Opinion Analysis—Ayestas v. Davis and Marinello v. United States

On Wednesday, the Court released two opinions.

In Ayestas v. Davis, Ayestas, a Honduran national, was sentenced to death after being convicted of murdering a woman during a home invasion. (See our Arguments Preview for more on case.) He appealed, arguing that he had ineffective counsel and was entitled, under federal law, to state investigative assistance in uncovering possible mitigating factors that could reduce his sentence. The Fifth Circuit found that he did not meet the burden of proof to show the assistance was “reasonably necessary.” The  Supreme Court unanimously reversed the Fifth Circuit. Justice Samuel Alito wrote in his opinion of for Court that “reasonably necessary” in the statute should be interpreted to provide the assistance in cases where the funding “[s]tands a credible chance of enabling a habeas petitioner to overcome the obstacle of procedural default…” The Justice explained that “the ‘reasonably necessary’ test requires an assessment of the likely utility of the services requested…. But a funding applicant must not be expected to prove that he will be able to win relief if given the services he seeks.” For more on this opinion, check out the Washington Post and SCOTUSblog.

In Marinello v. United States, the Court was asked to interpret the omnibus clause in 26 U.S.C. § 7212(a), which criminalizes anyone who “obstructs” or “impedes” the “due administration” of the title. Marinello argued that the statute required he have knowledge of the pending IRS action against him in order for a conviction. The Court sided with Marinello in the interpretation of the statues because it ‘risked depriving individuals of fair warning and risked ‘all kinds of unrelated unfairness.’” In his opinion, Justice Breyer wrote that ‘the government must show (among other things) that there is a ‘nexus’ between the defendant’s conduct and a particular administrative proceeding, such as an investigation, an audit, or other targeted administrative action,” which “must be “pending at the time the defendant engaged in the obstructive conduct or, at the least, was then reasonably foreseeable by the defendant.” Justice Clarence Thomas and Justice Samuel Alito dissented, arguing the Court’s interpretation was not what Congress intended. JDSUPRA explains that the decision avoids making “every lapse in bookkeeping or business judgment a potential tax crime,” and holds the government to its burden of proof. Check out Lexology, the National Law Journal, and The National Law Review for more on this opinion.


This post was drafted by  ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and  edited by ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

Opinion Analysis—Cyan v. Beaver County Employees Retirement Fund

On Tuesday, the Supreme Court decided Cyan, Inc. v. Beaver County Employees Retirement Fund, a case involving the Securities Litigation Uniform Standards Act of 1998 (SLUSA). Beaver County Employees Retirement Fund, along with other pension funds and individual investors, bought shares of Cyan, a telecommunications company, during its initial public offering. When the stock’s value declined, the investors brought a damages class action against Cyan in California court, alleging that Cyan’s offering contained misstatements and therefore violated the Securities Act of 1933. 

Cyan moved to dismiss the case for lack of subject matter jurisdiction, arguing that SLUSA’s “except clause” stripped state courts of jurisdiction over claims in “covered class actions” related to the 1933 Act. The state courts disagreed. They sided the investors, who argued that SLUSA left state courts their jurisdiction over all suits—including “covered class actions”—that allege only 1933 Act claims and denied the motion to dismiss. The Supreme Court took the case to decide whether SLUSA stripped state courts of their jurisdiction of such claims and also to determine whether SLUSA enabled defendants to remove 1933 Act class action suits from state to federal court.

Justice Kagan delivered the opinion for a unanimous Court. The Court held that SLUSA gives state courts and federal courts concurrent jurisdiction of suits alleging only 1933 Act claims, and are not removable to federal court. The Court also found Cyan’s purposivist argument unpersuasive because the Reform Act included sections that protected defendants in suits from plaintiffs’ forum shopping by barring state law class actions and thereby guaranteeing that the Reform Act’s standards would apply in all securities class lawsuits.   

Check out Lexology and JDSUPRA for more analysis of this opinion.


This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and was edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.


Arguments: Week of March 19, 2018

This week, the Supreme Court will hear oral arguments in three cases, the most high-profile of which involves both free speech and reproductive rights. National Institute of Family and Life Advocates (NIFLA) v. Becerra, to be argued on Tuesday, is a challenge to Caifornnia’s Reproductive FACT (Freedom, Accountability, Comprehensive Care, and Transparency) Act, which passed in 2015. NIFLA is a nonprofit organization that operates pro-life pregnancy centers (also known as crisis pregnancy centers or CPCs) and medical clinics. The FACT Act was passed to “ensure that California residents make their personal reproductive health care decisions knowing their rights and the health care services available to them.” The law provides that medically “licensed covered facilities” must post a written notice containing both information about California’s public programs that provide immediate free or low-cost access to contraception, prenatal care, and abortion for eligible women and a telephone number to the county social services office. In addition, CPCs that are not licensed medical facilities must post a notice stating that the “facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services.” NIFLA brought suit on behalf of both licensed and unlicensed covered facilities on the grounds that these disclosures were government-compelled speech and therefore violated their rights under the Free Speech Clause of the First Amendment. (NIFLA also raised free exercise of religion claims, but those are no longer at issue.)  NIFLA moved for a preliminary injunction to keep the law from going into effect in January 2016. The district court denied the motion, and this case stems from the appeal of that decision.

The legal arguments in the case revolve largely around the “level of scrutiny” that should be used in evaluating whether the FACT Act violates the First Amendment. “Strict scrutiny,” which NIFLA is arguing for, imposes the highest burden on the government to show that the law is narrowly tailored to serve a compelling government interest. The Ninth Circuit Court of Appeals, however, affirming the district court, applied “intermediate scrutiny,” which allows more deference to government regulation and often used for commercial speech regulation. The court considered the speech at issue to be “professional speech,” entitled to some but not the highest level of constitutional protection, and it upheld both regulations at issue, although it also held that the requirement imposed on unlicensed facilities would even survive strict scrutiny. (For more on the levels of scrutiny, see here or here.)

Although NIFLA argues briefly that the FACT Act would fail either level of scrutiny, its brief focuses almost exclusively on why strict scrutiny should apply. First, it argues that California is compelling it to speak on a matter central to the CPC’s issue advocacy and points out that the Supreme Court has never recognized “professional speech” as a category of speech entitled to less than the highest protection. Second, because the Act mandates content-based speech regulations, the Court should evaluate the law using strict scrutiny standard of review. Third, NIFLA says that the Act is viewpoint discriminatory in both purpose and actual effect and that the Court has held that regulations that target a particular disfavored viewpoint should be subject to strict scrutiny.

The State of California argues that the disclosures required by the FACT Act are regulations of professional speech entitled to intermediate scrutiny, although they  would pass strict scrutiny level of review if so subjected. First, the Unlicensed Facility Disclosure helps women to secure appropriate services for themselves. A woman who is “unwittingly diverted” to a facility that is ostensibly a clinic for pregnant women but is actually unable to provide services may be subject to significantly increased medical risks and the inability to access some medical services as a result. Further, the State not only has significant interest but has the power to require disclosures that will eliminate potential confusion about the legal or professional status of an entity that provides services to the public. The Licensed Facility Disclosure provides neutral information in a manner consistent with the State’s regulatory abilities in the professional context. Indeed, the Licensed Facility Disclosure provides two sentences of factual information and does not advocate that a woman seek a certain type of care or imply anything about the most appropriate form of care. Finally, because the disclosures required by the FACT Act are tone-neutral and narrowly constructed, they cannot be considered to discriminate on the basis of viewpoint.

Of note, the United States requested, and was granted, leave to participate in oral argument as amicus curiae. In its amicus brief supporting neither party, the United States argues that the First Amendment scrutiny that applies to laws compelling speech depends on the context. Laws that require professionals to make disclosures related to their own services are generally subject to heightened (or intermediate), not strict, scrutiny. However, the United States argues that neither party’s arguments for different standards of scrutiny are persuasive. Next, the United States argued that the Licensed Notice does violate the First Amendment because it is not appropriately tailored and therefore fails the heightened scrutiny requirement. The Unlicensed Notice, however, does survive First Amendment review because it merely requires service providers to disclose an accurate, uncontroversial fact about its own services.

Visit NPR, the LA Times, the Cato Institute, and the National Women’s Law Center discuss to learn more about the FACT Act and this case.

On Monday, the Court will hear oral arguments in an Eighth Circuit case involving the Contracts Clause of the Constitution. In Sveen v. Melin, a couple married in 1997. The husband, Sveen, purchased a life insurance policy the same year and made his wife, Melin, the primary beneficiary. The two divorced in 2007, and Sveen died in 2011—not changing the beneficiary on the policy before he passed.

In 2002, the Minnesota state legislature implemented a change to its probate code, which included a revocation-upon-divorce statue to life insurance beneficiaries. Sveen’s children argued in the federal district court that, by law, Melin no longer could claim rights as the beneficiary of their father’s life insurance policy. Melin argued that the change in law violated the Constitution, which bars states from interfering with contracts. She further argued Minnesota’s desire to regulate these types of contracts was far too intrusive, and the retroactive nature of the law is what violates the Constitution. The court ruled in favor Sveen’s children. The Eighth Circuit reversed and remanded the lower court’s decision on that rationale that since Sveen signed the policy over to his then-wife, enacting the revocation-upon-divorce statute conflicts with his right to enter into a contract of his choosing.

Although contracts cases like this rarely see much national attention, the National Women’s Law Center (NWLC) submitted an amicus brief arguing that states should not automatically take ex-spouses off of life insurance and other joint accounts like IRA’s. The brief focuses in on how some women have fewer resources toward retirement and struggle through economic challenges, which is exacerbated by divorce.

Finally, on Wednesday, the Court will hear arguments in Upper Skagit Indian Tribe v. Lundgren. In 2013, Upper Skagit Indian Tribe bought property in Washington. Roughly two years later, the Lundgrens, a married couple who owned property adjacent to the Tribe’s land, filed a quiet title action alleging ownership of a strip of the Tribe’s land. They asserted that they had acquired this part of the Tribe’s land through adverse possession before the Tribe had bought the land. The trial court granted summary judgment in favor of the Lundgrens; the Tribe appealed to the Washington Supreme Court, which affirmed the trial court’s holding. The issue in Upper Skagit Indian Tribe v. Lundgren is whether, when Congress has not expressly repealed a tribe’s sovereign immunity and the tribe has not waived their immunity, a court’s exercise of in rem jurisdiction overcomes the tribe’s assertion of sovereign immunity.

Issues of sovereign immunity and Indian Tribes have a long history. The Tribe itself in this case relies on Michigan v. Bay Mills Indian Community in support of their position, a Supreme Court case in which tribal sovereign immunity was upheld when the state of Michigan sued Bay Mills for violating state gaming laws when operating their casino. For more information about the Bay Mills case, check out this Harvard Law Review article; to read the Tribe’s  actual brief, click here.

In a brief filed in support of the Tribe, another group of Tribes the Cayga Nation, Seneca Nation of Indians, Saint Regis Mohawk Tribe, Cherokee Nation, and Pueblo of Pjoaque further relied on Idaho v. Coeur v’Alene, in which the Court held that a, Indian Tribe could not bring a suit against state officials in light of the sovereign immunity provided by the Eleventh Amendment, which prevents federal courts from hearing lawsuits against states. To read their brief, click here.

Arguing in support of the Lundgrens, on the other hand, the Public Service Company of New Mexico filed a brief focusing on the consequences of ruling for the Tribe. The utility argued that if sovereign immunity applied here, then public utilities would not be able to file actions to obtain rights-of-way to cross land owned by Indian Tribes. To read the brief, click here.

This post was written by ISCOTUS Fellows Eva Dickey, Michael Halpin, and Zoe Arthurson-McColl, all Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018 and ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro.


On This Day in Supreme Court History—March 17, 1954

On this day in 1954, William Brennan gave a speech that cost him a unanimous vote in the Senate when he was later nominated to the U.S. Supreme Court.

Brennan, then a judge on the New Jersey Supreme Court, spoke at the St. Patrick’s Day dinner of the Charitable Irish Society of Boston. He chose as his topic the anti-communist fervor that was then rampant in American society and politics. “We cannot and must not doubt our strength to conserve, without sacrifice of any, all of the guarantees of justice and fair play and simple human dignity which have made our land what it is,” he stated. He described “some practices of the contemporary scene” as “reminiscent of the Salem witch hunts,” and expressed the hope that they are “but passing aberrations even now undergoing systematic deflation.”

During a congressional recess in 1956, President Eisenhower announced he was going to appoint Brennan to the Supreme Court. Senator Joseph McCarthy, the man most associated with the anticommunist excesses that Brennan criticized, issued a statement declaring Brennan unfit for the Court. Although he was not on the Judiciary Committee, the Senator asked to sit with the committee for Brennan’s hearing.

Because it was a recess appointment, Brennan was appointed and began his tenure in 1956, before his nomination hearing. At his confirmation hearing, which took place on February 26, 1957, Senator McCarthy brought up Brennan’s St. Patricks Day speech. He asked the Brennan whether he approved of congressional investigations and exposure “of the Communist conspiracy set up.” Brennan replied that such investigations were a “vital function” of the Congress. Senator McCarthy then pressed him on whether he believed Communism was merely a party or a conspiracy against the U.S. government. Brennan declined to answer, stating that he should refrain because he was already serving on the Court and the Justices had pending cases involving Communists.

When the Senate confirmed Brennan by voice vote on March 19, 1957, there was a single dissenting vote: Senator Joseph McCarthy.


This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

Digital Forensics and the Shrinking Importance of United States v. Microsoft Corp.

By Michael Gentithes, Visiting Assistant Professor, Chicago-Kent College of Law.

Supreme Court cases can lose relevance when technological changes render obsolete the questions addressed. Rare, though, is the case that loses its relevance before the opinion is even drafted. That fate may await currently pending case of United States v. Microsoft Corp.

The case, in which the Court heard oral arguments in late February, concerns a government warrant for emails in an account investigators believed was involved in drug trafficking. Microsoft argued that, although it would provide investigators with account information that was stored in the United States, it was not obligated to provide the contents of the emails, which were stored in a massive data center in Dublin, Ireland.

Microsoft’s response hints at a larger tension between the warrant requirement and modern digital forensics investigations. Microsoft divided its storage of account information about a given email address and all of the emails in that account’s inbox, storing the former in United States servers while storing the latter in Ireland. But many other global internet companies distribute a single user’s data even more widely, and in even smaller pieces. Some divide data into “shards,” so that different components of the same data are scattered amongst multiple physical locations. Email provides a ready example. Companies may store the emails that appear in a user’s inbox, or even different components of a single email (such as the text in the body and an attached video), in different physical locations that cross several national borders. In part, companies “shard” their servers to enhance performance; this reduces bottlenecks when multiple users and applications seek to retrieve information from the same data center’s servers at the same time.

The legal implications of storage practice such as sharding will quickly render cases like Microsoft anachronistic. Data that forensic investigators seek in a warrant may be in shards stored at various servers across the globe. For courts that must determine the legal regime that applies, the data is everywhere and nowhere at once. Courts are ill-equipped to decide with any precision or reliability whether a sizeable-enough component of the requested data resides within one specific nation so that its legal regime ought to control.

Whatever the Justices decide, their decision in Microsoft seems destined for the trash heap of Supreme Court history. The very idea of a unitary physical location for email accounts, or even individual emails, may soon be a thing of the past, turning Microsoft into the judicial equivalent of the eight track or Walkman.

This is an issue that calls for legislative solutions. Congress is now considering the bipartisan “CLOUD Act,” which would allow United States investigators to obtain warrants for data in an internet company’s possession, custody, or control—regardless of the physical location where the company stored that data. United States companies would have to comply with United States warrants, no matter where and how that company stores its data. Such an approach, which focuses on the territorial location of the service provider rather than the territorial location of its (likely fragmented) data, is far superior to any solution the Court may craft in Microsoft.

Supreme Court News Roundup—March 14, 2018

Rumors have been swirling (again) of Justice Kennedy’s possible retirement. He has been on the Court since 1988, which makes him the longest serving Justice on the Court. And, at 81 years-old, he is the second oldest member of the Court; only Justice Ruth Bader Ginsburg (who turns 85 tomorrow) is older. Earlier this month, Senator Dean Heller (R-NV) publicly predicted that Justice Kennedy’s retirement might come at the end of the summer. Skeptics of this claim quickly spoke out. Philip Wegmann of the Washington Examiner noted that Justice Kennedy has already hired clerks for next term. In Salon, Matthew Rozsa wrote that Senator Heller’s prediction was probably a ploy to mobilize Republicans in the upcoming midterm elections.

Kennedy, who was appointed by Ronald Reagan, may follow tradition and retire during a presidential administration of the same party that appointed him to the bench. Although this tradition has not always held, politics will surely play a role in Kennedy’s decision of when to retire, as Adam Liptak explains in the New York Times. Matt Ford of the New Republic offers the obvious but important conclusion: “The only person who really knows if Anthony Kennedy will retire from the Supreme Court this summer is Anthony Kennedy.”

In other, related news, Fox News reported that President Trump has been preparing for a potential vacancy on the Court by updating  his list of potential Court nominees, drawing on “input from respected conservative leaders.”

In other, unrelated news, Slate’s Mark Stern, discussed the recent lawsuit filed by the National Rifle Association (NRA), in response to the Marjory Stoneman Douglas High School Public Safety Act—a Florida law that raised the minimum age to purchase a gun in Florida from 18 to 21. The NRA argues that the law violates the Second Amendment. Stern predicted that “the NRA will almost certainly lose its Florida lawsuit within the next few months.”


This post was written by ISCOTUS Fellows Elisabeth Heiber and Matthew Webber, Chicago-Kent Class of 2019. It was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

Supreme Court News Roundup—March 8, 2018

Here’s a roundup of some of the most interesting recent stories about the Supreme Court.

In the New York Times, Adam Liptak discusses the constitutional implications of aging death row populations. “The Court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people,” he writes. On February 26, 2018, the Court granted cert in Madison v. Alabama, a case about whether Alabama would violate the Eighth Amendment if it executes Vernon Madison,  67-year-old man who has dementia, has suffered a series of strokes, and is unable to remember the crime for which he was sentenced.

On his blog Excess of Democracy, Pepperdine Law professor Derek Muller considers which justices receive the most attention from academics, based on a Westlaw search of law reviews and scholarly journals. And the winner is….. Justice Scalia.

In an article for Slate, Dahlia Lithwick reports on Justice Sotomayor’s appearance at a meeting of college student affairs professionals worldwide. Justice Sotomayor’s “unobjectionable” message called for “empathy, listening, compromise,” Lithwick writes. “It has been all too easy to find those who have been incandescent with fury that she even sits on the court, much less got into Princeton and Yale Law schools, but—as she reminded this crowd—in times when people are so afraid, the only way through is to listen.”

Nina Totenberg of NPR discusses the Court’s role in the national gun control debate. While the Court in District of Columbia v. Heller (2008) recognized that individuals have a right under the Second Amendment to have a handgun in the home for purposes of self-protection, Totenberg notes that the Court has also recognized that the right to bear arms is far from absolute. Since Heller, the Court has been conspicuously reluctant to take Second Amendment cases that would further illuminate the contours of this constitutional right. Totenberg suggests three possible explanations for this reluctance: that the Court believes that Heller created clearly established guidelines; that neither side of the gun control debate believes it has enough votes to prevail should the Court consider further constitutional challenges to gun laws; or that “some justices, especially in light of current circumstances, have evolving views on this subject.”


This post was written by ISCOTUS Fellow Elisabeth Heiber, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.

Opinion Analyses for opinions released February 21, 2018

On February 21, 2018, the Supreme Court issued opinions in three cases: Digital Realty Trust v. Somers, Class v. United States, and Rubin v. Islamic Republic of Iran.

Digital Realty Trust v. Somers

In Digital Realty Trust, Inc. v. Somers, Paul Somers sued his former employer, Digital Realty Trust. Among his allegations was that he was terminated in retaliation for his internal disclosure of the corporation’s violations of the Sarbanes-Oxley Act of 2002, an action he claims violated the anti-retaliation provision of the Dodd-Frank Wall Street Reform and Protection Act of 2010.

To improve accountability and transparency in financial markets, Dodd-Frank, which was passed in response to the subprime mortgage bubble and subsequent market collapse of 2008, incentivized whistleblowing by increasing damages awards for successful plaintiffs and giving increased protections for whistleblowers against retaliation by employers.

The question before the Court is the scope of the anti-retaliation protections in Dodd-Frank. Specifically, the Court must determine whether the protections apply to internal disclosures (in this case, Somers only disclosed to senior management at his company) or only to disclosures made to the Securities and Exchange Commission. The SEC issued a rule applying the anti-retaliation protection broadly, so that it would include people like Somers whose disclosures never left the company. The federal district court  for the Northern District of California deferred to the SEC’s determination, and the Ninth Circuit upheld its decision on appeal.

The Second Circuit had come to the same conclusion as the Ninth on the application of Dodd-Frank, but the Fifth Circuit had come out the other way. Now, the Supreme Court was to consider the issue.

The Supreme Court unanimously held that Dodd-Frank’s anti-retaliation protections do not extend to employees who fall outside of the Act’s definition of “whistleblower.” Hence, those who only make their disclosures internally, such as Paul Somers, are not covered.  

In her opinion of the Court, Justice Ginsburg  argued that the courts must follow a statute’s explicit definition, even if the statutory definition is different from the term’s ordinary meaning. The statute  explicitly defines “whistleblower,” and this, she concluded, resolves the issue. The purpose of Dodd-Frank was to motivate people to report securities law violations to the SEC. Because Somers did not report his employer’s suspected behavior to the SEC, he could not be considered a whistleblower at the time of his termination and is therefore not eligible to seek relief under Dodd-Frank.

Justice Thomas wrote a concurrence, joined by Justices Alito and Gorsuch, in which he took issue with Ginsburg’s  reliance on a Senate Report to discern the purpose of Dodd-Frank.

Justice Sotomayor also wrote a concurrence, joined by Justice Breyer, in which she criticized Justice Thomas’s refusal to consider a Senate Report for purposes of statutory interpretation. Using reliable legislative history, she wrote,  “shows respect for and promotes comity with a coequal branch of Government.”

Class v. United States

The issue the Court faced in Class v. United States is whether a federal criminal defendant who enters a guilty plea is barred from challenging on direct appeal the constitutionality of the statute under which he was convicted.

In 2013, Rodney Class, was indicted for violating a federal statute banning individuals from having firearms on the grounds of the United States Capitol. Class asked the Federal District Court for the District of Columbia to dismiss the charges against him, arguing that the statute violated his Second Amendment and due process rights (he claimed he did not have fair notice that his firearms were banned from the parking lot in which they were discovered). The district court rejected his claims, and Class entered a guilty plea after accepting a plea deal. He then appealed his conviction to the Court of Appeals for the D.C. Circuit, making the same constitutional arguments that he did to the district court. The appellate court held that Class could not raise his constitutional claims because when he pled guilty, Class waived his right to appeal the constitutionality of the statute under which he was convicted.

In a 6-3 decision, the Supreme Court held that Class was not precluded from challenging the constitutionality of the statute of conviction on direct appeal. Justice Breyer wrote the majority opinion, explaining that the decision “flows directly from the Court’s prior decisions.”

Among the precedents he cited were Blackledge v. Perry, in which the Court determined that while a guilty plea may bar the appeal of “antecedent constitutional violations” preceding the plea, it does not bar a criminal defendant from challenging “the power of the State” to prosecute the defendant in the first place.

Breyer also cited Menna v. New York, in which the Court determined that by entering a guilty plea, a criminal defendant does not waive his right to appeal a charge that the “[s]tate may not constitutionally prosecute.”

Justice Alito wrote the dissent, and was joined by Justices Kennedy and Thomas. The dissent, which at eighteen pages long was nearly double the length of the brief majority opinion, laments the “muddle” the majority created. “The Court identifies no fewer than five rules for ascertaining the issues that can be raised,” Alito wrote. “How these rules fit together is anybody’s guess. And to make matters worse, the Court also fails to make clear whether its holding is based on the Constitution or some other ground.”

Rubin v. Islamic Republic of Iran

The third decision  the Supreme Court announced on on February 21 was  Rubin v. Islamic Republic of Iran. This case involved  the Foreign Sovereign Immunities Act, which grants foreign states and their agencies and instrumentalities immunity from suit in the United States.

This case stemmed from three suicide bombings that Hamas carried out 1997 in a pedestrian mall in Jerusalem. The attack killed five people and injured nearly 200 others. Jenny Rubin and other petitioners are United States citizens who were wounded in the attack or whose close relatives were injured in it. They sued Iran in the District Court for the District of Columbia, accusing that country of training and materially supporting Hamas and thereby partially causing the bombing.

At the time, a federal statute was in effect that rescinded the immunity of foreign states that were designated state sponsors of terrorism with respect to claims arising out of terrorist acts. The District Court entered a default judgment in favor of the petitioners of $71.5 million. Iran did not pay that judgment, and the petitioners filed this lawsuit in the District Court for the Northern District of Illinois to attach and execute against Iranian assets in the United States—specifically a collection of about 30,000 clay tablets engraved with ancient writings. These tablets are known as the Persepolis Collection and are at the University of Chicago’s Oriental Institute. Archaeologists from the university found the artifacts while excavating Persepolis in the 1930’s, and Iran lent the collection to the institute for research, cataloging and translation. The District Court rejected the petitioners’ claim and held that the collection is entitled to the immunity typically granted to foreign states’ property. The Court of Appeals for the Seventh Circuit then affirmed that judgment.

This case presented the question of whether §1610(g) provides an independent exception to immunity which would allow a judgment holder under §1605 A of the statute to attach and execute against any property of the foreign state, regardless of whether other provisions in §1610 deprive the property of immunity.

Before the Supreme Court, Rubin made several textual arguments: that “as provided in this section” refers to a specific provision in §1610; that Congress may have intended “this section” to refer only to the instruction in §1610(f)(2) that the U.S. government help in identifying assets; and that “this section” could be a drafting error intending to refer to §1083 of the law in which §1610(g) was enacted, the NDAA.

Justice Sotomayor delivered the opinion of the Court, joined by all of her colleagues except Justice Kagan, who recused herself because she had been involved in the case as U.S. Solicitor General. The Court affirmed the Seventh Circuit’s decision, holding that the best reading of the relevant statute meant that this collection, like most foreign states’ property in the United States,  was immune from attachment and execution.


This post was written by ISCOTUS Fellows Eva Dickey, Chicago-Kent Class of 2020, Elisabeth Heiber, Chicago-Kent Class of 2019, and Bridget Flynn, Chicago-Kent Class of 2019. It was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director and Chicago-Kent faculty member Christopher Schmidt.


Prisoners Rights and Attorneys Fees: Opinion Analysis of Murphy v. Smith

In an opinion published Wednesday, February 21, 2018, the Supreme Court decided a case about prisoners’ civil rights, Murphy v. Smith. This case stemmed from a 2011 incident at Vandalia Correctional Center in Illinois in which Petitioner Charles Murphy was punched in the right eye by a prison guard, placed into a chokehold during which he lost consciousness, and – once he awoke – pushed into a prison cell with his arms handcuffed behind his back. Murphy fell face-first and hit his head on a metal toilet. Murphy was later hospitalized, at which time it was discovered that his eye socket had been crushed, requiring eye surgery. As a result of these injuries, Murphy’s vision is impaired.

Murphy brought a 42 U.S.C. §1983 claim against the prison guards for violating his constitutional rights. (For a brief and easy-to-read overview of 42 U.S.C. §1983 claims, click here.)

At trial, the jury found Officer Robert Smith liable for unconstitutional use of force and a state law battery and Lieutenant Gregory Fulk liable under the Eighth Amendment for deliberate indifference to a serious medical need. Murphy was awarded a combined total of approximately $307,000 in damages. In addition, the District Court awarded around $108,000 in attorney’s fees under 42 U.S.C. §1988.

Pursuant to the Prison Litigation Reform Act,  42 U.S.C. § 1997e, when a prisoner plaintiff is awarded attorney’s fee recovery for a successful §1983 claim, “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fee awarded against the defendant.” 42 U.S.C. §1997e(d)(2). The trial court interpreted this language to mean that it could use its discretion to set any percentage of the award amount to go toward the payment of attorney’s fees, provided that the percentage did not surpass 25 percent. This interpretation was in line with decisions of most circuit courts that have considered the question. Accordingly, the trial court ordered plaintiff to pay 10 percent of the damage award toward attorney’s fees, with defendants to pay the remainder. On appeal, however, the Seventh Circuit relied on its own earlier precedent holding that the trial court did not have discretion to set a percentage other than 25 percent.

Before the Supreme Court, Murphy argued that the statute sets a ceiling on the amount of the award that can be applied toward attorney’s fees but does not set a floor. Therefore, the district court has discretion to determine the “portion” within those limits. He further argued that the interpretation used by the Seventh Circuit is more likely to deter abusive behavior by prison guard and induce attorneys to take prisoner suits. The prison guards argued that §1997e(d)(2) is a nondiscretionary statute and that the purpose of the statute was to deter prisoners from filing frivolous or marginal lawsuits rather than to deter wrongful conduct as Murphy argued.

Justice Gorsuch delivered the concise opinion of the Court, joined by the Chief Justice, and Justices Alito, Kennedy, and Thomas, holding in favor of the guards. The Court interpreted the term “to satisfy” to mean “to discharge the obligation in full,” and it compared the fee language in §1997e with the fee-shifting language in 42 U.S.C. § 1988, finding that the unambiguously discretionary terms in §1988 were not replicated in §1997e.

Justice Sotomayor wrote the dissent, in which Justices Ginsburg, Breyer, and Kagan joined. The dissent makes three points. The first is that “to satisfy” is understood in common usage as “applied toward the satisfaction of.” With this understanding, applying any part of Murphy’s damages award toward his attorney’s fee award would comply with §1997e. Next, Justice Sotomayor looked to legislative history. She argued that Congress considered but ultimately rejected language that would have created a mandate for the court to apply 25 percent of the damages award, thus showing that the intent was to provide the courts with discretion. Finally, Justice Sotomayor discussed the terms “portion” and “not to exceed,” arguing that these two terms specifically confer discretion onto the courts, creating an upper but not a lower limit to the amount of the damages award that should be applied to the attorney’s fee award, and therefore cabining but not eliminating the exercise of discretion.

The PLRA, which was enacted in 1996, was passed in response to a belief that frivolous prisoner litigation was unduly burdening the courts and the states that had to defend the lawsuits. It has been heavily criticized, however, for making it difficult or impossible for prisoners to bring even meritorious lawsuits.

This post was written by ISCOTUS Fellow Eva Dickey, Chicago-Kent College of Law Class of 2020, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent College of Law Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro. (Disclosure: Professor Shapiro participated in a moot court to help prepare the respondents’ lawyer for oral argument.)


Conference Report: Conference of February 16, 2018

On Tuesday morning, the Court released orders from its February 16 Conference. No new petitions for writs of certiorari were granted, and perhaps the most significant news was a failure to rule at all. Specifically, the Court did not rule on the federal government’s petition for review concerning the Trump administration’s termination of the policy known as Deferred Action for Childhood Arrivals (“DACA”), an Obama-era program that protected undocumented immigrants who came to the United States as children, known as Dreamers, from deportation.  On January 9, federal Judge William Alsup temporarily blocked the Trump Administration’s plan to end DACA that was announced in September 2017. In an unusual move, the Department of Justice petitioned the Court to consider Judge Alsup’s order, even before the Court of Appeals for the Ninth Circuit could consider it. Instead, of ruling on the petition last week, the Court put the petition on the agenda for the next conference, February 23, for which orders are expected on Monday, February 26. As this article in U.S News explains, however, it is difficult to make predictions about the Court’s ultimate action in this closely-watched case.

Also notable was the Court’s decision to deny cert in Silvester v. Becerra, a challenge to California’s 10-day waiting period for gun purchases. Justice Clarence Thomas was the only justice to dissent, arguing that the Court was undermining the holding in McDonald v. Chicago, a case in which the Court incorporated the Second Amendment against the states like other rights guaranteed by the Bill of Rights. “Nearly eight years ago, this Court declared that the Second Amendment is not a ‘second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees’” he writes. “By refusing to review decisions like the one below, we undermine that declaration.” Justice Gorsuch joined Justice Thomas’ dissent in a similar denial for certiorari in the 2017 case, Peruta v. California, but did not join him on this occasion.

With the Order List, the Court did issue one per curiam decision in CNH Industrial N.V. v. Reese. The Court reversed and remanded the lower court’s decision, noting it incorrectly interpreted M&G Polymers USA, LLC v. Tackett, a case that held that collective-bargaining agreements should be interpreted according to ordinary principles of contract law. In both M&G Polymers and CNH Industrial, the Court rejected interpreting collective bargaining agreements with special inferences in favor of reading those agreements in favor of lifetime vesting of health care benefits for retirees.

This post was written by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.