Once again I pick up a weighty mantle and place it upon my willing shoulders -- I will again review for you, my beloved readers, the term of the US Supreme Court just passed.
This one will be remembered as the term that began with credible rape allegations against President Trump's nominee for an open position on the court, and that ended at about the same time a woman was publishing credible accusations of rape by President Trump himself.
It is perhaps weirdly appropriate then that this term, more than other recent terms, has been concerned with issues of the constitutional questions raised by criminal procedure. We'll get to some of them Saturday.
This term, too, began with a sense in many quarters that a fatal balance had been tipped. With Kavanaugh, there are now two Justices appointed by Donald Trump, who presumably are inclined to combine with the three who were appointed by one or another of the Presidents Bush. That adds up to five votes.
But Supreme Court decisions don't really break down along the lines one might imagine from the appointing President. We'll start our review, today, with two examples of just that point.
Tomorrow, we'll move to some important issues of statutory interpretation. Among other matters, we will concern ourselves with the issue of compulsory arbitration as a means by which corporations limit their exposure to the judicial system, and by which the judicial system accepts and enforces that -- this term, that broad issue is instantiated in the cases of Lamps Plus and New Prime.
New Prime, as it happens, was a (nowadays rare) win for the opponents of compulsory arbitration. Lamps Plus had some unusual twists for this sort of decision. It involved hacking, and a claim about employer liability for the loss of employee privacy to a third party hacker. But we'll get to all that in due course.
Our Saturday, as I've mentioned, will be about criminal procedure and the constitution. This year SCOTUS faced important capital punishment challenges, issues concerning excessive fines, and the range of the constitution;'s protection for one's right to trial by jury.
Finally, Sunday we have an end-of-term potpourri. We'll say something about Church/State issues, the intersection of liquor laws with the commerce clause, and gerrymandering both racial and partisan.
So, let's get underway!
United States v. Davis
One of the flurry of final cases settled this term involved a federal law that imposes harsh penalties on offenders who use a gun in a "crime of violence" and that defines a crime of violence as a crime that "by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense."
What does this mean? Suppose I customarily carry a gun, because I take the Second Amendment as holy writ and no gummint type is gunna tell me not to: darn it. Also while I have the gun on me (as I always do) I commit fraud. I forge documents necessary to persuade a sucker to hand over a lot of money to me. Forgery is a non-violent activity and we will suppose the exchange of money for the documents goes off without a hitch, and so without violence. But I had a gun with me. Does that earn me an extra twenty years on my sentence?
The prosecution could argue that there was the "substantial risk" my mark would figure out the document was forged, would become enraged, and that in the altercation that followed I would make use of my gun. Because there was this risk, my crime was a "crime of violence." But through such reasoning, one might as well say that any crime committed by anyone who has a gun at the time would be a "crime of violence," and all that "substantial risk" language becomes superfluous.
At any rate, the Supreme Court ruled in favor of the defendant; it decided that the "crime of violence" language is unconstitutionally vague and thus void. This was a 5-4 decision. A Trump appointee joined the two Clinton and the two Obama appointees to make the five. That Trump appointee was Neil Gorsuch, who wrote for the majority.
Our boy Kavanaugh wrote in dissent -- for himself, Thomas, Alito, and Roberts.
Just one quote from each of the two Trump appointees will do for now. Gorsuch, for the court, said: "Vague laws ... undermine the Constitution’s separation of powers and the democratic selfgovernance it aims to protect. Only the people’s elected representatives in the legislature are authorized to 'make an act a crime.' United States v. Hudson, 7 Cranch 32, 34 (1812). Vague statutes threaten to hand responsibility for defining crimes to relatively unaccountable police, prosecutors, and judges, eroding the people’s ability to oversee the creation of the laws they are expected to abide. See Kolender v. Lawson, 461 U. S. 352, 357-358, and n. 7 (1983)."
Kavanaugh replied by quoting a lot of statutes that use the phrase "substantial risk" in very different contexts and arguing that it is too much to believe that all of these statutes, federal and state, are void for vagueness, so that two word phrase should be considered tolerably clear. Or I think that's what he is saying. Gorsuch has by far the better of the exchange.
Apple v. Pepper
The big antitrust decision by the US Supreme Court this term is APPLE v. PEPPER.
Robert Pepper was one of four iPhone owners who became plaintiffs here. They claimed that Apple had engaged in monopolistic practices in the aftermarket for iPhone apps. Pepper's direct transaction was with Apple, NOT with the app developer, though the app developers set the price of their products.
Apple claimed that Pepper's lawsuit should not be allowed to proceed, because there are precedents that limit which private parties can bring antitrust lawsuits, and Pepper is on the wrong side of those precedents. The contentions are complicated, but I won't get into the weeds with them here.
If any case should have pitted Democratic Presidential appointees against Republican appointees on clean lines, this would have been it. From a Dem point of view -- it is a large corporation's effort to shield itself from liability to the little guy. Hurrah for the little guy! From a Rep point of view -- it is an effort by ambulance-chasing trial lawyers to distort the law for their own contingency fees. Boo to the trial lawyers!
Yet APPLE v. PEPPER was decided 5 - 4 -- the 'Dem' way. To be clear, this is an early stage of the proceedings and SCOTUS is not holding that Apple is an illegal monopolist. But what it is holding is that the proceedings can continue, Pepper is entitled to bring them and to be heard.
How did the Dem side manage to win this one? Credit the junior Justice, Trump appointee Brett Kavanaugh. He not only voted along with the two Clinton appointees (Ginsburg and Breyer) and the two Obama appointees (Kagan and Sotomayor) giving them their majority -- again, he wrote the decision.
What does this prove? First, that even politically polarizing cases don't always go the way one would predict. And that when one or the other of the two Trumpets go with the 'liberals,' it can be either of them.
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