All posts by Chris Schmidt

First Amendment, Labor Relations, Opinions of the Court, OT 2017

Unions and Free Speech—The Janus Decision

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On the last day of the term, the Supreme Court issued one of the most anticipated decisions of recent years, Janus v. AFSCME. As widely expected, a five-justice majority overturned Abood v. Detroit Board of Education (1977) and held that unions could not require public-sector employees to pay “agency fees” that would be used to fund the union’s collective bargaining efforts. Justice Alito, writing for the majority, explained that because “fundamental free speech rights are at stake,” the Court felt justified in abandoning Abood. The petitioner in this case, Mark Janus, objected to being required to pay his workplace union’s agency fee because he disagreed with many of its public policy positions. In siding with Janus, the Court brought an end to mandatory union fees in the public sector.

Justice Alito cited a number of factors that led the Court to find that stare decisis did not require deference to Abood. They included: criticism that Abood failed to give adequate consideration to  First Amendment concerns; difficulty determining what was an “agency fee”; and legal developments in related areas of law.

Justice Kagan wrote the dissent, which was joined by Justices Ginsburg, Breyer, and Sotomayor. She argued that Abood remains sound, and the balance it struck between union interests and public employee expression was consistent with established First Amendment doctrine. To hold otherwise, she wrote in one of the most widely quoted lines from the Janus, was nothing more than “weaponizing the First Amendment” to advance conservative interests. Justice Kagan also expressed her disagreement with the majority’s dismissive treatment of a long standing precedent. “The worst part of today’s opinion,” she wrote, “is where the majority subverts all known principles of stare decisis.”

Response to the ruling was predictably divided. Mark Janus was “ecstatic.” Conservatives praised Janus as a win for taxpayers and freedom of speech. On the other side, labor activists and unions denounced the decision and announced plans to keep fighting for union rights. Vox described Janus as the “most consequential ruling of the year”; some have estimated that teachers unions could lose up to a third of their funding. Writing in the New York Times, Jared Odessky and Miriam Frank criticized the decision as a blow to the LGBT community, who often rely on unions to advocate for their workplace rights.

Opinions of the Court, OT 2017

Opinions: Bitcoin, Officers, and Appropriate Notice

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In addition to Wayfair, (discussed here) the Supreme Court issued a second tax opinion on the same day in Wisconsin Central, Ltd. v. United States. Although the case is about interpreting a federal statute, the Railroad Retirement Tax Act of 1937 (RRTA), Wisconsin Central made headlines in the cryptocurrency community because Justice Breyer used the term “bitcoin” in his opinion—the first time the term appeared in a Supreme Court opinion.

The central issue in Wisconsin Central is whether transferable stock from a railroad company to its employee if a form of taxable “compensation,” which is defined as “any form of money remuneration paid to an individual for services rendered as an employee,” under the RRTA. Writing the opinion for the 5-4 decision, Justice Gorsuch explained that stock is not a taxable form of compensation, noting that “few of us buy groceries or pay rent or value goods and services in terms of stock.” Although the majority opinion conceded—to the dissent’s point—that technology nowadays allows one to trade stock easily and quickly, and collect money on trades to be used in exchange for goods or services as a “medium of exchange,” the Court concluded that an actual stock, defined in 1937 or the present, is not defined by Congress or by the courts as a form of money.

In dissent, Justice Breyer argued that the phrase “any form of money remuneration paid to an individual for services rendered” includes stock awarded to railroad employees because it is a form of compensation for their labor. He referred to Bitcoin to analogize that, like compensation in the form of stock options, and companies may one day pay employees via a cryptocurrency. Although Wisconsin Central only references Bitcoin in passing, cryptocurrency enthusiasts rejoiced in the modicum of legitimacy awarded to what the Securities and Exchange Commission calls a “commodity” and not a “currency.” Time will tell whether the Court will hear legal challenges to the validity, or lack thereof, of cryptocurrencies.

Also on Thursday, June 21, the Court released opinions in two additional cases.  Lucia v. Securities and Exchange Commission addressed whether an administrative law judge (ALJ) for the  Securities and Exchange Commission (SEC) was “an officer of the United States, and therefore could only be appointed by the President or “Heads of Departments” pursuant to the Constitution. Initially, the SEC argued that the ALJs are mere employees, but the federal government switched positions in its response to Lucia’s petition to the Supreme Court.

The Court, in an opinion by Justice Kagan, joined by the Chief Justice and Justices Kennedy, Thomas, Alito, and Gorsuch, agreed with the federal government’s new position. As discussed in the New York Times, the Court accordingly held that SEC ALJs are officers of the United States and therefore subject to the Constitution’s Appointments Clause. The Washington Post discusses the cases and compares the rationale underlying the various opinions written in Lucia. In discussing the narrow nature of the opinion, the LA Times says the Court “brushed aside” a request from the current administration to declare that the president has the power to fire any top federal official. Meanwhile, CNBC describes the opinion as a victory for the president because of the government’s decision to change its opinion to side with Lucia.

In its opinion in Pereira v. Sessions, the Court addressed whether notices to appear for immigration removal hearings must state the place and time of the hearing in order for the immigrant to be eligible for removal cancellation under 8 U.S.C. § 1229b(b)(1), which applies as long as the individual has been in the U.S. for 10 years. Once a notice is issued however, the clock stops counting. The Court ruled that if the notice does not specify the time and place of the hearing, it is not a “notice to appear” and does not trigger the statute’s “stop-time” rule. Courthouse News Service notes that Justice Sonia Sotomayor, writing for the majority, stated the date and time of the removal hearing is “critical” to the notice. She further stated that the time and place must be specified in order for §1229(b)(1) to have any meaning, and it helps prevent the government from sending out ambiguous notices. Justice Alito was the lone dissenter in this case. He was concerned with the government’s ability to accurately include the date and time on every notice it sends. Check out The Washington Examiner, Newsweek, and WBUR News  for more information on this ruling.

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

Opinions of the Court, OT 2017

Opinions: Internet Taxation

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On Thursday, June 21, the Court released its opinion in South Dakota v. Wayfair, Inc., one of two cases decided last month in which the Court reversed its own precedent. (The second case was Janus v. AFSCME.) Wayfair is a case with important tax ramifications for both consumers and online retailers, as it involved a South Dakota law requiring online retailers to pay sales tax on goods sold in the state. Prior to the law, sellers were required to collect and remit the tax, and if the sellers did not do so, consumers were responsible for paying a use tax at the same rate as the sales tax. Compliance with this requirement is notoriously low in all states with similar tax regimes. Prior Supreme Court precedents in National Bellas Hess, Inc. v. Department of Revenue of Illinois and Quill Corp. v. North Dakota, had limited a state’s ability to collect those taxes from sellers – saying that a state may not require a business that does not have a physical presence within the state to collect its sales tax..

Justice Kennedy wrote the opinion, joined by Justices Thomas, Ginsburg, Alito, and Gorsuch, overruling the Court’s prior precedent and upholding the South Dakota law. The Court held that the physical presence rule defined by Quill is no longer workable given the prevalence of online retail in the national economy. He maintained that the rule substantially disadvantaged small businesses because they generally met the physical presence rule and therefore had to collect sales tax – causing those businesses to charge the consumer higher prices. The physical presence rule also harms states, Justice Kennedy wrote, which are losing an estimated $8 to 33 billion per year in sales tax revenues as a result of the physical presence rule. The Court overruled the physical presence rule of Bellas Hess and Quill and remanded the case for further proceedings on whether or not South Dakota’s sales tax law violates the Commerce Clause in other ways.

Chief Justice Roberts wrote the dissenting opinion, joined by Justices Breyer, Sotomayor, and Kagan. The dissent argued that alteration to the physical presence rule has the potential to disrupt the growth of online retail, correspondingly interfering with the national economy. Justice Roberts contended that the bar is high for departing from stare decisis and demands “special justification,” particularly if Congress is better situated to address the issue. (Under the branch of Commerce Clause jurisprudence at issue here, known as the Dormant or Negative Commerce Clause, even if the Court strikes down certain state taxes or other regulations, Congress has the power to authorize them.) The dissent also pointed out that the exercise of figuring out tax rates in different jurisdictions will be difficult, with the burden falling disproportionately on small and “micro” businesses across the country.

Many commentators see this ruling as bad news for consumers and small businesses, who are likely to end up bearing the brunt of this decision. Investor’s Business Daily’s editorial, here, writes that this decision may have opened the door to letting states impose other taxes on out-of-state businesses. Jessica Melugin of the Center for Technology and Innovation at the Competitive Enterprise Institute writes in the New York Times that the decision will hurt online shopping by eliminating competition and decreasing political consequences to keep tax rates at reasonable levels. However, Justin Fox’s opinion on Bloomberg argues that the “Internet sales tax switch is good policy made the wrong way.”

The Court issued three other opinions on the same day as Wayfair. They are discussed here.

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

Opinions of the Court, OT 2017

Opinions: Repeat Litigants at the Court and Sentencing Guidelines

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In a decision issued the same day as the partisan gerrymandering opinions, the Supreme Court ruled in Lozman v. City of Riviera Beach. This is the second opinion the Court has issued involving Fane Lozman and the City of Riviera Beach — and the lawsuits are related but independent of each other. In 2013, Lozman won a case against the city in which the Court determined that his houseboat was not a “vessel” subject to maritime law. In the case at hand, Lozman was kicked out of a city council meeting and arrested for disturbing a lawful assembly when he ignored the council’s demands to not discuss local government corruption. The prosecutor determined there was probable cause for his arrest but dropped the charges. Lozman then brought his case alleging he was falsely arrested in a retaliatory action. As Robert Barnes of The Washington Post reports, the Court found again for Lozman, albeit narrowly. Lozman did not dispute the probable cause for his arrest; however he claimed it violated the First Amendment because he was arrested in retaliation due to his earlier protected lawsuit and his prior criticisms of public officials.  The Court agreed that the probable cause does not bar his First Amendment claim, but he will have to show “the existence and enforcement of an official policy motivated by retaliation” of the city council. Justice Anthony Kennedy, writing for an eight-justice majority (only Justice Thomas dissented), stated “It must be underscored that this Court has recognized the ‘right to petition as one of the most precious of the liberties safeguarded by the Bill of Rights,” and that Lozman’s speech “is high in the hierarchy of First Amendment values.”

Richard Wolf of USA Today reports this case had some concerned (including the Court) of possible implications for arresting police officers who may face lawsuits of their own “split-second” arrest decisions. The Court acknowledged this by stating the police “need the safe harbor of probable cause in the First Amendment context to be able to do their jobs effectively,” but also “there is a risk that some police officers may exploit the arrest power as a means of suppressing speech.”

On the same day, the Court also issued two opinions related to the federal sentencing guidelines. Rosales-Mireles v. United States involves the doctrine of “plain error,” which applies when a clear error occurs in the trial court but the criminal defendant fails to object at the time. The Court of Appeals for the Fifth Circuit reviewed the case under United States v. Olano, which articulated four conditions that must be satisfied for an appellate court to correct an error that defendant did not object to at trial: (1) there must be an error; (2) that error must be “plain” or “obvious”; (3) that error must affect substantial rights (i.e., it affected the outcome of the district court proceedings); and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings. While the Fifth Circuit found that the first three conditions were satisfied in the present case, it declined to vacate and remand the case because it said that Rosales-Mireles did not show that the error was one that would “shock the conscience of the common man.”

In a 7-2 opinion, the Court disagreed with the Fifth Circuit’s interpretation of the fourth prong, calling it “unduly restrictive.” In explaining its decision to reverse the Fifth Circuit’s decision and remand the case for resentencing, the Court criticized the narrow standard as only allowing those errors that rise to the level of grossly serious misconduct to be corrected. That a defendant could be unnecessarily deprived of his or her liberty due to a plain error, even if unintentional, undermines the public legitimacy of judicial proceedings, wrote Justice Sotomayor, regardless of whether the ultimate sentence falls within the correct range.

Justice Thomas, joined by Justice Alito, dissented from the majority opinion, accusing the Court of rendering the fourth Olano prong largely illusory. He further argue that the error in the present case was unlikely to have affected the substantive outcome of the case, and that the Court should not have allowed a purely procedural error to satisfy the fourth prong of plain error review. The case is discussed by the Courthouse News Service, and Jurist and those who are interested in reading the opinion itself can find it in full, here.

The Court also issued its opinion in Chavez-Meza v. United States, which asked a different question relating to the Federal Sentencing Guidelines: in explaining its decision not to grant a particular type of sentence reduction, must a court provide a lengthy explanation? Here,  the judge stated only that he had considered Chavez-Meza’s motion and took into account the relevant Guidelines policy statement and statutory factors. The Court here upheld the sentence. Justice Kennedy, joined by Justices Sotomayor and Kagan, dissented, calling the order reducing Chavez-Meza’s sentence “terse” and “insufficient to allow for meaningful appellate review.” This case is also discussed by the Courthouse News Service; to read the opinion itself, click here.

ISCOTUS Fellows Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and Matthew Webber, Chicago-Kent Class of 2019, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018, and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.

Opinions of the Court, OT 2017, Voting Rights

Opinions: Partisan Gerrymandering – Still Unresolved

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The Court issued opinions in its two partisan gerrymandering cases — Gill v. Whitford and Benisek v. Lamone — on the same day near the end of the Term. Although these decisions were highly anticipated, the opinions themselves shed virtually no new light on either the justiciability of partisan gerrymandering claims or on the standard to apply if the courts do hear such cases.

Gill involved a challenge to the Wisconsin legislative redistricting map created by the Republican-controlled legislature after the 2010 Census. The plaintiffs alleged that the map deliberately undermined Democratic voting strength by either cracking (dividing Democratic voters between districts to prevent majorities) or packing (concentrating Democratic voters into a small number of districts to reduce their influence around the state). As SCOTUSBlog’s Amy Howe points out, in 2012, 49% of voters cast Republican ballots for the state legislature, but the GOP won 60 out of 99 seats. In 2014, 52% of the electorate voted Republican, but the party picked up three more seats winning a total of 63 seats in the legislature. William Whitford, a Wisconsin resident, sued Beverly Gill, a member of the Elections Commission in Wisconsin, for violating the Constitution. But even after the Court’s ruling, it remains unclear whether partisan gerrymandering is a justiciable issue.

Chief Justice John Roberts’ opinion for a 9-0 court held that the plaintiffs had not established Article III standing. In particular, the Court held that the plaintiffs had not demonstrated an injury — an “invasion of a legally protected interest,” which “affect[s] the plaintiff in a particular and individualized way” and was concrete in nature. The plaintiffs had argued that the challenged gerrymandering negatively impacted voters statewide, but the Court held that at least on the record presented, in which the injury was asserted by a plaintiff whose district was overwhelmingly Democratic and would remain so under any conceivable map, involved only a “citizen’s abstract interest in policies adopted by the legislature [which,] on the facts[,] here is a nonjusticiable ‘general interest common to all members of the public.’” The opinion suggested that a plaintiff can challenge only the constitutionality of the district he or she lives in. The Court then remanded the case to allow the plaintiffs another chance to establish standing.

Although the decision was 9-0, Justice Kagan, joined by the three other liberal justices, filed a separate concurrence listing a framework for the plaintiffs to amend their claim on remand. Justice Kagan also argued that if plaintiffs pressed a First Amendment’s freedom of association clause, they — or other plaintiffs, including organizations like political parties — could challenge a statewide map, rather than just individual districts. Justice Gorsuch and Thomas also concurred in part and concurred in the judgment, objecting to the majority’s decision to remand the case instead of dismissing it outright.

Adam Liptak of The New York Times called the decision a “setback for critics of gerrymandering,” and that the “status quo remained in place” on the issue. Garrett Epps of The Atlantic called the decision an “example of the justices keeping their heads down.” Mark Joseph Stern of Slate discussed the peculiarity of why the plaintiffs’ argument failed when many thought it would succeed. In 2004, writing the concurrence in Vieth v. Jubelirer, Justice Kennedy signaled he would be open to allowing partisan gerrymandering claims if litigants could present a “workable standard.” The plaintiffs in Gill proposed a way of measuring each party’s “efficiency,” by looking to the proportion of “wasted votes” – votes either for losing candidates or votes unnecessary for the victory of a winning candidate. They proposed a rule of thumb that a 7% “efficiency gap” between the parties was presumptively problematic, and they showed that Wisconsin’s efficiency gap was roughly 13%. This measurement does not clearly demonstrate a “particularized injury” inflicted on the plaintiff, however. Kagan’s roadmap may provide a workable argument for the plaintiffs going forward.

In a short per curiam opinion filed in the wake of Gill, the Court affirmed a district court ruling in Benisek v. Lamone. The appeal in this case was brought by Republican voters in Maryland who alleged that their district, the Sixth Congressional District in Maryland, was gerrymandered along partisan lines in retaliation against them for their support of a Republican incumbent. In the case below, the Plaintiffs had requested a preliminary injunction that would stop Maryland’s election officials from holding Congressional elections under that district map. The lower court denied the motion for preliminary injunction and stayed the case pending the results of Gill. The Supreme Court granted cert in Benisek after it had heard oral arguments in Gill, leading some to hope that the Supreme Court would finally declare extreme gerrymandering in Congressional districts unconstitutional. However, much like they had in Gill, the Court sidestepped the substantive issues presented in the case, focusing only on the District Court’s denial of the preliminary injunction.

The tersely worded opinion held that the District Court did not abuse its discretion in denying the preliminary injunction because the plaintiffs had not shown that the balance of equities and the public interest tipped in their favor. The Court noted that the plaintiffs did not request the preliminary injunction until 2016 – five years after the new election map had been drawn, and three years after the lawsuit was originally filed – and that any injunction would have been disruptive to the 2018 elections. This case now returns to the District Court in Maryland for plaintiffs present the remainder of their case, including their retaliation claims.

Justin Levitt, a law professor for Loyola Law School in Los Angeles makes his case for why the fight to end partisan gerrymandering is far from over in his article for the Washington Post.  A a graphic explanation of the Benisek opinion by Subscript can be found here.

ISCOTUS Fellows Eva Dickey and Michael Halpin, Chicago-Kent Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018, and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.

Opinions of the Court, OT 2017

Opinions: Political Apparel in Polling Places and Foreign Law

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Ordinarily, the Court decides all of the cases argued during a Term (beginning in October) by the end of June. Occasionally, it may hold a case over for reargument or for some other reason — this happened with Citizens United — but that’s quite rare. And following an unusually slow pace of issuing opinions, the Court is now announcing opinions twice a week, as it approaches the end of June.

In Minnesota Voters Alliance v. Mansky, one of two cases announced last Thursday, the Court decided a First Amendment challenge to a Minnesota law that restricts anyone from entering a polling place while wearing political apparel. In the case itself, for example,  a Minnesota voter Andrew Cilek was asked to leave his polling place because he was wearing a Tea Party-affiliated shirt, which said, “Don’t Tread on Me” and a button, which stated, “Please I.D. Me.” He was eventually allowed to vote, although poll workers took down his contact information.

The Court, in an opinion by Chief Justice John Roberts., first confirmed that the government has “flexibility” in regulating speech in polling places which are “nonpublic forums used for governmental purposes.” A nonpublic forum is “not by tradition or designation a forum for public communication,” and speech regulation in this context generally is upheld if it is reasonable. Indeed, the Court held that Minnesota’s objective in creating “an island of calm in which voters can peacefully contemplate their choices” in the polling place was a reasonable goal, and acknowledged even the less relatively non- disruptive form of speech—apparel—may still harm the sanctity of the polling place. But the Court found the statute unconstitutional because, it held, the ambiguity and overly broad nature of prohibiting “political” speech, coupled with the discretion given to pollworkers in interpreting and enforcing the statute, was not reasonable.

Slate’s Richard L. Hasen applauded the Supreme Court’s decision in Mansky. He observed the Court exercised nuance in striking down a law, on principle it agreed with, but in application, did not. Jessica Levinson, on the other hand, at NBC News called the decision “excruciatingly ironic in light of recent Supreme Court cases that make it more difficult for Americans to exercise their right to vote in the first place.” She points to the recent decision in the landmark decision Husted v. A. Philip Randolph Institute, where the Court allowed Ohio to maintain a voter purge practice of removing voters from the rolls when they do not confirm their address via mailed information cards.

On Thursday, the Court also handed down its opinion in Animal Science Products v. Hebei Welcome Pharmaceutical Co. Ltd.  There, the Court settled a dispute about the extent to which a foreign government’s statements should have an effect on a federal court’s determination of foreign law pursuant to Federal Rule of Civil Procedure 44.1. The case came from the Court of Appeals for the Second Circuit after the Animal Science Products, Inc., a U.S. company, filed a multi-district class action lawsuit against Hebei and other Chinese corporations (Chinese sellers) alleging that they had agreed to fix the price and amount of vitamin C exported to the U.S. from China, in violation of §1 of the Sherman Act (which makes every contract with foreign nations that restrains trade or commerce illegal). Chinese sellers moved to dismiss the case, arguing that Chinese law required them to do so, which would shield them from liability under U.S. law. This motion was denied and the case was eventually tried in front of a jury, which returned a verdict for Animal Science. On appeal, the Second Circuit reversed, holding that federal courts are bound to defer to a foreign government’s construction of their own law when it is reasonable, and should not look beyond the official statement of foreign law submitted by that government.

A unanimous Court, in an opinion by Justice Ginsburg, held that while respectful consideration should be given to a foreign government’s statement of its own law in such a situation, that a federal court is not bound by it. The Court further held that the weight given to a foreign government’s statement of its own laws would properly vary based on a number of facts, such as the clarity and thoroughness of the statement itself, the context and purpose of the statement, and the transparency of the foreign legal system. Law.com discusses the case in detail, here.

ISCOTUS Fellows Zoe Arthurson McColl and Michael Halpin, Chicago-Kent Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Class of 2018, and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro.

Conference Report, Opinions of the Court, OT 2017

Opinions and Orders: Voting Rights, Contracts Clause, and Class Actions

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In a 5-4 opinion, which was quickly criticized by some  as “flagrantly political” and “nakedly political,” and praised by others as “a victory for election integrity, ”the Court reversed the Sixth Circuit’s decision in Husted v. A Philip Randolph Institute. The Court held that the voter list-maintenance process in Ohio does not violate the National Voter Registration Act (NVRA). The NVRA prohibits removing a person from the rolls due to a failure to vote, and under Ohio’s process, someone who has not voted in Ohio for two years is sent a notice to confirm their registration. If no response is filed and the person does not vote in the next four years, they are then removed from the voter rolls. The majority held that the NVRA forbids the use of not voting as the sole criterion to remove a person from the list and that Ohio’s process comports with the law because the criteria are failure to vote and failure to respond to a notice. In his concurring opinion, Justice Thomas further argued that the Institute’s proposed reading of the NVRA should be rejected because it would interfere with States’ constitutional authority to set and enforce voter qualifications.

Siding with the A. Philip Randolph Institute, Justices Breyer and Sotomayor both wrote to dissent from the majority opinion. Justice Breyer, joined by Justices Ginsburg, Sotomayor, and Kagan, closely examined the wording of the NVRA, arguing that it should be properly understood to mean that a State is prohibited from considering a registrant’s failure to vote as part of any process used to start a purge of voter rolls. Justice Sotomayor, writing only for herself, further argued that the majority was ignoring the history of States trying to disenfranchise low-income and minority voters, and that such a distorted view of the statute is “ultimately sanctioning the very purging that Congress expressly sought to protect against.” She described Ohio’s purging program as a burden on the rights of eligible voters, and wrote that upholding it would further disenfranchise low-income and minority voters. As the Washington Post reports, Justice Sotomayor called on these communities and their allies not to tolerate efforts to reduce their influence on the political process, and to be vigilant in dismantling the obstacles they face in exercising their right to vote. Ohio’s voter purge process has been described by some as a form of voter suppression, drawing attention from civil rights groups across the country, with the Lawyers’ Committee for Civil Rights Under Law issuing a statement in response to the decision, calling it “a monumental setback for those who care about access to democracy in our country.

On the same day, the Court decided China Agritech v. Resh, a case concerning whether the equitable tolling rule established in American Pipe & Construction Company v. Utah also applies to claims of individual plaintiffs filing successive class actions after the applicable statute of limitations has run. American Pipe established that equitable tolling applies to the claims of individual plaintiffs after a class action has been filed. Therefore, if class certification is denied, a putative class member can still bring a claim in his individual capacity even after the statute of limitations has run.

The Court held that American Pipe does not extend to successive class actions brought outside of the statute of limitations. Upon denial of class certification, a putative class member may not bring a new class action beyond the time allowed by the applicable statute of limitations. Justice Ginsburg delivered the opinion, writing the “efficiency and economy of litigation”(quoting American Pipe) that support tolling of individual claims, do not support maintenance of untimely successive class actions.” The decision was unanimous, but Justice Sotomayor concurred only in the judgment. The National Law Review says it “applaud[s] the U.S. Supreme Court in continuing to recognize the inherent limits of class action procedure, and [] look[s] forward to similar opinions in the future.” JD Supra also explains the ways in which this case is “a big win for class-action defendants.”

The Court also issued its opinion in a Contracts Clause case, Sveen v. Melin. The 8-1 decision upheld a Minnesota statute that automatically revoked an ex-spouse’s standing as beneficiary to their former spouse’s life insurance policy upon divorce. Justice Kagan’s majority opinion rejected the argument that the law cannot apply to policies purchased before the law’s enactment because of the Contracts Clause’s barring of states from passing laws “impairing the obligation of contracts.” Sveen’s life insurance benefits are thus routed to his contingent beneficiaries, his children, and not his ex-wife, Melin. Justice Gorsuch was the lone dissenter in this case. He wrote that the law “substantially impairs life insurance contracts by retroactively revising their key term,” thus violating the Contracts Clause. Many news sources discussed Justice Gorsuch’s dissent in this case. Forbes notes that “[i]n an unusual twist, Gorsuch found himself on the same side of more than a dozen women’s rights legal groups, which had urged the Supreme Court to strike down the law as violation of the Contracts Clause.” The article goes on to predict that “precious little will stop states from interfering with current contracts.”

The Court also ruled in Washington v. United States, issuing a one sentence per curiam opinion. The equally divided Court (a result of Justice Kennedy nonparticipation in the decision) affirmed the judgment in upholding the injunction against the state of Washington for maintaining salmon culverts that diminished the salmon population accessible to several Northwest Indian Tribes. As discussed in Constitution Daily, redoing the culvert system under the roads in Washington will allow for the safe migration of salmon such that the tribes will be able to meet their fishing needs, but could come at a cost of billions of dollars to the state.

Finally, in an order list released on Monday, the Court called for the views of the solicitor general in three cases, Sudan v. Owens, Opati v. Sudan, and Sudan v. Opati, all pertaining to the U.S. Embassy bombings in Dar es Salaam, Tanzania and Nairobi, Kenya on August 7, 1998. As discussed in CNN’s Fast Facts article, the bombings were orchestrated by al Qaeda in response to the US military presence in Saudi Arabia and claimed the lives of 224 people, injuring thousands more. The questions raised in the three cases surround the circumstances under which a U.S. court has subject-matter jurisdiction (the power to hear a specific kind of case) over a case brought against a foreign entity, pursuant to the Foreign Sovereign Immunities Act (FSIA). The Solicitor General was asked to weigh in on whether the judgment against Sudan, originally $10.2 billion in damages, was properly reduced by the D.C. Circuit Court. Courthouse News has more on the legal history of the cases arising out of the bombings, which then U.S. Ambassador of Nairobi, Prudence Bushnell, has admitted were likely preventable (via Newsweek).

ISCOTUS Fellows Zoe Arthurson-McColl (class of 2020), Elisabeth Hieber, and Matthew Webber (both class of 2019) contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele (class of 2018), and overseen by Chicago-Kent faculty member and ISCOTUS co-director Carolyn Shapiro

Opinions of the Court, Orders of the Court, OT 2017

Orders and Opinions: Mandatory Minimums, Religious Freedom & Gay Rights

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As we look ahead to the week at SCOTUS, here’s a recap of last week’s orders and opinions.

Orders

        In its June 4 orders, the Court called for the views of the Solicitor General regarding Airline Service Providers Association v. Los Angeles World Airports. The Court is considering whether to hear this case, which  involves the authority of state and local government to impose on private companies rules relating to labor-relation questions that federal law already regulates. Federal labor laws generally preempt any contrary state or local law. But the Court has recognized a “market participant exception” to this rule in situations where the local government uses its sovereign power not to regulate the market but to purchase goods and services from other market participants. In 2014, Los Angeles applied a rule to the city’s main airport requiring airline service providers to enter into “labor peace” agreements with unions. Airline Service Providers Association challenged the policy, arguing that federal law  preempts such a rule. The Ninth Circuit disagreed, applying the market participant exception. You can find coverage of the case in the LA Times and Bloomberg. Also useful is this short article from last summer’s ABA newsletter on the role of the Solicitor General in helping the Court decide whether to review a case.

Over a dissent by Justice Sotomayor, the Court denied certiorari in Trevino v. Davis. Carlos Trevino, convicted of  rape and murder, claims his due process rights were violated because at sentencing his attorney failed to present evidence that he had been affected by his mother’s abuse of alcohol during pregnancy. The Fifth Circuit rejected Trevino’s claim that this amounted to ineffective assistance of counsel because the evidence contained both mitigating and aggravating factors. In her dissent, Justice Sotomayor argued that new mitigating evidence should be viewed alongside all aggravating evidence in post-conviction hearings and that in this case the evidence would have helped the jury to understand the circumstances leading up to the crime. The Court’s refusal to recognize Trevino’s claim, she declared, is “indefensible.” For more on the case, see here; for an account of Sotomayor’s increasingly vocal opposition to the death penalty, see here.

The order list also included Azar v. Garza, a case involving a pregnant teenager (“Jane Doe”) who was initially denied access to an abortion while in detention for illegally entering the United States. After a federal appeals court ruled that Jane Doe could have the abortion, the Justice Department sought an injunction blocking the court order. But before the Justice Department could request the stay of the injunction from the Supreme Court, Jane Doe, with the assistance of her ACLU lawyers, secured her abortion. The Justice Department now asked the Court to discipline her  attorneys for their conduct in the case. The Court granted the petition for writ of certiorari and, in a per curiam opinion vacating and remanding the case, directed the District Court to dismiss the claim for injunctive relief as moot because of Jane Doe already having had the abortion. Coverage of the case can be found in Vox, the LA Times, and the The New York Times.

Opinions

Koons v. United States

On June 4, the Court decided 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. In this case, the petitioner received a reduced sentence because he has helped the government, but he then requested an additional reduction when the minimum sentencing guidelines were amended.  Justice Alito delivered the unanimous opinion, in which the Court determined, based on a statutory analysis of the relevant federal law, that the petitioners were not eligible for sentence reductions. Justice Alito compared sentencing calculations to construction: “In constructing a house, a builder may begin by considering one design but may ultimately decide to use entirely different plans. While the first design would represent the starting point in the builder’s decision making process, the house finally built would not be “based on” that design. The same is true here.” Douglas Berman has a useful analysis of the case as SCOTUSblog in which he wonders whether “the press of other business” may have steered the Court toward a narrower approach to the issues of the case.

Hughes v. United States

The Court also released its opinion in Hughes v. United States, which considered whether those who entered a so-called “ Type-C” federal plea agreement are eligible for a sentence reduction under the Sentencing Reform Act of 1984 if the U.S. Sentencing Commission subsequently reduces the guidelines range for the charge on which the prisoner had entered his or her plea. The Court held 6-3 that a sentence imposed pursuant to a Type-C agreement is sufficiently based on the sentencing guidelines when the sentence range was part of the “framework” the district court relied on when reviewing  the adequacy of the plea agreement. Therefore, prisoners whose Type-C agreements are “based on” the sentencing guidelines are eligible for a sentence reduction in these situations. In Reason, Will Baude discusses the “predictive model” of precedent at issue in the case.

Lamar, Archer & Cofrin, LLP v. Appling

        The Court issues a unanimous ruling in Lamar, Archer & Cofrin, LLP  v. Appling, which addressed whether an individual’s verbal representations of a single asset should be considered a “statement respecting the debtor’s financial condition” under Chapter 11 Bankruptcy Code . In this case a debtor made verbal representations to a law firm about an expected tax return that he would use to pay his attorneys fees. When the tax return came, the debtor used it toward business expenses and never paid the law firm. The law firm subsequently sued the debtor to obtain a judgment, but once the judgment was entered the debtor filed for bankruptcy. The law firm argued that the debt should be non-dischargeable because it was obtained by fraud. The debtor countered that because the statement was not in writing he was not barred from discharging the debt via bankruptcy. Writing for a unanimous court, Justice Sotomayor sided with the law firm. The Jurist and JD Supra have more on the case.

Masterpiece Cakeshop v. CCRO

Also issued last week was one of the most anticipated cases of the term, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission. The Court ruled 7-2 in favor of Jack Phillips, the baker who refused to bake a wedding cake for a same-sex couple due to his own religious beliefs, overturning the Colorado Civil Rights Commission’s (CCRO) determination that he violated the state’s anti-discrimination law. The Court held that the CCRO was hostile to Phillips and his First Amendment argument during his hearing, thereby violating Phillips’ rights under the Free Exercise Clause. In the majority opinion, Justice Kennedy wrote that although the rights of same-sex couples must be protected, “religious and philosophical objections to gay marriage are protected views and in some instances protected forms of expression.”

The decision was a narrow one, only applying to the specific facts of the case. As Vox points out, the Court only ruled that the CCRC had shown anti-religious bias in their ruling; they did not hold that religious objections can justify discrimination against the LGBTQ community in equal access to goods and services. “The outcome of cases like this in other circumstances must await further elaboration in the courts,” Kennedy noted in concluding his opinion, highlighting the narrowness of the ruling. He added, “these disputes must be resolved with tolerance, without undue disrespect to sincere religious beliefs, and without subjecting gay persons to indignities when they seek goods and services in an open market.”

Justice Kennedy was joined by Chief Justice Roberts and Justices Breyer, Alito, Kagan, and Gorsuch. Justice Thomas concurred in part of the opinion and the judgment. Justices Ginsburg and Sotomayor dissented.

Carzozo law professor Kate Shaw, writing for The New York Times, considers why Justices Breyer and Kagan joined the more conservative members of the Court in this case.

In her dissent, Justice Ginsburg insisted there is a clear difference between refusing to sell a cake with hateful rhetoric to anyone, and refusing to sell a cake to someone based on their identity, regardless of the messaging on the cake. Ginsburg also stated that she sees no reason why the CCRO’s disparaging statements “should be taken to overcome Phillips’ refusal to sell a wedding cake to Craig and Mullins.”

Justice Thomas, joined by Justice Gorsuch, wrote an opinion  in which he emphasized that the Court has long held that expressive conduct (intended to be communicative and understood to be) is protected speech under the First Amendment. He noted the historical significance of wedding cakes, Phillips’ belief that he is an artist, and the symbolism that wedding cakes convey. All of this supports that Phillips’ cakes are protected expression and therefore not punishable under Colorado’s public accommodations law.

Check out CNN, The Washington Post,  The Washington Examiner,  The Denver Post, and  Slate for more on this blockbuster opinion.

 

As always, keep checking in with ISCOTUSnow to keep up to date on Supreme Court news!

 

ISCOTUS Fellows Elisabeth Heiber and Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Zoe Arthurson-McColl, Chicago-Kent Class of 2020, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018 and  ISCOTUS co-director and Chicago-Kent faculty member Christopher Schmidt.

Fourth Amendment, Opinions of the Court, OT 2017, Weekly Roundup

Opinions: Searching Vehicles Next to a Home and Restitution

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The Court issued two opinions this week, and it disposed of one more case without a decision. In Collins v. Virginia, the Court considered the scope of the Fourth Amendment’s “automobile exception,” which allows a police officer to search a vehicle without first getting a warrant under some circumstances. The rationale for this exception is in part that evidence of criminal activity could be removed because of the vehicle’s mobility. Collins argued that the automobile exception should not apply when the vehicle is parked in the “curtilage,” which is the area immediately surrounding a home. Under the Fourth Amendment, a home’s curtilage is afforded the same protections as the home itself.

In an 8-1 opinion written by Justice Sotomayor, the Court held that the automobile exception to the Fourth Amendment does not allow a police officer to conduct such a search. The Court held that when the officer in this case intruded upon the curtilage of Collins’ home to search a motorcycle, he was invading Collins’ Fourth Amendment interests in both the curtilage of his home and the motorcycle itself. The Court declined to extend the automobile exception to allow police officers to invade the space surrounding a vehicle if that space is otherwise protected by the Fourth Amendment, considering the curtilage of a home to be analogous to the home itself. Addressing the State of Virginia’s proposed rule that the automobile exception apply to vehicles on property so long as they are not enclosed by a fixed structure (i.e., a garage), the Court noted that adopting such a rule would mean that Fourth Amendment rights would be granted to those with the means to store their vehicles in garages but denied to those without the financial resources to do so. NPR called the decision “win for privacy rights.”

In his dissent, Justice Alito called the Court’s decision strikingly unreasonable. He argued that an ordinary person of common sense would react to this decision as Mr. Bumble in Oliver Twist did when told about a perplexing legal rule “the law is a ass – a idiot,” and that the search in this case was reasonable under the Fourth Amendment because the officer had probable cause, and someone could have driven the vehicle away in a matter of seconds. As Reason magazine discusses, Justice Alito’s dissent is hardly surprising given his history of being on the opposite side of a Fourth Amendment case from Justice Sotomayor.

The second opinion issued was in Lagos v. United States, a case ISCOTUSnow described in April. Lagos was ordered to pay restitution to the company he defrauded to cover the costs of its investigation. Some of the investigation methods were not “required nor requested” by the government, however.  The Court, in an opinion by Justice Breyer, unanimously held that the Mandatory Victims Restitution Act  authorizes  restitution only to costs related the victim’s participation in governmental criminal  investigations. Kevin Lessmiller of Courthouse News Service explained the Court’s reasoning that because the terms “investigation” and “prosecution” are directly linked in the Act, they must refer to the same “general type,” and since “prosecution” denotes a criminal prosecution, “investigation” refers to a criminal investigation only.  Check out Lexology and JDSUPRA for more information.

Finally, the Court dismissed as improvidently granted City of Hays, Kansas v. Vogt. L. Bradfield Hughes, attorney at Porter Wright, described improvidently granted dismissals for Ohio Lawyer in 2013. He explained tat they can occur for a number of reasons, such as procedural waivers or other substantive reasons, such as if the court determines the issue is best left to be decided by the political branches. As the Hays Daily News reports, the Tenth Circuit’s decision ruling that the Fifth Amendment is violated when a defendant’s compelled incriminating statement is used against him in a probable cause hearing, not just in criminal proceedings, remains intact. While the specific reasons for this dismissal were not given by the Court, Tony Mauro of The National Law Journal writes it was not a surprise, as the justices raised concerns during oral arguments that led some to believe the case would be dismissed. Justice Breyer was concerned of the irregularities of the case and Justices Alito and Sotomayor believed the case was “odd.” However, most telling was Chief Justice John Robert’s severe concern about the use of statements of fact that did not appear in the record.

The Court is expected to issue more opinions this coming Monday. Stay tuned to ISCOTIUSnow for more coverage.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, Zoe Arthurson-McColl, 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.

Labor Relations, Opinions of the Court, OT 2017, Weekly Roundup

Opinions: Arbitration Agreements in Employment Contracts and Sovereign Immunity for Indian Tribes

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Justice Gorsuch wrote the two opinions announced earlier this week. The first, Epic Systems Corp. v. Lewis, was a 5-4 decision, and it upheld the ability of employers to require their workers to settle employment disputes through individual arbitration rather than by collective suits or arbitrations. This holding reversed the National Labor Relations Board’s determination that collective or class actions brought by employees are “concerted activity” protected by the National Labor Relations Act (NLRA) and that the NLRA’s protections precluded application of the Federal Arbitration Act, the statute that requires courts to honor arbitration agreements. Instead, as Robert Barnes of The Washington Post explains, the majority relied on what it called a “logical” reading of federal law and Congress’s preference for arbitration over litigation. The Court held that the intent of the Federal Arbitration Act is to enforce arbitration agreements as written and that the National Labor Relations Act’s right of collective action does not displace the FAA. Adam Liptak of The New York Times notes Justice Gorsuch wrote “the virtues Congress originally saw in arbitration, its speed and simplicity and inexpensiveness, would be shorn away and arbitration would wind up looking like the litigation it was mean to displace” if all disputes were settled by class or collective arbitrations. Justice Gorsuch was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Alito.

Justice Ruth Bader Ginsburg, wearing her black and silver crystal accent “dissent jabot,” read part of her dissenting opinion from the bench highlighting her wholehearted opposition to the majority. Joan Biskupic of CNN notes that Justice Ginsburg said the majority was “egregiously wrong,” and that the decision was “destructive” — a step backwards in many decades of labor law passed to level the playing field between workers and their employers. She termed the challenged arbitration agreements as “arm-twisted, take-it-or-leave-it contracts,” and argued that the decision threatens the return of pre-New Deal “yellow dog” contracts forbidding workers from joining labor unions. (Justice Gorsuch replied, “like most apocalyptic warnings, this one is a false alarm.”) Justice Ginsburg was joined by Justices Breyer, Sotomayor, and Kagan.

Check out the SCOTUSblog Symposium, as well as The Atlantic,  The Wall Street Journal,  The Cato Institute, and The Washington Examiner, for more commentary on this decision.

Justice Gorsuch also wrote the opinion in Upper Skagit Indian Tribe v. Lundgren, addressing whether Indian tribes have sovereign immunity in “in rem” lawsuits absent Congressional appeal or tribal waiver. (An “in rem” lawsuit concerns a particular piece of property.) Upper Skagit Indian Tribe bought Washington property in 2013. Two years later, the Lundgrens, who owned adjacent property, filed a quiet title action alleging that they owned a strip of the Tribe’s land. The Washington Supreme Court rejected the Tribe’s claim of sovereign immunity, holding that it applies only when a judge attempts to exercise in personam jurisdiction over the Tribe itself, relying on a 1992 case, County of Yakima v. Confederated Tribes and Bands of Yakima Indian Nation. The Court rejected this reliance on Yakima, holding that it addressed a narrow and inapplicable statutory question, and it remanded the case back to the Washington Supreme Court to address the sovereign immunity under the common law.

Chief Justice Roberts, joined by Justice Kennedy, concurred, explaining that although he agreed with the result in this case, “[t]he correct answer cannot be that the tribe always wins no matter what; otherwise a tribe could wield sovereign immunity as a sword and seize property with impunity.” Chief Justice Roberts was similarly displeased with the Solicitor General’s proposed solution that the Lundgren’s go onto the property in question and take some type of action, like building a shed, that would induce Upper Skagit to file a quiet title action, which could result in the Tribe waiving its sovereign immunity: “At the very least, I hope the Lundgrens would carefully examine the full range of legal options [. . .] before crossing onto the disputed land and firing up their chainsaws.”

The dissent, written by Justice Thomas and joined by Justice Alito, criticized the majority not reaching the underlying sovereign immunity question, or as one article put it: “Justices Punt Decision on Land Dispute with Tribe,” and argued that because the immovable-property exception applies to both state and foreign sovereign immunity, it should also apply to tribal immunity. Gregory Ablavsky, a professor at Stanford Law School discusses Justice Thomas’ dissent. Ablavski notes that while he agrees that “the immovable property exception has deep roots in international law,” he ultimately, “question[s] his [Justice Thomas’] blithe assumption that the same principle did, or should, apply to tribes.” The Jurist and JD Supra also discuss Upper Skagit.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, Zoe Arthurson-McColl, 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.