Justice Kavanaugh joins his fellow justices on Tuesday morning to hear arguments at the Supreme Court. Hopefully, all Americans can agree that one good consequence of Justice Kavanaugh’s appointment is that we will have an odd number of Justices allowing for decisions that will last longer than one year. The Court’s cases this term, as always, involve fundamental questions about our rights, and perhaps recent events might make a difference in the Court’s holdings. The new Justice almost certainly will.
Kavanaugh and his brother and sister justices will first hear a trio of cases concerning the statutory construction of the Armed Career Criminal Act of 1984. The Justices are still deciding on all the cases they will accept for this term of the court, but so far there are three major cases that will be heard and that court-watchers are anticipating.
Double Jeopardy
Issue: Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
Mr. Gamble was convicted of felony possession of a firearm by both the state of Alabama and the U.S. Federal government. He challenges the dual convictions as a violation of his Fifth Amendment rights against double jeopardy.
The Constitution of the United States, in the Fifth Amendment, declares, "nor shall any person be subject to be twice put in jeopardy of life or limb." Once you have been tried for an action, you cannot be tried again for the same action. The Founders took this maxim, like so many, from the English common law. Since our federal system was of dual sovereignty designed to run parallel to one another, this protection against double jeopardy was not implicated by the ordinary prosecution of the laws. Hard though it may be to believe given our current reality of so many federal criminal laws they can’t be counted, we started with only three – treason, piracy, and counterfeiting.
Well, that has changed and profoundly so. Now there are many instances where conduct implicates state and federal laws. State and Federal law enforcement often cooperate on criminal investigations and prosecutions. This all allows both sovereigns to do separately what neither could do alone – prosecute someone twice for the same offense. Presently the Supreme Court has held that the dual sovereignty system allows prosecutions under both systems, and the last time the Court examined the issue was in the 1950’s.
This case may hinge on whether the Court fully “incorporates” the Fifth Amendment, as discussed below.
Incorporation
Issue: Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment.
The Bill of Rights was enacted as recognition of rights and protections for the people against the actions of the federal government. Various portions of the Bill of Rights have been held to be applicable against state and local governments by incorporation through the Fourteenth Amendment in 1868, and the Fifteenth Amendment in 1870. Since the late 1800’s through today, the Supreme Court has been slowly adding elements of the Bill of Rights that are incorporated as protections against state governments, too. Not all protections have been incorporated though, as we see here.
Indiana wants to seize Mr. Timbs’ Land Rover because he transported a few grams of heroin with it. Timbs says that violates his Eighth Amendment protection against excessive fines. Since there are deviations in the way various federal courts have decided cases like this, the Supreme Court has taken this case to hopefully resolve the issue and decide if these Eight Amendment Protections apply to the states as well.
Antitrust Laws and Third-Party Sellers
Issue: Whether consumers may sue anyone who delivers goods to them for antitrust damages, even when they seek damages based on prices set by third parties who would be the immediate victims of the alleged offense.
This case will decide if Apple acts illegally as an unpermitted monopoly through their practices and policies of their APP store. By only allowing iOS apps to be sold through its own store, and charging a 30% sales commission, have they illegally inflated the price of iPhone apps? Here is Wired’s Louise Matsakis with a cogent rundown:
At the core of the lawsuit is another Supreme Court case from 1977, Illinois Brick Co. v. Illinois, which established what is known as the Illinois Brick Doctrine. That rule says you can't sue for antitrust damages if you're not the direct purchaser of a good or service. If I have a monopoly on bread and the local deli sells you a sandwich, you can't sue me. It's just too hard to figure out how much of your sandwich price was inflated due to my illegal activity.
There were six cases argued before Brett Kavanaugh joined the Court. We will have to wait and see if the Court orders those cases re-argued, or how it chooses to deal with them. Decisions on all argued cases will be released by Summer, and LibertyNation.com will report when they do.
