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A “view” from the courtroom: Inching toward checkout for the term

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It’s the first day of summer, and here at, we are having a season-ending closeout sale, today featuring items from our April catalogue.

It is another extra opinion day as the court winds down. In the sparsely populated bar section, Jordan Lorence of Alliance Defending Freedom takes a seat, likely hoping for a decision in National Institute of Family Life Advocates v. Becerra. Arthur Spitzer, the head of the District of Columbia office of the American Civil Liberties Union, is shown to a seat near Lorence, and the two great each other amicably, even if their organizations are often at odds.

Deborah White, the president and general counsel of the Retail Litigation Center, an industry group that filed an amicus brief on the side of the state in South Dakota v. Wayfair, is here today.

The justices’ law clerks are taking quite a few spots in the alcoves on the south side of the courtroom this morning. Later today, they will be performing their skits at the court’s annual end-of-term party.

The justices take the bench right on time and Chief Justice John Roberts announces that Justice Neil Gorsuch has the opinion in Wisconsin Central Ltd. v. United States, a case about whether employee stock options are taxable compensation under the Railroad Retirement Tax Act of 1937.

During the Great Depression, Gorsuch explains, struggling railroad pension funds reached “the brink of insolvency.” It was a time when private railroads “employed large numbers of Americans,” so Congress felt the need to address the emergency with the statute.

It won’t be the only time today the court discusses shifts in the national economy.

Gorsuch mentions baseball cards, vinyl records and fidget spinners as items that have value expressible in terms of money, but that wouldn’t qualify as “money remuneration” under the RRTA. He concludes for the court that, although stock options fall within a broad definition of money, they aren’t taxable under the 1937 law.

He says that Justice Stephen Breyer has filed a dissent, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

Customers who read his opinion also looked at these works by the same author: Epic Systems Corp. v. Lewis and “The Future of Assisted Suicide and Euthanasia.”

Kagan is up next with Lucia v. Securities and Exchange Commission, about whether the commission’s administrative-law judges are “officers of the United States,” subject to the appointments clause in Article 2 of the Constitution.

Kagan explains that that the petitioner, Raymond Lucia, is “an investment advisor who marketed a retirement savings strategy called ‘Buckets of Money.’”

She pauses to let that the courtroom absorb that unusual name for an investment approach.  “The SEC thought Lucia’s sales pitch was deceitful and brought charges against him,” Kagan says. An ALJ from the agency presided over the adviser’s trial and found that Lucia had committed fraud.

But because the ALJ wasn’t appointed by an SEC department head, Lucia says every decision of the judge should be voided and “wiped off the books.”

“We agree,” Kagan says. An official qualifies as an “officer of the United States” if he holds a continuing office established by law, and exercises what the court has called “significant authority.” That second part is open to interpretation, she says, but here all the court has to do is follow a 1991 decision, Freytag v. Commissioner, which applied the test to special trial judges of the Tax Court and found they were constitutional “officers.”

“The exact same thing is true here,” Kagan says, as the SEC’s ALJs have all the same powers and do the same things as the Tax Court judges. So, the commission’s ALJ’s are “officers” and must be appointed in the proper way. Because the ALJ who presided over Lucia’s hearing was not, “it gets wiped off the books,” she says.

Justice Clarence Thomas has filed a concurring opinion, joined by Gorsuch. Breyer has filed an opinion concurring in the judgment in part and dissenting in part, in which Ginsburg and Sotomayor have joined as to Part III. And Sotomayor has filed a dissent, joined by Ginsburg.

Other recent works by this author include: Concurrences in Masterpiece Cakeshop Ltd. v. Colorado Civil Rights Commission and Gill v. Whitford.

Sotomayor has the opinion in Pereira v. Sessions, about an interpretation of procedural rules under federal immigration law.

She writes for the court that a “notice to appear” for a removal proceeding  that fails to designate the specific time or place for the  proceeding is not a proper notice under federal law and thus does not trigger a rule known as the “stop-time” rule. That rule ends a nonpermanent resident’s status as a continuous resident, which is needed to apply for cancellation of removal.

Sotomayor notes that Justice Anthony Kennedy has filed a concurring opinion, while Alito has filed a dissent.

This author’s other works include: “My Beloved World,” “Mi Mundo Adorado” and “Turning Pages: My Life Story” (children’s book forthcoming in September).

Kennedy has the opinion in South Dakota v. Wayfair, about whether to overrule court precedents establishing the physical-presence rule for allowing states to require out-of-state sellers to tax internet purchases.

The fact that he has the assignment is practically enough to conclude that the physical-presence rule from 1967’s National Bellas Hess, Inc. v. Illinois Department of Revenue and 1992’s Quill Corp. v. North Dakota will be abandoned. Kennedy had invited the challenge in a recent concurrence. And given that the oral argument had left many wondering whether there were indeed five votes to rule for South Dakota, Kennedy is soon able to show that there are.

This reporter has  SCOTUSblog’s main account of the decision. From the bench, Kennedy stresses the changes to the “modern economy” wrought by internet commerce.

“The Internet revolution has made Quill’s error all the more egregious and harmful,” he says in a summary that touches on most of the main points of his opinion, without directly answering the dissent by Roberts.

Deputy Solicitor General Malcolm Stewart, who isn’t here today, argued as an amicus in support of South Dakota. He has had a pretty good June, both inside and outside the court, with his Washington Capitals winning the Stanley Cup two weeks ago.

Kennedy says that Thomas and Gorsuch have filed concurring opinions, while the chief justice has filed the dissent, joined by Breyer, Sotomayor and Kagan.

Customers who read this opinion also looked at “Berlitz Pocket Guide Salzburg” and “The Retirement Maze: What You Should Know Before and After You Retire.”

Are you sure you are ready to check out?

My own shopping cart has four opinions, a pack of baseball cards, a vintage 2017 fidget spinner, and—thanks to the chief justice’s dissent in Wayfair—some yarn, deodorant with antiperspirant and a package of Twix bars. Because the purveyor of these ideas and goods has a physical presence in my home jurisdiction, I guess I will be paying sales tax regardless of the effective date of the Wayfair ruling.

Marshal Pamela Talkin announces that the court will return on Friday, as the justices try to move their remaining stock of merchandise and make room for the new season.

Recommended Citation: Mark Walsh, A “view” from the courtroom: Inching toward checkout for the term, SCOTUSblog (Jun. 21, 2018, 6:20 PM),