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
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
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
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
Rumors of Supreme Court Justice Anthony Kennedy's forthcoming retirement are swirling, and though Kennedy has yet to make any public statement of his plans, NPR reports he is privately suggesting a retirement date in 2018 or 2019 — safely within President Trump's first term and thus guaranteeing Trump a second SCOTUS seat to fill.
"While he long ago hired his law clerks for the coming term," the story notes, "he has not done so for the following term (beginning Oct. 2018), and has let applicants for those positions know he is considering retirement." A Reagan nominee who has often served as a swing voter in the court's most controversial cases, Kennedy's departure will significantly change the face of the court, especially if he is replaced by a conservative in the mold of Trump's first pick, Neil Gorsuch.
Gorsuch himself is the primary focus of the NPR piece, which dubs him "probably even more conservative than the justice he replaced, Antonin Scalia." The few votes he has cast so far are identical to those of Justice Clarence Thomas and very close to the record of Justice Samuel Alito. Bonnie Kristian
Monday begins the Supreme Court's final week before its current term ends and summer break begins. SCOTUS is expected to hand down several major decisions in the next few days — among them its ruling on President Trump's stalled travel ban — but rumors are swirling that this Monday could see a retirement announcement from Justice Anthony Kennedy, too.
"Sources close to Kennedy say that he is seriously considering retirement," CNN reported Saturday, though "they are unclear if it could occur as early as this term." Kennedy's departure would give President Trump his second SCOTUS nomination after the successful appointment of Neil Gorsuch to replace the late Antonin Scalia.
Kennedy has long served as a swing vote on the court, sometimes siding with the progressive wing — as in the landmark gay marriage case, 2015's Obergefell v. Hodges — but often joining the conservatives on issues like gun control and campaign finance. Kennedy will turn 81 in July and has served on the court since 1988 after being nominated by President Reagan. Bonnie Kristian
President Trump's Supreme Court nominee, Neil Gorsuch, on Saturday submitted a completed 68-page questionnaire to the Senate Judiciary Committee which offers a lengthy personal and professional history for senators to review in advance of confirmation hearings.
The questionnaire is available for public perusal online, and it includes a description of the process by which Gorsuch was nominated, from his first contact with the Trump team in early December through the official announcement of his nomination at the end of January. For those seeking insight into how Gorsuch would function at SCOTUS, however, his account of the "10 most significant cases" over which he presided as a judge is perhaps the most useful information.
"Top of his list is a 2016 case in which he wrote for a panel of judges who sided with a Mexican citizen seeking permission to live in the U.S.," notes The Associated Press. The case considered a conflict between judicial and executive branch interpretations of two competing legal provisions, and Gorsuch writes that his opinion "questioned judicial deference to agency legal interpretations," which can raise "due process (fair notice) and separation of powers concerns."
Gorsuch later describes writing a dissent in a Fourth Amendment case to argue police do not have implied consent to enter someone's home without a warrant if "no trespassing" signs are posted. Among other topics, he also lists cases concerning firearms charges, securities fraud, the religious rights of a Native American inmate, and the Hobby Lobby case about employer-provided contraception that would eventually go to the Supreme Court.
Sen. Chuck Grassley (R-Iowa), chair of the Senate Judiciary Committee, says he expects Gorsuch's hearings to occur in March. Bonnie Kristian
Within minutes of President Trump's announcement that he is nominating Judge Neil Gorsuch to the Supreme Court, Democratic leaders released statements ranging from harsh to scathing.
House Minority Leader Nancy Pelosi (D-Calif.) said it came as no surprise that Trump, who displayed throughout his campaign "relentless contempt for women," nominated someone "hostile to women's rights." In two cases — Burwell v. Hobby Lobby and the Little Sisters of the Poor — Gorsuch sided with the plaintiffs, Christian employers and organizations who argued that due to religious beliefs, they should be exempt from the contraception mandate under the Affordable Care Act. "In the Hobby Lobby case, Judge Neil Gorsuch revealed his eagerness to single out women's health for discrimination and enable employers to meddle in their workers' most intimate health decisions," Pelosi said, adding, "House Democrats stand with the American people in demanding the toughest scrutiny of Judge Gorsuch before the Republican Senate holds any vote to send him to the highest court in the land."
Senate Minority Leader Chuck Schumer (D-N.Y.) tweeted that it's essential the next Supreme Court justice is "independent, eschews ideology... and protects fundamental rights." This person must also "stand up to a president who has already shown a willingness to bend the Constitution," Schumer said, adding that in previous decisions, Gorsuch has shown he puts "corporations over workers" and has been "hostile toward women's rights."
Sen. Patrick Leahy (D-Vt.) said that in light of the "unconstitutional actions of our new president in just his first week, the Senate owes the American people a thorough and unsparing examination of this nomination," and he had hoped Trump would pick a "mainstream nominee like Merrick Garland," but instead he "outsourced this process to far-right interest groups." On Facebook, Sen. Elizabeth Warren (D-Mass.) said Trump had the "chance to select a consensus nominee to the Supreme Court. To the surprise of absolutely nobody, he failed that test." Based on Gorsuch's record — including "ruling against workers in all manner of discrimination cases," demonstrating "hostility toward women's access to basic health care," and "twisting himself into a pretzel to make sure the rules favor giant companies over workers and individual Americans" — Warren said she will "oppose his nomination." Catherine Garcia