SCOTUS watch
December 3, 2018

The Constitution's double jeopardy clause in the Fifth Amendment protects you from being prosecuted for the same crime twice. But what if the prosecutions are done by different levels of government?

Since the 1850s, the Supreme Court has permitted double prosecutions for the same crime if one is done by the federal government and another by a state. But the court will hear arguments Thursday in Gamble v. United States, a case which could overturn that precedent.

The case concerns an Alabama man named Terance Gamble who was convicted in both state and federal courts for the same gun possession crime. His lawyers argue this is a violation of his right to protection against double jeopardy, and SCOTUS justices as ideologically diverse as Ruth Bader Ginsburg and Clarence Thomas are expected to agree.

"The double jeopardy proscription is intended to shield individuals from the harassment of multiple prosecutions for the same misconduct," Ginsburg argued two years ago. "Current 'separate sovereigns' doctrine hardly serves that objective."

Though the Trump administration pushed the Supreme Court to leave the precedent intact, its decision could be significant to the fate of former Trump campaign chair Paul Manafort. The state of New York has expressed interest in prosecuting him for tax offenses should President Trump pardon his federal tax fraud conviction. If the ruling goes Gamble's way, Manafort could be shielded from another trial. Bonnie Kristian

November 24, 2018

The Trump administration on Friday asked the Supreme Court to rule on President Trump's policy restricting military service by transgender people. If granted, the request would bypass challenges in lower courts which, so far, have gone against the administration.

Solicitor General Noel Francisco argued lower court decisions blocking the policy mean "the military has been forced to maintain" an earlier policy which "pose[s] too great a risk to military effectiveness and lethality." Plaintiffs in those cases decried the request for an accelerated decision.

The Supreme Court typically does not hear cases until they have gone through the full appeals process. And after the partisan controversy surrounding the confirmation of new Justice Brett Kavanaugh this fall, the administration's push for a quick decision may be "forcing [the Supreme Court] into a minefield that many justices would almost surely prefer to avoid," lawyer and former SCOTUS clerk Joshua Matz told The Associated Press. Bonnie Kristian

October 30, 2018

The 2020 census will ask respondents if they are U.S. citizens for the first time since 1950 — unless lawsuits challenging it succeed. But the trial for those suits should be postponed, the Trump administration argued Monday, so the Supreme Court can settle another dispute: Can Cabinet secretaries be forced to testify about their decisions under oath?

Commerce Secretary Wilbur Ross, whose department administrates the census, has been ordered by a lower court judge to sit for a deposition about his rationale and intent in including the question. (A memo suggests he was the driving force behind its addition.) The administration says thus compelling a secretary to testify is unacceptable.

"[T]he real-world costs that proceeding to trial would impose on the government, especially one probing the mental processes of a Cabinet secretary to determine whether he harbors secret racial animus, would unavoidably distract the government, including the Commerce Department, 'from the energetic performance of its constitutional duties' in a manner that warrants a stay," Solicitor General Noel Francisco said in Monday's filing.

The trial over the census question will begin next Monday at least with testimony from other high-ranking Commerce Department officials if SCOTUS does not act. Bonnie Kristian

July 3, 2018

President Trump is deep into his search for a replacement for retiring Supreme Court Justice Anthony Kennedy, The Associated Press reports. Having already interviewed four candidates Monday, he plans to meet with several more on Tuesday.

"They are really incredible people in so many different ways, academically and in every other way," said Trump, who reportedly met with each candidate for 45 minutes.

Democrats have warned of Trump's potential court packing, claiming landmark cases on abortion or gay marriage could be overturned. Senate Minority Leader Chuck Schumer (D-N.Y.) urged the public to "tell your senators" to oppose anyone on Trump's list of 25 prospective Supreme Court justices. Trump is expected to name his choice on Monday, July 9. Jeva Lange

July 1, 2018

President Trump's forthcoming nomination to replace retiring Supreme Court Justice Anthony Kennedy will be announced Monday, July 9, and The Washington Post reports the president will take a fairly conventional route to the selection. While Trump often likes to buck tradition, his first SCOTUS pick, Justice Neil Gorsuch, was in many ways a safe choice and is reportedly the model for this selection too.

White House advisers told the Post Trump has indicated he values academic credentials including a degree from a top Ivy, independent thinking ("not weak"), and constitutional originalism — plus, since it's Trump, "personal chemistry, central-casting looks, and relatable life stories."

"We have a pick to come up," Trump himself said at a recent speech in Fargo. "We have to pick a great one. We have to pick one that's going to be there for 40 years, 45 years. We need intellect. We need so many things to go. You know, there's so many elements go into the making of a great justice of the Supreme Court. You've got to hit every one of them." Bonnie Kristian

June 26, 2018

The Supreme Court ruled 5-4 on Tuesday to reverse a law in California that required anti-abortion crisis pregnancy centers to provide information about abortions, The Associated Press reports. NPR characterized the decision as "[pitting] the right to know against the right of free speech," with Justice Clarence Thomas writing for the majority that the California law "targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech."

The law additionally had required unlicensed clinics to post signs or otherwise inform clients that they are not licensed medical facilities, and to provide information about the state providing low-cost or free access to prenatal and reproductive care such as abortions, if such services are not offered at the clinic in question.

The dissent was along ideological lines, with Justice Stephen Breyer arguing for the liberal half of the court that the California law should be upheld since the court had previously ruled in favor of state laws requiring doctors to inform women seeking abortions about the option of adoption. Jeva Lange

June 25, 2018

The Supreme Court on Monday declined to hear the appeal of Brendan Dassey, whose murder conviction gained widespread attention due to the 2015 Netflix documentary series, Making a Murderer, Wisconsin's Post-Crescent reports. Dassey and his uncle, Steven Avery, were sentenced to life over the 2005 rape and murder of photographer Teresa Halbach in eastern Wisconsin; Dassey's lawyers argue that the then-16-year-old was led into a false confession by police who "exploited his youth and borderline intellectual disability," NBC News writes.

The Wisconsin Department of Justice believes Dassey's confession was voluntary and valid, with the state solicitor general saying: "The only plausible source for his admissions was his guilty conscience." The Supreme Court did not give a reason for declining Dassey's appeal, although four of the nine justices would have had to agree to accept the case for it to be heard.

"Juveniles and those with intellectual deficits are at particular risk of confessing involuntarily — and often falsely — under the strain of coercive police tactics," argued former U.S. Solicitor General Seth Waxman, who had pushed for Dassey's case to be heard by the country's highest court. Jeva Lange

April 16, 2018

The Supreme Court is set to hear arguments Tuesday on South Dakota v. Wayfair Inc., an online sales tax case that may have major ramifications for sites like Etsy, Ebay, and the individual seller portions of Amazon (or the defendant in this case, Wayfair).

At present, states may not compel retailers to collect taxes on sales made to a state resident unless the retailer also has a physical presence in the state. South Dakota wants to change that. While major retailers like Amazon have the resources and infrastructure to collect and pay sales taxes in every state where a sale occurs — and, indeed, Amazon already does this for its own sales — small venders in these online marketplaces will not be able to keep up.

"If you run a company that makes just $60,000 a year, paying an accountant $50,000 a year to comply with 300 different tax jurisdictions' regulations isn't in your budget," explains Ebay general counsel Marie Oh Huber at The Hill. If South Dakota wins, its victory could spell the end of sites like Ebay, Etsy, and the Amazon marketplace as we now know them.

"Tax and legal experts expect the court" to rule for South Dakota, The Wall Street Journal reports, "freeing states to collect levies on future cross-state transactions." What new standard SCOTUS may set remains to be seen. Bonnie Kristian

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