THE CLOUD AT SCOTUS | A Middle Way On Unions | McConnell’s Greatest Achievement Still Making Waves
February 27, 2018
LEGAL CLOUD COVER
|Today the justices heard arguments in a case that could decide whether the U.S. can seize emails stored in “the cloud” overseas. United States v. Microsoft involves a federal drug-trafficking investigation in which law enforcement obtained a warrant for all the data associated with a suspect’s Microsoft account. In response, Microsoft turned over the user’s account identification information that is stored in Redmond, Washington, but refused to disclose the content of the emails, which were stored in a data center in Ireland. Privacy advocates warn that a win for the government could set off a global free-for-all with nothing to stop administrations from seeking data stored anywhere in the world. But the DOJ says a win for Microsoft would create data havens for evidence of serious crimes.
A GUARANTEE OF DUE PROCESS NO MORE
|The Supreme Court ruled today that immigrants don’t have the right to periodic bond hearings, even if those immigrants have legal status or are asylum seekers. This means immigrants could be held indefinitely in detention. In its 5-3 opinion the court noted, “Immigration officials are authorized to detain certain aliens in the course of immigration proceedings while they determine whether those aliens may be lawfully present in the country.” JUSTICE SAMUEL ALITO wrote the majority opinion, and the vote count was only eight because JUSTICE ELENA KAGAN recused herself because of her work as PRESIDENT OBAMA’S solicitor general. JUSTICE STEPHEN BREYER wrote a lengthy dissent sharply criticizing the decision and pointing out that forbidding bail likely violates the Constitution’s guarantee of due process under the law. He wrote, “We need only recall the words of the Declaration of Independence, in particular its insistence that all men and women have ‘certain unalienable Rights,’ and that among them is the right to ‘Liberty.’”
ED BOARD OVERTURE
|ICYMI, the justices heard one of the biggest cases of the term yesterday. Arguments in Janus v. American Federal of State, County and Municipal Employees, Council 31 put in question the future of public sector unions while lawyers argued for an end to fees paid by non-union members. But the Editorial Board of the Los Angeles Times is having none of it, arguing the Supreme Court was asked yesterday to engage in union busting in the name of the First Amendment by overturning its 40-year-old precedent which rightly required non-union members to pay “fair share” fees. LA Times: “Nothing that has occurred since then has justified overturning that precedent.”
A COMPROMISE ON UNIONS
|The Washington Post’s Ed Board also threw its hat into the ring to discuss the Janus case, and it’s calling for a middle way. “A reversal of precedent, with such direct partisan impact, after such a politicized recent change in its personnel would not serve the court’s legitimacy. Perhaps sensitive to that reality, JUSTICE STEPHEN G. BREYER repeatedly suggested at oral argument that the court adopt a compromise — one that would not upset precedent but would update it, to take account of genuine First Amendment concerns related to public-sector collective bargaining.”
ED BOARD OVERTURE...A THREE-PEAT
|“Tech firms argue that a Court decision upholding the government’s authority to compel disclosure of data overseas would cause international friction due to conflicting legal regimes on data privacy. But more than a dozen countries including Australia, France, Ireland, Canada and the U.K. assert this authority. The U.S. would be an outlier.” That’s the Editorial Board of The Wall Street Journal weighing in on today’s SCOTUS case regarding data stored overseas. The Ed Board wants law enforcement to be able to do its job and acquire the data necessary to convict serious crimes, no matter where the data may be stored. “Pending legislation shouldn’t obviate a judicial decision on a black-and-white legal question critical to public safety. Letting a flawed ruling stand would lead to more needless failures in law enforcement.”
TOP-ED
|In The New York Times, Craig A. Newman considers whether the government should be able to search our emails if they are stored in a server in another country, and ultimately, he thinks this is a question for Congress. “No matter how the Microsoft case is decided, if Congress fails to act, we will continue to have a legal system that inadequately governs the vast stores of electronic data that move seamlessly across international borders.”
MEMORY, ALL ALONE IN THE MOONLIGHT
|The justices decided to take up the case of a man who can’t remember the crime he committed long ago which put him on death row. The man had been convicted of murder in 1985, but now his lawyers argue that a series of strokes he suffered made it so he no longer remembers why he’s on death row at all. He is legally blind, cannot walk on his own, and now suffers from dementia. The Supreme Court has previously limited capital punishment for people with intellectual disabilities and mental illnesses. This case will likely not be heard until next term which begins October 1.
NO EVIDENCE, NO PROBLEM
|Garrett Epps in The Atlantic notes that usually it takes a case rich in facts and evidence to overturn legal precedent at the Supreme Court. But the Janus case is light on facts and still very likely to undo a decision made by the court forty years ago. He writes, “The conservative justices don’t even try to hide it: The case is really about politics—about their feeling that public-employee unions are too powerful and that the policies they favor are hurting the country and they are all Democrats and they need to be stopped right away.”
ANOTHA ONE
|Because we can’t get enough Ed Board fodder on Supreme Court news, let’s take a look at what The New York Times is saying about Janus. The Times sees the SCOTUS showdown over unions as further evidence that MITCH MCCONNELL’S proudest moment—sidelining JUDGE MERRICK GARLAND and getting NEIL GORSUCH on the court—will fundamentally change the structure of our democracy. “Whatever the justices decide in Mr. Janus’s case, the drama that preceded it is another reminder of the importance of every Supreme Court appointment, and of the degree to which Mr. McConnell may have altered the course of history with his cynical ploy. After all, PRESIDENT TRUMP will be in power until 2025 at the latest, but Justice Gorsuch could easily be issuing opinions four decades from now.”
OTHER NEWS
What The Latest Union Case Before The Supreme Court Could Mean For Workers Of Color
Vox“Those pressures could be particularly significant for people of color, who have benefited greatly from membership in public sector unions. Union leadership and labor experts note that unions have played a historical role in the integration of the workforce and in providing opportunities to African Americans in the Jim Crow South. But they argue that unions continue to play a significant role in making wages and labor benefits more equal across racial and gender lines.”
The Supreme Court Is Considering The Limits Of Freedom Of Speech In 3 Upcoming Cases
TIME“Can government employees be required to pay union fees, even if they don’t belong to the union? Can you wear a ‘Don’t Tread on Me’ T-shirt to a polling place? And do pro-life crisis pregnancy centers have to advertise that abortions are available elsewhere? Each of these questions is at the crux of a case the Supreme Court will hear in the coming weeks. And while the particular facts differ, each gets to a dispute over one of the fundamental rights in American society: freedom of speech, and specifically whether it includes the right to avoid compelled speech.”
Rough Justice For Public Unions
New York Magazine“As a result of these countervailing forces, this case isn’t very different from other free-speech cases the Supreme Court has entertained in recent years. The nagging perception, thanks to a very effective public-relations campaign, that the well-oiled machine behind Janus and other anti-labor cases jumps into these disputes because of an unflinching commitment to the freedoms embedded in the First Amendment is a legal fiction. The reality, as the heated exchanges inside the courtroom made clear, is that the fate of public-sector unions is as political a controversy as they come. A case where, once again, the Supreme Court and Kennedy have a chance to chart the course of powerful political actors and maybe democracy itself.”
Congress Loses Key Immigration Deal Ingredient: A Deadline
POLITICO“And now there’s little bite left in the March 5 deadline Trump gave to lawmakers. In a Congress that is already at a stalemate over how to balance relief for DACA recipients with tougher border security, the ruling appeared to further dampen prospects for a legislative compromise — and leave the fate of Dreamers to the courts for months to come.”