This Day in Supreme Court History—July 7, 1986

On this day in 1986, the U.S. Supreme Court rejected a student’s claim that school officials violated his First Amendment rights when they disciplined him for giving a speech filled with sexual innuendo before a school assembly.

The student, Matthew Fraser, decided to enliven his speech in support of a candidate for the student government of Bethel High School (located in Spanaway, Washington) by describing him as “firm in his pants,” “a man who takes his point and pounds it in,” and someone who will “take an issue and nail it to the wall.”

School officials suspended Fraser for three days and told him they were removing his name from a list of candidates for speaker at graduation. They based their punishment on a student handbook rule that prohibited conduct that substantially interferes with education, including “obscene” language. Fraser’s appeal to the school board was unsuccessful, but he had better fortunes in federal court. A federal district court held that the discipline infringed his First Amendment rights and enjoined the school to allow him, if elected, to speak at graduation. The Ninth Circuit Court of Appeals affirmed.

Not amused by Fraser’s creativity was Chief Justice Warren Burger, who was presiding over his final decision day at the Supreme Court (he would retire before the next term began). In his majority opinion in Bethel School District No. 403. v. Fraser, he denied Fraser’s First Amendment claim and overturned the appeals court’s ruling. The speech at issue was “lewd and obscene,” revolving around “an elaborate, graphic, and explicit sexual metaphor,” Burger wrote. Although the Court, in its decision in Tinker v. Des Moines Independent Community School District, had recognized that students retain First Amendment protections when they cross the schoolhouse gate, Burger distinguished Tinker. That case involved a “students’ right to engage in a nondisruptive, passive expression of a political viewpoint.” (Tinker involved a student wearing a black armband in protest of the Vietnam War.) This case, by contrast, involved the “use of vulgar and offensive terms in public discourse,” and the “determination of what manner of speech in the classroom or in school assembly is inappropriate properly rests with the school board.” The First Amendment, Burger wrote, “does not prevent the school officials from determining that to permit a vulgar and lewd speech such as respondent’s would undermine the school’s basic educational mission.”

Justices Thurgood Marshall and John Paul Stevens dissented. In his brief dissent, Marshall noted that the school had not sufficiently demonstrated that the speech was disruptive to the school’s educational mission. Stevens argued that the school policy did not obviously prohibit Fraser’s speech and the school had not given him sufficient notice that his words would carry such harsh consequences. “A strong presumption in favor of free expression should apply whenever an issue of this kind is arguable,” Stevens concluded.

Week of June 26, 2017 at the Court – End of Term

The biggest news this week was the Supreme Court’s  decision to hear the travel ban cases while partially staying the lower court injunctions. The Court had before it two petitions for certiorari filed by the government — one from the Fourth Circuit and one from the Ninth Circuit, which had both upheld lower courts’ injunctions of the President’s Executive Order. (The Ninth Circuit had vacated the part of the injunction that precluded the government from undertaking a review of how certain decisions about admitting non-citizens to the United States are made.) The Court also had to rule on the government’s requests to stay the lower court injunctions in their entirety. The Court ruled on all of these pending matters on Monday, even issuing a short per curiam opinion explaining its order. First, the Court granted certiorari in both cases and directed that oral argument be scheduled for October. Second, the Court granted the government’s request to stay the lower court injunctions in part. Specifically, it directed that the injunctions remain in effect for anyone who has a “bona fide relationship with a person or entity in the United States,” but it stayed the injunctions with respect to other foreign nationals. Explaining this ruling, the Court said that a “close familial relationship” would be required for individuals to be admitted, and it indicated that the relationship with an “entity” could be satisfied by, for example, a job offer or admission to study at a university. It also said that a nonprofit could not create the necessary relationship simply by accepting a foreign national as a client in order to evade the Executive Order. This holding, of course, leaves many grey areas. Of particular note, the opinion was not explicit as to how the holding should apply to refugees who are working with resettlement agencies in this country but who may not otherwise have relationships with a requisite person or agency.

There are many important features of the Court’s ruling. Here are a few:

  1. The Court was not unanimous. Justice Thomas, joined by Justices Alito and Gorsuch, would have stayed the injunctions altogether, allowing the Executive Order to take full effect. They indicated their belief that the government should ultimately prevail on the merits.
  2. The Court emphasized that the government should be able to complete the review the Executive Order called for before the case is heard in October. And the 90 days of the travel ban will also expire before then, and the suspension of the refugee program soon after.. (The timing of this is a bit complicated. See Leah Litman’s excellent post for more details about this and other administrability issues related to the Court’s action.) As a result, it is quite likely that the case will be moot before the the Supreme Court can decide it. Marty Lederman of the Georgetown University Law Center argues this point forcefully here.
  3. The Supreme Court’s application of the standards for granting a stay was … unorthodox. As Daniel Hemel of the University of Chicago Law School explains, the Court has the luxury of skirting doctrinal niceties. Here, he argues the Court opted for “the spirit of compromise” and preserving “institutional legitimacy over doctrinal consistency.” He goes on: “Most Americans will see an evenhanded decision that commands the support of Democratic and Republican appointees alike.” Others — including Justices Thomas, Alito, and Gorsuch — do not agree.
  4. The opinion is a bit of a Rorshach test, with different people seeing different things in it. President Trump and Attorney General Jeff Sessions declared it a victory. Others on the right praised what they saw as an appropriate reaction to attempts to limit executive power. On the other hand, as detailed in The Los Angeles Times, some saw an “implicit rebuke” to Trump’s claim of “unfettered powers.” And Nihad Awad, executive director of the Council on American-Islamic Relations expressed his concern that the Court’s action “ignores the anti-Muslim bigotry that is at the heart of the travel ban executive orders and will inevitably embolden Islamphobes in the administration.”

Also on Monday, the Supreme Court took the bench for the last time this Term and handed down decisions in three cases in which it had heard oral argument. The most closely watched of these cases was Trinity Lutheran Church v. Comer. In this case, the State of Missouri denied Trinity Lutheran public funds to resurface its preschool’s playground because of a state constitutional provision prohibiting public funds from being given to religious organizations. The Court ruled that excluding religious affiliated organizations from funds available to other charitable organizations is a violation of the First Amendment, and more specifically the free exercise of religion. Chief Justice Roberts wrote in the majority opinion, “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, cannot stand.” He was joined by Justices Kennedy, Thomas, Kagan, and — except for a single footnote — by Justices Alito and Gorsuch. Alito and Gorsuch objected to the footnote because they found it too limiting and would have gone much farther in permitting state funds to be given to religious institutions. Justice Breyer wrote separately to concur in the judgment and to emphasize, in his view, the narrowness of the question presented, comparing the health and safety program at issue here with police and fire protection that are uncontroversially provided to religious institutions. Justices Sotomayor, joined by Justice Ginsburg forcefully dissented. In the dissent, which she read from the bench, Sotomayor said that the decision “weakens this country’s longstanding commitment to a separation of church and state beneficial to both,” and “[t]he Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan, not a constitutional commitment.” Check out The St. Louis Post-Dispatch,  Forbes, and  Fox News for more information on this decision, and the SCOTUSblog symposium, which includes discussion of the implications of this case for future church-state controversies.

In the first of two 5-4 decisions on Monday, California Public Employees Retirement System v. ANZ Securities, Inc., the Court decided that a suit filed by a would-be plaintiff who opts out of a class action is untimely if it is filed after the statute of repose. The National Law Review explains that this case stems from 2008 when the Lehman Brothers filed for bankruptcy. CalPERS filed a lawsuit against the firm more than three years after the purchase of securities at issue. The district court and the court of appeals held that CalPERS’ Section 11 claims were time-barred and yesterday, Justice Kennedy wrote the opinion, joined by the four conservatives, and affirmed. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Kagan. Pensions & Investments notes that while CalPERS is disappointed with the result, the decision “reiterates the importance of remaining vigilant on behalf of our members in the future securities class-action cases.”

The Court also handed down Davila v. Davis, another 5-4 decision split on ideological lines. In writing for the majority, Justice Thomas explained that ineffective assistance of postconviction counsel does not qualify as cause to excuse a procedural default. In other words, if a criminal defendant fails to raise a claim on appeal because his appellate counsel is ineffective, he cannot raise that claim directly in federal court on habeas review. Late last week, The Atlantic recounted the Court’s decisions from this term relating to the death penalty noting, “…death-penalty opponents achieve[d] some notable victories even as the Court moved further away from abolishing capital punishment.” The article was written before the release of yesterday’s opinion, but Davila kept with the theme that abolishment of the death penalty seems to be out of sight. In light of the significant number of death penalty decisions this Term, SCOTUSblog is hosting a symposium on the Court’s capital punishment cases.

Monday’s Order List contained some news as well. First, the Court announced that it would hear Masterpiece Cakeshop, Inc. v. Colorado Civil Rights Commission, which addresses whether and to what extent antidiscrimination laws must accommodate religious beliefs. Specifically, the case involves a baker who was held liable for refusing to make a wedding cake for a same-sex couple. Masterpiece Cakeshop had been relisted for Conference repeatedly, leading many to believe that it would be denied, with a dissent from the denial of certiorari filed. At the same time, in Pavan v. Smith, the Court summarily reversed the Arkansas Supreme Court and held that the state must list a same-sex spouse as parent on a birth certificate if it does so for opposite-sex spouses. Justice Gorsuch, joined by Justices Thomas and Alito, dissented. The Court also denied certiorari in Peruta v. California, a Second Amendment case about the right to carry a weapon outside the home. Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari.

Three cases in which the Court heard argument this Term were left unresolved. In Hernandez v. Mesa – about a cross-border shooting of a Mexican teenager by an American border guard, the Court remanded for reconsideration in light of its decision in Ziglar v. Abbasi, which arguably narrows the availability of lawsuits against federal officials. And it set two case for reargument next Term, presumably because it was split 4-4 and needs Justice Gorsuch to be the tiebreaker. Those cases are Jennings v. Rodriguez, an important case about detained immigrants’ right to release on bond while awaiting deportation hearings, and Sessions v. Dimaya, addressing what qualifies as an aggravated felony for purposes of mandatory deportation. Other than Masterpiece Cakeshop, the Court granted cert in a number of additional cases. Those case include Rubin v. Islamic Republic of Iran, in which plaintiffs seek to seize artifacts owned by Iran but on loan to the University of Chicago for decades in order to satisfy a judgment related to a terrorist act, and Christie v. National Collegiate Athletic Association (and a companion case), about federal regulation of state restrictions on sports betting.

There will be much analysis of the past Term and the impact of the new justice in the coming week. But here is one to start with: In its article Neil Gorsuch is Paying Off for Trump So Far, FiveThirtyEight.com notes that in two of the three decisions handed down yesterday, “Gorsuch’s vote was pivotal, leaving the final tally at five votes to four.” The article goes on to asses Gorsuch first 10-weeks on the Court and where he falls on the ideological spectrum thus far. And ISCOTUS Co-Director Carolyn Shapiro appeared on WTTW’s Chicago Tonight on Monday night to discuss the Court’s recent rulings.

 

Weekly Roundup – June 23, 2017

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

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

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

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

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

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

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

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

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

This Day in Supreme Court History—June 23, 2003

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This Day in Supreme Court History—June 15, 1989

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

 

This Day in Supreme Court History—June 13, 1966

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

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

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

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

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

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

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

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

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

This Week at the Court – June 5, 2017

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

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

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

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

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

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

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

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

Weekly Roundup – June 2, 2017

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

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

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

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