How a Gap in the Supreme Court Could Affect Consumers

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The death of Supreme Court Justice Antonin Scalia has sent the political class into predictable fits of partisan bickering. Certainly the long-term makeup of the court is at stake, but there will be some more immediate impacts surrounding cases still on the court’s docket for the current term, possibly extending well into the next term.

Some of the cases that will come before the court are inevitably high profile — those touching on abortion, religious freedoms, voting rights and Obamacare. But there will also be a few that could have implications for consumers.

The court now has four reliably liberal justices, thee staunch conservatives, and one conservative justice who occasionally sides with his more liberal colleagues. The odds of a new justice being appointed to the bench by the end of the court’s term in April is fairly close to zero, meaning the potential for 4-4 decisions in the coming months is very real.

In the case of a tie, since neither side has “won,” the court does not issue a formal decision. The lower court ruling stands for areas under its jurisdiction, but it does not set a nationwide precedent. Sometimes the court will opt to wait for its new member, and re-hear the case. Tom Goldstein, a frequent counsel in Supreme Court cases in the past 15 years, argues in this blog that re-hearings are the most likely scenario.

This can apply to any case in which the court has not yet rendered its decision and, of course, to the cases that have not yet been heard. Even in cases in which Scalia may have voted in chambers and drafted an opinion, those votes are not considered official until the court formally releases the opinion. In the current term, the court has handed down 18 opinions on the 37 cases it has heard, leaving 19 cases that could result in ties. Additionally, the court has more than 20 cases scheduled for oral arguments in February and March, with the calendar for April – the last month of the current term when the court will hear arguments – not yet released.

Here are some of the pending Supreme Court cases that involve consumer rights:

Spokeo v. Robins

A Virginia man, Thomas Robins, sued online information aggregator Spokeo claiming they’d violated the law by posting incorrect information about him. Spokeo argued that the man couldn’t show that he was harmed, and so shouldn’t have standing to sue. (Based on earlier arguments referenced in this Scotusblog in November, Scalia appeared “ready to agree” with Spokeo.) If Spokeo wins, it would mean the plaintiff in a suit would need to show they were harmed, potentially impacting many class-action lawsuits.

Two other cases, Microsoft Corp. v. Baker (in an appeal of a case around allegations of defective Xbox 360 consoles) and Tyson Foods Inc. v. Bouaphakeo (in an appeal of a class action lawsuit over wages against an Iowa meat-processing plant) could also have impacts on class action suits. In these cases, a Supreme Court ruling would help clear up how a class can be certified.

Sheriff v. Gille

In this case, the Ohio Attorney General’s Office appointed outside attorneys to act as debt collectors for the state. These outside attorneys were permitted to use letterhead from the Attorney General’s Office when sending out their notices. The case would decide if that action is considered misleading. This won’t change the fact that you are expected to pay the state any debts you owe, but it could change the way you get notices about paying back that debt.

Madden v. Midland Funding

This case goes back to a credit card account opened by New York resident Saliha Madden, who was charged 27 percent interest on an unpaid balance after Midland assumed ownership of her debt. In this class-action lawsuit, the plaintiff argued that “Midland had violated state and federal laws by attempting to collect a rate of interest that exceeded the maximum rate set by New York State’s usury laws,” according to the blog deBanked.

The principle in this case applies to loans — specifically, whether a business can skirt one state’s cap on interest rates by connecting with a lender in a different state. The lower court ruling said, basically, no, they can’t. In the case of a tie, that ruling would stand, but it wouldn’t apply nationwide.

Some legal watchers note this case could have even wider implications surrounding lenders who originate a loan then sell it to a business in another state. This one doesn’t look like it will get a hearing before the court’s next term starts in October, maybe not even until 2017 (of course, those dates are little more than guesses). So, there could be a ninth justice appointed by the time it is heard.

What’s your take on how the gap left in the Supreme Court by Scalia’s death should be handled, or its implications? Let us know in the comments or on our Facebook page.

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