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SCOTUS watch
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

April 1, 2018

The Department of Justice said in a court filing published Saturday it no longer wishes to pursue its digital privacy case against Microsoft at the Supreme Court.

At issue is whether the U.S. government can compel American companies to produce digital data stored abroad. Part of the omnibus spending bill passed in March was the Cloud Act, which says a "provider of electronic communication service" like Microsoft must comply with court orders for data "regardless of whether such communication, record, or other information is located within or outside of the United States." The DOJ believes the law makes the case moot.

Microsoft supported the legislation, which provides procedure for U.S. law enforcement to work with foreign officials to obtain data. Previously, the company warned that if "the U.S. government obtains the power to search and seize foreign citizens' private communications physically stored in other countries" without legal permission, "it will invite other governments to do the same thing" to Americans. Bonnie Kristian

February 26, 2018

The Supreme Court will hear oral arguments for Microsoft v. United States on Tuesday, a case that could have global implications for digital privacy.

At issue is the reach and jurisdiction of digital warrants: If an American company, like Microsoft, stores a user's emails on a server outside the United States, does it have to deliver those emails to police when they've obtained a search warrant? In this case, the emails in question were stored in Ireland, and the Irish government has argued proper procedure would be for U.S. law enforcement to ask Irish law enforcement to obtain a warrant for the emails and then share them across the pond.

The decision in this case, however, will likely have effects beyond U.S. investigatory practice. Should the United States assert its digital warrants can cross national borders, other nations may do likewise. "If the U.S. government obtains the power to search and seize foreign citizens' private communications physically stored in other countries, it will invite other governments to do the same thing," said Microsoft president and chief legal officer Brad Smith. "If we ignore other countries' laws, how can we demand that they respect our laws?" Bonnie Kristian

November 27, 2017

The Supreme Court will hear arguments Wednesday on a case addressing whether law enforcement should be require to obtain a warrant before accessing cell tower data, which can include location information relevant to criminal investigations.

The case in question is an appeal brought by a man named Timothy Carpenter who is serving a lengthy sentence for multiple armed robberies. Prosecutors obtained Carpenter's conviction in part by using cell tower data to place his smartphone near Radio Shack and T-Mobile stores at the time of the robberies. The records were reviewed without a warrant and covered 127 days of Carpenter's movements, including activities unrelated to the crimes.

The Trump administration as well as 19 states want the court to maintain the status quo, arguing that tower data should not be covered by the Fourth Amendment's privacy protections but rather treated like call records from a landline. Privacy advocates note the data obtainable from a cell tower, like the phone's movements, is far more significant than a simple list of numbers dialed. Bonnie Kristian

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