This past year at the Supreme Court has been one of advances and setbacks, along with tantalizing opportunities for the future. Many of the decisions occurred in the beginning half of the year, as is normal. Supreme Court terms begin in October and the first half of the term is mostly spent in oral arguments and accepting additional cases to the docket. It is from February through June that most of the opinions are issued. The nature of the term ending in June 2019 was set at the end of 2018 when the cases were selected. When the term opened there were only eight justices on the court, Justice Kennedy having stepped down—Justice Kavanaugh was in the middle of a very contentious nominating process. Given this it appears the justices avoided many of the big and important issues, leaving those to the October 2019 term. But there were still some very interesting cases.
One very important property rights case, Knick v. Township of Scott, concerned the takings clause. For almost all federal constitutional rights, if you believe they are violated you can sue directly in federal court. But under the 1985 decision in Williamson Planning Commission v. Hamilton Bank, claims that your property was taken without “just compensation” could not. The court in Williamson had found that until you request “just compensation” from state court you cannot say it has been denied. But the problem is that under San Remo Hotel, L.P. v. City and County of San Francisco (2005), once the state court had decided the issue, the federal court could not overturn that decision. This meant that no federal district court nor any federal circuit court could ever rule on any violation of the takings clause of the Constitution. In Knick the Supreme Court restored the takings clause to be the same as any other constitutional right, you can go directly into federal court to litigate the issue. This is likely to lead to a much fairer system of eminent domain, as federal courts are far less likely to be friends with the local politicians.
The Competitive Enterprise Institute was also directly before the Supreme Court in Frank v. Gaos. Ted Frank, CEI’s director of litigation at the time and now a director at the Hamilton Lincoln Law Institute, was the plaintiff. Frank petitioned the court to object to a settlement that Google had offered in a class action in which the lawyers would get $2 million and class plaintiffs would get nothing. The actual plaintiffs should get the money rather than just the lawyers. The court decided that it was unsure whether the plaintiffs had been harmed sufficiently for the court to intervene. It had recently decided that purely statutory violations are not enough to establish such harm, and it remanded back to the lower court to determine if such harm had occurred. Once the lower court decides this issue, this case may come back before the Supreme Court. So this may just be a punt to a bigger decision down the road.
A major constitutional victory occurred in Timbs v. Indiana. The Bill of Rights recognizes a variety of individual rights, but originally these protections were only limitations on actions by the federal government. The Fourteenth Amendment extended these protections against the states as well. While all the individual rights in the Bill of Rights should have been extended with the privileges or immunities clause, the Supreme Court has instead chosen a path called “partial incorporation.” In this way, the court has decided whether each individual right was incorporated. Almost all rights have been incorporated at this point, except the prohibition on excessive fines (the few others that haven’t been incorporated yet are the right to a grand jury, to a unanimous jury, and the Third Amendment’s protection from being forced to quarter troops in one’s home). In this case, Indiana tried to seize a Land Rover worth $42,000 because the owner drove the car to a drug sale. The maximum penalty for the drug sale under the law was $10,000, but the government seized the entire car instead. The Supreme Court decided that the excessive fines clause was incorporated against the state governments, but remanded back to the Indiana Supreme Court to determine if it had been violated there. This is an important step in protecting people’s core property rights from government abuses.
Lastly, the case that offers the most tantalizing possibilities is the one that directly made no changes—Gundy v. U.S. When Congress passed the Sex Offender Registration and Notification Act (SORNA) in 2006, it knew how it wanted future sex offenders to register—but not previously convicted individuals. Instead, Congress threw up its hands and instead required that the “Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment.” The Attorney General could also set rules for these individuals. But Congress is the entity that our Constitution requires set the laws, not the Attorney General—this is called the non-delegation doctrine. The four most liberal justices of the court decided that the law implicitly required the Attorney General to include all pre-Act offenders only allowing that it may take some time for pre-act offenders to properly register. Justice Gorsuch, with Chief Justice Roberts and Justice Thomas, disagreed, declaring the law “purports to endow the nation’s chief prosecutor with the power to write his own criminal code governing the lives of a half-million citizens.”
Gorsuch’s dissent would substantially change the way our government operates today. Rather than unelected bureaucrats in administrative agencies deciding the rules that govern society, only Congress could make those decisions. Justice Alito did not join Gorsuch, but instead that “If a majority of this Court were willing to reconsider the approach we have taken for the past 84 years, I would support that effort.” With an 8-person court, the justices was split on these prior non-delegation cases without a majority. Now that Justice Kavanaugh is on the court, plaintiff Herman Avery Gundy tried to petition for rehearing. While the rehearing was denied (they were likely still split 4-4), Justice Kavanaugh commented in a similar case. While the exact same statutory provision in SORNA “raises the same statutory interpretation issue” that the court decided in Gundy, Kavanaugh noted that “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.” This means there are now five justices willing to reconsider the ability of Congress to delegate lawmaking power to the executive branch. The implications for the future of our government are massive.