WASHINGTON — The Supreme Court’s current term, once expected to be a banner year for conservatives, is hobbling toward its end amid an ideological stalemate left by the death of Justice Antonin Scalia. And the court’s recent actions suggest the next term, beginning in October, could contain its shortest, least-consequential docket in recent memory.
With the justices ideologically split 4-4, and Senate Republicans declining to consider President Barack Obama’s nominee Merrick Garland to fill the opening, the court this term has tied or decided several major cases on narrow grounds, leaving legal disputes undecided. Though it has a handful of potential blockbuster cases to decide in June—on abortion, affirmative action and Mr. Obama’s immigration policy — it is possible some of those outcomes may also be narrow.
End of conservative Supreme Court: Clarence Thomas may be next to leave
Justice Clarence Thomas, a reliable conservative vote on the Supreme Court, is mulling retirement after the presidential election, according to court watchers.
Thomas, appointed by former President George H.W. Bush and approved by the Senate after a bitter confirmation, has been considering retirement for a while and never planned to stay until he died, they said. He likes to spend summers in his RV with his wife.
His retirement would have a substantial impact on control of the court. The next president is expected to immediately replace the seat opened by the death of conservative Justice Antonin Scalia, providing a one-vote edge in the court that is currently divided 4-4.
Should Thomas leave, that slight majority would continue if Donald Trump becomes president. If it's Hillary Clinton, then she would get the chance to flip two Republican seats, giving the liberals a 6-3 majority.
Stay abreast of the latest developments from nation's capital and beyond with curated News Alerts from the Washington Examiner news desk and delivered to your inbox.
And, conservatives fear, that could switch to a 7-2 majority if Republican Justice Anthony Kennedy, already a swing vote, retires. He will be 80 next year.
If Clinton wins the presidency, her majority liberal court could stay in power at least until 2050.
The court also apparently sees little purpose in taking cases for the next term that might also deadlock, with little chance the Senate might approve a new justice before 2017. As a result, petitions that might have seemed strong candidates for hearing are being turned down.
“On issues where Scalia’s vote made it likely or possible to get a five-justice conservative majority, now the best they can hope for is 4-4, so why bother,” said Cornell University law professor Michael Dorf.While the court has been skipping tough, ideologically tinged cases, “a big piece of its job is just housekeeping, resolving circuit splits” over ambiguous terms in the federal code, Mr. Dorf said. “And they can do that with eight justices.”
As of Tuesday, 13 of 82 cases argued this term remained to be decided. Conservatives could get at least partial wins in the abortion, affirmative action and immigration cases—all involving Texas—but the odds of any producing a landmark precedent have diminished.
If the two blocs divide evenly in the abortion and immigration cases, conservative rulings from the Fifth U.S. Circuit Court of Appeals will remain in force, but no national precedent would be set.
The Fifth Circuit, in New Orleans, upheld Texas regulations on abortion clinics requiring them to meet the stringent standards of ambulatory surgery facilities and mandating that doctors performing the procedure maintain admitting privileges at a local hospital.
While a 4-4 split would leave the Texas law valid—and implicitly approve similar laws in the two other states under Fifth Circuit jurisdiction, Louisiana and Mississippi—it would have no effect on the remaining 47 states, leaving the scope of permissible abortion regulations unclear.
A tie vote on the immigration case would kill President Obama’s hopes of implementing his plan to defer deportation for millions of illegal immigrants. But likewise it would establish no Supreme Court precedent, effectively leaving its future validity in the hands of the president and Congress that take office in January.
The affirmative-action case is different in part because Justice Elena Kagan, who worked on the case as an Obama administration official, recused herself from the case, leaving only three liberals casting votes. If the court’s conservatives remain cohesive, they could craft a landmark ruling further limit racial preferences in public university admissions.
Now it is clear that the court’s diminution will continue well into its next term beginning in October, if not longer.
The eight-member court has been accepting fewer cases than typical for review, and those it has taken largely concern technical matters rather than the pivotal questions the political system has been unable to resolve.
For the next term, the court has been accepting cases at its slowest rate in years, and might not fill all its argument slots if it doesn’t pick up the pace. At present, it has accepted enough cases to fill 16 hours of argument next term, down from 21 as of mid-June last year and 24 the year before. The court typically hears about 80 hours of argument each year, with most cases getting one hour and a handful of big cases getting one and a half or two hours.
To be sure, the justices will have more opportunities this month to boost next term’s docket before they leave for summer break and potentially could add cases on issues including religious rights, immigrant detentions and bank loans.
Supreme Court litigator Jeffrey Wall said the court would likely focus on such areas as patent and copyright law, which are important to the economy but don’t trigger sharp divisions among the justices. “We all have a sense that some of these more controversial [cases], they don’t want to grant. That’s why I think the I.P. [intellectual property] space will be very big” next term, he said at a U.S. Chamber of Commerce briefing Friday.
The Trans-Pacific Partnership (TPP) is a secretive, multinational trade agreement that threatens to extend restrictive intellectual property (IP) laws across the globe and rewrite international rules on its enforcement. The main problems are two-fold:
(1) Digital Policies that Benefit Big Corporations at the Expense of the Public: The IP chapter would have extensive negative ramifications for users’ freedom of expression, right to privacy and due process, as well as hindering peoples' abilities to innovate. Other chapters of the agreement encourage your personal data to be sent borders with limited protection for your privacy, and allow foreign corporations to sue countries for laws or regulations that promote the public interest,
(2) Lack of Transparency: The entire process has shut out multi-stakeholder participation and is shrouded in secrecy.
The twelve nations that negotiated the TPP are the U.S., Japan, Australia, Peru, Malaysia, Vietnam, New Zealand, Chile, Singapore, Canada, Mexico, and Brunei Darussalam. The TPP contains a chapter on intellectual property covering copyright, trademarks, and patents. The official release of the final TPP text confirmed what we had long feared: that U.S. negotiators pushed for the adoption of copyright measures far more restrictive than currently required by international treaties, including the controversial Anti-Counterfeiting Trade Agreement(ACTA).
The TPP Will Rewrite Global Rules on Intellectual Property Enforcement
All signatory countries will be required to conform their domestic laws and policies to the provisions of the Agreement. In the U.S., this will further entrench controversial aspects of U.S. copyright law—such as the Digital Millennium Copyright Act (DMCA)—and restrict the ability of Congress to engage in domestic law reform to meet the evolving needs of American citizens and the innovative technology sector. Overall, the TPP's provisions that recognize the rights of the public are non-binding, whereas almost everything that benefits rightsholders is binding.
Expand Copyright Terms: Create copyright terms well beyond the internationally agreed period in the 1994 Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS). The TPP could extend copyright term protections from life of the author + 50 years, to Life + 70 years for works created by individuals, and 70 years after publication or after creation for corporate owned works (such as Mickey Mouse).
Escalate Protections for DRM (aka Digital Locks): It will compel signatory nations to enact laws banning circumvention of digital locks (technological protection measures or TPMs) [PDF] that mirror the DMCA and treat violation of the TPM provisions as a separate offense even when no copyright infringement is involved. This would require countries like New Zealand to completely rewrite its innovative 2008 copyright law, as well as override Australia’s carefully-crafted 2007 TPM regime exclusions for region-coding on movies on DVDs, video games, and players, and for embedded software in devices that restrict access to goods and services for the device—a thoughtful effort by Australian policy makers to avoid the pitfalls experienced with the U.S. digital locks provisions. In the U.S., business competitors have used the DMCA to try to block printer cartridge refill services, competing garage door openers, and to lock mobile phones to particular network providers.
Create New Threats for Journalists and Whistleblowers: Dangerously vague text on the misuse of trade secrets, which could be used to enact harsh criminal punishments against anyone who reveals or even accesses information through a "computer system" that is allegedly confidential.
Enact a "Three-Step Test" Language That Puts Restrictions on Fair Use: The U.S. Trade Representative (USTR) is putting fair use at risk with restrictive language in the TPP's IP chapter. Companies that adopt more user-friendly rules could also risk lawsuits by content industry investors who believe these rules limit their profits.
Place Greater Liability on Internet Intermediaries: The TPP would force the adoption of the U.S. DMCA Internet intermediaries copyright safe harbor regime in its entirety on other countries. Chile and Canada have gotten exceptions to allow their forward-thinking regimes that better safeguard user rights to stay in place. However, the TPP would still help entrench the United States' flawed takedown regime as an international standard.
Adopt Heavy Criminal Sanctions: Adopt criminal sanctions for copyright infringement that is done without commercial motivation. Users could be jailed or hit with debilitating fines over file sharing, and may have their property or domains seized or destroyed even without a formal complaint from the copyright holder.
In short, countries would have to abandon any efforts to learn from the mistakes of the United States and its experience with the DMCA over the last 16 years, and adopt many of the most controversial aspects of U.S. copyright law in their entirety. At the same time, the TPP's IP chapter does not export the limitations and exceptions in the U.S. copyright regime like fair use, which have enabled freedom of expression and technological innovation to flourish in the United States. It includes only a placeholder for exceptions and limitations. This raises serious concerns about other countries’ sovereignty and the ability of national governments to set laws and policies to meet their domestic priorities.
Although the IP chapter contains the worst of the agreement's anti-user provisions, we are also concerned by provisions elsewhere that:
Place Barriers in the Way of Protecting Your Privacy: The TPP's Electronic Commerce and Telecommunications Chapters establish only the weakest baseline for the protection of your private data—even enforcing self-regulation by the companies that profit from your data is enough. On the other hand, stronger privacy laws are outlawed if they amount to an “arbitrary or unjustifiable discrimination or a disguised restriction on trade.”
Do Nothing on Net Neutrality and Spam: The TPP includes provisions on net neutrality and spam control that are so weak that they achieve nothing. But including them in the agreement at all could lead countries to wrongly assume that these topics have been adequately dealt with, dissuading them from working towards more positive solutions.
Prohibit Open Source Mandates: With no good rationale, the agreement would outlaw a country from adopting rules for the sale of software that include mandatory code review or the release of source code. This could inhibit countries from addressing pressing information security problems, such as widespread and massive vulnerability in closed-source home routers.
Why You Should Care
TPP raises significant concerns about citizens’ freedom of expression, due process, innovation, the future of the Internet’s global infrastructure, and the right of sovereign nations to develop policies and laws that best meet their domestic priorities. In sum, the TPP puts at risk some of the most fundamental rights that enable access to knowledge for the world’s citizens.
The U.S. Trade Representative (USTR) has pursued a TPP agreement that will require signatory counties to adopt heightened copyright protection that advances the agenda of the U.S. entertainment and pharmaceutical industries agendas, but omits the flexibilities and exceptions that protect Internet users and technology innovators.
The TPP will affect countries beyond the twelve that are currently involved in negotiations. Like ACTA, the TPP Agreement is a plurilateral agreement that will be used to create new heightened global IP enforcement norms. Countries that are not parties to the negotiation will likely be asked to accede to the TPP as a condition of bilateral trade agreements with the U.S. and other TPP members, or evaluated against the TPP's copyright enforcement standards in the USTR's annual Special 301 process.
Are you in the United States?
Take action now and call on your Congress members to hold congressional hearings about the contents of the TPP immediately, and demand that they reject the deal when the agreement comes up for an eventual ratification vote:
Actions Around the World
If you're in Canada, and use the Let's Talk TPP platform to send comments to officials about why you oppose the agreement. Also visit the Council of Canadians' website to petition Prime Minister Justin Trudeau to reject the TPP.
If you're in Australia, you can use GetUp!'s action too to contact your senator and call on them to oppose the agreement in the Senate.