This morning the Supreme Court issued orders from its October 13 conference. The justices added four new cases to their merits docket for the term, and several justices commented on some of the cases in which the court denied review.

The highest-profile grant of the day came in United States v. Microsoft Corp., in which the justices agreed to decide whether an email provider who has been served with a warrant must provide the federal government with emails, even when the email records are stored outside the United States. The case arose when the federal government asked for a warrant that would require the software behemoth to disclose information about a specific email account, which the government believed was being used for drug trafficking. The government relied on the Electronic Communications Privacy Act of 1986, also known as the Stored Communications Act, which authorizes the government to use a warrant to obtain email records when it has probable cause to believe a crime is being committed. A federal judge issued the warrant, which was served on Microsoft at its headquarters in Washington state.

Microsoft refused to hand over the contents of the emails in the accounts. It argued that, because the emails were stored overseas, the SCA did not apply to them. The company was unsuccessful at the trial level, but it found a more sympathetic audience in the U.S. Court of Appeals for the 2nd Circuit, which declined to enforce the warrant. An evenly divided full court of appeals denied rehearing en banc.

The federal government took its case to the Supreme Court. The United States complained that, as a result of the 2nd Circuit’s ruling, “the government cannot require a U.S. service provider to disclose to the government, in the United States, emails and related information that the provider, for its own business reasons, has stored abroad.” Describing that holding as “unprecedented,” the government told the justices that “the decision is causing immediate, grave, and ongoing harm to public safety, national security, and the enforcement of our laws.” “Under this opinion,” the government continued, “hundreds if not thousands of investigations of crimes—ranging from terrorism, to child pornography, to fraud—are being or will be hampered by the government’s inability to obtain electronic evidence.”

Today the justices granted the government’s petition. As this blog’s John Elwood reported last week, there is apparently no division among the lower courts on the question that the justices have agreed to review – suggesting that the justices regard the issue as particularly important.

In Dahda v. United States, the justices will interpret a provision of the Omnibus Crime and Safe Streets Act of 1968, which gives a judge the power to issue a wiretap order to intercept communications within the territorial jurisdiction of the court on which the judge sits. The same law, however, also allows courts to suppress those communications if (among other things) the order that approved the interception was “insufficient on its face.”

In this case, Los and Roosevelt Dahda – twin brothers – were indicted on charges that they had conspired to distribute illegal drugs. In the case against the Dahdas and their co-defendants, the federal government relied heavily on evidence obtained by tapping several cellphones, including the brothers’, pursuant to wiretap orders issued by a federal district court in Kansas. The twins argued that the evidence should be suppressed because the order allowed the government to intercept their communications even if the phones were outside Kansas. But the trial court rejected that argument, and both were found guilty; Los was sentenced to 189 months in prison, while Roosevelt was sentenced to 201 months.

The U.S. Court of Appeals for the 10th Circuit upheld the decision to allow the evidence from the cellphones to be used against the twins. The court of appeals agreed with the Dahdas that the wiretap orders were, on their face, insufficient because they allowed the government to intercept the cellphones even when they were not in Kansas. But, the court continued, the evidence from the wiretaps could still come in. The court reasoned that Congress had enacted the law to advance two “core concerns” – privacy and uniformity – that were not implicated by the Dahdas’ argument that the order exceeded the Kansas district court’s jurisdiction. Describing the question presented by their case as one of “immense practical importance for criminal defendants” because of both the growing use of wiretaps and the central role that evidence derived from wiretaps often plays at trial, particularly in conspiracy cases, the Dahdas asked the Supreme Court to review their case, which it agreed to do today. Justice Neil Gorsuch recused himself, presumably because he sat on the 10th Circuit panel that heard oral argument in the Dahdas’ case, although he was not involved in the lower court’s ruling.

Ohio v. American Express Co. has its roots in the credit-card network’s “anti-steering” rules, included as part of its contracts with the merchants who accept AmEx cards. The rules prohibit the merchants from showing a preference for other, cheaper credit cards (like Visa or MasterCard) or offering their customers discounts or incentives to use those cards. In 2010, the federal government and a group of states went to court, charging AmEx with a violation of Section 1 of the Sherman Act, which prohibits agreements that restrain trade.

To determine whether a practice violates Section 1, courts normally employ a standard known as the “rule of reason,” which looks at the history and justifications for the practice, as well as its economic costs and benefits. For the case to proceed, the plaintiffs must first show that the practice is, on its face, anti-competitive. If they can do so, the burden then shifts to the defendant to show that there is a “pro-competitive justification” for the practice.

Applying the rule of reason, the district court in this case ruled that AmEx’s “anti-steering” rules violated Section 1. The U.S. Court of Appeals for the 2nd Circuit reversed, however. For the court of appeals, it wasn’t enough that the anti-steering rules inhibited price competition among credit-card networks, which led to merchants and customers paying more. The plaintiffs would also have to show, the court ruled, that the anti-competitive effects outweighed the benefits – such as “cash-back” rewards and airline miles – to AmEx cardholders.

Ohio and a group of other states went to the Supreme Court, asking it to clarify how the rule of reason should be applied. Review was also essential, the states argued, because the question is “important to the national economy”: The 2nd Circuit, they contended, “should not have the final say over the prices of everyday retail transactions across the whole country.”

During the Obama administration, the federal government had joined the states in their lawsuit and even asked (unsuccessfully) the 2nd Circuit to reconsider its ruling. But in a brief filed in August 2017, the federal government urged the justices to deny review, even though it agreed with the states that the lower court’s decision “seriously departed from sound antitrust principles” and “leaves in place restraints that thwart price competition in an important sector of the economy and inflate the retail prices paid by all consumers.” The case, the government explained, did not meet the Supreme Court’s normal standards for granting review, particularly because neither the Supreme Court nor other lower courts had considered some of the “novel legal issues”’ in the case.

The Constitution’s double jeopardy clause protects a defendant from repeat prosecutions for the same offense. Whether the clause precludes a retrial can be a fairly straightforward question when a defendant is tried on a specific charge and then acquitted; prosecutors cannot then retry him on the same charge. But it can become more complicated when a defendant is indicted on multiple charges and consents to having them tried separately: In that case, does he benefit from an acquittal at the first trial, or do the protections of the double jeopardy clause evaporate? That is the question that the Supreme Court has agreed to review in Currier v. Virginia.

The petitioner in the case, Michael Currier, was indicted on three charges arising out of the theft of a safe that contained a large amount of cash and 20 guns: breaking and entering, grand larceny, and being a felon in possession of a firearm – the guns inside the safe. To avoid having the jury’s verdict on the theft charges tainted by the knowledge that Currier had previously been convicted of a felony, prosecutors and Currier agreed to try those two charges first, followed by a separate trial on the felon-in-possession charge. The central question in the first trial was whether Currier was involved in stealing the safe; Currier’s lawyers argued that he was not, and the jury agreed, finding him not guilty of both charges.

Prosecutors opted to move forward with the felon-in-possession charge, despite Currier’s contention that the double jeopardy clause barred them from trying to persuade a second jury that he had been involved in the theft of the safe. If Currier did not steal the guns, he emphasized, he could not have possessed them. Prosecutors relied on “the same basic theory as the first trial” – that Currier had helped to break into the home where the safe was stored and helped to steal it. This time Currier was convicted and sentenced to five years in prison.

Both the trial court and the appeals court rejected his argument that the prosecution violated his rights under the double jeopardy clause. Even if the jury in the first trial had rebuffed the theory on which prosecutors relied in the second trial, they reasoned, the double jeopardy clause was still not implicated because prosecutors had opted for two separate trials to protect Currier, rather than because they were “overreaching” – which, the lower courts contended, is one of the other evils against which the double jeopardy clause is intended to guard. Currier then went to the Supreme Court, where he told the justices that the federal courts of appeals and state supreme courts are divided on the question presented by his case. Virginia conceded that there is a “limited split of authority,” but it contended that the split is “neither a pronounced nor a mature” one – and, in any event, it added, the ruling below is correct. Now the justices will have the last word.

The justices declined to step into two related Florida death-penalty cases, over two separate dissents. In both Truehill v. Florida and Oliver v. Florida, the inmates challenged their sentences in the wake of Hurst v. Florida, the court’s 2016 decision holding that the state’s capital-sentencing scheme, in which a jury renders an “advisory sentence” but a judge must independently weigh the aggravating and mitigating factors before entering a sentence of life or death, violates the Sixth Amendment. Justice Sonia Sotomayor dissented from the denial of review in the two cases, joined by Justices Ruth Bader Ginsburg and Stephen Breyer. In Sotomayor’s view, Truehill and Oliver had also raised “a potentially meritorious Eighth Amendment challenge to their death sentences” – specifically, the idea that a jury that only recommends a death sentence but does not have the final say violates the Eighth Amendment’s prohibition on cruel and unusual punishment. The Supreme Court, Sotomayor contended, should have sent the case back to the Florida Supreme Court for it to consider the Eighth Amendment question. Breyer also wrote a separate dissent echoing the Eighth Amendment concerns.

And in Scenic America v. Department of Transportation, an administrative-law dispute over digital billboards, the court’s newest justice, Neil Gorsuch, wrote a statement respecting the court’s denial of review that was joined by Chief Justice John Roberts and Justice Samuel Alito. Under the court’s 1984 decision in Chevron v. Natural Resources Defense Council, courts should defer to an agency’s interpretation of an ambiguous law as long as it is reasonable. This is an area of the law in which Gorsuch displayed a keen interest while a judge on the U.S. Court of Appeals for the 10th Circuit. He has suggested that the days of the “Chevron doctrine” should come to end because it is the job of a courts, rather than an administrative agency, to say what the law means. If Congress doesn’t like the courts’ interpretation, in his view, it can change it.

In 1965, Congress enacted the Highway Beautification Act to (among other things) “promote the safety and recreational value of public travel, and to preserve natural beauty.” The HBA allows the Federal Highway Administration to reduce a state’s federal highway funding if the state does not maintain “effective control” over outdoor billboards. One way for a state to maintain that “effective control” is to enter into an agreement with the FHWA that sets standards for signs on major highways. Most of the agreements currently in place bar signs with “flashing,” “intermittent” or “moving” lights. In a memorandum issued in 2007 as “guidance” for its internal staff, the FHWA interpreted the agreements to allow digital billboards.

In 2013, Scenic America – which describes its mission as seeking to “preserve and improve the visual character of America’s communities and countryside” – filed a lawsuit against the federal government, challenging the guidance on digital billboards. After the lower courts ruled for the government, Scenic America asked the justices to review the ruling against it by the U.S. Court of Appeals for the District of Columbia Circuit. The group argued that the court of appeals should not have deferred to the FHWA’s conclusion on digital billboards because it was interpreting only the agreements – to which it was a party – rather than the FBA itself.

After taking the unusual step of requesting a reply (which is optional under the court’s rules) when Scenic America failed to file one last spring – which, according to John Elwood, was only the second time they had done so since 2001 – the justices today denied review. In his three-page statement, Gorsuch suggested that the question whether “Chevron-type deference warrants a place in the canons of contract interpretation is surely open to dispute” and is “important.” But, he continued, Scenic America’s case is not the right one in which to consider that issue, because (among other things) the case is “factbound” – that is, it hinges on the application of law to specific facts. Therefore, he concluded, he was “persuaded that the proper course is to deny certiorari in this particular case even though the issues lying at its core are surely worthy of consideration in” an appropriate case in the future.

The justices will not meet for a private conference this week; their next conference is scheduled for October 27.

This case was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in Ohio v. American Express; however, I am not affiliated with the firm.]

Recommended Citation: Amy Howe, Court adds four new cases to merits docket, SCOTUSblog (Oct. 16, 2017, 11:55 AM), https://www.scotusblog.com/2017/10/court-adds-four-new-cases-merits-docket/