The people's voice of reason

Congratulations to the Alabama Gazette on hitting sixteen years of publication. How has the law changed in these sixteen years? PART II

(PART I was published in October 2015)

This series of articles has been reviewing important United States Supreme Court issues since the Alabama Gazette began publication in 2000. My how the times have changed.

The, Winter v. Natural Resources Defense Council , 555 U.S. 7 (2008) case seemed to be more about common sense than anything. Knowing that the Navy had scheduled training missions off the coast of California for 2009, the environmentalists sought to stop their use of sonar. The environmentalists claimed that the use of sonar caused damage to marine life such as whales in the Mediterranean area. They cited beached whales, etc who showed internal damage and bleeding at necropsy. It was their belief that the use of sonar had caused the damage.

The Navy had conducted environmental impact studies for forty years and were not in agreement with the statements of the environmentalists. Chief Justice John Roberts wrote the majority opinion of the Court, saying “the most serious possible injury would be harm to an unknown number of marine mammals that they study and observe” He went on to say that “forcing the Navy to deploy an inadequately trained antisubmarine force jeopardizes the safety of the fleet”.

The case of Pleasant Grove City v. Summum, 555 U.S. 460 (2009), did not have the outcome that I would have expected. Pleasant Grove City, Utah accepted from a private donor a statue of the Ten Commandments which was displayed in a city park. The Summum church proposed to the city that a like sized statue of their seven Aphorisms be placed in the same city park.

Justice Samuel Alito made compelling statements regarding the majority opinion. He expressed differences between private speech and governmental speech and temporary speech and permanent speech. A monument of the Ten Commandments may be an expression of the values of a particular government. In rejecting the statue for the Summum church the city was rejecting the values not consistent with the city. Alito pointed out by New York accepting the Statue of Liberty, it would not have been within the values of the United States to accept a Statue of Autocracy from such nation as the German Empire or Imperial Russia.

Salzar v Buono, 559 U.S. 700 was a 2010 case. A wooden cross and signs noting that the cross was placed by the VFW in 1934 is long gone. The original cross was placed following World War I and was in memory of war dead. Following the decay of the cross, other crosses were placed from time to time in the original location atop Sunrise Rock which is in the Mojave Preserve in California.

A local resident placed a metal cross at the location, which he bolted into place. The resident did not place the cross with authorization and there was nothing in place to note that it was following the same historical significance.

There was a request to place a Buddhist shrine near the cross, which was denied. The National Park Service investigated whether the Cross should remain since they believed it might violate the Establishment Clause of the Constitution. Congress passed a bill designating the Cross as a World War I memorial and a latter bill that Federal funds could not be used to remove any national memorials that commemorates the United States participation in World War I.

The Supreme Court heard the case following lower Court decisions. The case was sent back to the lower Court, Justice Anthony Kennedy said, “The goal of avoiding governmental endorsement [of religion] does not require eradication of all religious symbols in the public realm”. The cross, filled with concrete was stolen shortly thereafter and the case is still not completely resolved.

The 2012 case, Golan v. Holder, 565 U.S. ___ considered the Uruguay Round Agreements Act which was a treaty to equalize international copyright within the United States. The case concerned previously copyrighted materials that had expired in time under the Unites States Constitution’s Copyright Clause and had been available under public domain. The issue was whether such previously available materials in public domain could be brought back into a position as copyrighted and subject to licensing agreements.

It was determined that the Uruguay Round Agreements Act did not exceed the authority of Congress and the majority opinion was that certain works can be brought back into copyright protection even if they have lapsed into availability under the public domain.

The 2013 case of Clapper v. Amnesty International, 568 U.S. ___ concerned reporters and attorneys who challenged the Foreign Intelligence Surveillance Act of 1978 Amendments Act of 2008. The plaintiffs maintained that they had incurred higher costs in communication with individuals overseas. They believed they required secure communications with the individuals because it was believed that the foreigners would be subject to investigation. The majority opinion written by Justice Samuel Alito, said in part, "Respondents cannot manufacture standing merely by inflicting harm on themselves based on their fears of hypothetical future harm that is not certainly impending,"

While their fears may have had foundation, the plaintiffs had no standing for something that had not occurred.

The 2014 case of Alabama Legislative Black Caucus v. Alabama certainly hits home. Following the 2010 census voting districts were redrawn. The State of Alabama was accused of gerrymandering districts so that minority voters had less chance of electing their favored candidates. The State asserted that the change in districts was to keep racial percentages about the same. The Supreme Court said that Alabama erred in a couple of ways , one of which was that it was not that percentages of races remained the same but that the electability of minority favored candidates remained the same. The case was remanded back to a lower court and the districts to be considered district by district and not by the State as a whole.

Finally for 2015, in King v Burwell, the Supreme Court ruled that the Affordable Health Care Act (Obamacare) allows for national tax subsidies to help pay for the health care of the poor and certain middle class citizens. The six Justices of the majority held that “an exchange established by the state” was ambiguous but that they believed they should interpret the such language to make the law work rather than to cause an upheaval with the national health care system.

The majority opinion said, “When analyzing an agency’s interpretation of a statute, we often apply the two-step framework announced in Chevron, 467 U. S. 837. Under that framework, we ask whether the statute is ambiguous and, if so, whether the agency’s interpretation is reasonable. Id., at 842–843. … “In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation.” Ibid. This is one of those cases. The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. … It is especially unlikely that Congress would have delegated this decision to the IRS, which has no expertise in crafting health insurance policy of this sort. … This is not a case for the IRS. It is instead our task to determine the correct reading of Section 36B.”

My how the times have changed in the last sixteen years, sometimes for the better and sometimes for the worse. This concludes Part II of United States Supreme Court highlights (one case per year) during the years since publication of the Alabama Gazette began.

This article is informative only and not meant to be all inclusive. Additionally this article does not serve as legal advice to the reader and does not constitute an attorney- client relationship. The reader should seek counsel from their attorney should any questions exist.

"No representation is made that the quality of legal services performed is greater than the quality of legal services performed by other lawyers."

Mailing address:

Ronald A. Holtsford, Esq.

Ronald A. Holtsford, LLC

7956 Vaughn Road, Box #124

Montgomery, AL 36116

(334) 220-3700


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