“If we could get this all done by October 1st when the Supreme Court starts its new fall session, (that) would be ideal.”
— Sen. Chuck Grassley
“In light of yesterday’s events, the Senate should delay hearings on Kavanaugh’s nomination to the Supreme Court.”
— Sen. Jeanne Shaheen
In just a little over a month, the United States Supreme Court will begin to hear oral arguments for the 2018-2019 term. And for the second time in three years, it appears likely that the term will begin with only eight justices. As with the vacancy created by the death of Justice Antonin Scalia in 2016, Congress seems unlikely to have a new justice confirmed before the first oral arguments are scheduled on Oct. 1.
Regardless of whether the court begins its term with eight justices or nine, it will, as it does every year, consider cases that will have a profound effect on our rights and obligations as Americans. As this column does every year, it’s time now to look at some of the cases that have already been accepted for consideration this term.
Mobile Technology: Apple, Inc. completely controls which apps can be sold through its App Store, and collects a fee of 30 percent of the purchase price each of app sold in the store. A group of iPhone users brought a lawsuit (well, several, actually — the first few were thrown out) alleging that Apple’s control of the App Store constitutes an illegal monopoly. The plaintiffs most recent complaint was dismissed by the trial court, but the federal appeals court reinstated it. The Supreme Court will now decide whether Apple can be sued in this instance. The case, Apple v. Pepper, has major implications for everyone who uses a smart phone.
Double Jeopardy: Sometimes a person’s act can violate both state and federal criminal laws (the Oklahoma City bombing, for example). Under those circumstances, the person could be charged at both the state and the federal level. For years, the federal courts have held that this is not a violation of the Double Jeopardy clause because the two entities are “separate sovereigns.” Now, an Alabama defendant prosecuted at both the state and federal level on firearms charges is asking the High Court to end that practice. The case is Gamble v. United States.
Native American Treaties: An 1868 treaty between the United States and the Crow tribe permitted members of the tribe to hunt anywhere on the “unoccupied lands” of the United States. The state of Wyoming believes that its admission to the Union and the establishment of the Bighorn National Forest abrogate those rights and prosecuted a member of the tribe for hunting elk, without a license, in Wyoming. The case is Herrera v. Wyoming.
Death Penalty: The court has two death penalty cases, both involving unusual circumstances. One asks whether a condemned inmate with special health circumstances can request an alternative method of execution. The second asks whether it constitutes cruel and unusual punishment to execute a man whose mental disability renders him unable to remember the crime he committed or to understand the nature of the execution proceedings. The cases are Bucklew v. Precythe, and Madison v. Alabama.
Excessive fines: Does the Eighth Amendment’s prohibition against excessive fines apply to state and local governments via the 14th Amendment? The Supreme Court has never said so. In a case involving a major forfeiture of property as a result of drug trafficking, a defendant is asking the court to apply the Eighth Amendment to the states. The case is Timbs v. Indiana.
These cases are among several dozen that the court will hear this term, including cases about the ability of citizens to sue foreign governments, FDA drug warnings, immigration issues and more. Oral arguments begin in October, and the court will start to issue decisions shortly after, though most cases will get decided in the final months and weeks before the term ends in June. As with each Supreme Court term, the court’s decisions will impact our daily lives in more ways than we can imagine.
David Hejmanowski is judge of the Probate/Juvenile Division of the Delaware County Delaware County Court of Common Pleas and vice president of the Board of Trustees of the Central Ohio Symphony.