by Kevin Daley
The Supreme Court will convene Tuesday for its February sitting, in which the justices will consider major cases involving the First Amendment, union power, and email privacy.
The cases raise the prospect of serious political and diplomatic repercussions, placing the justices at the center of a bitter partisan brawl and a sensitive question of foreign affairs.
The signature case of this month’s arguments is Janus v. AFSCME, which the justices will hear on Feb. 26. Though officially a First Amendment question, Janus is the apex of a decades-long dispute about the power of public sector unions and their Democratic patrons. As such, it has decidedly partisan implications. Some observers fear a ruling against the union would deal the deathblow to the political and financial influence of organized labor, prompting charges that the lawsuit is a poorly concealed, Republican attack on a powerful liberal constituency.
The case was brought by an Illinois state employee named Mark Janus, who pays compulsory fees to the American Federation of State, County, and Municipal Employees (AFSCME), despite the fact that he is not a member of the union. He argues these fees subsidize political speech and association with which he disagrees, in violation of the First Amendment.
A 1977 Supreme Court precedent called Abood v. Detroit allows public union bosses to collect “fair-share fees” from non-members for collective bargaining, but cautions that those funds may not be used for political purposes. Janus says this line is meaningless, since collective bargaining necessarily implicates political issues, so fair-share fees should be eliminated altogether.
President Donald’s Trump administration will argue in support of Janus during the proceedings. The decision is something of a reversal for the Justice Department, which has consistently defended the Abood decision under presidents of both parties.
The Supreme Court last heard a challenge to the constitutionality of fair-share fees in Jan. 2016. Justice Antonin Scalia died just one month later, and eight-member Court split four to four.
The American Federation of State, County and Municipal Employees (AFSCME) is the largest public employees union in the country.
Later that week, the justices will grapple with a conflict between tech giant Microsoft and the federal government over the Stored Communications Act (SCA). The SCA allows law enforcement to compel the production of electronic communications like email.
Microsoft refused to comply with a federal warrant seeking email records stored at a data center in Ireland in Dec. 2013. Microsoft argues the SCA applies only within U.S. territory, and that the government may not use it to access communications stored abroad. In response, the Justice Department says the SCA is operative since the law specifically addresses disclosure of communications, which necessarily takes place inside U.S. borders.
The European Union filed an amicus (or “friend-of-the-court”) brief in the case, suggesting (though not outright saying) that this case does involve the extra-territorial application of a U.S. law in a foreign country. Since the E.U. claims the right to regulate stored communications in Ireland, the justices will also have to navigate a delicate diplomatic morass. As a general rule, the court tries to avoid rulings that would adversely affect American foreign policy interests.
Still, the government insists private business decisions should not trump the public interest in preventing cyber crimes like software piracy and child pornography.
The 2nd U.S. Circuit Court of Appeals, the federal appeals court based in New York City, ruled in favor of Microsoft in July 2016.
The Supreme Court will hear the case, U.S. v. Microsoft, on Feb. 27.
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