Week in Review – March 31, 2017

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In the first of two opinions issued this week, the Supreme Court overturned a death penalty ruling on Tuesday. In Moore v. Texas, Bobby James Moore was sentenced to death for murdering a store clerk during a robbery, but he claimed that he could not be executed because he is intellectually disabled. (The Court has previously held, in Atkins v. Virginia, that the Eighth Amendment prohibits executing the intellectually disabled.) At issue in this case was whether Texas needed to update its standards for determining intellectual disability from the 1992 factors it relied on. In an opinion by Justice Ginsburg, joined by Justices Breyer, Kagan, Kennedy, and Sotomayor, the Court held that although states have “flexibility” in determining how to identify intellectual disability and did not have to constantly update its approach to reflect current expert understandings, Texas could not rely on such “an outdated understanding of mental disability.” Chief Justice John Roberts dissented, joined by Justices Alito and Thomas. The dissent argued that the majority of the Court “crafts a constitutional holding based solely on what it deems to be medical consensus about intellectual disability. But clinicians, not judges, should determine clinical standards; and judges, not clinicians, should determine the content of the Eighth Amendment.” David Savage of The LA Times and Robert Barnes of the The Washington Post analyze the opinions and provide some additional factual background.

On Wednesday, the Court unanimously vacated a lower court decision in Expressions Hair Design v. Schneiderman. USA Today reports the Court held that laws restricting merchants from advertising credit card surcharges (or cash discounts) implicate the First Amendment right of free speech, and it remanded for the New York state courts to determine if those rights were in fact violated. Although the holding was unanimous, only five Justices joined the opinion for the Court. Justice Breyer concurred in the judgment, as did Justice Sotomayor, joined by Justice Alito in a very unusual pairing.

On Monday, the Court heard arguments in TC Heartland v. Kraft Foods Group Brands. Adam Liptak of The New York Times explains that case boils down to an issue of “forum shopping” by plaintiffs in order to gain the upper hand in patent lawsuits. For example, over 40% of patent lawsuits are filed in a federal court in Texas, where “patent trolls” (those that buy up patents in order to sue for royalties and infringement) frequently file suit due to the plaintiff-friendly outcomes. Liptak describes the argument, during which Justice Kagan suggesed that the lower courts, and in particular the Federal Circuit, have not been following Supreme Court precedent, but that she seemed “surprisingly sanguine about this state of affairs.”

Also on Monday, the Court heard arguments in multiple cases regarding the ability of religious-affiliated organizations, such as hospitals, to claim exemption in guaranteeing employee pensions under the Employee Retirement Income Security Act (ERISA). As the Economist notes, Churches are exempted from ERISA to prevent possible issues of separation of church and state. The ACLU filed an amicus brief arguing that it would be “impermissible religious favoritism,” to “allow hospitals and other religious affiliated organizations that are not houses of worship to arrogate to themselves the legal status of a church.” (ISCOTUSnow’s weekly preview provides more information on the other arguments the Court heard this week.)

Earlier this week ISCOTUS co-director Christopher Schmidt provided his commentary on the Gorsuch confirmation in a post entitled Why the Democrats Lost the Gorsuch Hearings, and check back soon for a new edition of The Gorsuch Report on ISCOTUSnow.

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