Friday, June 22, 2018

Changing times, changing minds

On Thursday, the US Supreme Court handed down its long-awaited decision in the Wayfair case. In its opinion, the Court held that the physical presence rule instituted under National Bellas Hess in 1967 and affirmed in Quill in 1992 was out of date and was no longer to be used to determine whether a company had sufficient minimum contacts with a state. The ruling will allow states to require online companies with no physical presence in the state to collect and remit sales tax revenue from customers.

But what, you ask, does that have to do with criminal law or anything else discussed on this blog? The answer is the substance of the case has absolutely nothing to do with anything covered in this space. What is interesting, however, is that a fairly long-standing precedent was overturned by a 5-4 vote with two justices voting to overturn the precedent they had previously voted to retain.

I think when we think of the US Supreme Court we envisage nine wise folk wearing black robes and issuing proclamations about the law with all weight of a papal bull. But that's not how it works.

In law school we have the concept of stare decisis pounded into our brains at every turn. The practice of law is really the practice of finding precedent to support your position and fitting the facts into a framework laid out by the court. The court's role is to make its ruling as narrow as possible so as to fit the new ruling into the patchwork of precedent.

What we generally see in a case is a slight shift in the application of the law justified by some little fact that makes this particular case different than the cases that came before it. That way precedent is honored and narrow exceptions are made.

But in Wayfair two judges changed their minds. It wasn't that the fact patterns were different. Unlike many opinions in which the court makes an exception to existing precedent, the opinion didn't get into the game of distinguishing fact patterns and why this one particular fact, or facts, made the difference. Instead the opinion spoke of changed times and changed minds.

Thus the edicts passed down from the Supreme Court aren't infallible and they aren't written in stone. They are subject to change. The minds of the justices are subject to change. And what the law is and isn't might hinge on the shifting sands of one justice's mind.

And if you don't like the rulings a particular justice makes, rest assured, one day he or she will not be sitting up behind the desk wearing a black robe. Someone else, someone with a different opinion, may be sitting up there in his or her stead. The makeup of the court will change as will its reputation.

Maybe there is still some hope out there for the Fourth Amendment.

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