The Supreme Court is getting ready to release its remaining major decisions by late June. Here is a quick look at four big cases still on the docket.
In total, the Court has 14 decisions to release in about the next 10 days. At least two decision days are expected: Thursday, June 21, and Monday, June 25. In past years, the Court had scheduled additional decision days if needed, and the Court will announce in advance when its last decision day is scheduled.
Over the summer, the Court does handle some business, and on rare occasions hears arguments of an emergency nature. But usually by July 1, the Justices are on a break, and the major decisions on its docket from the past nine months are released.
Among the widely followed cases during its current term are significant decisions about cellphone privacy, public union dues, Internet sales taxes, and executive powers.
The Court heard arguments in this case back in late November 2017, so court watchers expect the decision to be detailed and possibly precedent setting. The Justices are considering if the warrantless seizure and search of historical cellphone records, which show the location and movements of a cellphone user over a period of more than four months, is permitted under the Fourth Amendment.
The controversy in Carpenter goes back to another Supreme Court decision in 1979. In the case of Smith v. Maryland, the Court said that since a phone owner voluntarily allows the phone company to record his or her outgoing call numbers, there was no expectation of privacy for the person making the calls.
But does that logic apply in the digital age? The U.S. Court of Appeals for the Sixth Circuit in Carpenter said the Fourth Amendment’s search-warrant requirement only protects what is actually said in phone conversations. And it upheld the third-party doctrine that phone records belong to the phone company.
Carpenter’s attorneys argue modern cellphone records are fundamentally different than phones used in 1979 and that a more recent Court decision from 2012, United States v. Jones, establishes some Fourth Amendment privacy rights related to the use of GPS devices by law enforcement to track the location of a car.
In Janus v. American Federation, the Court tackles the issue of compelled financial support for public unions, and if public employees can be forced to pay dues to unions they don’t belong to as an effort to offset contract-negotiation costs.
In 1977, the Court said unions could charge such fees, but recent doubts have emerged from some Justices that the practice can continue. In Abood v. Detroit Board of Education, Justice Potter Stewart said that public-sector workers could be compelled to "support legitimate, non-ideological, union activities germane to collective-bargaining representation.”
Since the Abood decision, three challenges had arrived at the Court in recent years seeking to overturn the decision or seriously amend it. In 2016, the Court was asked in Friedrichs v. California Teachers Association to decide if requiring public school teachers to pay mandatory dues for union activities violated the First Amendment. After the death of Justice Antonin Scalia, a divided court couldn’t decide the case, leaving in place the precedent that teachers and other public workers, in about half of the nation’s unions, had to pay fees to support unions, even if they don’t participate in them.
The Janus case is about the Illinois Public Labor Relations Act, which requires all employees working at a public agency or public organization to pay a fee for unions to negotiate contracts, even if some employees don’t belong to unions. To union officials, any decision overturning Abood is seen as a direct threat to the existence of public unions. Abood’s opponents view it as an unconstitutional restraint on free speech and association.
The Justices are considering another question for the digital age: if taxes must be paid on Internet product sales. Last year, the Commerce Department said Americans spent $456 billion in ecommerce retail purchases, an amount equal to 13 percent of all retails sales in the United States. But not all states require consumers to pay taxes on Internet sales. Big online retailers, like Amazon, do charge sales taxes, even though they don’t own a physical building in some states. But others don't.
State and local governments claim they are missing out on $13 billion annually in sales tax revenues from Internet businesses. Those Internet businesses believe a 1992 Supreme Court decision, Quill Corp. v. Heitkamp, supports an argument that states can’t force sales or use taxes on businesses that lack a physical presence in a state, and Congress is the best place to decide such taxing disputes.
South Dakota is challenging the Quill precedent. In 2010, it passed a new law ordering out-of-state retailers to collect and send to it sales taxes, if they sold a significant amount of goods to South Dakota buyers, or if they made frequent transactions with customers in South Dakota.
At arguments in April, there were indications that the Court could pass the final decision on Internet sales taxes to Congress, rather than decide to overrule the Quill precedent.
In another major case argued in April, the Supreme Court will consider Hawaii’s claim that President Donald Trump imposed an unconstitutional “Muslim ban” when he ordered strict new limits on entry into the U.S. by foreign nationals from six nations with Muslim-majority populations and if the Trump order issued last September is illegal under federal immigration laws or federal procedural rules.
The proclamation in question is the third version of the President’s attempts to take actions he believes necessary to keep potential terrorists out of the United States. The Justice Department argues Congress clearly has granted any President powers to exclude aliens if he deems that action is needed to protect U.S. interests.
Hawaii and other challengers say President Trump is defying the immigration law that bars the exclusion of people based on their country of origin. They also claim that the law only applies to individuals who pose a risk and that the proclamation violates the Constitution’s Establishment Clause.
In Trump v. Hawaii, the U.S. Court of Appeals for the Ninth Circuit ruled for the challengers, concluding that President Trump lacked inherent powers to issue a broad ban and that he did not follow Congress’s wishes as stated in immigration laws. But at arguments in April, the Court seemed concerned about basic separation of powers issues.
Scott Bomboy is the editor in chief of the National Constitution Center.
