# 2018 SCOTUS Predictions **URL:** \ **Category:** In My Humble Opinion\ **Created:** [May 4, 2018, 10:58pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608 "2018-05-04T22:58:32Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [June 21, 2018, 2:57pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/41 "2018-06-21T14:57:08Z")
**South Dakota v Wayfair** - SCOTUS votes to overturn the 1992 decision and finds for South Dakota. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 21, 2018, 3:06pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/42 "2018-06-21T15:06:39Z")
> [@silenus](#): > > **South Dakota v Wayfair** - SCOTUS votes to overturn the 1992 decision and finds for South Dakota. Dang I got that one totally wrong. I have to read it now. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 21, 2018, 3:54pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/43 "2018-06-21T15:54:33Z")
> [@Bone](#): > > Dang I got that one totally wrong. I have to read it now. Me too. To me, Quill is the case that stands for the proposition of stare decisis. The internet economy has been built up on the physical presence requirement. If we are going to change that, let Congress do it. The Court goes on about how much money states are losing in sales tax collections. That seems like a problem for the political branches and not the judiciary. Plus, nobody says that states MUST get their revenues from sales taxes in order to function. Several states have no sales tax at all and do just fine. Further, I’m not sure that the prior cases were wrongfully decided. Since this board is located in Chicago, is the fact I am posting here enough minimum contacts to subject me to Illinois regulations? What if I sent a package there through the mail? In our modern world, it seems like we would be subject to law everywhere in the world simply by sitting at a computer. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [June 22, 2018, 2:58pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/44 "2018-06-22T14:58:38Z")
Not on the poll, but SCOTUS just upheld digital privacy rights by [requiring police to obtain a warrant](https://www.cnn.com/2018/06/22/politics/supreme-court-ruling-cell-phone/index.html) before tracking cell phone locations over an extended period of time. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 22, 2018, 3:21pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/45 "2018-06-22T15:21:22Z")
> [@UltraVires](#): > > Me too. To me, Quill is the case that stands for the proposition of stare decisis. The internet economy has been built up on the physical presence requirement. If we are going to change that, let Congress do it. > > The Court goes on about how much money states are losing in sales tax collections. That seems like a problem for the political branches and not the judiciary. Plus, nobody says that states MUST get their revenues from sales taxes in order to function. Several states have no sales tax at all and do just fine. > > Further, I’m not sure that the prior cases were wrongfully decided. Since this board is located in Chicago, is the fact I am posting here enough minimum contacts to subject me to Illinois regulations? What if I sent a package there through the mail? In our modern world, it seems like we would be subject to law everywhere in the world simply by sitting at a computer. Congress _can’t_ change the physical presence rule. Quill was decided based on the Commerce Clause itself, not on any federal statute passed under the commerce authority. I suppose Congress could permit states to subsidize domestic retailers, but that seems like an unsustainable workaround. Quill was also decided at a time when online and mail-order operations were a tiny fraction of the retail market. Nobody (or at least SCOTUS) foresaw that online retailers would one day be putting brick and mortar stores out of business. Ultimately, the rationale for the decision is that states should be able to regulate and tax economic activity within their own borders. If people buy stuff out-of-state and bring it home, the issue is between the state and the individual. But if businesses sell directly to individuals within state boundaries, that business now has a relationship with the state itself. Will it suck for online sellers to have to negotiate 51 different taxing regimes? Absolutely. But now they are on a level playing field. E-commerce has always known that it was on shaky ground when it came to sales/use taxes, so any investments it made on the assumption that it would also be exempt were stupid. Look at Amazon; they’ve voluntarily been collecting state sales tax for years (and not incidentally that’s why they have been able to set up local warehouses everywhere). Yes, stare decisis is important. But it’s not as important as the ability to correct a decision that was absolutely wrong in the first place. Look at Flood v. Kuhn - ironically also a commerce case. ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [June 22, 2018, 3:25pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/46 "2018-06-22T15:25:14Z")
> [@silenus](#): > > Not on the poll, but SCOTUS just upheld digital privacy rights by [requiring police to obtain a warrant](https://www.cnn.com/2018/06/22/politics/supreme-court-ruling-cell-phone/index.html) before tracking cell phone locations over an extended period of time. Notably, Gorsuch dissented because he didn’t think the opinion went far enough! (And because he thought the petitioners waived the better arguments he would have made.) So maybe Gorsuch will turn out to be a fierce defender of privacy. ---
**Author:** ![Bone](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bone/32/407_2.png) [@Bone](https://boards.straightdope.com/u/Bone)\ **Post date:** [June 24, 2018, 3:31am UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/47 "2018-06-24T03:31:18Z")
I certainly hope so. Unfortunately I will not be available to discuss the remaining cases as they come out, but I’m still watching! ---
**Author:** ![BigT](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/bigt/32/12044_2.png) [@BigT](https://boards.straightdope.com/u/BigT)\ **Post date:** [June 24, 2018, 8:55am UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/48 "2018-06-24T08:55:20Z")
> [@silenus](#): > > Not on the poll, but SCOTUS just upheld digital privacy rights by [requiring police to obtain a warrant](https://www.cnn.com/2018/06/22/politics/supreme-court-ruling-cell-phone/index.html) before tracking cell phone locations over an extended period of time. Aw. That’s the one I was here (this time) to see how people predicted. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 25, 2018, 2:46pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/49 "2018-06-25T14:46:28Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Congress _can’t_ change the physical presence rule. Quill was decided based on the Commerce Clause itself, not on any federal statute passed under the commerce authority. I suppose Congress could permit states to subsidize domestic retailers, but that seems like an unsustainable workaround. Wasn’t Quill a dormant commerce clause case? Could Congress simply have enacted the equivalent of Wayfair pursuant to its own affirmative commerce clause authority? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 25, 2018, 4:00pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/50 "2018-06-25T16:00:47Z")
Huh. It was. Reading the _Wayfair_ decision you wouldn’t have known, but I just went back and read Quill and it was. So Congress _could_ have fixed the problem. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 25, 2018, 9:18pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/51 "2018-06-25T21:18:51Z")
> [@Really\_Not\_All\_That\_Bright](#): > > Huh. It was. Reading the _Wayfair_ decision you wouldn’t have known, but I just went back and read Quill and it was. So Congress _could_ have fixed the problem. Having suggested that, now I’m not sure what exactly Congress could have done to fix it. I suppose it could have passed a uniform sales tax (or somehow compelled the states to do so as with the speed limit), but could it pass a federal law somehow simply overruling Quill and permitting states to set their own sales taxes and apply those taxes to out-of-state sellers? Put another way, instead of imposing a uniform rule, could Congress pass a law that essentially just “waives” a dormant Commerce Clause problem? ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 26, 2018, 1:54pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/52 "2018-06-26T13:54:36Z")
I didn’t think so when I was reading _Wayfair_, but yes, according to _Quill_. The Quill Court [specifically](https://www.law.cornell.edu/supct/html/91-0194.ZO.html) said Congress could authorize states to require foreign retailers to collect their sales taxes. > [@John Paul Stevens](#): > > This aspect of our decision is made easier by the fact that the underlying issue is not only one that Congress may be better qualified to resolve, [n.10] but also one that Congress has the ultimate power to resolve. No matter how we evaluate the burdens that use taxes impose on interstate commerce, Congress remains free to disagree with our conclusions. See Prudential Insurance Co. v. Benjamin, 328 U.S. 408 (1946). Indeed, in recent years Congress has considered legislation that would “overrule” the Bellas Hess rule. [n.11] Its decision not to take action in this direction may, of course, have been dictated by respect for our holding in Bellas Hess that the Due Process Clause prohibits States from imposing such taxes, but today we have put that problem to rest. Accordingly, Congress is now free to decide whether, when, and to what extent the States mayburden interstate mail order concerns with a duty to collect use taxes. The underlying rule actually came from [National Bellas Hess v. Illinois](https://en.wikipedia.org/wiki/National_Bellas_Hess_v._Illinois) (referenced in the quote), which had initially put a more substantial limitation on state power in an otherwise identical scenario. Quill actually loosened that rule by holding that a physical presence was not required, only minimum contacts of the sort generally required for jurisdictional issues. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [June 26, 2018, 2:27pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/53 "2018-06-26T14:27:00Z")
NIFLA just won 5-4. ---
**Author:** ![Velocity](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/velocity/32/18006_2.png) [@Velocity](https://boards.straightdope.com/u/Velocity)\ **Post date:** [June 26, 2018, 2:41pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/54 "2018-06-26T14:41:08Z")
Travel ban also 5-4. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 26, 2018, 4:28pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/55 "2018-06-26T16:28:48Z")
Hmm. I am 5-1. The only one I got wrong was _Masterpiece_. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [June 26, 2018, 4:43pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/56 "2018-06-26T16:43:57Z")
I voted for those decisions I thought would be the stupidest. So far I’ve only missed one. ☹ ---
**Author:** ![Iggy](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/iggy/32/3364_2.png) [@Iggy](https://boards.straightdope.com/u/Iggy)\ **Post date:** [June 26, 2018, 8:53pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/57 "2018-06-26T20:53:29Z")
So… on the OP’s list we are only waiting for Janus? And there is only one other case from this term remaining, a somewhat rare original jurisdiction water rights case, Florida v. Georgia. Scotusblog says they expect the ruling tomorrow on both cases. Janus was a February case and three justices still have not written a decision from that sitting: Alito, Ginsburg, and Kagan. There were nine cases from Februaury. One was a per curiam [DIG](https://en.wikipedia.org/wiki/Procedures_of_the_Supreme_Court_of_the_United_States#Circulating_draft_opinions_and_changing_of_views). Another was a per curiam vacated and remand. If Ginsburg is in the majority in [Janus](http://www.scotusblog.com/case-files/cases/janus-v-american-federation-state-county-municipal-employees-council-31/) I expect she wrote the decision and it will uphold [Abood](https://en.wikipedia.org/wiki/Abood_v._Detroit_Board_of_Education) (rule for the union against Janus). Odds are overwhelming that Kagan voted the same as Ginsburg, but since Kagan is junior she won’t get the decision to write. But if the decision goes for Janus and strikes down Abood as to public sector unions then it is a good bet Alito wrote the decision. But that would mean that Roberts and Thomas both passed up the opportunity. Thomas wrote the recently decided [Ohio v. American Express](http://www.scotusblog.com/case-files/cases/ohio-v-american-express-co/) antitrust case decision which was a February case. And Roberts wrote [Minnesota Voters Alliance v. Mansky](http://www.scotusblog.com/case-files/cases/minnesota-voters-alliance-v-mansky/) about limits of political clothing at a polling place. IMHO Janus is a much bigger deal and either Roberts or Thomas would have snapped that up if they were in the majority. So despite the pundits seeming to expect it will go the other way I think it is Ginsburg writing a majority opinion upholding Abood and ruling against Janus. And that means that one of the conservative justices would need to have sided with the liberal block. If Roberts was on that side I think he would write that opinion, so I don’t think he was a swing justice. Kennedy wrote [Lozman](http://www.scotusblog.com/case-files/cases/lozman-v-city-riviera-beach-florida/) which was interesting, but not as tempting as Janus, so I think Kennedy isn’t the cross over. Overall the most likely justice to side with the liberal wing on Janus seems to be Gorsuch. :eek: So that’s my guess, 5-4 for the AFSCME and against Janus, written by Ginsburg, with Breyer, Sotomayor, Kagan, and Gorsuch concurring. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 26, 2018, 9:25pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/58 "2018-06-26T21:25:04Z")
Thomas would probably have written some nutjob opinion holding that public sector unions should be banned completely because they’re not mentioned in the Constitution, which nobody signed on to. So he concurs in the result but doesn’t get assigned the majority opinion. ---
**Author:** ![silenus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/silenus/32/166_2.png) [@silenus](https://boards.straightdope.com/u/silenus)\ **Post date:** [June 27, 2018, 2:26pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/59 "2018-06-27T14:26:49Z")
> [@Iggy](#): > > So that’s my guess, 5-4 for the AFSCME and against Janus, written by Ginsburg, with Breyer, Sotomayor, Kagan, and Gorsuch concurring. Wrong. Janus prevails. Alito couldn’t wait for this one, and is probably writing the opinion. Bastard. ---
**Author:** ![Tom\_Tildrum](https://avatars.discourse-cdn.com/v4/letter/t/e95f7d/32.png) [@Tom\_Tildrum](https://boards.straightdope.com/u/Tom_Tildrum)\ **Post date:** [June 27, 2018, 2:54pm UTC](https://boards.straightdope.com/t/2018-scotus-predictions/813608/60 "2018-06-27T14:54:22Z")
> [@Iggy](#): > > But if the decision goes for Janus and strikes down Abood as to public sector unions then it is a good bet Alito wrote the decision. But that would mean that Roberts and Thomas both passed up the opportunity. My understanding is that when he is in the majority, the CJ can assign the opinion to any other Justice in the majority and does not have to offer it by seniority. [Previous page](https://boards.straightdope.com/t/2018-scotus-predictions/813608.md?page=2) [Next page](https://boards.straightdope.com/t/2018-scotus-predictions/813608.md?page=4)