Weekly Roundup – June 23, 2017

After announcing five opinions on Monday (discussed here), the Supreme Court issued three more on Thursday and another three on Friday. This coming Monday, June 26, is the last announcement day currently scheduled, and there are six cases still to be decided. And it is possible (although not overwhelmingly likely at this point) that the Court will push one or more of those cases over to next Term for reargument if it is deadlocked 4-4 in a case that was argued before Justice Gorsuch joined the Court. Also on Monday, the Court will announce its orders from the last Conference of the Term and it will, most likely, announce both whether it is upholding the stays in the travel ban cases and whether it will hear one or both of those cases on the merits.

Perhaps the most high profile case announced on Thursday was Maslenjak v. United States. The Court held, 9-0, that the United States government cannot strip a naturalized citizen of her citizenship on the basis of falsehoods told during the application process unless it can prove that those falsehoods were material to the decision to grant citizenship — that is, whether there is a causal relationship between the falsehood and the decision. Justice Kagan wrote the opinion, which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined in full. Justice Alito concurred in the judgment, and Justice Gorsuch, in his first separate opinion, concurred in part and concurred in the judgment, joined by Justice Thomas. (Justice Gorsuch would have declined to provide as much guidance about how the lower courts should evaluate materiality as the Court did.)

Maslenjak is one of several cases that Pam Karlan, Stanford law professor and highly experienced Supreme Court advocate, describes as part of the “outrage docket.” It was a case that the Court might not have had to take on traditional criteria, but the case provoked strong reactions among at least some of the Justices. As she recounted the oral argument in Malenjak, “Chief Justice John Roberts forced the assistant to the solicitor general to admit that under the government’s view, someone could be denaturalized if he didn’t admit to driving 61 miles per hour in a 55 zone, even if he was never caught and the statute of limitations for such an infraction has run out.” Other cases from this Term that Karlan places on the outrage docket include Buck v. Davis, where an African-American capital defendant’s own attorney put on expert testimony that blacks are more likely to be dangerous than are whites; Moore v. Texas, in which Texas persisted in using long-outdated tests for determining cognitive impairment to determine eligibility for execution; Packingham v. North Carolina, decided Monday, in which a North Carolina law barred convicted sex offenders from vast swaths of the internet; and Nelson v. Colorado, which involved a Colorado requirement that a defendant who has been exonerated establish his innocence by clear and convincing evidence to recover fines and fees. Professor Karlan’s discussion is part of the annual Slate.com The Breakfast Table — a conversation between some of the most interesting courtwatchers and advocates about the Court’s Term.

Also on Thursday, the Court issued opinions in Weaver v. Massachusetts and Turner v. United States. Weaver involves the interaction of postconviction review with what is called “structural error.” As the Weaver majority explained, “[t]he purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should
define the framework of any criminal trial,” and requires automatic reversal when those guarantees are violated. The error in Kentel Myrone Weaver’s murder trial was that during two days of jury selection, the courtroom was improperly closed to the public, which would normally be considered structural error. But because his lawyer failed to object or to raise the issue on appeal, Weaver had to raise it as part of an ineffective assistance of counsel claim on postconviction review. And ineffective assistance of counsel requires a showing of prejudice to overturn a conviction. The question in Weaver addressed the need to demonstrate prejudice when the ineffective assistance resulted in structural error. The Court decided, 7-2, that Weaver must show prejudice. As The New York Times outlines, Justice Kennedy’s majority opinion (joined by the Chief Justice and Justices Thomas, Ginsburg, Sotomayor, and Gorsuch) states that “it must be recognized that open trials ensure respect for the justice system and allow the press and the public to judge the proceedings that occur in our nation’s courts. Even so, the violation here did not pervade the whole trial or lead to basic unfairness.” Justice Breyer’s dissent opposed the majority’s view that the constitutional violation must have affected the whole trial, and states that an error leading to a “fundamental constitutional violation” should be enough to automatically grant a new trial. Justices Thomas, joined by Justice Gorsuch, concurred, questioning whether the closed courtroom should really be considered structural error and taking issue with the majority’s articulation of the prejudice standard. Justice Alito, also joined by Justice Gorsuch, concurred in the judgment also for reasons related to the prejudice standard. As ScotusBlog points out, Justice Gorsuch joined all three opinions that agreed on the outcome, even the one where the author himself declined to join the majority..

In Turner, the third of Thursday’s cases, the Court decided that the petitioners in a 1985 murder case were not entitled to a new trial due to previously withheld exculpatory evidence. In a 6-2 decision, with the majority authored by Justice Breyer, the Court decided that the evidence withheld was not material under the Brady v. Maryland standard. The Washington Post reports that Justice Kagan, who was joined by Justice Ginsburg in dissent, staunchly opposed the bottom line of the majority decision, noting that, “[w]ith the undisclosed evidence, the whole tenor of the trial would have changed.” (Justice Gorsuch did not participate.) In his contribution to The Breakfast Table on Slate.com, former United States Solicitor General Walter Dellinger offers an interesting perspective of the case, seeing it from the solicitor general’s point of view: “[o]ne of the few unhappy aspects of being solicitor general is when you find out that a United States attorney has brought an ill-advised criminal case, won a conviction, and then persuaded a federal court of appeals to uphold the conviction.” Dellinger points out that sometimes prosecutors are overzealous and need to be reminded of Brady’s requirements, but he does not argue that the Court’s decision was clearly wrong, giving special credit to the government’s lawyer in the Supreme Court, Michael Dreeben, who is now also working part time for Robert Mueller, the special prosecutor in the Russia investigation.

Ineffective assistance of counsel was at issue in one of Friday’s opinions, Lee v. United States. In Lee, the defendant pleaded guilty to a drug crime at his attorney’s urging and assurance that it would not affect his immigration status. In fact, that advice was wrong and Lee found himself subject to deportation. The 6-member majority, in an opinion written by the Chief Justice and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, held that Lee adequately established prejudice and was entitled to a new trial. Justice Thomas, joined in part by Justice Alito, dissented, and Justice Gorsuch did not participate.

Murr v. Wisconsin, also decided on Friday, was the only close vote of the six cases released at the end of this week. Murr, which involved an alleged regulatory taking, was 5-3, with Justice Kennedy, joined by the four liberals, writing for the majority, the Chief Justice, joined by Justices Thomas and Alito, dissented, and Justice Thomas wrote an additional dissent. (Justice Gorsuch did not participate.) The issue in Murr involved how to evaluate whether a regulatory taking has occurred — that is, whether a property-owner has been deprived of all economically beneficial use of their property as a result of a regulation — where the property at issue is two adjoining lots. The Court provided a fact-specific, multifactor approach to the analysis and held that, in this case, the property was appropriately treated as a whole and no regulatory taking occurred.

Finally, on Thursday, the Court released a 7-2 decision in Perry v. Merit Systems Protection Board, a case notable to the general public largely because it was argued on the first day that Justice Gorsuch was on the bench. The issue in the case was whether a federal employee, disappointed by the resolution of a certain type of employment dispute in front of the Board, should appeal to the district court or to the Federal Circuit. The Court held that the correct forum was the district court. Justice Gorsuch, joined by Justice Thomas, dissented, arguing that the Court was effectively rewriting the statute and echoing his complaints at oral argument.

ISCOTUSnow will be back next week with the final decisions of the Term. The remaining cases are Jennings v. Rodriguez, an important case about detained immigrants’ right to release on bond, Hernandez v. Mesa, about the extraterritorial application of the Fourth Amendment in a cross-border shooting of a fifteen-year-old Mexican boy and possibility of suit by his parents, Trinity Lutheran Church of Columbia v. Comer, a challenge to Missouri’s constitutional prohibition on funding even nonreligious activities, like playgrounds, undertaken by churches, Davila v. Davis, a habeas case about when ineffective assistance of counsel can excuse a petitioner from raising claims in state court, Sessions v. Dimaya, addressing what qualifies as an aggravated felony for purposes of mandatory deportation, and California Public Employees’ Retirement System v. ANZ Securities, Inc., which is about the timeliness of individual securities fraud claims that might have been part of a putative class action. SCOTUSblog offers more detailed descriptions of these cases here.

This Day in Supreme Court History—June 23, 2003

On this day in 2003, the Supreme Court decided Grutter v. Bollinger, one of the Court’s most important rulings on the constitutionality of affirmative action. In a 5-4 ruling, the Court upheld the admissions policy of the University of Michigan Law School, which used race as one factor in its evaluation of applicants.

Challenging the law school’s affirmative action policy was Barbara Grutter, a white student who claimed that her constitutional rights were violated because she had been denied admission while racial minority candidates with lower GPAs and test scores had been admitted. Grutter’s supporters hoped that the Court would use her case as an opportunity to overrule Regents of the University of California v. Bakke, the 1978 Supreme Court decision that struck down racial quotas but allowed for more flexible, “holistic” use of racial preferences for purposes of increasing diversity in higher education.  

Affirmative action opponents won a partial victory in Gratz v. Bollinger, decided on the same day as Grutter. In this case a five-justice majority of Court struck down the racial preference policy used by for undergraduate admission to the University of Michigan, which used a points-based admission system that assigned a certain number of points for racial-minority status.

But Justice O’Connor, who joined the majority striking down the undergraduate policy in Gratz, joined the four dissenters in that case (Justices Stevens, Souter, Ginsburgand Breyer) to form a majority to uphold the law school’s policy in Grutter. She reiterated Bakke’s holding that states had a “compelling interest” in creating racial diversity in their institutions of higher education and then held that the law school’s racial preference policy was “narrowly tailored” because the law school “considers race only as a plus in a particular applicant’s file and gives serious consideration to all the ways besides race that an applicant might contribute to a diverse educational environment.” The law school’s effort to ensure a “critical mass” of minority students “operates neither as a quota nor a two-track admission system.”

In his dissent, Chief Justice Rehnquist denounced the law school’s program as nothing more than “a naked effort to achieve racial balancing.” He argued that the law school policy, like the undergraduate admissions policy, violated the Equal Protection Clause of the Fourteenth Amendment. Justice Scalia wrote his own acerbic dissented in which he lamented that “today’s GrutterGratz split double header seems perversely designed to prolong the controversy and the litigation” over affirmative action.

Justice Thomas wrote a long, powerful, and personal dissent. He began by quoting the great African American abolitionist Frederick Douglass, who gave a speech in 1865 denouncing the harms caused by white “interference” with blacks. “Do nothing with us!” Douglas demanded. “Like Douglass,” Thomas wrote “I believe blacks can achieve in every avenue of American life without the meddling of university administrators.”

Although modified somewhat in the recent Fisher v. University of Texas decisions, Grutter remains basically intact today. Universities are permitted to use racial preferences in selecting their incoming classes, so long as they are doing so in order to advance a goal of diversity and so long as they use a flexible process of evaluation in which race is only one factor among many.

This Week at the Court – Week of June 19, 2017

The Supreme Court hit the ground running this week, handing down five opinions, one per curiam, and releasing its order list from its June 15 conference.

Matal v. Tam (previously named Lee v. Tam) stems from a challenge by an Asian-American band wishing to trademark their band name, “The Slants,” with the U.S. Patent and Trademark Office (PTO). Under the governing statute, known as the Lanham Act, the PTO was not required to register any trademark that is “disparaging” to “persons, living or dead, institutions, beliefs, or national symbols.” The Court decided that the Lanham Act’s disparagement clause violates the free speech clause of the First Amendment. This unanimous victory for Simon Tam and “the Slants” sparked discussions about the Washington Redskins and their controversial team name. The decision was unanimous as to result, but there was a majority as to only part of the primary opinion, written by Justice Alito. Both Justice Kennedy (joined by Justices Ginsburg, Sotomayor, and Kagan) and Justice Thomas concurred in part and concurred in the judgment. The Washington Post discusses the arguments on either side of this debate, noting that “while this may be the right result under the First Amendment and the principles of free speech that are foundational to our country, it seems the responsibility will not pass to the public.” And in an unusual move, The New York Times confessed in an editorial that it had determined its previous position supporting the anti-disparagement provision, in the context of the PTO’s denial of a trademark for the Redskins, had been wrong, and it published a profile of Simon Tam and the band here. Matal v. Tam served as the ISCOTUSnow’s teaching focus at Constitutional Rights Foundation Chicago (CRFC)’s event in June. Simon Tam joined our discussion via Skype to explain his argument, which prevailed in the high court. Read more about the event, here. SCOTUSblog is sponsoring a symposium on the decision.

In Ziglar v. Abbasi, the Court addressed whether a group of non-citizens who were detained after the terrorist attacks on September 11, 2001 could sue for damages against two groups of federal officials for their “harsh pretrial conditions for a punitive purpose” in violation of their Fifth Amendment rights. (Former FBI Director Robert Mueller was among the federal officials sued in this suit.) The legal theory stemmed from Bivens v. Six Unknown Fed. Narcotics Agents, in which the Court created a remedy for constitutional violations carried out by agents of the federal government even in the absence of statutory authorization for such a lawsuit. But the Court, in an opinion by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Thomas, held in Ziglar that a Bivens type remedy should not be extended to the plaintiffs in this case in part because of the national security context. Justice Breyer, joined by Justice Ginsburg, dissented, and in an unusual move, he read part of his dissent from the bench. It was the first time this Term that any Justice has done so. Garrett Epps of The Atlantic recounts his powerful words calling them “civil but furious.” Justice Breyer used a metaphor of arson in his decision, warning his colleagues that a decision such as this, Epps explains, burns down “the entire structure of constitutional torts to shelter officials in national-security matters.” Because Justices Sotomayor and Kagan were recused and Justice Gorsuch had not yet joined the Court when the case was argued, Ziglar was heard by only six Justices.

The question in Packingham v. North Carolina, the Court was whether it was violated the First Amendment to restrict the access of registered sex offenders to social media websites where minors are allowed to have accounts. Lester Packingham, a convicted sex offender was arrested after the police found his Facebook profile, and he was charged with violating North Carolina’s law that made it a crime for offenders to access sites such as Facebook. (Mr. Packinhgham was convicted for violating the law after he thanked God on Facebook for getting out of a traffic ticket.) On Monday, the Court, in an opinion by Justice Kennedy, struck down the law. According to Ephrat Livni of Quartz, “the justices unanimously held that states can’t broadly limit access to social media because cyberspace ‘is one of the most important places to exchange views.’” Livni went on to note that this case has implications for society as a whole, not just offenders, and the court “appears to be extreme conscious of the broader effect.” Justice Kennedy wrote “A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” The court also stated that criminals are especially in need of being able to freely use the internet for the many different types of information available, such as employment ads and “exploring the vast realms of human thought and knowledge. Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment. Check out ScotusBlog, The Atlantic, and The New York Times for more commentary on this case.

The fourth opinion announced on Monday was in McWilliams v. Dunn. As Ryan Lovelace of The Washington Examiner explained, James McWilliams was convicted of the rape and murder of Patricia Reynolds and sentenced to death. He requested neuropsychological testing, but his attorneys did not have an opportunity to work with an expert to review and analyze the results. Justice Breyer, joined by the other three liberals and Justice Kennedy, wrote the opinion in this case, which sided with McWilliams. The opinion stated that he did not get the assistance that he was guaranteed under Ake v. Oklahoma. As Lawrence Hurley of Reuters noted, Ake guarantees that indigent defendants are entitled to expert assistance, but the McWilliams ruling does not clarify whether defendants are entitled to have their own expert, or if one expert for both the defense and prosecution is good enough if the defense has the appropriate assistance in assessing the expert report. Taylor Dolven of Vice comments on Justice Alito’s dissent (joined by the Chief Justice and Justices Thomas and Gorsuch), which stated that the decision was too narrow and “case-specific.”

Finally, in an 8-1 decision written by Justice Alito, the Court held in Bristol-Myers Squibb v. Superior Court of California that a state court does not have jurisdiction over claims brought by out-of-state residents over out-of-state conduct by a defendant that is domiciled out of- state, even if the state court would have jurisdiction over comparable claims brought by its own residents. Justice Sotomayor was the only dissenter, and she argued that this case would have substantial effects, in particular making it much more difficult for plaintiffs to aggregate their claims. Indeed, the scheduled trial in one class action has already been postponed in light of this decision.

In other news, on Monday, the Supreme Court unanimously reversed the Sixth Circuit — not for the first time — in a per curiam habeas case, Jenkins v. Hutton. And it announced that it would hear Gill v. Whitford, a major partisan gerrymandering case out of Wisconsin.

Justice Neil Gorsuch has been a member of the Supreme Court for more than two months and has even drafted his first opinion. But it wasn’t until late last week that Justice Gorsuch participated in his formal investiture ceremony. Justice Roberts delivered the judicial oath to an audience of lawmakers, federal judges, and President Trump. The New York Times recounts the event, noting that while it is “purely ceremonial,” it is a tradition that is “stately and steeped in history.” Photos from the event can be found at the Supreme Court’s official website.

Chief Justice Roberts has been busy on and off the bench in the last few weeks. He served as the commencement speaker for Cardigan Mountain School, his son’s junior high school. The Chief Justice had words of wisdom for the graduates: “From time to time, in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice.” View his full commencement address, here.

The Court has two more opinion announcement days scheduled — Thursday, June 22 and Monday, June 26, when it will also issue orders from the last Conference of the year — although it could add more announcement days next week if it needs to. Among other orders, the Court is expected to rule on the stay applications and petitions for certiorari in the travel ban cases by Monday. Stay tuned for these and other developments.

This Day in Supreme Court History—June 15, 1989

On this day in 1989, the Supreme Court handed down Michael H. v. Gerald D., a landmark case on parental rights that highlighted fissures among the justices on the nature of constitutional rights not specifically enumerated in the text of the Constitution.

The Court upheld a California law that presumed a child born to a married woman living with her husband to be a child of that marriage. The law was challenged by the child’s biological father.

The facts of the case could have been pulled from the script of a soap opera. The married couple in the case was international model, Carole Dearing, and French oil company executive, Gerald Dearing. Carole had an affair with a neighbor, Michael Hirschensohn, which resulted in the arrival of baby Victoria. Gerald was listed as Victoria’s father on her birth certificate, and he always presented her as his daughter. But Carole told Michael that he might be Victoria’s father, which a subsequent blood test confirmed. For some period of time Michael lived with Carole and Victoria. He presented Victoria as his daughter, and she called him “Daddy.”

When this living arrangement broke up, and Carole and Victoria returned to Gerald, Michael sought to be declared Victoria’s father so he could obtain visitation rights. California courts denied Michael’s efforts, and he appealed his case to the U.S. Supreme Court, claiming that California’s denial of his ability to establish a relationship with his biological daughter violated his Fourteenth Amendment due process rights.

Justice Scalia, wrote the opinion of the Court. (He was joined by Chief Justice Rehnquist, Justice O’Connor, and Justice Kennedy; Justice Stevens wrote a separate concurring opinion.), rejected Michael’s challenge to California’s refusal to allow him to establish paternity. He argued that although California’s policy did prevent a biological father from establishing a relationship with his child, it did so in order to protect the interests of the marital relationship: “to provide protection to an adulterous natural father is to deny protection to a marital father, and vice versa.” California did not violated any due process rights by privileging a married couple’s relationship over the rights of “an adulterous natural father.” He looked to history and found no tradition of recognition of the rights of fathers who had affairs with married women. Precedent rests “upon the historic respect—indeed sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.”

In dissent, Justice Brennan (joined by Justices Marshall and Blackmun) argued that the original reasons for the presumption of paternity are outdated in a world “in which blood tests can prove virtually beyond a shadow of a doubt who sired a particular child and in which the fact of illegitimacy no longer plays the burdensome and stigmatizing role it once did.”  Because Michael lived with and supported Victoria, the only difference between the child’s relationship with Michael and her relationship with Gerald is “the fact of marriage”—and, as the Court had previously held, marriage should not be conclusive in these situations cases. The state’s interest in preserving family units was “minute in comparison with a father’s interest in his relationship with his child.”

This Week at the Court – Week of June 12, 2017

On Monday, Justice Gorsuch announced his first opinion as a Justice of the Supreme Court in Henson v. Santander Consumer USA, Inc.,, was the first of four opinions the Court announced from the bench. In Henson, the plaintiffs alleged that Santander had violated the Fair Debt Collection Practices Act (FDCPA) in its communications with individuals who owed debts. Santander, however, contended that it was not a “debt collector” as defined by the FDCPA because it was collecting debts that it owned, not on behalf of another creditor, even though it had not originated the debts itself but had purchased them. The Supreme Court agreed with Santander in a unanimous decision holding that when a company purchases and then tries to collect debts, it is not a “debt collector” within the meaning of the FDCPA. The FDCPA defines a “debt collector” as a third party who collects a debt on behalf of another, not a party collecting a debt that it is owed firsthand. Joseph P. Williams of USNews noted that Justice Gorsuch’s writing skills “seem to be as good as advertised” as he “delivered a cleanly written opinion, using common language, discarding legal jargon when appropriate and showing some empathy for the common person.” And Tony Mauro of The National Law Journal wrote that the assignment of this opinion to Gorsuch “followed the high court’s tradition of giving the newbie a positive experience by assigning him or her to write in a relatively straightforward case likely to yield a unanimous decision.” Mauro added that the opinion itself, which was in fact unanimous, “follows [Gorsuch’s] pledge to focus on the text of statutes before the court.” And Colin Wilhelm of Politico noted that although “Gorsuch acknowledged that a reasonable person could argue that the law be revisited” to cover the at issue, the opinion explained that “it is not this Court’s job to rewrite a constitutionally valid statutory text under the banner of speculation about what Congress might have done had it faced a question that, on everyone’s account, it never faced.” For more commentary on this opinion, check out The Washington Post, Bloomberg, and  The Washington Examiner.

A second opinion announced on Monday was in Sessions v. Morales-Santana. In this case, the Court addressed an issue at the intersection of immigration law and sex discrimination. For many years, Congress has provided that children who have one U.S. citizen parent and are born abroad are entitled to U.S. citizenship themselves only if one of the parentsresided in the United States for at least ten years prior to the child’s birth, at least five of which occurred after the parent turned 14 (the “presence requirement”). This presence requirement applies to children of married couples where one of the parents is a citizen, and it also applies to children of unmarried couples where the father is a citizen. But the statute makes an exception for children of unmarried couples where it is the mother who is a U.S. citizen. Under those circumstances, the mother can transmit her citizenship if she lived in the United States for only one continuous year prior to the child’s birth.

Morales-Santana was born in the Dominican Republic. His father was a U.S. citizen, but his mother was not, and they were unmarried when he was born. (They later married.) Morales-Santana was denied citizenship because his father did not meet the presence requirement. He challenged the statute as unconstitutional gender discrimination in violation of the Constitution’s guarantee of equal protection because, had his mother been the U.S. citizen, she would have met the more generous presence requirement. The Supreme Court, in an opinion by Justice Ginsburg, joined by the Chief Justice and Justices Breyer, Kagan, Kennedy, Sotomayor, agreed and, quoting Obergefell v. Hodges, held that a gender-based “classification must substantially serve an important governmental interest today, for ‘in interpreting the [e]qual [p]rotection [guarantee], [we have] recognized that new insights and societal understandings can reveal unjustified inequality . . . that once passed unnoticed and unchallenged.’” Mark Joseph Stern of  Slate noted the significance of this citation to Obergefell as having potentially longterm implications for gender discrimination law, and along with others, noted that the Chief Justice, who dissented forcefully in Obergefell, nonetheless joined the Court’s opinion in full.

Unfortunately for Morales-Santana, although the Court concluded that the government could not justify the statute’s gender-based distinction, it held that appropriate remedy in this case did not allow it to extend the rule for children of U.S. citizen unwed mothers to his case. iInstead, as Ian Millhiser of ThinkProgress explains, the Court required the Goverment to “apply the harsher rule universally.” Justice Thomas, joined by Justice Alito, concurred in the judgment but would not have reached the constitutional question at all. More information on the ruling is available from The New York Times and the Washington Post, which noted that Justice Ginsburg cited some of her own most significant work on gender discrimination, notably United States v. Virginia Military Institute.

Additionally on Monday, the Court issued its opinion in Microsoft Corporation v. Baker. The plaintiffs in this case brought a putative class action, but the class allegations were stricken. They then voluntarily dismissed their individual claims with prejudice but appealed the rulings on the class allegations. In part, this maneuver was an effort to avoid the fact that there is no appeal as of right for rulings on class certification. The question before the Court was whether a federal court of appeals had jurisdiction over those class-action issues. In an opinion written by Justice Ginsburg, the Court, relying on Federal Rule of Civil Procedure 23(f) and 28 U.S.C. 1291, held that there was no federal appellate jurisdiction once the plaintiffs dismissed their individual claims with prejudice. The ruling reiterates that parties generally have a right to appeal only a final judgment. Although the Court was unanimous (8-0) as to the result, Justice Thomas wrote an opinion concurring in the judgment, which was joined by Chief Justice Roberts and Justice Alito, and would have held that there was no Article III case or controversy left once the plaintiffs dismissed their individual claims. Greg Stohr of Bloomberg stated that this decision gives companies a “new procedural tool in class action litigation.” Deborah J. LaFetra of The Pacific Legal Foundation opined that this decision “put the kibosh on a tactic by counsel for purported class actions to evade the final judgment rule.” Check out  Reuters, ARS Technica, and US News for more information on this ruling.

The final opinion in an argued case that the Court issued on Monday was Sandoz Inc. v. Amgen Inc., a unanimous (9-0) opinion written by Justice Thomas. This case involved notice practices regarding marketing of “biosimilar products” under the Biologics Price Competition and Innovation Act of 2009. Biosimilar products are products regulated by the FDA that are “highly similar” to already approved biological products. Producers of biosimilar products must give certain notice to the sellers of the original products before they market.  The Court held that patent holders cannot use the federal law to enforce that requirement, although they may be able to use state law to get the information. Greg Stohr of Bloomberg noted that this was “a mixed decision on the rules governing efforts to get low-cost alternatives to pricey biotechnology drugs on the market.” Read Endpoint News and Reuters analysis of this decision for more information.

On Monday, the Court also issued a unanimous per curiam opinion in Virginia v. LaBlanc. This case indirectly addresses whether a state law providing for the possibility of geriatric release satisfies Graham v. Florida, which prohibits life imprisonment without the possibility of parole for non-homicide juvenile offenders. Virginia state courts had said that it did, and on habeas, the federal court of appeals disagreed. The Supreme Court reversed, although it did not reach the ultimate question. Rather, it held only that the Virginia state court’s holding was a reasonable application of Supreme Court precedent, which is all that habeas law requires. And the Court granted certiorari in Oil States Energy Services LLC v. Greene’s Energy Group, LLC, which addresses the constitutionality of an administrative procedure for challenging patents. And to quote ourselves from several weeks ago:  [Y]et again, [the Court] did not act in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which tests religious objections to laws that protect people from discrimination based on sexual orientation. Nor did it act on several Second Amendment cases, including Peruta v. California, which addresses restrictions on the concealed carry of firearms, and Sessions v. Binderup, addressing the Second Amendment rights of felons.

The Court is entering the home stretch. David Savage of The Los Angeles Times has a summary of some of the cases the Court still has left to decide (or hold over for re-argument) before the end of June. This discussion does not, however, include any possible action in the travel ban cases. On Monday, the Ninth Circuit issued its ruling largely upholding the injunction staying President Trump’s Executive Order, agreeing with the Fourth Circuit, but applying different reasoning. The United States has asked the Supreme Court to stay the injunctions and to hear at least one of the cases in the fall, and it has asked for rulings on those requests before the Court recesses at the end of the month. Stay tuned for more information.

 

This Day in Supreme Court History—June 13, 1966

On this day in 1966, the Supreme Court announced its decision in Miranda v. Arizona. In a decade filled with headline-making Supreme Court rulings, Miranda stood out. It became a favorite target of a conservative law-and-order campaign that helped get Richard Nixon elected president and transformed the politics of criminal justice. But as controversial as the ruling was at the time, Miranda soon became an unlikely popular icon, its requirement that police inform suspects of their rights (“You have the right to remain silent …”) quoted in television shows and movies until it has become part of our cultural firmament.

The case reviewed the criminal convictions of four men, each of whom had confessed to a crime. The lead defendant, Ernesto Miranda signed a written statement confessing to two crimes, a kidnapping and a rape, after two hours of police interrogation. The police had not advised Miranda of his right to have an attorney present during questioning. He was convicted and sentenced to twenty to thirty years in prison.

In a 5-4 ruling, the Court reversed Miranda’s conviction. In the process, the Court extended the Fifth Amendment’s protection against self-incrimination to anyone in police custody. (Prior to this point, this right had only applied at trial.)

Writing for the Court, Chief Justice Earl Warren dedicated much of his lengthy opinion to cataloging the abusive, and often quite brutal, interrogation tactics that had long been common in police departments and that remained prevalent in 1960s America. Such tactics, Warren wrote, were “at odds with one of our Nation’s most cherished principles—that the individual may not be compelled to incriminate himself.”

As a remedy for this constitutional violation, Warren held that for a suspect’s statements to be used at trial, the police first had to inform the suspect of his rights and the consequences of waiving these rights. These rights included: that the suspect had the right to remain silent; that any statement the suspect made could be used as evidence against him; that the suspect has the right to have an attorney present; and that an attorney will be appointed for him if he cannot afford one. Any waiver any of these rights must be “made voluntarily, knowingly and intelligently.”

Warren defended his opinion against the dissenters’ accusations that it would undermine effective law enforcement by noting that the FBI had already implemented a practice of informing suspects and arrestees of their rights before interrogations.

Justice John Marshall Harlan read his strongly worded dissent from the bench. “His face flushed and his voice occasionally faltering with emotion,” reported the Washington Post, Harlan “denounced the decision as ‘dangerous experimentation’ at a time of a ‘high crime rate that is a matter of growing concern.’” Perhaps the most widely reported lines of dissent were those of Justice Byron White, who wrote: “In some unknown number of cases the Court’s rule will turn a killer, a rapist, or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him.”

Although some praised the decision as an important step in protecting the rights of criminal defendants, much commentary on Miranda predictably echoed the dissenters’ critiques. The ruling “added enormously to the difficulties the Court already has imposed on police,” wrote the conservative New York Times columnist Arthur Krock. He noted that law-enforcement officials already identified the Court’s rulings a primary cause of the increase in crime with which they were dealing. “We might as well close up shop,” declared one police chief said after learning of the ruling.

Despite widespread attacks on the decision, including an effort by Congress to effectively overrule it, the ruling stood and it still stands today, its warnings probably the most recognized—and certainly the most quoted—words ever written in a Supreme Court opinion.

This Week at the Court – June 5, 2017

On Monday, the Court summarily affirmed a finding of liability in yet another voting rights case from North Carolina, issued four opinions, and granted certiorari in one case. In North Carolina v. Covington, the Court summarily affirmed a three-judge district court’s holding that the state legislative map was an unconstitutional racial gerrymander. (Only two weeks ago, in Cooper v. Harris, the Court struck down two of the state’s congressional districts for the same reason.) There were no dissents. In the same per curiam opinion, the Court also vacated the district court’s remedial order requiring a special election later this year and instructed the district court to weigh the equities more carefully and explicitly. There are mixed views about the significance of this case. Ian Millhiser of ThinkProgress argues that delays in remedies makes it easier for states to get away with illegal gerrymanders, while election law scholar Rick Hasen thinks:

On the merits, the balancing test that the Court puts forward for when a special election should be held makes great sense, and will extend beyond the racial gerrymandering cases. Indeed, with this new multipart test (“the severity and nature of the particular constitutional violation, the extent of the likely disruption to the ordinary processes of governance if early elections are imposed, and the need to act with proper judicial restraint when intruding on state sovereignty”) I would expect plaintiffs to now ask for special elections more regularly and courts applying these sensible factors. So a ruling counseling restraint might actually create more disruption.

The Court also granted certiorari in Carpenter v. United States, in which the Court will grapple with the boundaries of the Fourth Amendment when it comes to cellphone data and whether law enforcement needs a warrant to get information from cellphone companies about their customers’ whereabouts. More specifically, the question presented is whether the Fourth Amendment permits a warrantless search and seizure of cell phone records pertaining to the location and movements of the cell phone user over the course of 127 days. Adam Liptak of the New York Times discusses the Court’s history with this issue, including the “third-party doctrine,” and the Stored Communications Act. Orin Kerr of the Washington Post speculates about why the Court took this case, and notes its importance: “Although the case is formally about cell-site records, it’s really about where to draw lines in terms of what network surveillance triggers the Fourth Amendment and how the Fourth Amendment applies.”

The Court also released unanimous (8-0) opinions in Town of Chester v. Laroe Estates, Inc., Advocate Health Care Network v. Stapleton, Honeycutt v. United States, and Kokesh v. Securities and Exchange Commission. In Town of Chester, in an opinion by Justice Alito, the Court held that intervenors in a federal case must have their own Article III standing where they seek relief that is different from the relief sought by the original plaintiffs, and it remanded for a determination as to whether the intervenors here are seeking different relief. This holding is reminiscent of the Court’s determination in Hollingsworth v. Perry that proponents of California’s gay marriage ban did not have standing to contest the district court’s decision striking down the ban where the state itself, through its elected officials, declined to appeal.

Justice Kagan wrote for the unanimous court in Advocate Health Care Network. The Court held that a pension plan maintained by an organization — here a hospital chain —  associated with or controlled by a church qualifies as a “church plan,” under the Employee Retirement Income Security Act (ERISA), even if the church itself did not establish the plan. Church plans are exempt from many legal requirements that other employee benefits plans must meet. Writing for the Constitution Daily, Lyle Denniston explained the implications of this decision, including that church organizations’ ealth care plans will not be required to obey the Obamacare mandate of free contraceptives for women employees – “if that mandate survives an expected move to rewrite it by the new Trump Administration.”

In Honeycutt, the Court unanimously decided that a defendant must actually acquire property as a result of a crime in order for that property to be subject to civil forfeiture pursuant to §853(a)(1) of the Comprehensive Forfeiture Act of 1984. The defendant in this case, Terry Honeycutt, did not personally benefit from illegal drug sales and was therefore not in violation of the Act. Peter J. Henning of the New York Times gave a preview of the case back in April, noting that “[i]f you are wondering how someone can be forced to give up something he never had, then welcome to the intersection of conspiracy and asset forfeiture law.”

Finally, in Kokesh v. Securities and Exchange Commission, the Justices unanimously held that a claim by the SEC for disgorgement must be commenced within five years of the date the claim accrued because it operates as a penalty under 28 U.S.C. §2462. An article in The National Law Review argues that this decision “left open the possibility of a further challenge to SEC disgorgement,” based on a footnote in the Court’s decision. Reuters comments on the impact of this decision: “For the more complex cases, this will be a sea change for them, they will have to move more quickly.”

Finally, yet again, the Court did not act on the petitions in the Second Amendment case Peruta v. California or in the case involving a baker who refused to make a cake for a same sex wedding, Masterpiece Cakeshop, Ltd. v. Colorado Human Rights Commission.

Weekly Roundup – June 2, 2017

On Thursday evening, in the case now captioned Trump v. International Refugee Assistance Project (IRAP), the Trump Administration formally asked the Supreme Court to review the Fourth Circuit’s decision upholding a Maryland District Court’s preliminary injunction of President Trump’s second travel ban Executive Order. The government also asked the Court to stay the preliminary injunction pending disposition of the case and requested expedited briefing and argument, and it requested a stay of the District Court of Hawaii’s injunction of the Executive Order. All of the government’s filings in the Supreme Court can be found here.

Late on Friday, the Court ordered the IRAP plaintiffs to file a response to the petition for certiorari by June 12, although it did not order a response to the stay requests. It is, of course, always difficult to read the tea leaves, but this order suggests both that the Court is prepared to decide before the end of June, when the Court begins its summer recess, whether to grant cert, and that if it does grant, it will hold oral argument at the very beginning of — or even before — the next Term, which starts on the first Monday in October. But it would be quite unusual for the Court to grant a stay without ordering the parties opposing the stay to respond, and the Court has not yet done so. CORRECTION: The Court did in fact order responses to the stay applications, also due June 12.

Adam Liptak of The New York Times has a good explainer on what the Court can and might do with the petition and stay applications before it, along with background on what has already happened, and Josh Blackman likewise discusses the weaknesses of the Fourth Circuit’s opinion, through an analysis of the dissents, while also considering what the Supreme Court might do.. Mark Joseph Stern at Slate focuses on Justice Kennedy’s role in the future of the travel bans. Georgetown law professor Mark Tushnet argues at Balkinization that it would be appropriate for the Court to grant the stay of the Hawaii injunction, which (arguably) precluded the government from engaging in the review of the visa-application system that the Executive Order provided for, but that a stay of the Virginia order would be much more significant. And Kate Shaw, law professor at Cardozo, in a piece written before the government’s filings, analyzes the weight that the courts should give the President’s words, here.

In other, lighter news, the Supreme Court has had their new official photo taken with the addition of Justice Neil Gorsuch. As Time reported, the new “family photo,” is one of the rare times that cameras are allowed inside the Court. The shoot took only two minutes, and 11 photographers were allowed to photograph the Court. Christopher Morris, a photographer for Time, reported that “the atmosphere was light, as the justices quickly began joking with each other. Ruth Bader Ginsburg is the only one who shows the gravity of who they are and what they represent.” Morris further remarked “I felt the other justices felt a little awkward and were injecting a lot of humor.” USA Today reported that the justices are ordered by seniority during their picture. After 23 years on the bench, Justice Breyer got to move to the front of the crowd. Check out Scripps Political Correspondent Mike Sacks’ Twitter thread for many more photos of the Court going back through the years.

This Week at the Court – Week of May 29, 2017

On Tuesday, the Supreme Court issued three opinions and announced that will hear a case involving voter registration next Term. In one of the three opinions the Court issued on Tuesday, County of Los Angeles v. Mendez, the Court held, in a unanimous (8-0) opinion by Justice Alito that an officer’s reasonable use of force could not be understood to be unconstitutional by reference to things the officer had done earlier. In Mendez, the officers reasonably fired at a man pointing a BB gun at them. The question was whether their unconstitutional entry — without a warrant and without a knock-and-announce — into a shed where the man and his girlfriend, who were homeless, rendered the shooting unreasonable. As Rory Little explains in a particularly insightful SOCTUSblog post, it appears that the Court worked hard to achieve unanimity in this case and that it cabined its holding in significant ways, reminding courts that reasonableness is assessed on the totality of the circumstances and that law enforcement officers can be held responsible for the foreseeable consequences of their actions and even leaving open the possibility that the plaintiffs could prevail on remand.

In Impression Products, Inc. v. Lexmark International, Inc., the Court held that a patent holder cannot restrict a purchaser’s use or subsequent sale of a patented product, and it made clear that this legal rule applies to products sold both within in the United States and abroad. (The decision was 7-1, with Justice Ginsburg dissenting with respect to products sold abroad.) More analysis is available at Ars Technica. And in a unanimous (8-0) opinion by Justice Thomas, the Court held in Esquivel-Quintana v. Sessions that an immigrant’s conviction for sexual abuse of a minor arising out of a consensual relationship between the immigrant when he was 21 and his 17-year-old girlfriend did not qualify as an aggravated felony leading to automatic deportation.

And the Court agreed to hear Husted v. A. Philip Randolph Institute, in order to review a Sixth Circuit decision holding that Ohio’s method of removing voters from the rolls violated two federal laws. The Atlantic provides some background about the case and related issues. At the same time, the Court failed to act in a number of closely watched cert petitions. It did not act in Pavan v. Smith, for example, which addresses whether it is a violation of the Fourteenth Amendment to deny married same-sex couples to have both their names on their child’s birth certificate. And yet again, it did not act in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which tests religious objections to laws that protect people from discrimination based on sexual orientation. Nor did it act on several Second Amendment cases, including Peruta v. California, which addresses restrictions on the concealed carry of firearms, and Sessions v. Binderup, addressing the Second Amendment rights of felons. SCOTUSblog, which keeps a running list of “Petitions We’re Watching,” summarized Tuesday’s orders here.

In other news, President Trump’s administration may find itself before the Supreme Court for a last chance to argue that its travel ban is constitutional. As Reuters reports, multiple federal courts have again declined to lift injunctions placed on the ban. It is unclear if the administration would file for appeal soon, or if they will wait for the 9th Circuit to rule on the issue. If they take on the case, the Court will be “called upon to decide whether courts should always defer to the president over allowing certain people to enter the country, especially when national security is the stated reason for an action as in this case.” They will also decide if the ban does indeed “favor one religion over another,” an action prohibited by the Constitution. Experts believe this case will most likely make its way to the Court for a final decision. However, as Lyle Denniston of Constitution Daily reports, the administration must act quickly if they want the issue settled before fall. As this is a very important and hotly debated case, the Court might even hold a special sitting in the summer if they believe it is urgent enough.

Finally, Gill v. Whitford has been in the recent news. In this case, a three-judge district court struck down Wisconsin’s State Assembly map “because it was drawn to neutralize the votes of Democrats, depriving them of representation.” USA Today reports that this case and other similar cases “will present the court with a fundamental question about political power: How far can lawmakers go in choosing their voters, rather than the other way around?” The Court declined for decades to set a standard regarding partisan gerrymandering, and this case may lead it to do so for the first time. Alternatively, the Court could hold, as four justices urged the last time the Court considered the issue in Vieth v. Jubelirer, that legislative districting is a nonjusticiable political question. (Because of the type of case, which was heard by a three-judge district court, the parties have an appeal as of right to the Supreme Court. The Court can summarily affirm, but it is likely to order full briefing and argument because of the significance of the case.The state of Wisconsin has requested a stay so that it does not have to redraw the districts in the meantime. Justice Kagan has ordered a response by June 7.) Ariane de Vogue of CNN explains the background of this very important legal issue.

 

Weekly Roundup – May 25, 2017

On Monday, in Cooper v. Harris, the Supreme Court upheld a lower court decision to strike down two North Carolina congressional districts as unconstitutional racial gerrymanders. Since the opinion’s release, the case has continued to garner attention. Linda Greenhouse of the New York Times argues that Cooper highlights the Court’s role “as a forum for electoral struggle,” and she notes the ways in which justices have invited parties to use it in that way. Greenhouse surveys other recent election- and voting-related cases, and she calls Justice Kagan’s majority opinion in Cooper “her most important since joining the Supreme Court seven years ago.” And commentators continue to debate the implications of the case going forward. Chris Elmendorf, for example, worries that the Cooper could lead to a weakening or even elimination of state obligations under Section 2 of the Voting Rights Act, insofar as it outlaws race consciousness in redistricting. And the SCOTUSblog symposium continues to have fascinating commentary from across the political spectrum. ISCOTUS co-director Carolyn Shapiro also discussed the case on WGN’s Legal Face Off this week. (For more information about Cooper and the other cases decided on Monday, see ISCOTUSnow’s post earlier this week.)

On Thursday evening, the Supreme Court also declined to grant certiorari or issue a stay in Thomas Arthur’s execution by the state of Alabama. Arthur, who maintained his innocence, was challenging the use of midazolam as part of the execution protocol. When the Court rejected his earlier cert petition in February, Justice Sotomayor, joined by Justice Breyer, dissented and laid out an extensive argument about why the Court should consider (and reject) the constitutionality of the execution protocol that uses midazolam. (The allegation is that midazolam does not render the individual unconscious, but does paralyze him, so he experiences tremendous pain when injected with the other two execution drugs but has no way to react or communicate what is happening.) In her opinion on Thursday, dissenting from denial of certiorari and denial of a stay, Sotomayor accused Alabama of worsening the situation by impeding Arthur’s access to the courts by refusing to allow his lawyer to have a phone with him during the execution. As a result, if the execution were botched or otherwise problematic, the lawyer would have difficulty seeking judicial intervention. The execution was carried out on Thursday evening.

In other news, Fix the Court released a report on transparency in the judiciary. The organization, which supports live video or audio streaming from both the United States Supreme Court and the federal Courts of Appeals, commented on video and audio access in the high courts of California, Iowa, Minnesota, Texas, and Utah. The report found that live-streaming is on the rise. Iowa provides live-streaming for cases of particular public interest, and video records all arguments. The Iowa Supreme Court even allows journalists to use social media in the courtroom. The Minnesota Supreme Court provides same-day video of its arguments, And in 2016, the California Chief Justice decided to live-stream all of that court’s arguments, joining Texas and Utah in doing so. The Texas judiciary has been particularly open to cameras in the courtroom, with Texas Justice Don Willett arguing that they help “demystify this inscrutable branch of government.” As United States Representative Ted Poe, a former judge from Texas, explains, “we have the greatest judicial system in the world for determining guilt or innocence…why would we not want the world to see it?” (The Fix the Court report also addresses tenure and mandatory retirement policies for judges in the five states.)

The Supreme Court will announce its Order List from yesterday’s Conference on Tuesday, and it may also release opinions. ISCOTUSnow will be back with a summary of that and other Court-related news.