and paid for it with his life because he would not affirmatively say that it was wrong.”

“When you compel somebody to speak, don’t you infringe that person’s dignity and conscience in a way that you do not when you restrict what the person says?”

Franklin replies that “you do, Your Honor, in some circumstances. But what we’re talking about here is a compelled payment of a fee. So it’s one step removed from compelled speech. And I don’t want to disparage the First Amendment interests that are at issue here. Abood recognized them. We take them seriously. But it’s important to recognize that agency fees are not a Man for All Seasons scenario by any stretch.”

Roberts skeptically presses Franklin on his argument that public-employee unions aren’t engaging in advocacy when they press for more money in the state budget for wages.

“I wouldn’t put it quite that way,” Franklin says. “What I would say is that of course most public servants are underpaid, and I will stipulate to that before this body.”

The audience laughs and the chief justice smiles at that quip.

The court’s liberal bloc strives mightily to stress the upheaval that overruling Abood will likely bring.

Ginsburg tells Messenger that eliminating agency fees would motivate some current dues-paying members to decide not to maintain their membership, and “the resources available to [the unions] could be substantially diminished.”

“Well, to the degree to which the union resources are diminished by individuals exercising their First Amendment right not to subsidize that union, I submit that’s a perfectly acceptable result,” Messenger says.

Sotomayor tells Messenger that “you’re basically arguing do away with unions because you are really … saying every single employee decision is really a public policy decision.”

Kagan stresses the “reliance interests” of the 40-year-old precedent.

“I don’t think that we have ever overruled a case where reliance interests are remotely as strong as they are here,” Kagan says. “Twenty-three states, the District of Columbia, Puerto Rico, all would have their statutes declared unconstitutional at once. Thousands of municipalities would have contracts invalidated. Those contracts probably cover millions, maybe up to over 10 million, workers.”

Messenger questions whether existing contracts would be in danger, or whether the agency-fee requirement could just be severed.

Breyer also reaches back into history a bit with a reference to Archibald Cox, the U.S. solicitor general under President John Kennedy (and later a Watergate special prosecutor). “I once heard Archie Cox, maybe it was in your position right here, say the greatest instrument for labor peace and prosperity from the years 1945 to 1970 was grievance arbitration in the unions.”

But eliminating agency fees would suddenly cut one leg from the system, Breyer says.

Through all of this, Gorsuch will listen intently, take notes, and often hold one hand to his face.

But one thing he does not do is tip his hand.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the respondents in this case. The author of this post, however, is not affiliated with the firm.]

The post A “view” from the courtroom: The dog that didn’t bark appeared first on SCOTUSblog.

from http://www.scotusblog.com

A “view” from the courtroom: An anniversary, and later a tense exchange

A “view” from the courtroom: An anniversary, and later a tense exchangeThe court has returned from its nearly four-week midwinter recess, one marked by a number of extracurricular orders, an even bigger number of public appearances by Justice Ruth Bader Ginsburg, and a smaller number of public appearances by other justices. Presumably, some work has gotten done, because the court has announced the possibility of opinions […]

The post A “view” from the courtroom: An anniversary, and later a tense exchange appeared first on SCOTUSblog.

A “view” from the courtroom: An anniversary, and later a tense exchange

The court has returned from its nearly four-week midwinter recess, one marked by a number of extracurricular orders, an even bigger number of public appearances by Justice Ruth Bader Ginsburg, and a smaller number of public appearances by other justices.

Presumably, some work has gotten done, because the court has announced the possibility of opinions on Wednesday, which would add to the whopping four merits opinions that have come down so far.

We are not up in the courtroom for the first argument this morning, as we and many other reporters are still down in the pressroom dealing with today’s large orders list.

But when the justices take the bench, Chief Justice John Roberts has an announcement.

“Before we begin today, I would like to note that last Sunday, February 18, marked the 30th anniversary of the day our colleague Justice Kennedy took the judicial and constitutional oaths as a new member of this court. …”

As he is saying this, reporters in the pressroom, hearing Justice Anthony Kennedy’s name on the speaker in the adjacent public information office, practically fall over ourselves rushing in to hear the rest of the announcement.

“On behalf of the court,” the chief justice continues, “I would like to extend to Justice Kennedy our heartfelt congratulations on what is for all of us a very happy anniversary.”

The reporters, who perhaps thought momentarily that the unusual statement might relate to a possible retirement, slink back to their desks.

(The speaker piping audio from the courtroom is usually turned on only for the first few moments of each court session, except on opinion days, when opinion announcements are aired in full.)

On February 20, 2013, Roberts marked Kennedy’s 25th anniversary on the court, with slightly different language than he used today.

“On behalf of the court, I congratulate you, Justice Kennedy, on your distinguished service. We all look forward to sharing many more years with you in our common calling.”

Before anyone gets too excited about the absence of “many more years” in today’s announcement, we’ll point out that the tradition-bound court appears to rely on a series of scripts for these occasions.

Roberts used essentially the same language as today’s on November 28, 2005, to recognize Justice John Paul Stevens, the last justice to reach the 30-year mark. (Though that date was when President Gerald Ford nominated Stevens. The justice’s December 19 anniversary of joining the court would come during the holiday recess. And yes, it was a mere matter of weeks between Stevens’ nomination and his taking the bench.)

We couldn’t find in the court’s journal a recognition of Stevens’ 25th anniversary in 2000 by Chief Justice William Rehnquist. But last year, Roberts recognized Justice Clarence Thomas’ 25-year mark with remarks that included “sharing many more years with you in our common calling.”

Today’s other noteworthy moment occurs during the second argument of the day, in City of Hays, Kansas v. Vogt. The case presents the question of whether the Fifth Amendment is violated when authorities use the allegedly compelled statements of a public employee in a probable-cause hearing but not in a criminal trial.

At least three justices, Samuel Alito, Sonia Sotomayor and Elena Kagan, make repeated references to the case as “odd,” presenting procedural complexities.

The argument really starts sparking when Justice Stephen Breyer, who will mark his 25th anniversary on the court next year, is questioning Kelsi Corkran, the lawyer representing the City of Hays police officer who got in trouble for mentioning, during a job interview with a nearby police department, a knife he possessedBreyer presses Corkran about a point and when the lawyer says that “none of this is in the record,” Breyer says, “It may not be in the record.”

Roberts, who has been persnickety about discussions of extra-record information, leans forward and says, “That’s an important point, isn’t it?”

Before Corkran can answer, Breyer responds, “Of course it’s an important point.”

As the courtroom chuckles at this, the chief justice’s ire appears to rise.

“Well, before we start having an extended exchange about … something that’s not in the record, … I guess I would just like to point out it is not in the record,” Roberts says.

Corkran tries to speak, but the chief justice isn’t done, with his anger affecting his usually clean syntax.

“How do we know it’s been adequately — had a chance for people to object to it and all that?” he says. “It’s not just a passing comment that it’s not in the record.”

And before Corkran can even think of responding, Breyer shows his own mild flash of anger.

“Nor is actually mine a passing comment because Article III of the Constitution says we are to take real cases and controversies,” Breyer says, at times looking directly over to Roberts. “And to decide a major matter where, in fact, going from what is in the record to an earlier stage of this and discovering if it’s true, that there was no instance about which you’re complaining, in my mind raises the question as to whether this is, in fact, an appropriate case or controversy for the court to take.”

And by now there is little pretense of directing a question to the lawyer as the chief justice responds, “And we’re supposed to decide whether the cases are controversies according to law. And as far as I’m concerned coming in and saying I want to know about this thing that’s not in the record is no different from somebody else coming off of the street and saying: ‘Hey, wait a minute, I know what happened in this case.”

He tries to bring Corkran back into the colloquy. “So go ahead and answer” Breyer’s question, Roberts says. “It’s a question you have been presented with.”

Breyer tells Corkran, “You don’t have to answer it.”

And Roberts has one more thought: “No, no, feel free. I’m just saying I will discount the answers because it is not something that’s in the record.”

Corkran is then allowed to speak, and she points out that “reason it is not in the record is because petitioner chose to seek this court’s interlocutory review at the pleading stage.”

By this time, we have completely forgotten, if we were ever paying attention to, what the “it” is that isn’t in the record that is causing all this trouble.

The argument calms down after that. A little later, Roberts passes a note to Breyer, who reads it and responds with what seems like an amicable expression and gesture.

The flashpoint doesn’t seem like anything that would knock the chief justice off script next year or belie his expected declaration that he and his colleagues look forward to sharing “many more years” with Breyer in their common calling.

The post A “view” from the courtroom: An anniversary, and later a tense exchange appeared first on SCOTUSblog.

from http://www.scotusblog.com

A “view” from the courtroom: Open for business, with a hiccup

A “view” from the courtroom: Open for business, with a hiccupToday is the first weekday of the federal government shutdown, but few court-watchers are surprised that the Supreme Court is open for business. As Andrew Hamm reported for this blog on Sunday, the court operated as usual during the 2013 and 1995 government shutdowns, even conducting its entire two-week argument session in October of 2013. […]

The post A “view” from the courtroom: Open for business, with a hiccup appeared first on SCOTUSblog.

A “view” from the courtroom: Open for business, with a hiccup

Today is the first weekday of the federal government shutdown, but few court-watchers are surprised that the Supreme Court is open for business.

As Andrew Hamm reported for this blog on Sunday, the court operated as usual during the 2013 and 1995 government shutdowns, even conducting its entire two-week argument session in October of 2013. Although the federal courts get some of their budgets from a congressional appropriation, they can operate for about three weeks on court-fee balances and other funds, according to the Administrative Office of the U.S. Courts.

Today is a scheduled day for orders and opinions for the Supreme Court, after which the court is taking its four-week midwinter recess.

So, the justices take the bench as normal at 10 a.m. Or at least five of them do. Four are absent, which is not unusual for these non-argument sessions.

Some justices absent for today’s opinions (Art Lien)

Justice Ruth Bader Ginsburg is on her way back from the Sundance Film Festival in Park City, Utah, where over the weekend she participated in a festival interview session related to the festival premiere of the documentary “RBG.” She was introduced by Sundance founder Robert Redford and interviewed by NPR’s Nina Totenberg. Among the newer nuggets of information to emerge were two of Ginsburg’s favorite recent movies. She cited “Three Billboards Outside Ebbing, Missouri” and “Call Me By Your Name.”

Justice Stephen Breyer is speaking this evening at the University of North Florida, in Jacksonville.

Justice Sonia Sotomayor is absent not because of her minor health scare on Friday related to her diabetes (paramedics were called to her apartment over concerns about her blood-sugar level), but because she is headed to Seattle for a civics education event, the court’s Public Information Office says.

Justice Samuel Alito is absent today as well, and we have no information about his whereabouts.

The bar section of the courtroom is pretty full, with many lawyers scheduled to be sworn in as members of the Supreme Court Bar. That’s where today’s hiccup will come a little later.

The public gallery is sparsely attended, with only about two rows filled, and many of those people appear to be guests of the bar admittees. Even though this is one of the few government buildings open for business (although Smithsonian museums are open through today), it is not quite high season for visiting student groups.

The chief justice announces that Sotomayor has the opinion today in National Association of Manufacturers v. Department of Defense.

“She’s asked that I read the opinion for her,” Roberts says.

The case is about whether challenges to a federal regulation known as the “waters of the United States” rule must be filed in federal district courts. That is where the NAM filed its challenge to the rule promulgated by the Environmental Protection Agency and the Army Corps of Engineers. The federal government argued that such challenges must be filed in the federal courts of appeals under the Clean Water Act’s enumeration of seven categories of EPA actions for which judicial review lies exclusively in the appeals courts.

“The parties have asked us to wade in” to the question, the chief justice says, with the pun eliciting chuckles throughout the courtroom. He makes clear fairly quickly that the court has sided with the NAM and that challenges to the WOTUS rule must be filed in the federal district courts.

Roberts’ reading of Sotomayor’s summary includes several other water-related puns, such as a reference to the government seeking to keep its interpretation “afloat” by turning to some theory or authority. Some of the wordplay appears in the written opinion and some doesn’t. We think the puns originate with Sotomayor, and not the chief justice.

Roberts declares that the decision is unanimous. (So, we are still awaiting an instance when the chief justice announces an opinion for an absent justice in which he is in the minority.)

Next, Roberts says that “Justice Ginsburg has our opinion today in Artis versus the District of Columbia.” He does not mention whether Ginsburg has asked that he read her summary. He just starts reading it.

The case is a fairly technical one about the time for refiling a claim under the supplemental jurisdiction statute. The court holds that the statute’s instruction to “toll” a state limitations period means to hold it in abeyance, or stop the clock. The decision is 5-4, with the chief justice joining the court’s liberal bloc to form the majority, and Justice Neil Gorsuch filing a dissent joined by Justices Anthony Kennedy, Clarence Thomas and Alito.

Roberts next says with a smile that “Justice Thomas has our opinion today in District of Columbia versus Wesby, and he’s going to announce it himself.”

This is a case about whether police officers in the nation’s capital had probable cause to arrest attendees at a raucous “bachelor party” in an unoccupied house.

The facts of this case provided for one of the livelier arguments of the term back in October. And while Thomas sometimes has a knack for draining all of the fun aspects of a case out of the opinion announcement, that’s not true today.

From the bench, he refers to an “utter bacchanal” involving “strippers,” “lap dances” and casual sex on a mattress in the bedrooms, with used condoms strewn about.

Some partygoers believed they were invited by a hostess known as “Peaches,” who it turns out was not at the party and was not authorized to use the house. When the police arrived in response to a neighbor’s complaint, partygoers scattered. The police reached Peaches on the phone, and she claimed to be renting the house. But when the police reached the home’s owner, he said there was no such agreement and the party was not authorized. The police then arrested 21 partygoers for unlawful entry. (Charges were dropped, and 16 of the partygoers sued for false arrest.)

Thomas quickly summarizes the court’s conclusion that the police had probable cause to make the arrests and that the officers had qualified immunity. Sotomayor filed an opinion concurring in part and concurring in the judgment. Ginsburg filed an opinion concurring in the judgment in part. (In her opinion, Ginsburg chides Thomas for his account of the facts going “beyond those cited by the Court of Appeals.”)

With that, the court moves to its normally routine ritual of swearing in new members of the bar.

Clerk of the Court Scott Harris introduces a few individual admittees, and then a large group from the U.S. Air Force Judge Advocate General corps. But there are about six or seven others seated with the other bar admittees who have slightly mystified looks on their faces when Roberts gives his traditional welcome to the new bar members and Harris swears in the acknowledged groups.

When the swearing-in concludes, Marshal Pamela Talkin bangs her gavel to end the court session and everyone stands, including the justices. But as this is going on, Roberts and Harris are trading looks that suggest they are aware that one group of admittees has been overlooked.

The chief justice raises his hands slightly and says, “I’m sorry, we’re not quite ready to adjourn.”

Harris says, “We have one more group.”

Everyone settles back down as the neglected group is announced and then sworn in.

And then, the five justices head for the curtains, ready to begin their midwinter recess.

Talkin announces that court will next meet on February 20.

It goes unsaid that that will happen assuming funds are available.

The post A “view” from the courtroom: Open for business, with a hiccup appeared first on SCOTUSblog.

from http://www.scotusblog.com