Conference Report: April 13, 2018 Conference

On Monday, the Supreme Court asked the United States Solicitor General to weigh in on four petitions for certiorari when it released the Order List from its April 13 Conference. And it denied the petition filed by former Illinois Governor Rod Blagojevich, who was convicted of seeking campaign contributions in exchange for official acts. Blagojevich was sentenced to fourteen years in prison and still has six left to serve, unless he receives a presidential pardon or commutation. Background both about the case in general and about the cert petition is provided in this Chicago Tribute article. Media Matters notes here that Blagojevich’s wife, Patti, appeared on Fox News on Monday appealing to President Trump for a pardon.

The cases in which the Court requested the views of the SG include Kansas v. Garcia, which addresses two issues relating to the interaction of Immigration Reform and Control Act (IRCA) and state criminal law. First, does the IRCA preempt states from using any information gathered on the federal I-9 form — the forms employers must collect from their employees to demonstrate eligibility to work in this country — including name, date of birth, social security number, etc., when that same information also appears on non-IRCA documents such as tax forms, leases and credit applications. (IRCA provides that information provided on the I-9 can be used for only very limited purposes.) And second, if IRCA prevents states from using said information for any purpose, whether the Constitution permits Congress to so broadly preempt states from using their traditional police power to prosecute state law crimes.

In Gilead Sciences, Inc. v. U.S., ex rel. Campie, et al., the Court is asked to address an issue with the False Claims Act. The False Claims Act permits private individuals, known as relators, as well as the government itself, to sue entities that are overbilling, underdelivering, or otherwise defrauding the federal government about the use of federal dollars. The question in Gilead Sciences is whether an allegation under the Act fails when the government continued to approve and pay for products after learning of alleged regulatory infractions and the pleadings offer no basis for overcoming a strong inference of immateriality arising from those continued payments.

Finally, the Court asked the Solicitor General to weigh-in on two original jurisdiction cases. In Missouri, v. California, several egg-producing states are attempting to challenge California’s regulations that allow the sale of eggs in California only if the chickens that produce them are maintained under certain conditions, including, for example, being cage-free. And Indiana v. Massachusetts presents similar complaints about Massachusetts laws addressing the treatment of farm animals.

Anna Jirschele, ISCOTUS Editorial Coordinator and Chicago-Kent Class of 2018, and Carolyn Shapiro, ISCOTUS Co-Director and Chicago-Kent faculty member, contributed to this post.

Argument Review: March 27, 2018 — When the Supreme Court Can’t Agree

On Tuesday, March 27, the Court heard oral arguments in Hughes v. United States. The underlying legal issue in Hughes involves certain criminal defendants’ eligibility for sentence reductions. That fairly technical legal issue was previously considered by the Court in Freeman v. United States, which had no majority opinion. Instead, there was a four-justice plurality and a concurrence by Justice Sotomayor, which offered a different rationale from the plurality. Due to the lack of a clear majority and the nature of the reasoning of the different opinions, the lower courts have struggled with how to apply Freeman in subsequent cases. Thus, Hughes also presented important questions about reliance on Supreme Court decisions that lack a majority.

More specifically, Hughes included questions presented about a 1977 case called Marks v. United States, long understood to provide the basic rule for plurality decisions — that the most narrowly-reasoned opinion necessary for the judgment is controlling. In Regents of University of California v. Bakke, for example, four justices would have held that any race-consciousness in university admissions violated federal law. Justice Powell, however, believed that the particular admissions decision at issue was illegal but also believed that race could be taken into account under some circumstances. And pursuant to the Marks rule, Justice Powell’s opinion was long understood to be the controlling opinion in Bakke, as the Supreme Court itself acknowledged. The problem in Hughes emerged because Freeman involved a concurrence whose reasoning had no common rationale with the plurality.

This Marks problem occupied a significant part of the oral argument. When Chief Justice Roberts and Justice Alito asked petitioner’s attorney, Eric Shumsky, how best to apply Marks in this case, Shumsky argued that the Court should “refine” Marks by applying a “subset test,” looking for a common denominator in the Justices’ opinions. But Justice Alito challenged him on what would constitute a “logical subset” in his test, comparing the Justices to nine people who want to see a movie, four of whom want to see a romantic comedy, of which two want to see a romantic comedy in French, and four of whom want to see a mystery. Justice Alito pressed Shumsky on whether the two who want to see a romantic comedy in French are a “logical subset” of those who want to see a romantic comedy. After Shumsky indicated that they probably would be so, Justice Alito said that is problematic because the other two who want to see a romantic comedy might not want to see anything in a foreign language and might even prefer a mystery to seeing something not in English. Shumsky acknowledged the test may be imperfect.

Rachel Kovner argued on behalf of the United States. She argued against the approach adopted by two circuit courts which treat divided decisions of the Court as having no precedential value unless the separate opinions have the same reasoning. Kovner argued that that approach contradicts what the Court said in Marks, is inconsistent with how the Court has applied Marks, and undermines the principle of stare decisis. Justice Ginsburg noted that for many years it was thought that a single opinion can be controlling when the decision is 4-4-1, as in Bakke. Kovner said the reason for allowing such an opinion to be controlling is that it was thought that the majority’s reasoning supports that opinion’s application. Justice Kagan challenged her by noting that in some cases the “middle ground” positions seem “utterly incoherent” to other Justices. And Justice Breyer resisted the call to systemetize Marks, explaining that “law is part art and part science,” and that hard-and-fast rules about how to read opinions will always be inadequate.

The question of how to understand and apply Marks has garnered much commentary. UCLA law professor Richard Re filed an amicus brief in support of neither party arguing for abandoning Marks altogether, and his brief was repeatedly discussed at oral argument. A shorter version of his argument is available here. Other commentary, noting the implications of the Marks question for environmental law, is here, and Justin Marceau for SCOTUSblog covered the argument and the justices’ apparent reluctance to dramatically change Marks here.

ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2020, ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro contributed to this post.

Argument Review: March 26, 2018 — Access to Courts

During the last week of March, the Supreme Court heard oral argument in five cases. Two of those cases involved questions about access to courts, albeit in extremely different contexts. In United States v. Sanchez-Gomez, argued on March 26, involves a challenge to a policy of shackling the arms and feet of criminal defendants during pretrial appearances in federal court, with no individualized assessment of the need for shackles. The argument did not focus on that question, however. Instead, as SCOTUSblog’s Howard M. Wasserman observed, the Court primarily addressed whether there could be immediate appellate review of this confinement policy, whether under the collateral-order doctrine (which allows appeals from interlocutory rulings) or by a writ of mandamus (an order from a court to an inferior government official ordering that official fulfill their proper duties). The government argued that the issue in the case was moot, as the criminal proceedings were over and there was no allegation that the shackling affected their results. Justice Roberts, however, observed that two of the defendants party to the case were both apprehended again and shackled in the same manner., and Justice Kagan pointed out that immigration cases where lawful reentry is at issue have “extremely high levels of recidivism.” Thus, the likelihood that criminal defendants again finds themselves shackled, per the policy, was potentially high. And during the oral argument, Justice Breyer appeared particularly sympathetic to the need for some kind of appellate review, expressing concern that “people will come in bound and gagged in body armor, hung upside down,” and not have a judicial remedy. The National Law Review recounts the oral arguments in more detail.

On the same day, the Court also heard oral argument in China Agritech, Inc. v. Resh. The issue here is whether plaintiffs were barred from filing a class action complaint after the 2-year statute of limitations had run on their securities fraud claims. Normally, under American Pipe & Constr. Co. v. Utah, equitable tolling applies to the claims of individual plaintiffs after a class action has been filed, meaning that the statute of limitations stops running, or is tolled, during that time. If class certification is denied, the statute of limitations begins to run again, but a plaintiff may still bring a claim against the defendant even until it runs out. In China Agritech, the issue is whether the equitable tolling doctrine of American Pipe applies to successive class actions as well as individual claims, as the Ninth Circuit held.

During oral arguments, China Agritech, Inc. argued that the equitable tolling doctrine enunciated in American Pipe is only available to individual plaintiffs upon a showing of diligence and extraordinary circumstances. Although each named plaintiff in this particular case has shown diligence by filing their claims, the absent class members have slept on their rights until after the statute of limitations has run and therefore have not shown the necessary level of diligence.  Plaintiffs argued, on the other hand, that as long as the plaintiff brings a meritorious and timely claim as an individual matter, all Federal Rules of Civil Procedure should be available, including Rule 23, authorizing class actions. In addition, allowing a single class action rather than several individual actions promotes judicial efficiency by incentivizing people not to bring duplicative claims. In addition, the class action allows for plaintiffs with low-dollar claims to aggregate such claims and have their day in court – which is one of the stated purposes of Rule 23. Lexology discusses this week’s arguments in China Agritech, here.

In addition to China Agritech and Sanchez-Gomez, on Tuesday, March 27, the Court also heard arguments in Koons v. United States, a case concerning whether defendants subject to statutory mandatory minimum sentences, but who received sentences below the minimum because they substantially assisted the government, are eligible for additional sentence reductions.

The other two cases argued that week were Benisek v. Lamone, a partisan gerrymandering case, Hughes v. United States which addresses the legal authority of fractured decisions of the Supreme Court. ISCOTUSnow will discuss those cases in upcoming posts.

ISCOTUS Fellows Michael Halpin, Eva Dickey, and Elisabeth Heiber contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Dancing Away From Brown

Why in the world did Wendy Vitter refuse to declare her allegiance to that constitutional holy of holies, Brown v. Board of Education?

U.S. Supreme Court Justices of the 1953 session
U.S. Supreme Court Justices of the 1953 session

Harris and Ewing/Library of Congress, Prints and Photographs Division

During Vitter’s confirmation hearings this week, Senator Richard Blumenthal asked the federal district court nominee whether she believed Brown was rightly decided. “Senator, I don’t mean to be coy,” she responded,

but I think I get into a, uh, difficult area when I start commenting on Supreme Court decisions which are correctly decided and which I may disagree with. Again, my personal, political, or religious views I would set aside. That is Supreme Court precedent. It is binding. If I were honored to be confirmed I would be bound by it and of course I would uphold it.

Blumenthal repeated his question. Again Vitter performed her duck and weave. “I would respectfully not comment on what could be my boss’s ruling, the Supreme Court. I would be bound by it and if I start commenting on I agree with this case or don’t agree with this case, I think we get into a slippery slope.”

A video clip of Vitter’s awkward exchange on Brown soon bounced around social media. Predictably, the nominee earned mostly scathing reviews for her performance.

This isn’t the first time we’ve seen this puzzling dance around what most people consider the most uncontestable of Supreme Court precedents. At his confirmation hearing a little over a year ago, when posed this very same question by this very same questioner, Neil Gorsuch also avoided a direct answer. Senator Blumenthal asked Gosuch whether he agreed with the result in Brown. Gorsuch responded, “Brown v. Board of Education corrected an erroneous decision—a badly erroneous decision—and vindicated a dissent by the first Justice Harlan in Plessy v. Ferguson where he correctly identified that separate to advantage one race can never be equal.” Blumenthal reiterated his question: did Gorsuch agree with the result in Brown? “Senator, it is a correct application of the law of precedent,” Gorsuch responded. The senator noted that when John Roberts faced this same question in his confirmation hearing, he said simply “I do.” “Would you agree with Judge Roberts?” Blumenthal pressed. Gorsuch still resisted the obvious one-word three-letter response. He instead offered a tentative, roundabout, but seemingly affirmative answer response: “Senator, there’s no—there’s—there’s no daylight, here.”

Since Vitter’s artless performance was basically a replay of the strategy Gorsuch deployed more skillfully at his confirmation hearing, we can assume that the Brown bob-and-weave is the current strategy for Republican-nominated judicial nominees.

What’s going on here? Why don’t these nominees take the less controversial and less awkward path and just straight up say: “Brown was correctly decided. Of course I agree with Brown. Next question?”

Commentators have offered three different explanations. One I don’t believe is plausible; the other two make more sense. But none seem strong enough to justify the tactic.

The explanation I find implausible is that the reason these nominees have so much trouble simply expressing their support for Brown is that they are opposed to or ambivalent toward racial desegregation. This is the line Democrats and liberal groups have pressed to mobilize opposition to Vitter’s nomination.

The reason this strikes me as an implausible explanation is that even if, for the sake of argument, we assume a nominee truly held such beliefs, and if that nominee wanted to convey this point, the nominee could simply say so. This would never happen, of course, because expressing such an openly racist position would be automatically disqualifying. This being the case, why, as a strategic matter, would a nominee who hypothetically held such retrograde attitudes want to shine a light on this fact by botching the Brown question? If skeptical senators were truly worried that the nominee was an avowed segregationist, they could just ask the nominee straight up: do you support racial segregation? She would, of course, deny the charge (as Vitter did later in her testimony, when given the opportunity by a supportive Republican senator). It’s hard to think of why it would make any strategic sense for a racist nominee—who would of necessity have to lie when faced with the “are you a segregationist?” question—to not just lie when faced with the “do you accept Brown?” question. In this sense, Brown doesn’t work as a dog whistle; it’s just a regular whistle, loud and clear.

A more plausible explanation is that difficulty with directly embracing Brown stems from concerns some conservative jurists have with the reasoning the Court used to arrive at its landmark ruling. Originalists, in particular, are often put on the defensive when asked to explain how their preferred approach to constitutional interpretation squares with Brown. In Brown, Chief Justice Earl Warren quite explicitly rejected the history of the framing and ratification of the Fourteenth Amendment as a basis for his ruling, relying instead on twentieth-century understandings about the role of public schools in American society and the harms of racial segregation. Justice Scalia got so exasperated with this line of challenge to his jurisprudence that he called it “waving the bloody shirt of Brown.” Maybe these nominees’ unwillingness to just say Brown was correctly decided indicates lingering doubts with the way in which the Brown Court arrived at its holding.

While this explanation identifies a perceived vulnerability for some conservative jurists, it too is insufficient to fully explain the chosen tactic. After all, Justice Gorsuch, in his exchange with Senator Blumenthal, eventually came around to basically saying that Brown was justified on originalist grounds. This is a position Justice Scalia also came to embrace, and various originalist scholars have gone to great lengths to try to support this point. So even if these nominees wanted to take issue with how Warren went about arriving at his decision, they could simply say that Brown was correct, but that they would have taken a different path to reach the holding.

This then brings us to the explanation the nominees themselves offer for the Brown duck and weave: they want to avoid saying anything of substance on any Court ruling, and they are unwilling to make an exception for Brown.

Here was what Gorsuch said at his confirmation hearing: “If I were to start telling you which are my favorite precedents or which are my least favorite precedents or if I view a precedent in that fashion, I would be tipping my hand and suggesting to litigants that I’ve already made up my mind about their cases. That’s not a fair judge.” Gorsuch went on to explain that he wanted to avoid “giving hints or previews or intimations about how I might rule.” This was also the explanation that Vitter was struggling toward in her response to Blumenthal. And it is the explanation that Vitter’s defenders have offered.

But I still have difficulty seeing why a nominee who has a general policy of avoiding discussion of precedents would not make exceptions for certain well-settled cases.

Let’s apply Gorsuch’s explanation to Brown. The reasoning here would seem to be that if a nominee unequivocally accepted Brown as correctly decided, then a potential litigant who walks into the Supreme Court hoping to get the justices to overturn Brown would somehow be disadvantaged because one or more of the justices had already expressed the opinion that the decision was correct. And this would not be fair.

Can this be right? Of course a lawyer who walks into the Court expecting the justices to overturn the most revered decision of constitutional law is going to know that she is walking into a judicial buzz saw. Who are we fooling here? Put another way, do we really want a judicial system in which no precedent can be regarded as solid? Do we really want a lawyer who dreams of interring Brown alongside Plessy and Lochner in the dustbin of constitutional history to feel she has a fair shot, that she’s going to be speaking to a bench that is completely open-minded on this question?

This question is at the heart of an important forthcoming article in the Chicago-Kent Law Review by Lori Ringhand and Paul Collins. Here’s what they conclude:

[C]onfirmation hearings function as a high-profile public forum in which we as a nation affirm our shared constitutional commitments. If future nominees follow Gorsuch in refusing to provide firm opinions on even our most iconic cases, we lose an important tool in ensuring that the individuals selected to serve on the Supreme Court accept the constitutional settlements reached by each generation of Americans.

Ringhand and Collins raise a key issue here, one that often gets lost beneath the posturing and politics that characterize judicial confirmation hearings: What can we expect to achieve from these hearings? It may be too much to ask for a rigorous debate over constitutional principles. It may be too much to ask for deep insights into a nominee’s thinking on the most pressing of constitutional controversies. But is it too much to ask that we use confirmation hearings as opportunities to recognize that in our moment of ideological fracturing, there remains—or at least should remain— a constitutional common ground on which we all stand?

This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Arguments: Week of April 16, 2018 – Part II

The Supreme Court will hear oral argument in six cases this coming week, two each on Monday, Tuesday, and Wednesday. On Tuesday, it will hear argument in a bankruptcy case, and on Wednesday it hears about Indian tribal fishing rights and criminal sentencing. We reported on Monday’s cases and the other Tuesday argument in an earlier post.

Tuesday’s bankruptcy case is Lamar, Archer & Cofrin, LLP v. Appling, a case regarding the interpretation of “statement respecting the debtor’s…financial condition” under section 523(a)(2)(B) of the United States Bankruptcy Code. The Code prohibits the discharge of “any debt…for money, property, [or] services… to the extent obtained by false pretenses, a false representation, or actual fraud, other than a statement respecting the debtor’s financial condition.” Appling hired Lamar, Archer & Cofrin to represent him in a lawsuit against the former owners of his business, and promised to pay them with his expected large tax refund. His refund turned out to be much smaller than he said it would be, and he put the money into his business instead of paying Lamar. When Appling filed for bankruptcy, the bankruptcy court ruled that Appling’s debt to Lamar was not dischargeable because Lamar had relied on Appling’s false statements about his tax refund. The Eleventh Circuit reversed. The Supreme Court will have to resolve a circuit split as to whether an oral statement about a single asset (like the tax refund) qualifies as a statement “respecting the debtor’s financial condition.” If so, then debts obtained in reliance of such a false statement would be dischargeable in a bankruptcy proceeding, and creditors would be unable to collect them. Christopher R. Thompson, writing for Lexology explains the possible ramifications of the Court’s decision. Hughes, Hubbard & Reed’s article and Bloomberg have more commentary.

On Wednesday, the Court will hear arguments in Washington v. United States, which addresses the scope of fishing rights guaranteed by treaties between Indian tribes in the Pacific Northwest and the federal government. The “Stevens Treaties” are series of agreements made in 1854 and 1855 between the federal government and Indian tribes in what are now the states of Idaho, Montana, Oregon, and Washington. The Indian tribes relinquished most of their territory but retained in perpetuity “the right of taking fish, at all usual and accustomed grounds and stations. . . in common with all citizens of the Territory.” In 1970, the United States, as a trustee for Pacific Northwest Tribes, and the Tribes themselves, sued the state of Washington in the U.S. District Court for the Western District of Washington for declaratory and injunctive relief based on the so-called “fishing clause.” As a result of that initial litigation, the Supreme Court, in Washington v. Fishing Vessel Association (“Fishing Vessel”), held that the treaties guaranteed the Tribes not just an “equal opportunity” to fish, but “so much as, but no more than, is necessary to provide the Indians with a livelihood.” (Justice Kennedy sat on this case when he was a judge on the Ninth Circuit. As a result, he is recused from the current litigation and only eight justices will consider it.)

In 2001, the Tribes, joined by the United States, filed a Request for Determination in 2001, seeking “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat.” The Tribes argue that the State of Washington violated the treaties by constructing culverts that prevent salmon from accessing tribal fishing grounds, degrading fisheries and interfering with the Tribes’ “right of taking fish.” The district court found for the Tribes, entering an injunction ordering the state to correct culverts, and the Ninth Circuit affirmed, reiterating that the treaties guaranteed that “the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.”

The petitioner, the state of Washington, argues that the treaties guarantee the right to access to traditional fishing places and a “fair share of available fish”, citing Fishing Vessel, but that the treaties do not guarantee the Tribes a standard of living from fishing. Additionally, Washington also asserts that the district court erred in dismissing the equitable defense against the federal government: Washington alleges that the culverts were designed and constructed in accordance with federal regulation. Finally, the state argues that the injunctive relief ordered by the district court violates principles of federalism and comity, because the respondents failed to demonstrate that the culvert replacement would impact tribal fisheries or harvests. Scott Bomboy of the American Constitution Center discusses the case and its history in his article, Supreme Court to tackle salmon case without Justice Kennedy, and University of Montana law professor Monte Mills discusses its history and implications here.

Finally, on Wednesday the Court will hear arguments in Lagos v. United States, which presents the question of whether, under the Mandatory Victims Restitution Act (MVRA), a criminal defendant can be ordered to pay costs to the victim that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and which no official government action prompted. More specifically, the case involves the MVRA’s requirement that courts must order the defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. 3663A(b)(4). The Fifth Circuit, along with other courts of appeals, held that this provision covers the costs of internal investigations and private expenses that were “neither required nor requested” by the government, but the D.C. Circuit has disagreed. Lexology discusses the case and the frequency with which the MVRA is a “hotly contested” issue during sentencing proceedings.

ISCOTUS Fellows Bridget Flynn, Elisabeth Hieber, and Matthew Webber, all Chicago-Kent Class of 2019, contributed to this post, which was 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.

Arguments: Week of April 16, 2018 – Part I

The Court will sit for oral argument again this coming week. South Dakota v. Wayfair, to be argued on Tuesday, is perhaps the most far-reaching of the cases to be heard, although at first glance it may look esoteric — covering such issues as state sales taxes, the dormant commerce clause and stare decisis, the doctrine that once an issue has been decided, it is not revisited absent compelling reasons. But Wayfair has significant implications both for cash-strapped states and for the internet economy. In this case, South Dakota asks the Court to overrule, or at least significantly limit, its 1992 ruling in Quill Corp. v. North Dakota. Quill held that a state could not force out-of-state mail-order catalog retailers to collect sales taxes on items sold to purchasers within that state. Quill thus established a physical presence rule, prohibiting states from levying sales taxes against companies that sell goods in their state unless they have a physical presence in the state.

In the years since, 1992, of course, the internet economy has boomed, and indeed, Wayfair is an on-line retailer.. In Digital Marketing Association v. Brohl, Justice Kennedy, who was one of five justices in the majority in Quill referenced the problems many states face when they are unable to tax these companies for their sales of goods under the physical presence doctrine: “[s]tates’ education systems, health care services, and infrastructure is weakened as a result.”

The state of South Dakota argues that the changing nature of the internet prompts a reevaluation of the doctrine. In today’s ever-changing technology enables “out-of-state sellers to reach consumers with engaging, interactive virtual storefronts in our homes or on our smartphones at any hour of the day.” On the othger hand, Wayfair and other retailers argue that the decision is best left up to Congress to decide whether states have the power to expand their taxing authority beyond the confines of their borders.

Commentators also disagree. CNBC Commentator Jessica Melugin, for example, says that ruling for South Dakota would allow state legislators to obtain revenue from out-of-state businesses that lack political and economic power in their particular states. Elie Mystal of Above the Law, on the other hand, argues that the physical presence doctrine is outdated in the internet age.

Two other cases to be argued next week, both on Monday, involve issues of statutory interpretation. In Wisconsin Central Ltd. v. United States,  the issue is whether, under the Railroad Retirement Tax Act, 26 U.S.C. § 3231(e)(1),  stock that a railroad company transfers to its employees is taxable compensation, which is defined as “any form of money remuneration paid to an individual for services rendered as an employee.” For more information see the Forbes article entitled, “When Should You Exercise Your Employee Stock Options?”

On one side of the argument, the IRS argues that this “windfall” should be taxable just as any other income would be, asserting that stock is equivalent to cash, and, moreover, that holding this position would avoid creating a tax incentive that could lead to distorted employee compensation packages. The other side of the argument is that the plain-language meaning of the term “money remuneration” is cash or some other recognized medium of exchange, but not something like stock that, while it has cash value and can be exchanged for cash, is not generally considered to be a medium of exchange. The National Law Review authored an article on this specific issue and Nasdaq discusses the railroad economy in general, here.

Also on Monday, the Court will hear WesternGeco LLC v. ION Geophysical Corp. which is a patent infringement case about the interpretation of 35 U.S.C. §284, which allows damages to be awarded in a case where the plaintiff has proven patent infringement. These damages shall be “adequate to compensate for the infringement, but in no event less than a reasonable royalty for the use made of the invention by the infringer, together with interest and costs as fixed by the court.” In this case, a jury awarded WesternGeco $12.5 million in royalties and $93.4 million for lost profits for profits the defendant obtained overseas. The Federal Circuit unanimously affirmed ION’s liability for infringement but reversed the lost profits award based on the presumption against extraterritoriality (for more on this presumption and how it is used by the Supreme Court, check out this Berkeley Journal of International Law article), holding that profits lost outside of the United States are unavailable as a matter of law. Check out the National Law Review for a discussion of Westerngeco and JD Supra for an analysis of the potential impact of the case.

The Court will also here argument in three other cases — one on Tuesday and two on Wednesday. See this post for previews of those cases.

ISCOTUS Fellows Zoe Arthurson-McColl, Eva Dickey, and Michael Halpin, all Chicago-Kent Class of 2020, contributed to this post, which was 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.

Conference Report: March 23 and 29 Conferences

The Supreme Court added only one new case to its docket for next year in its two most recent Conferences, held on March 23 and March 29. The Court granted certiorari in Stokeling v. United States, a case about the definition of “violent felony” under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. §924(e)(2)(B)(i). Because some state robbery offenses include the common law requirement of overcoming “victim resistance” as an element of the crime, the offense is often categorized as a violent felony mandating stricter sentencing. However, in this case, Florida state appellate courts have interpreted robbery offenses in the state to require only slight force. Petitioner argued that because only slight force is required, these robbery offenses should not automatically be considered violent felonies under the ACCA. The Eleventh and Tenth Circuits have held that a robbery conviction is categorically a “violent felony” within the ACCA’s elements clause. The Fourth Circuit, however, has concluded that some common law robbery offenses should not automatically be considered an ACCA “violent felony.” For more on the Armed Career Criminal Act, check out this link.

The Court also granted certiorari in Kisela v. Hughes and summarily reversed, without briefing, the Ninth Circuit in an excessive force case. Kisela, a police officer, shot and wounded Hughes, who was acting erratically and carrying a knife, and the officers perceived her as threatening another woman on the scene. Hughes sued Kisela, alleging that he had used excessive force in violation of her Fourth Amendment rights. The Ninth Circuit reversed the trial court’s grant of summary judgment to Kisela on qualified immunity grounds, holding that the Fourth Amendment violation was obvious and because there was analogous circuit precedent. The Supreme Court held that they did not need to reach the constitutional issue because Kisela was entitled to qualified immunity because he did not have fair notice under clearly established law that his conduct was unlawful. The Court took the time to scold the Ninth Circuit for defining clearly established law at a high level of generality, which the Court said it had “repeatedly told courts – and the Ninth Circuit in particular” not to do. The case was remanded to the Ninth Circuit for further proceedings.

Justice Sotomayor, joined by Justice Ginsburg, dissented, arguing that granting Kisela qualified immunity gave him a shield against liability for clearly excessive behavior. Justice Sotomayor pointed out that Kisela did not observe the Respondent commit a crime, nor was she suspected of committing one. Further, Justice Sotomayor pointed out that the summary reversal in this case is an “extraordinary remedy” and “symptomatic of ‘a disturbing trend regarding the use of this Court’s resources.’” She cautioned that this approach transforms qualified immunity into an absolute shield for law enforcement officers and guts the deterrent effect of the Fourth Amendment.

Justice Sotomayor also dissented from the denial of certiorari in Cozzie v. Florida and Guardado v. Jones, claiming that the Court has failed to address substantial Eighth Amendment challenges to capital defendants’ sentences for the second time. The issue is that the Petitioners in these cases were sentenced to death under a sentencing scheme that the Supreme Court has since been declared unconstitutional. In these cases, the Florida Supreme Court has declined to disturb the Petitioners’ capital sentences, finding that unanimous jury recommendations of the death penalty shows that the juries made the proper findings of fact under Hurst v. Florida. However, those juries were instructed that their role was merely advisory, and not the ultimate determination of death. This jury instruction was found to be impermissible in Caldwell v. Mississippi. Justice Sotomayor argues that the Supreme Court should intervene and force the Florida Supreme Court to address these issues. Courthouse News Services has more information about these fiery dissents, here.

Somewhat unexpectedly, the Court has not issued an order in Azar v. Garza, which was listed as being one of the five cases to watch at this Supreme Court Conference in an article written by Marcia Coyle. A pregnant teenager was caught illegally entering the United States and the federal government initially refused to let her leave the shelter she was being held in to obtain an abortion. The teenager, who is referred to as “Jane Doe,” was initially scheduled to have an appointment for counseling on October 25 and the abortion on October 26, but when her doctor became available, she was able to get the abortion on the morning of October 25, before the government could get the Supreme Court to prevent the procedure. The government is asking the Court to discipline Jane Doe’s attorneys for their conduct in this case. Rewire News publisjed two articles on this case, one supporting the government’s position and another supporting Jane Doe’s position.

To read the one of the Order Lists itself, click here; for a more reader-friendly discussion written by Amy Howe, click here. As always, check in regularly with ISCOTUSnow to stay up to date on the Supreme Court!

Written by ISCOTUS Fellows Zoe Arthurson-McColl and Eva Dickey, Chicago-Kent Class of 2020, 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.

Repeal the Second Amendment?

Retired Supreme Court Justice John Paul Stevens made headlines recently with his comments calling for the repeal of the Second Amendment. In his March 27th op-ed in the New York Times, the 97-year-old ex-justice dismissed the amendment a “relic of the 18th century.” He noted that for most of the amendment’s history, it was understood that federal and state governments had broad authority to regulate guns. That only changed in 2008, with the Supreme Court’s ruling in District of Columbia v. Heller. With Justice Antonin Scalia writing for the five-justice majority, the Court held that the reference to the “militia” in opening clause of the amendment was not meant to limit its  application to those serving in the militia. Rather, the Second Amendment protected the right of any individual to bear arms. The Court then held that this right include the right to have an operable handgun in the home for purposes of self-defense.

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Justice Stevens wrote a dissenting opinion in Heller. “[T]here is no indication that the Framers of the Amendment intended to enshrine the common-law right of self-defense in the Constitution,” he wrote. The Framers only intended to preserve the right of the military to “keep and bear arms.” Justice Stevens made clear in his op-ed that he still holds to what he wrote in 2008, and that since there is no indication that the Court is going to reconsider its holding in Heller, he believes the American people should pass another constitutional amendment to repeal the Second Amendment entirely.

The response of defenders of gun rights to Stevens’ controversial proposal was predictable. President Trump tweeted:

THE SECOND AMENDMENT WILL NEVER BE REPEALED! As much as Democrats would like to see this happen, and despite the words yesterday of former Supreme Court Justice Stevens, NO WAY. We need more Republicans in 2018 and must ALWAYS hold the Supreme Court!

White House Press Secretary Sarah Sanders responded that the White House fully supported the Second Amendment and was focused on  “remov[ing] weapons from dangerous individuals, not on blocking all Americans from their constitutional rights.” Robert A. Levy, chairman of the Cato Institute, in an op-ed for CNN, dismissed Steven’s opinion as “beyond irresponsible.” The repeal is never going to happen, Levy writes, and if it did, it “would rupture the social fabric in this country—leading to turmoil, lawlessness and violence.”

Although many liberal supporters of expanded gun regulations praised Stevens’ bold proposal, others were skeptical. Duke Law professor Neil Siegel noted that political efforts to pass “reasonable restrictions” on guns will not be helped “if advocates of gun control feed the false narrative of the National Rifle Association that any form of gun control, no matter how measured and eminently sensible, is the beginning of the end of gun rights and all freedom in the United States.” Laurence Tribe made much the same point. Repealing the Second Amendment, he wrote, “wouldn’t eliminate a single gun or enact a single gun regulation. It would instead make the passage of each proposed regulation more difficult.” Tribe’s assessment of the likely effects of a repeal echoed the dire warnings of the Cato Institute’s Levy: “Despite its stirring appeal to some, the goal of erasing part of the Bill of Rights for the first time in 227 years is profoundly alarming to many and contributes to the divisions that have rendered our politics dysfunctional.”  

 

This post was drafted by  ISCOTUS Fellow Matthew Webber, 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.

 

Argument Review: Contract Clause and Tribal Sovereign Immunity

For the first time in a quarter century, the Contract Clause was the central issue in oral arguments at the Supreme Court. In Sveen v. Melin, the issue is whether a Minnesota law nullifying an ex-spouse’s beneficiary status in a life insurance policy violates the Contract Clause, which prohibits states from passing laws “impairing the Obligations of Contract.” In this case, Mark Sveen and Kaye Melin divorced in 2007, but before their divorce, Sveen purchased a life insurance policy and named Melin as the beneficiary. Sveen died in 2011, and Melin would have been the sole beneficiary of the policy but for the Minnesota law.

SCOTUSblog’s Amy Howe reports it is not clear from the arguments how the Justices are leaning. Justice Ruth Bader Ginsburg referenced a policy alternative requiring judges presiding over divorces to ask couples to state if they want their life insurance beneficiaries to remain the same. Justice Alito pushed the notion that Melin’s position—not Sveen’s—would likely have a broader impact on contract law in the state of Minnesota. He noticed that policyholders like Sveen knew when they purchased a policy that beneficiary status revoked upon divorce. Justice Breyer reinforced the possible implications of a policy change by asking would happen to all of the clients and their attorneys who believed, during divorce proceedings, that beneficiary status would terminate for the spouse upon divorce. “’A lot of people,’ he observed, ‘probably were divorced between 2002’ – when the law went into effect – and 2018.”

If the court were to rule in Melin’s favor, James W. Ely Jr. and Nick Sibilla, writing for the Wall Street Journal argue, “[w]ith a reinvigorated Contract Clause, laws that impose rent control, alter franchise agreements, abolish teacher tenure, or modify public employees’ benefits could all be scrutinized for infringing existing contracts.” Read The Wall Street Journal and JDSUPRA for more analysis of this case.

Finally on Wednesday, March 21, the Court heard oral 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 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 before the Court is whether, when Congress has not expressly repealed a tribe’s sovereign immunity and the tribe has not waived its immunity, a court’s exercise of in rem jurisdiction overcomes the tribe’s assertion of sovereign immunity.

The arguments in the case delved into the scope of sovereign immunity where in rem jurisdiction is at stake and how that overlaps with disputes over “immovable property.”  Justice Breyer pointed out that property disputes are fairly common and questioned how those involving a tribe could ever be resolved if there was no way for the tribe to be sued. Similarly, the Lundgrens argued that ruling for the Tribe could have negative consequences, such as undermining a state’s ability to acquire land that they need for public use. The United States, however, as amicus curiae in support of the Upper Skagit tribe, argued that the Court should not start recognizing judicial exceptions to sovereign immunity because Congress has the ability to weigh policy interests on both sides and create exceptions to rules like sovereign immunity themselves. Check out SCOTUSblog and Courthouse News for further reading on this case.

This post was drafted by ISCOTUS Fellows Michael Halpin and Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro.

Argument Review: NIFLA v. Becerra

Free speech and reproductive rights were at issue when the Court heard oral arguments in the highly anticipated case National Institute of Family and Life Advocates (NIFLA) v. Becerra on Tuesday, March 20. As described here, his case concerns whether the First Amendment allows the State of California, via the Reproductive FACT Act, to require pro-life Crisis Pregnancy Centers (CPCs) to make certain disclosures to clients. CPCs that are licensed facilities – providing medical services such as ultrasounds and pregnancy tests – are required to post a notice that contains information about California’s public programs for free or low-cost contraception, prenatal care, and abortion and a phone number to the county social services office. Unlicensed facilities, which do not provide medical services, are required to post a notice that the clinic is not licensed as a medical facility by the State of California, and that the clinic has no licensed medical provider to provide or directly supervise the provision of services.

NIFLA;s argued that California “took aim” at pro-life pregnancy centers when it enacted this law by compelling speech from disfavored speakers with disfavored viewpoints. When pressed by Justice Ginsburg about whether or not these disclosures are in the same vein as the required disclosures to women obtaining abortions upheld in Planned Parenthood of Southeastern Pennsylvania v. Casey, NIFLA’s attorney, Michael Farris, argued that the disclosures required by Casey were part of an informed consent regime. Because informed consent can only occur prior to a medical intervention (and neither an ultrasound nor a pregnancy test should be considered a medical intervention) California’s disclosures are not similar to those of Casey. NIFLA further argued that the statute’s exemptions – for private doctors and clinics that are part of California’s family PACT program – mean that as a practical matter only pro-life non-profits actually have to provide the notices, which makes the statute unconstitutional. Farris suggested, however, that even if the statute imposed the same disclosure requirements on all centers that provided information and/or services to pregnant women, it would still be unconstitutional as applied to “pro-life doctors.”

The United States, participating in oral argument as amicus curiae and represented by Jeffrey Wall, argued that the State of California can rightly require disclosure of factual, truthful information about goods or services.. However, California cannot require a business to make disclosures about the services that they do not provide without a showing by the state that it has a justified interest in doing so. As a disclosure gets further away from an affirmative statement of services provided, it triggers heightened scrutiny under the First Amendment. Justice Alito questioned Wall regarding the United States’ argument in its amicus brief that the Court should recognize a new category of speech, called professional speech, restrictions of which would be subject to a lesser standard of scrutiny than much other speech. Wall argued that commercial speech – which is already subject to that lesser standard – and professional speech often overlap.

Joshua A. Klein argued for California that the FACT Act was enacted to ensure that women who were in need of free or low-cost pregnancy services are made aware of all of the alternatives available to them. Justice Kagan quickly pressed Klein on whether or not the Act was “gerrymandered” against pro-life clinics. Klein argued that the Act was designed to ensure that low-income women have full information about their pregnancy-related medical options, and it was not designed to target one particular type of facility. As the argument went on, Klein fielded questions from a number of justices about this claim. Finally, in response to a question from Justice Ginsburg, Klein argued that bringing charges against individual clinics for false and misleading advertising would not be a superior approach as it would be more speech-intrusive and burdensome than a simple two-sentence disclosure.

Check out The Wall Street Journal,  SCOTUSblog, and The New York Times for more commentary on this case.  Dahlia Lithwick’s podcast, Amicus, also featured a discussion of the case. For a transcript of this oral argument, click here.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director and Chicago-Kent Faculty Member Carolyn Shapiro.