The Supreme Court began the week by turning away several high profile cases, from an Internet sales tax clash, to an appeal challenging the NFL seven sixty five million dollar concussion settlement to an appeal by Hank Greenberg over his fraud lawsuit. You need four justices to agree to take a case, and none of these could get the votes. Our co host Greg store Bloomberg, Supreme Court reporter, was at the court this morning and also joining us is
Steven Sanders, professor at Indiana University's Morris School of Law. Greg, let's start with the Court turning away an appeal by a retail industry trade group over a Colorado law that imposes reporting requirements on Internet retailers. What was the basis of the trade group's challenge, June. This is does potentially a really big issue that probably the Court will take up.
It goes back to this ruling where the Supreme Court said a state can't require a mail order seller, and it's since been applied to internet sellers to collect tax unless that that read tailor has a physical presence in the state. So what Colorado did was it said, okay, if we can't do that, what will at least do is put some um UH notification requirements and reporting requirements on anybody who doesn't collect tax. So you have to
send us a name of your purchasers. You have to tell UH customers that they have an obligation to buy tax and send them a report at the end of the year. The trade group challenge that, and the Supreme Court said, no, we don't want to hear your challenge. Steve. This is based this denial you know, happens in the wake well much later, but the wake of decision um that seems like it's out of touch with the way that the world actually works. In the world now with
the Internet. Do you think there's any chance at some point the Court is going to be revisiting this issue in regards to the internet. Well, if it decides to accept this case, I think it'll at and if it upholds the if it upholds the Colorado law, it will at least be chipping away at the foundations of that
earlier decision. Know, the Constitution's Commerce Clause has been held to mean that states cannot burden the flow of commerce across state lines, and specifically they can't do things that advantage their own in state companies and disadvantage out of state companies. So the court back in this case upheld
the principle that we need a bright line rule. We don't want states imposing taxes on out of state corporations because if they do, they might misuse that power to advantage their own state interests and disadvantage out of state interests. But clearly the internet commerce is a multi trillion dollar industry. We're talking about something like twenty three billion dollars and
uncollected sales taxes. So I think the reality is that will force the Supreme Court to at least rethink some of that earlier decision and greg the Justice is also turned away a challenge from former players in the National Football League seven sixty five million dollar concussion settlement, which has been in the works for so long. What were the former players contending, Yes, So this is a small group of former players who said the settlement is not adequate.
In particular, it doesn't do enough for people who may have brain damage already but they haven't seen any signs of it yet. They don't yet have a diagnosis of what's known as CTE chronic traumatic and cephalopathy, which right now can be diagnosed only after somebody dies. They said the settlement doesn't take care of those those people well enough.
And they tried to leverage some Supreme Court rulings from the late ninety nineties where the court said, um that that big settlements involving people exposed to asbestos were too sprawling and uh violated the federal rules government class actions. Well, Greg, just to follow up on this, was there is this is a surprise. I's gotten so much media attention this setlement. It's such a big deal given the importance of the NFL to people. Is it a surprise the court didn't
hear this case? Not? Not really a surprise. Again, it was a very small group of of of players and the league and the settling players made the argument um that these are people who had a right to opt out of the settlement. This is not a case where somebody's rights are being taken away. They argued they could have if they thought the deal didn't do enough for them, they could have said, no, I don't want to be a part of it. I'll file my own lawsuit. Steve.
In another case that's been around even longer, trial has begun against former A I. G. Chairman Hank Greenberg for allegedly using to sham transactions to hide the insurers true financial condition that started in New York in September, more than eleven years after former New York Attorney General Elliot Spitzer file suit. The justices refused to derail it. What was Greenberg's argument for stopping it? So Greenberg, so, the trading of securities is something that's regular. They did under
both state and federal law. And because the constitutions as federal laws supreme, federal law can preempt state law where the two conflict, or where they attempt to regulate the same matter in different ways. So here, federal law expressly allows state enforcement actions that allege fraud or deceit, which is what the New York Attorney General has alleged against Hank Greenberg in this case. But New York state law has a lower threshold for proving fraud than does federal law.
The state law doesn't require something called si enter, that is that the offending party actually knew that their action was wrongful before committing it. So Greenberg's lawyers argued that the enforcement action by Eric Schneiderman, the New York Attorney General didn't fit within the exception to preemption that federal
law creates. UM New York's highest appellate court rejected that argument, and today the Supreme Court simply indicated without comment that it was content to left that new work State appellate court decision stand and let the trial go forward. This, of course, expresses no view about whether Greenberg actually committed the sham transactions that the State of New York says he did, simply that state law may be used in
this case to attempt to prosecute him. Michael greg and I are talking with Professor UM Professor Steven Sanders of Indiana University's Morris School of Law about the Supreme Courts turning down several high profile cases. Today. Greg, let's turn to the two death penalty t cases that the Court turned down over the objection both of Justice Stephen Brier and one of Justice Stephen Brier and Justice Elena Kagan. Right.
These are both appealed by death row inmates. One is a man who has sentenced to death forty years ago, a man from Florida. Another is a man who the state of Ohio tried to execute into ales and nine and they botched that execution, and both of them argued that executing them now would be a violation of the Constitution. The Court did not agree to hear those claims, and as he said, Justice Briar and in one case Justice
Kagan said they would have taken up the case. Justice Briar, of course, is one of two justices who has said he wants the Court to reconsider whether the death penalty is constitutional at all, given given all the things that are going on with it right now. Well, Steve, obviously the Court does not explain why it turns down cases, But can we read the tea leaves at all about whether Justice Briar is going to be able to get any traction on his beliefs about the death penalty given
the fact that the Court refused both these cases. Well, I think this is one of those things you sometimes see in constitutional law and Supreme Court litigation. Justice Brier has to understand that he's playing for the long game here. I mean, to some extent he's succeeded um simply because we're here talking about it, and people will talk about
these cases. And the larger argument that Justice Brier has been making for a number of years now that the death penalty has become so unpredictable and arbitrary in its actual implementation that those problems um suffice to make it cool and unusual and therefore unconstitutional. I think, you know, given the Court as it's currently constituted and likely to continue under the next administration, with the appointments that Donald Trump will get, we're not likely to see an outline
of the federal death penalty is unconstitutional anytime very soon. Um. As I say, this is part of I think a longer term dialogue that Justice Brier and sometimes we've an assist from Justice Ginsburg is trying to create so that legal academics, journalists, and the public will at least have more of a conversation. This will be on the national radar screen. Is this is the death penalty something we want?
Is it currently carried out in a way that is conscionable? Gregg, there is an Alabama death penalty case that the Court has yet to decide about. Tell us about that. Yeah, this is another bid for Supreme Court review. The Court did not act on it this morning. It's possible the Court will act on it later today or tomorrow. Uh. This is the case out of Alabama and it's noteworthy because if you recalled. Just before the election, just a few days, UH, there was this man's case. His name
is Thomas Arthur. He asked the court to stop his execution and four justices said they would, but but you need five to to stay in execution. And the Chief Justice, John Roberts said he would extend be the fifth vote as a courtesy to the four who wanted to hear his case. So now we have the question of whether the court will actually agree to hear arguments in the case um and um, we may get more clues about how the court will deal with the death penalty. UH.
It raises a couple of different issues. One has to do with UH lethal injection and what you have to show to to show that a method of of lethal injection is unconstitutional. The other has to do with some particular aspects of Alabama's death death penalty scheme that is going to be coming up at one of these conferences. And so today we certainly heard a lot from the court as far as what they are not going to hear and UH, what do you think, Greg, By the end of the week we might hear some of the
cases they will hear. We might It is not entirely clear right now. The court uh needs to act quickly before they're about to have a four week recess, but UH they might want to add some more cases so that they can hear them when they come back, so they can hear them in their March calendar, which right now is pretty sparse. So there's reason I think they will act on a few of these cases and agree to hear them before they leave for their four week break.
And we will get that first word from Greg Store, our Supreme Court reporter and co host here on Bloomberg Law. And thank you Stephen Sanders, professor at Indiana University's Morris School of Law, for joining us on Bloomberg Law. Coming up on Bloomberg Law, the future of healthcare under the new Trump administration, and we're also going to be talking about Washington, the first state to sue agro giant Monsanto over environmental pollution from PCBs. This is Bloomberg