Supreme Court to Consider Limits on Partisan Drawing of Election Maps – Brent Kendall Updated June 19, 2017 7:24 p.m. ET


High court to consider whether excessive partisan gerrymandering violates constitution

The Supreme Court in Washington.

The Supreme Court in Washington. Photo: J. Scott Applewhite/Associated Press

WASHINGTON—The Supreme Court on Monday agreed to consider whether there are constitutional limits to how far lawmakers can go in drawing electoral districts to maximize partisan political advantage, a case that could have profound implications for U.S. elections.

The justices in a brief written order said they would review a redistricting case from Wisconsin, where a three-judge lower court last year invalidated a redistricting planenacted by the Republican-controlled Wisconsin Legislature in 2011.

In a hint of the potential divisiveness of the case, the high court on a 5-4 vote stayed the effect of the lower court ruling while it hears the case. That means Wisconsin officials for now won’t have to put a remedial redistricting map in place.

The stay suggests the court is proceeding with some trepidation as it wades into a highly political issue that has bedeviled justices in the past. The court’s four liberal justices would have denied the stay and left in place the lower court’s order requiring a new map by Nov. 1.

Political gerrymanders are as old as the republic, though they have become more sophisticated as the technological possibilities of mapping have expanded with time. Both Republicans and Democrats have been accused of engaging in excessively partisan line-drawing in states where they hold power.

Critics say the tactic creates too many uncontested districts, encourages overly partisan candidates and enables the party in power to skew voting results in its favor.

Other cases are pending in court, including ones challenging Republican-backed lines drawn in North Carolina and map-making by Democrats in Maryland. Any rules announced by the high court would almost certainly affect districts drawn by state lawmakers both for Congress and for state legislatures.

Justin Levitt, a professor at Loyola Law School in Los Angeles, said the timing of the case was particularly important with a new census on the horizon in 2020. States traditionally redraw their congressional and legislative districts after each decennial census.

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Your Cellphone Privacy Rights May Depend on This Supreme Court Case – Samantha Michaels Jun. 9, 2017 6:00 AM


It could determine how the government handles all kinds of sensitive information about you.

SIphotography/iStock

There’s a good chance that while you’re reading this, your cellphone is either in your pocket or within arm’s reach. That phone helps produce tons of identifying data about you—and where you are located. The future privacy of that information may depend on a landmark case that the Supreme Court agreed on Monday to hear. Carpenter v. United States asks whether the government can get records from phone companies showing the location of customers without first obtaining a warrant. It centers on a man in Michigan named Timothy Carpenter who was convicted of six robberies after his phone company turned over his location data to authorities.

Carpenter’s case could have broad ramifications for people across the country. “It’s not an exaggeration to say that the future of surveillance law hinges on how the Supreme Court rules in this case,” Orin Kerr, a professor at the George Washington University Law School, wrote in the Washington Post. Here are some more reasons why you should be following this one:

1. Your location data can reveal deeply personal things about you. As you go about your day with a phone by your side, your service provider uses cell towers around your town or city to collect and retain information about where you are. “Based on that, you can infer what people are doing—whether they are stopping off at a doctor’s office or a psychiatrist’s office, going to a political rally, an abortion clinic, or an NRA office, or spending the night at home or in another neighborhood, perhaps at a lover’s house,” says Nathan Freed Wessler, an attorney with the American Civil Liberties Union who represents Carpenter. “That’s really private information, and the question here is whether the Fourth Amendment requires police to go to a judge and get a probable-cause warrant.”

2. The police regularly request this data from wireless providers without warrants. Law enforcement agencies make hundreds of thousands of these record requests every year to major service providers like AT&T, Verizon, T-Mobile, and Sprint. To do it, they often use a 1986 federal law called the Stored Communications Act, which says the government only needs to show the records are relevant to an investigation—if they were required to get a warrant, they’d need to show probable cause that a crime had been committed, which is more difficult. When the law was passed, not many people had cellphones; there were barely 1,000 cellphone towers in the entire country, Wessler says.

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Trump Administration Asks Supreme Court to Reinstate Travel Ban – Brent Kendall Updated June 2, 2017 1:39 a.m. ET


Administration says 90-day ban is needed to ‘prevent infiltration by foreign terrorists’

Protesters march outside the Fourth U.S. Circuit Court of Appeals in Richmond, Va., on May 8.

Protesters march outside the Fourth U.S. Circuit Court of Appeals in Richmond, Va., on May 8. Photo: Steve Helber/Associated Press

WASHINGTON—The Trump administration late Thursday asked the Supreme Court to revive its plan to temporarily ban travelers from six largely Muslim countries from entering the U.S., a major legal test for one of the president’s most controversial initiatives.

“The Constitution and acts of Congress confer on the president broad authority to suspend or restrict the entry of aliens outside the United States when he deems it in the nation’s interest,” the Justice Department said in a petition. The administration said the plan—which would put a 90-day halt on the entry of individuals from Iran, Libya, Somalia, Sudan, Syria and Yemen—is needed as a means to “prevent infiltration by foreign terrorists.”

Last week, the Fourth U.S. Circuit Court of Appeals by a 10-3 vote blocked the plan, in a sharply worded opinion concluding that while couched in “vague words of national security,” President Donald Trump’s ban “in context drips with religious intolerance, animus and discrimination.” Most of the judges who considered the case were appointed by Democratic presidents. Three of the court’s more conservative judges, all Republican appointees, dissented.

A federal district judge in Hawaii also blocked the ban, and last month the Ninth Circuit, sitting in Seattle, heard the administration’s appeal. In Thursday night’s filings, the Justice Department asked the Supreme Court to stay the Hawaii court order as well while its appeal proceeds.

An earlier, more sweeping version of the ban was blocked by several federal courts this year. The administration hoped the revised plan issued in March would pass muster by omitting some of the more aggressive elements of the original executive order, such as potentially applying it to aliens with legal U.S. residency.

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Supreme Court’s Printer Decision Is Good News for Retailers and Consumers – Jeff John Roberts May 30, 2017


Retailers across the U.S. sighed with relief on Tuesday as a unanimous Supreme Court overturned an appeals court ruling that said printer maker Lexmark can use its patent monopolies to prevent other companies from selling ink refills without its permission.

The 8-0 decision, which came in one of the court’s biggest business cases this term, affects not only the printer industry, but also consumers and any company that resells or repairs another company’s products.

The case concerned Lexmark suing a small West Virginia company that modified the printer giant’s cartridges in order to sell discount refills—a common practice but one Lexmark said infringed on its patent rights. In Lexmark’s view, which companies should be able to attach conditions to the sale of their patented and sue anyone who violates those conditions in patent court.

Chief Justice John Roberts, however, didn’t see it this way. He said letting companies put restrictions on their products in this fashion would hurt consumers ability to do what they like with the products they buy.

Using the example of an auto-repair shop, Roberts also warned that allowing companies to enforce patents in the secondary market would lead to uncertainty and expense:

The business works because the shop can rest assured that, so long as those bringing in the cars own them, the shop is free to repair and resell those vehicles. That smooth flow of commerce would sputter if companies that make the thousands of parts that go into a vehicle could keep their patent rights after the first sale. Those companies might, for instance, re- strict resale rights and sue the shop owner for patent infringement. And even if they refrained from imposing such restrictions, the very threat of patent liability would force the shop to invest in efforts to protect itself from hidden lawsuits. (my emphasis)

Roberts also pointed to briefs submitted by Costco and Intel to note say that giving Lexmark new patent rights would further risk “clog[ging] the channels of commerce” given recent advances in technology and more complex supply chains.

“Exhausted” with patents

The court also addressed a second and related issue in the case: Can companies like Lexmark enforce their U.S. patent rights when someone buys their product legally overseas and then imports it into the U.S.? The answer to this question turned out to just as straightforward: no.

To support its position, from which Justice Ruth Ginsburg dissented, the court repeatedly referred to a legal idea known as “exhaustion”—the notion that an intellectual property owner should only gets one kick at the can when it comes to enforcing monopoly rights.

Roberts noted that Congress has long favored the idea of “exhaustion” because it’s in keeping with longtime common law rules that frown on letting people put conditions on goods for sale in the market.

“As Lord Coke put it in the 17th century, if an owner restricts the resale or use of an item after selling it, that restriction “is voide, because . . . it is against Trade and Traffique, and bargaining and contracting betweene man and man,” the Supreme Court wrote.

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The court concluded that Lexmark could not use patent laws to stop the cartridge refills but that it could sue its customers for breach of contract—though, in practice, the company might be reluctant to do that.

Bob Patton, the general counsel for Lexmark, said the company will not change its business strategy.

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High court ruling opens next front in gerrymandering wars – BY REID WILSON – 05/25/17 06:47 AM EDT


The Supreme Court’s Monday decision to strike down a North Carolina congressional district map is being hailed as a victory for voting rights advocates — though some caution that the path ahead for Democrats fighting gerrymandering has just become more treacherous.

The court’s decision in Cooper v. Harris found that North Carolina’s legislature had improperly considered race when it drew two congressional districts after the 2010 census. Justice Elena Kagan wrote the majority opinion with three liberal colleagues. Justice Clarence Thomas, the anchor of the court’s conservative wing, joined them.

“The Supreme Court has now made it abundantly clear to Republican legislators that their cynical game of using race as an excuse to gerrymander is over, and that the courts are not going to sit by when challenges are brought,” said Marc Elias, the Democratic lawyer who argued the case. “And I plan on bringing those challenges.”

Elias said his phone has been “ringing off the hook” with calls from legislators who believe the decision could open their states to new legal challenges.

“We are looking for other places where Republican legislatures have committed the same legal error,” he said.

But Thomas’s concurring opinion offered a warning to those celebrating the ruling. In his opinion, Thomas said the North Carolina defendants improperly relied on the Voting Rights Act, which he believes does not apply to redistricting at all.

Justices Samuel Alito and Anthony Kennedy and Chief Justice John Roberts dissented. Justice Neil Gorsuch, who joined the Supreme Court after arguments in the North Carolina case, did not participate in the ruling.

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Supreme Court Revisits 2008’s Housing Collapse With Banking Test Cases – NINA TOTENBERG November 8, 20163:37 AM ET


As voters go to the polls on Tuesday, the U.S. Supreme Court will be revisiting the 2008 collapse of the housing market, and the resulting drop in property values and property tax revenue. At issue are two cases testing whether Miami can sue Wells Fargo and Bank of America under the Fair Housing Act for alleged racial discrimination in mortgage terms and foreclosures.

Demonstrators in Philadelphia in 2008 try to draw attention to the subprime mortgage crisis. Philadelphia is one of the cities backing Miami's efforts to sue Wells Fargo and Bank of America. | Matt Rourke/AP

Demonstrators in Philadelphia in 2008 try to draw attention to the subprime mortgage crisis. Philadelphia is one of the cities backing Miami’s efforts to sue Wells Fargo and Bank of America. |
Matt Rourke/AP

Specifically, the city of Miami alleges that the banks discriminated against black and Latino homeowners in terms and fees.

That made mortgages more expensive than they otherwise would have been, and when these homeowners ran into trouble, the suit says, the banks refused to refinance mortgages on terms equal to those offered to white borrowers in similar economic circumstances.

It is a novel lawsuit, brought not by individual homeowners but by the city of Miami, which was among the hardest hit in the housing foreclosure crisis. Supported by two dozen other cities, Miami contends that local governments are in the best position to enforce the statute against large lending institutions that discriminate against certain borrowers.

The city claims that the banks’ foreclosures were racially imbalanced and unnecessary. They also say the foreclosures resulted in a dramatic drop in property values, which in turn resulted in a dramatic drop in property tax revenue at the very time the city needed to spend more to deal with the resulting urban blight.

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No More Bush v. Gore – By Dahlia Lithwick OCT. 25 2016 1:21 PM


The Supreme Court will never be able to settle another presidential election. That’s a bad thing!

The late justice’s words drove liberals nuts—it was about as dismissive as he could be without resorting to his middle finger. But as we fret about the toxic—and possibly even violent—outcome of a presidential election seen by a great swath of the electorate as illegitimate, and as we worry about the impossibility of post-election repair, Justice Scalia’s seemingly snotty answer reveals just what has been lost between 2000 and 2016. Due to unprecedented GOP delegitimizing of the court, its ability to help Americans “get over it” in another disputed election now seems to have vanished. While it won’t likely be needed in this election, with Hillary Clinton evidently poised for a landslide win, the damage to the court will have lasting effects that will result in serious damage to the republic in any future potential electoral controversy. Ironically, it’s the court that’s served as a shining example for the other two branches during this season of hyper partisanship and it’s the partisan rancor around the court this season that is damaging its legitimacy from the outside.

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The New Supreme Court Term: Cheerleading Uniforms, Bad Banks, and a Little Girl and Her Dog – STEPHANIE MENCIMER SEP. 30, 2016 6:00 AM


“There are plenty of boring, important cases out there.”

The last few Supreme Court terms were blockbusters, featuring a historic gay marriage decision, critical abortion and contraception cases, Obamacare cliffhangers, and a ruling on racial preferences in college admissions. The new term, which begins Monday and runs through the end of June, will be different. Instead of culture wars and political jousting, there will be cases involving cheerleading uniforms, patents for incontinence products, banks behaving badly, and a goldendoodle named Wonder.

The unexpected death of Justice Antonin Scalia in February and the failure of the Senate to confirm a replacement have left an eight-member court that seems to be shying away from big political questions and hot-button issues that might produce unsatisfying 4-4 votes. But as veteran Supreme Court litigator Tom Goldstein quipped recently at a DC panel discussion on the court, “There are plenty of boring, important cases out there.”

Even in its reduced state, the court can’t entirely avoid some critical conflicts in need of resolution. For instance, a number of its cases this term involve race in the justice system and elsewhere, at a particularly timely moment when many parts of the country are suffering from deep unrest over the role of race in law enforcement.

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Voting Rights on the March – By Mark Joseph Stern AUG. 1 2016 4:05 PM


The 4–4 ideological split at the Supreme Court since Justice Antonin Scalia’s death incentivizes pro-voter decisions, at least among circuit courts. -- Nicholas Kamm/AFP/Getty Images

The 4–4 ideological split at the Supreme Court since Justice Antonin Scalia’s death incentivizes pro-voter decisions, at least among circuit courts. —
Nicholas Kamm/AFP/Getty Images

If there is a lesson in July’s voting rights revolution—six rulings in two weeks that invalidated key provisions of five states’ restrictive voting laws—it is this: The judges are fed up.

They are fed up with being treated like dolts by Republican legislators who lie through their teeth about the intent of draconian voting restrictions. They `are fed up with brazen efforts to diminish minorities’ voting power by targeting and eliminating their preferred voting methods. And most of all, they are fed up with the pretext: The shameless insistence by GOP legislators that these explicitly partisan, outwardly race-based voting laws serve any purpose other than helping Republican legislators entrench their own political power.

For years, judges across the country have gritted their teeth and bought into these flagrant fictions. The explosion of rulings vindicating voting rights last month, however, sent a stark message to legislators in WisconsinTexasNorth CarolinaMichiganKansas, and beyond: We are done pretending to believe your bunk. And while the judges clearly took their cue from the Supreme Court, the decision that appears to have freed them from accepting legislative lies doesn’t deal with voting rights at all. It is, rather, Whole Woman’s Health v. Hellerstedt—an abortion case that is really also about the judiciary’s responsibility to reject legislators’ fraudulent pretenses when a state curbs constitutional rights.

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When American police are entitled to use deadly force – Jul 18th 2016, 23:41 BY S.M. | SAN DIEGO


RECENT police shootings of apparently blameless black men in Baton Rouge, Louisiana and Falcon Heights, Minnesota have shed fresh light on a decades-old concern: the alarming rate at which police officers use lethal force on civilians. Tallies by the Washington Post show that police shot and killed 990 people in America in 2015 and 552 people so far this year. “The discretion whether to employ deadly force is…the gravest power that a society can delegate to one of its agencies,” Wade McCree, the solicitor-general under Jimmy Carter, noted in the 1970s. Just how much discretion do police have?

Quite a bit is the answer, though less than they once had. In 1985, the Supreme Court considered the case of Edward Garner, a 15-year-old boy who was shot and killed by police after he ignored calls to “halt” and fled on foot from the scene of a burglary. The officers pursuing Mr Garner (who was later found with a stolen purse and $10) did not believe him to be armed, and indeed he carried no weapon. But Tennessee law, codifying a long-standing common-law rule, held that “[i]f, after notice of the intention to arrest the defendant, he either flee[s] or forcibly resist[s], the officer may use all the necessary means to effect the arrest.” By a vote of 6-3, the justices found that legal standard too permissive. “The fact that an unarmed suspect has broken into a dwelling at night does not automatically mean he is physically dangerous,” Justice Byron White wrote. Deadly force “may not be used unless it is necessary to prevent the escape and the officer has probable cause to believe that the suspect poses a significant threat of death or serious physical injury to the officer or others.”

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