Diary

The November Supreme Court Docket

In November, the Supreme Court will hear argument in 10 cases.  They will kick off arguments with Omnicare, Inc. vs. Laborers District Council Construction Industry Pension Fund.  This is a complicated case that revolves around the intent of those who handle pension funds and SEC filings.  Specifically, the Court is asked whether the mere fact of an untrue statement should be the deciding factor, or whether nefarious intent is required when untrue statements are made.  Yep- this one should glaze over the eyes of many.

Later that morning, they will hear the case of Zitkovsky vs. Kerry, the second time this case has been before the Court.  The original petition was returned to the lower courts for further consideration.  In this case, there is a federal law passed by Congress which requires, upon request, that the State Department lists “Israel” as the birthplace of Americans born abroad in Jerusalem.  However, since the status of Jerusalem is in dispute vis-a-vis the Palestinian-Israeli conflict, the State Department refuses to do so lest it upset the Palestinians.

This case places a duly enacted law squarely against the President’s ability to conduct foreign policy.  Generally speaking, in this area the Court has deferred to the Executive Branch as there is ample evidence from the Constitutional Convention records and subsequent ratification debates that the Executive would be better equipped to handle these affairs.  Originally, the case was returned to the lower courts to resolve the issue of whether a Court decision would run afoul of the Political Question Doctrine- a Supreme Court practice which avoids issues better left to political resolution.  Having resolved that issue, the question is now whether the federal law impermissibly imposes on the President’s ability to conduct foreign affairs.  It should be noted that our Founders never intended for Congress to be totally excluded from foreign policy.

In Jesinoski vs. Countrywide Home Loans, another narrow question is presented.  It asks whether a creditor, who can rescind a deal within three years of the consummation of that deal, must simply do so in writing, or whether they must file a lawsuit.  This falls under the Truth in Lending Act and pits consumer rights against those of large banks.  If the Court should rule in favor of Countrywide, look for the liberal press to go insane.

The case of Department of Homeland Security vs. MacLean will test the limits of whistle-blower protection laws when a government employee makes a disclosure specifically prohibited by law, who nevertheless makes such disclosures, should be protected against government retaliation.  In this case, MacLean, a TSA employee, complained to the media of the TSA’s decision to cut back on the number of air marshals on flights out of Las Vegas after his complaints to the TSA fell on deaf ears.  The government argues that if MacLean prevails, government employees would be free to release information for public consumption that could put people’s lives in danger.

With Johnson vs. United States, the Court is asked whether the mere possession of a short-barreled shotgun qualifies as a felony under the Armed Criminal Felony Act which would increase sentences if it is.  Yates vs. United States is a very interesting case.  This case revolves around a man (Yates) who threw away fish he caught in violation of legal limits and whether this act falls within the parameters of evidence destruction in response to governmental or regulatory inspections and investigations.  This would seem like an open-and-shut case, but the fact the Court even took it leaves one to believe that Mr. Yates has a fighting chance.

M&G Polymers, USA vs. Tackett involves collective bargaining agreements and pension benefits.  If the contract is silent regarding the duration of those benefits, the 6th Circuit decided they should continue indefinitely.  However, other Circuits have determined this should not be an automatic action if the language of the contract can reasonably be construed otherwise.

Another consumer rights case, T-Mobile South vs. City of Roswell, asks whether a communications provider who has been denied an application by a municipality, does the mere letter of denial satisfy the “in writing” requirement of the Communication Act, or is a reason for that denial also required?  Again, this is another case of statutory interpretation.

Comptroller vs. Wynne is a complicated case that basically must determine whether a state may tax all the income of its residents no matter where that income is earned.  Wynne operates businesses in several states and pays taxes in those states for which he receives a credit on his Maryland income tax, his state of residence.  However, besides a Maryland state income tax, they also assess county taxes which is what at issue here.  The state contends- and lost in the lower courts- that Wynne’s entire income wherever earned is subject to the county taxes, despite the credits afforded on his state tax obligations.

The final case in November could be potentially controversial- Alabama Black Legislative Caucus vs. Alabama.  At issue is whether the state’s legislative districts for the Alabama legislature violate the Voting Rights Act by packing blacks into minority-majority districts.  Although this ensures that blacks will likely be elected to the legislature, it also limits their political power elsewhere in the state.  The net effect, they argue, is that African-American voices are stifled in politics.

When redistricting, it would be great if we lived in a perfect world where everyone in every legislative district sorted themselves out evenly as a reflection of the overall population.  But, that is not reality.  People sort themselves out by race, ethnicity, income and political ideology.  Creating perfect little blocks of real estate where everything is equal is an impossible task.  In Alabama as elsewhere when blacks move from their traditional strongholds (metropolitan areas), their political strength should increase elsewhere accordingly.  It is a calculated risk, however, by the Petitioners in this case since nothing guarantees their political strength if there were redrawn districts.  As it is now, there is guaranteed representation.  Ideologically, I disagree with minority majority district gerrymandering.  While there may have been a reason for them at one time (debatable), that is likely no longer the case.  This case will be watched closely by civil rights groups to see if the Court continues to re-evaluate how the Voting Rights Act- a law enacted in 1965- operates in the real world of 2014.