All posts by Professor Carolyn Shapiro

Orders from the October 6 Conference

The Supreme Court released orders from last week’s Conference on Tuesday.  The Court dismissed the government’s appeal in one of the travel ban cases, Trump v. International Refugee Assistance Project. In this case, the Fourth Circuit upheld a district court’s injunction of portions of President Trump’s travel ban Executive Order. The Court granted certiorari in this case last June, but because the particular provisions of the travel ban that the Fourth Circuit enjoined have now expired, it remanded the case back to the Fourth Circuit on Tuesday with directions to dismiss the case as moot. The Court expressed no view on the merits. Justice Sotomayor would have dismissed the case as improvidently granted, leaving the Fourth Circuit opinion in place. The Court did not issue an order related to the travel ban case from the Ninth Circuit, Trump v. Hawaii. That case challenges a provision of the President’s March 6 executive order that is still active, but set to expire later this month.

The Justices also agreed to hear two original jurisdiction cases.  The cases, Florida v. Georgia and Texas v. New Mexico and Colorado, both address water rights between states.  Original jurisdiction cases are distinguished from other cases because they are filed directly in the Supreme Court. In original jurisdiction cases, the Court could conduct a jury trial to resolve the issue, as the Court did in Georgia v. Brailsford in 1794. More often, however, the Court appoints a special master to analyze the evidence, hold a hearing or trial if necessary,  and put together a report, to which lawyers from each side can respond. Once the report and challenges have been submitted to the court, the justices may schedule the case for oral arguments. Stephen Wermiel provides more information about the Court’s original jurisdiction at SCOTUSblog.

Texas v. New Mexico v. Colorado addresses whether New Mexico and Colorado are in violation of the Rio Grande Compact and the Rio Grande Project Act, which apportion water to Rio Grande project beneficiaries. Texas filed a suit alleging that New Mexico’s increased water usage and groundwater pumping below Elephant Butte Reservoir deprives Texas of water apportioned to it under the Rio Grande Compact of 1938. New Mexico allows farmers to pump groundwater to irrigate about 60,000 acres of the state’s cotton, pecan and chile crops in the southern part of the state.  There case also involves a dispute between the federal government and New Mexico as to whether New Mexico’s groundwater pumping interferes with the United States’ ability to meet its contractual obligations to deliver Rio Grande water to Mexico, per a treaty signed in 1906, as well as a water-rights dispute between Texas and Colorado.

Florida v. Georgia also concerns water rights between states.  The issue in this case is whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and whether injunctive relief against Georgia is appropriate to sustain an adequate flow of freshwater into the Apalachicola Region.  Florida filed its lawsuit against Georgia in 2013, alleging that Georgia diverts so much water from the river system that it has damaged Apalachicola Bay, located to the southwest of Tallahassee, and harmed the seafood industry of Franklin County, Florida. Georgia argues that limiting its water use will undermine the growth of the state’s agricultural industry and harm the growth of Atlanta and the surrounding area. The Special Master’s report in this case, also filed in February 2017, recommended that the Court reject the strict water consumption limits that Florida requested.  The stakes for both states are high, with Georgia arguing that limiting its water usage could cause up to $2.5 billion in economic losses, while Florida argues that it will lose $100 million.

Finally, the Court called for the views of the Solicitor General in Apple Inc. v. Pepper.  When the Supreme Court calls for the views of the Solicitor General (“CVSG”), the Court asks the Solicitor General to file an amicus brief to explain the United States’ views on whether the case deserves review.  This most often happens in cases where, even though the United States is not directly involved, federal interests are significantly affected or the federal government possesses particular expertise. CVSG has occurred in about 25 cases per Term in recent years.  The American Bar Association provides more information about CVSGs here.

Apple Inc. v. Pepper is an antitrust case which asks if consumers have standing to bring a private class action lawsuit under the Sherman Act.  Currently, Apple only approves apps if the developer gives Apple exclusive distribution through the App Store.  As the proprietor of the App Store, Apple is then able to markup the price of the app in order to take a commission on each sale.  Consumers have brought a class action, alleging that these policies create a monopoly on the apps available to iPhone users.  The Ninth Circuit held that individual consumers had standing to sue Apple. Apple contends that they are merely a distributor rather than a direct seller and therefore cannot be sued under the Sherman Act.

The Court meets again in Conference at the end of this week and we expect it to issue Orders at the beginning of next week.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.


December Argument Schedule & Orders

On Friday, the Court released the argument calendar for the December sitting, which will begin on November 27. Perhaps the most high-profile case is Masterpiece Cakeshop v. Colorado Civil Rights Commission, scheduled for December 5. Masterpiece Cakeshop, involves a Colorado bakery that refused to sell a wedding cake to Charlie Craig and David Mullins in 2012, because of the sincerely held religious objection to same-sex marriage held by the bakery owner. Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division, alleging that the refusal was a form of sexual orientation discrimination prohibited by the Colorado Anti-Discrimination Act (CADA).

The Colorado Civil Rights Commission found that the refusal was prohibited discrimination and issued Phillips an order requiring that Masterpiece Cakeshop alter company policy to comply with CADA. Philips contends that CADA, by compelling him to create expression that violates his sincerely held religious beliefs about marriage, violates the free speech or free exercise clause of the First Amendment.

The case is highly contentious and has been discussed extensively ever since the Court granted certiorari to the case on June 26, 2017. The Department of Justice filed an amicus brief September 7 in support of the bakery, arguing that Colorado’s public accommodation law infringes on Phillip’s freedom of expression, and that “eradicating private individuals’ opposition to same-sex marriage” is not a uniquely compelling interest that justifies this infringement. Garrett Epps from The Atlantic notes, by referencing an observation by Georgetown Law Professor Martin Lederman, that “this appears to be the first time ever—in 10-20 such cases—that the U.S. government told the Court it supports a constitutional exemption from an anti-discrimination statute.” Some,like Professor Richard Garnett of Notre Dame Law School, however, argue at SCOTUSblog that “to condition the lawful exercise of his chosen profession on the waiver not only of unfettered freedom of contract but also of the First Amendment right to express – or not – his religiously informed views seems to ask too much. Such a demand crosses over from ensuring access to imposing orthodoxy, from enriching civil society to homogenizing it.”

On November 29, the Court will hear another significant case, Carpenter v. United States.The issue in Carpenter is whether the warrantless seizure of cell phone records from a cell phone towers, revealing the location and movements of defendants in connection to a string of robberies is unconstitutional under the Fourth Amendment. Defendant-appellants Timothy Carpenter and Michael Sanders were convicted of numerous robberies, among other charges, after the FBI collected historical cell-site records demonstrating that the defendants’ cell phones transmitted signals to cell towers near the locations of the robberies at the times that the robberies happened. Carpenter and Sanders contend that the trial court should have excluded this evidence because investigators procured the records without a warrant, in violation of the Fourth Amendment. Orrin Kerr, a professor at George Washington University Law School, describes Carpenter as “probably the biggest Fourth Amendment case that the court has had in at least five or six years.” According to Kerr, a former clerk to Justice Kennedy, “this is the first case that has touched on Fourth Amendment rights, what is a search in the context of new technologies, in several years and the one that is getting to the fundamental basis of what is constitutional.”

And on December 4, the Court will hear Christie v. NCAA (consolidated with NJ Thoroughbred Horsemen’s Association v. NCAA). Christie concerns whether the Professional and Amatuer Sports Protection Act (“PASPA”), a federal statute that prohibits modification or repeal of state-law prohibitions on sports gambling, unconstitutionally commandeers the regulatory power of states, in violation of the Tenth Amendment. The New Jersey legislature enacted SB 2460 in 2014, which partially repealed certain prohibitions on sports gambling. Five sports leagues (the NCAA, the NFL, the NBA, the NHL, and the MLB) collectively sued, arguing that the state law is a violation of PASPA, while the New Jersey parties (including New Jersey Governor Chris Christie) argue that PASPA unconstitutionally commandeers the state regulatory scheme for overseeing sports gambling. While the suit centers on the limits of federal and state power, David Purdum at ESPN predicts that the outcome of this case “will not only shape the future of American sports betting, but also begin to divvy up a market that experts say could be worth as much as $5.8 billion in annual revenue.”

The remaining cases for the December sitting are Oil States Energy Services v. Greene’s Energy Group and SAS Institute Inc. v. Matal (both to be argued on November 27); Cyan, Inc v. Beaver County Employees Retirement Fund and Digital Realty Trust v. Somers (both to be argued on November 28); Rubin v. Iran (December 4); Marinello v. United States (December 5); and Murphy v. Smith (December 6).

In addition to announcing the December argument calendar, the Court issued several Orders last week. On Wednesday, October 4, the Court granted an application to vacate the injunction that the Eleventh Circuit entered in the execution of Jeffrey Lynn Borden. Alabama was scheduled to execute Borden on Thursday, October 5, but on October 2, the Eleventh Circuit reversed the district court’s dismissal of Mr. Borden’s claim that the state’s execution protocol is unconstitutional cruel and unusual punishment. The Alabama Attorney General’s office appealed the Eleventh Circuit’s reversal. While Justices Ginsburg, Breyer, and Sotomayor would have denied the application to vacate, the Court vacated the injunction. U.S. District Court Judge Keith Watkins subsequently issued a stay of execution on Thursday, October 5, which the state Attorney General’s Office has not yet appealed.

On Thursday, October 5, the Court issued several orders pertaining to last-minute appeals and petitions which Florida death row inmate Cary M. Lambrix filed. Hours before his scheduled execution on Thursday, October 5, Lambrix filed a final application for a stay of execution and a petition for a writ of habeas corpus, which the Court denied.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.

This Week at the Supreme Court – Week of October 9, 2017

This coming week, the Court will hear oral arguments in three cases, all of which present major civil and appellate procedural issues.
On Tuesday, following a day off on Monday for Columbus Day, the Court will hear oral arguments in Hamer v. Neighborhood Housing Services of Chicago. The case presents the question of whether Federal Rule of Appellate Procedure 4(a)(5)(C) can deprive an appellate court of jurisdiction over an appeal that is statutorily timely, or whether the Rule is instead a nonjurisdictional claim-processing rule subject to considerations such as forfeiture, waiver, and the unique-circumstances doctrine. The circuits have been split on this issue, with the Ninth and D.C. circuits having concluded the latter, and the Second, Fourth, Seventh and Tenth having concluded the former. By federal statute, a district court may extend the time to file a notice of appeal in a civil case “upon motion filed not later than 30 days after the expiration of the time otherwise set for bringing appeal, . . . upon a showing of excusable neglect or good cause.” Petitioner Charmaine Hamer timely moved the court for a 60-day extension to file a notice of appeal, which the court granted. Despite Hamer’s timely filing of the notice, the Seventh Circuit appellate court sua sponte dismissed the appeal for lack of jurisdiction because Hamer filed her notice of appeal outside the time that the Federal Rules of Appellate exceed 30 days after the prescribed time or 14 days after the date when the order granting the motion is entered, whichever is later.” Hamer will argue: a) that the 30-day limit on extensions is nonjurisdictional because deadlines appearing only in court rules without statutory support do not impose jurisdictional limits. b) the Court has held that nonjurisdictional claim-processing procedural rules are not mandatory, and c) NHSC waived or forfeited its timeliness-based objection in several ways. NHSC will argue: a) The rule is jurisdictional and delineates cases by defining different courts’ powers b) Even nonjurisdictional firm deadlines must be honored and c) NHSC had no opportunity to object to the extension because the motion for the extension was not briefed in the district court. SCOTUSblog has a detailed argument preview here.

On Wednesday the Court will first hear National Association of Manufacturers v. Department of Defense, which presents the issue of whether the Sixth Circuit erred when it held that it has jurisdiction under the Clean Water Act to decide petitions to review the waters of the United States rule, even though the statute does not “issued[e] or den[y] any permit” but instead defines the waters that fall within CWA jurisdiction. In June 2015, the Department of Defense and other agencies approved a final rule defining the term “the waters of the United States” and hence the scope of CWA jurisdiction. The National Association of Manufacturers challenged that rule under the Administrative Procedure Act. State, municipal, industry, and environmental challengers also filed APA suits. But because of uncertainty about whether their challenge falls under the CWA’s judicial review provision, the challengers also filed petitions for review in appellate courts. The petitions for review were consolidated in the Sixth Circuit. The NAM intervened as respondent in the Sixth Circuit. The Sixth Circuit held that it, not the district courts, has jurisdiction to decide challenges to the rule. Although two panel members concluded that the CWA precludes jurisdiction, one judge reasoned that “incorrect” circuit precedent bound him to take jurisdiction under a provision of the Act, which requires that appellate courts review agency actions “in issuing or denying any permit.” Some environmental groups have sided with NAM in this case, while others, such as the National Resource Defense Council and the National

Wildlife Federation, have joined forces with the Department of Defense. NAM will argue that the Act’s plain language prohibits appellate jurisdiction over the rule. The rule is neither an action “in issuing or denying any permit,” nor an “other limitation.” The rule is a mere definition, NAM argues. The federal agencies argue that the Clean Water Rule prohibits discharges of pollutants to certain waters, therefore, it is an “other limitation.” The Hill wrote about President Obama’s attempt to dissuade the Court from granting certiorari.

Later Wednesday, the Court will hear arguments in Jesner v. Arab Bank, which presents the issue of whether the Alien Tort Statute categorically forecloses corporate liability. Victims of terrorist attacks that occurred between 1995 and 2005 in Israel, the West Bank and Gaza, bring the case. They accuse Arab Bank of maintaining accounts for known terrorists, accepting donations that it knew would be used to fund terrorism, and giving millions of dollars to suicide bombers’ families. They specifically accuse the bank of using its American office to launder money for Hamas. The Court must decide whether U.S. courts have jurisdiction over the Jordan-based bank, which has more than 600 branches on five continents. The Alien Tort Statute gives federal courts jurisdiction over “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” The Court previously tried to resolve this question of corporate liability under the ATS, but left it undecided in the 2013 case of Kiobel v. Royal Dutch Petroleum Co. The Court concluded that American courts lacked authority to hear the case because the conduct being contested in the case occurred in a foreign country.  The terrorism victims will argue that the bank violated the law of nations by financing terrorism and engaging in genocide and crimes against humanity. They will also argue that the ATS’s history gives no reason not to apply it to corporations.  The bank argues that corporations have not been held liable in international law. A bipartisan group of senators filed an amicus brief suggesting that the ATS is the only legal tool for civil lawsuits “against financial entities that use U.S. operations to aid terrorist attacks on foreign nationals overseas.” Law360 wrote about the country of Jordan and other groups urging the Court to throw out the case or to consider diplomatic ramifications of their eventual ruling. George Rutherglen of Just Security wrote an op-ed arguing that, “[e]xempting private corporations from liability, as if they were the equivalent of sovereign states, would be an unprecedented and dubious innovation.”

This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent College of Law Class of 2019, edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro.

Weekly Roundup: Week of October 2, 2017

The Supreme Court has wrapped up the first week of oral arguments for this exciting and jam-packed term. Check out our post earlier this week for a description of the facts and issues in the case presented to the Court this week. And audio from the oral arguments is available at at Oyez.

The Court first heard arguments on Monday in three consolidated cases, Epic Systems Corp. v. Lewis, Ernst & Young v. Morris, and NLRB v. Murphy Oil USA, Inc. As Adam Liptak of The New York Times notes, these cases center on whether or not employers can insist on arbitration agreements that would bar class action lawsuits in union and workplace disagreements. During the argument Justice Ginsburg pointed to how the ability to engage in class action suits helps workers, by stating “there is strength in numbers,” and “we have to protect the individual worker from being in a situation where he can’t protect his rights.” Liptak’s view was that Justice Anthony Kennedy appeared to side with employers in this case, while Justice Gorsuch did not have any questions for either side. To decide the case, the Justices have to consider the relationship between the Federal Arbitration Act and the National Labor Relations Act. Justice Ginsburg proposed at argument that the arbitration law was concerned with commercial contracts among merchants, not employers and employees, and that the employment contracts in this case have been forced on the workers. Although, the Obama administration filed a brief in support of the workers, and the Trump administration has taken the opposite position. Check out SCOTUSblog and Bloomberg for more analysis on this case.

Also on Monday the Court heard re-arguments in Sessions v. Dimaya, a case regarding one of the most notable current issues—immigration. Ella Nilsen of Vox explains that the “big question” in this case is whether or not the current definition of a “crime of violence” in the Immigration and Naturalization Act which can lead to deportation, is too vague. Dimaya was convicted of residential burglary and was determined to be removable by an immigration judge who said Dimaya’s two nonviolent burglary convictions were crimes of violence. Under the Immigration and Nationality Act, the country may deport lawful immigrants convicted of a crime of violence. A clause in the Act defines “crime of violence” as any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in course of committing the offense.”

The last time this case was before the Court the justices apparently divided evenly, leading to the need for re-argument, so Justice Gorsuch will most likely be the deciding vote. According to CNN, Gorsuch “grilled” a lawyer for the Justice Department about this mandatory removal law, and “dominated” the oral arguments, appearing “sympathetic” to the lawyers for Dimaya.

On Tuesday the Court heard re-argument in another immigration case, Jennings v. Rodriguez. The Justices were deadlocked on this case last term. The issue in this case is whether immigrants “slated for deportation have the right to a bail hearing and possible release after six months if they are not a flight risk and pose no danger to the public.” According to The Washington Post, the Court’s liberal justices “dominated” the arguments and expressed concern about indefinite detention of immigrants without a holding. The Justice Department argued that all non-citizens, whether they have lawful documents or not, have no constitutional right to be in the U.S. Justice Breyer noted that even suspects who have committed heinous crimes are entitled to a bail hearing, and stated “that to me, is a little odd,” and Justice Sotomayor said the indefinite detention sometimes lasting years is “lawlessness.” According to The New York Times , the 9th Circuit Appeals Court ruled that immigrants are entitled to a bond hearing every six months. Justice Alito responded to this argument by saying “Where does it say six months in the Constitution?” and “Why isn’t it seven? Why isn’t it eight?” The ACLU, representing the detained immigratnts, in turn stated that a six-month review makes the standard easier to review.

Additionally, on Tuesday the Court heard arguments in the much-anticipated gerrymandering case, Gill v. Whitford. Check out our Argument Preview for an in-depth analysis of the facts and issues. As Slate’s reports that the Justices debated abstract principles of law and math for half an hour, and the liberal justices bluntly stated that Republican gerrymandering that dilutes Democratic votes simply “punishes” voters for supporting Democrats and vice-versa. As that article’s headline states, “Partisan Gerrymandering Got the Sotomayor Treatment.” The Justice  asked one of the lawyers defending Wisconsin’s redistricting map how political gerrymandering helps our system of government and what value it brings to democracy, a question that the lawyer seemed to find difficult to answer. According to Newsweek, Justice Kennedy proposed a “novel” approach to this case. He stated, “Suppose the Court…decided that this is a First Amendment issue, not an equal protection issue.” On the other hand, Justice Gorsuch suggested that the Constitution gives the Court no authority to decide issues of redistricting at all, and stated the Court “ought to be cautious about stepping in here.” Check out CBS News,  The New Yorker,  and The Baltimore Sun for more information on this potentially seminal case.

Amy Howe of SCOTUSblog stated that the Justices got “personal” on Wednesday during the argument in District of Columbia v. Wesby.” She nicely summed up the issue by stating it is “whether D.C. police officers had probable cause to arrest a group of people attending a party in a vacant home; and, even if they did not, whether the lawsuit must be thrown out anyway because the officers are entitled to immunity.” Even though two young children in their “Sunday best,” observed the argument, the Court did not hold back and discussed many of the facts of the  “raucous party” at issue, including the “stripping, drinking, and marijuana smoking” that took place. Justice Kagan stated that she herself attended parties in her younger days, where other guests “may” have smoked marijuana. D.C. Solicitor General Todd Kim argued on behalf of D.C. and the officers, and urged the Justices to remember that officers face practical limitations when determining probable cause and the “fair probability” that the partiers were trespassing. Some justices responded to this argument by stating that it is impractical to require a person to know whether or not they have the right to attend a party, as they do not know whether the host has a right to host it there. Justice Alito also asked whether the police would have probable cause if the party took place in a more affluent neighborhood, and Justice Sotomayor suggested that there may have been no arrests if the partiers were white teenagers gathered in a wealthy neighborhood. ABC News and  The Federalist have more insight into this case.

The final case the Court heard this week was Class v. United States. As Rory Little of  SCOTUSblog explains, Class pleaded guilty to possessing  “readily accessible” firearms (which were in his car) while on the grounds of the U.S. Capitol. He accepted a guilty plea in exchange for dropping another charge. Jurist notes that the issue here is “whether a guilty plea waives a defendant’s right to challenge the constitutionality of the statute under which they were convicted.” Justice Roberts first commented on this question by stating “I should know this, but I don’t.” Justice Kennedy stated that the case requires the Justices to decide how to properly interpret Federal Rule 11, the rule governing federal guilty pleas. Justice Sotomayor suggested that Congress could amend Rule 11 to be more specific and settle this issue. Justice Gorsuch appeared to take Class’ side by noting the history of non-waiver doctrines. Kagan said U.S. attorneys can eliminate the ambiguity by just clearly stating in plea agreements whether the agreements waive the right to raise a constitutional challenge.

Next week will be another busy week at the Court, and argument previews are coming soon.

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Bridget Flynn, Class of 2019, and overseen by ISCOTUS Co-Director Professor Carolyn Shapiro

New Cases for the Court: The September 2017 Long Conference

The Supreme Court has just announced that it will hear eleven new cases in the Term that begins on Monday. Between the end of June and the beginning of September every year, the Supreme Court is on recess. Over the summer, many of the Justices travel or teach. New law clerks begin work as well, generally on a staggered schedule that overlaps with outgoing clerks. Petitions for certiorari (or “cert petitions”) continue to be filed throughout the summer, however, and the law clerks help the Justices review them. Then, at the end of September, in what is often called “the Long Conference,” the Justices meet to discuss the backlog of cert petitions. Generally, more cert petitions are granted as a result of the Long Conference than any other Conference throughout the year.

This year was no exception. The Supreme Court held its Long Conference on Monday, September 25, and on Thursday, September 28, it released a list of orders from that Conference, including the new cert grants. Specifically, the Supreme Court granted certiorari in 11 cases, although three of those cases (Dalmazzi v. United States, Cox v. United States, Ortiz v. United States) present the same issue and have been consolidated for argument purposes.

(1) Janus v. American Federation of State, County, and Municipal Employees, Council 31 is the most high-profile of the cases granted on Monday. Janus marks the third time in recent years that right-to-work advocates have attempted to persuade the Court to overrule a 1977 case called Abood v. Detroit Bd. of Education. Abood held that the First Amendment allows a public-sector union to collect “fair share fees” from employees in a collective bargaining unit even if those employees chose not to become union members. Fair share fees reimburse a union for the work they do on behalf of the non-member employees.

In Harris v. Quinn in 2014, the Supreme Court considered a First Amendment challenge to fair share fees that personal care assistants to disabled individuals were required to pay the union. Although these assistants were paid by the State of Illinois, in some regards, the disabled individuals functioned as their employees. Holding that because these personal care assistants were not “full fledged employees,” the Court declined to apply Abood to them, meaning that they did not need to pay the fees, and the five-Justice majority expressed great skepticism about that case. It did not, however, overrule Abood.

The next chapter in this saga came in Friedrichs v. California Teachers Association, which squarely presented the question as to whether the Court should overrule Abood. After oral argument but before any opinion issued, however, Justice Scalia unexpectedly died. The Court subsequently affirmed the lower court (meaning that Abood remained intact) by a 4-4 vote. Commentators on both the right and the left agree that this time, the Court will actually reach the Abood issue and that the remaining four Justices from the Harris majority (Chief Justice Roberts and Justices Alito, Kennedy, and Thomas) will be joined by Justice Gorsuch to give the right-to-work forces the victory they have sought.

(2) In McCoy v. Louisiana, the Court will consider the rights of a death row inmate who was convicted for the murder of his estranged wife’s son, mother, and stepfather. McCoy’s lawyer tried to persuade him to take a plea deal, which McCoy refused. At trial, the lawyer conceded his guilt during the opening statement against McCoy’s clear intention to maintain his innocence. (The lawyer believed that the plea would make it possible to avoid the death penalty.) McCoy attempted to fire the lawyer and represent himself two days prior to trial but the judge denied his request. At trial, McCoy claimed the police were responsible for the murders and that the judge’s goal was to allow the lawyer to “throw away all aspects of my due process,” according to the ABA Journal. The lawyer attempted, but ultimately failed, to convince McCoy that the evidence against him was so strong that he should take a plea deal. Washington’s Top News reports that this case will determine “who is ultimately in charge of the case, the lawyer or his client, and whether the right to a lawyer that’s guaranteed by the Constitution is meaningful if, even with the best intentions, he can ignore his client’s wishes.”

(3)The Court also added two Fourth Amendment cases to its docket. The first is Collins v. Virginia. As Constitution Daily describes, the issue of Collins centers on the Fourth Amendment’s “automobile exception,” which the Court has previously held gives police officers the power to search a vehicle without a warrant if they have probable cause to believe it contains contraband. According to Cornell Law School’s Legal Information Institute, the exception could be invoked if, for example, the contraband is in plain sight and it is likely it and the vehicle will be gone by the time a warrant is issued. In Collins, the police saw a picture of what they believed to be a stolen motorcycle on Collins’s Facebook page. They then located the house where he was staying and found the motorcycle under a tarp near the house. Collins was then charged with receiving stolen property. He is arguing that the search was not covered by the exception and is unconstitutional. The Court will have to decide if the exception allows for a police officer to enter private property and search a vehicle there without a warrant.

(4) In its second Fourth Amendment case, Byrd v. United States, the Court will decide what privacy interests a driver of a rental car has when the driver was not authorized on the rental agreement. Terrance Byrd was driving his girlfriend’s rental car with her permission, when he was pulled over for a traffic violation in Pennsylvania. The police searched his car and found large amounts of heroin and body armor. Bryd was arrested and charged with possession of body armor by a felon and with possession with intent to distribute heroin. Byrd argued the police violated his Fourth Amendment protection against unreasonable search and seizure. Both the district court and the Court of Appeals for the Third Circuit disagreed, however, explaining that he had no reasonable expectation of privacy because he was not on the rental agreement. As Adam Liptak of the New York Times notes, however, the Third Circuit acknowledged that there is a circuit split among federal appeals courts as to “whether the sole occupant of a rental vehicle has a Fourth Amendment expectation of privacy when that occupant is not named in the rental agreement.” The Court will address this question, though argument has yet to be scheduled in this case.

(5) The Court has also agreed to hear a Fifth Amendment case. In City of Hays, Kansas v. Vogt, Police officer Matthew Vogt, who worked for the City of Hays, applied for a position in a different cities. During the interview he stated that he had kept a knife given to him while he was an officer working for the City of Hays. According to Justia, he was offered the new job but only on the condition that he returned the knife to the Hays police department. He complied, but became the subject of a criminal investigation and lost the offer. The investigation led to two felony charges that were eventually dropped for lack of probable cause after a hearing. Vogt sued both cities and four individual police officers, arguing that the use of his earlier statements in the probable cause hearing violated his Fifth Amendment right against self-incrimination. The district court dismissed all of Vogt’s claims. The Tenth Circuit Court reversed the trial court’s dismissal as to the City of Hays, although it upheld the dismissal as to the other jurisdiction and the police officers. According to SCOTUSBlog, Justice Gorsuch, a former member of the 10th Circuit bench, has recused himself.

(6) In Encino Motorcars, LLC v. Navarro, the Court will revisit a case that it has reviewed before. Bill Chappell of NPR WVIK explains that the case “turns on the interpretation of labor and overtime laws as they apply to employees at car dealerships.” Navarro was a service advisor at a car dealership, and he is arguing he was protected by overtime laws, even though they do not apply to salesman or mechanics. According to Lynn White of The Federalist Society, service advisers were long considered exempt from the Fair Labor Standards Act’s overtime requirement. But in 2011 the Department of Labor (“DOL”) issued a rule stating that advisors are not exempt from overtime. The Supreme Court ruled that the DOL’s decision was “arbitrary and capricious,” and thus violated the Administrative Procedures Act. It ordered the Ninth Circuit to rule again without taking the DOL’s regulation into account. The Ninth Circuit has now ruled for a second time that service advisers are not exempt.

(7) In Rosales-Mireles v. United States, will address the standard for correcting plain error of a lower court and the application of a 1993 case, United States v. Olano. According to Amy Howe of SCOTUSblog, Rosales-Mireles pleaded guilty to reentering the United States illegally and was sentenced to 78 months in prison – an incorrect sentence calculation. Although the Fifth Circuit agreed that Rosales-Mireles sentence was incorrect, it refused to correct its error. The court argued that the kind of errors that would “seriously affect the fairness, integrity or public reputation of judicial proceedings” are “ones that would shock conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.” The Supreme Court is set to address this standard, which Rosales-Mireles argues is too high and too harsh.

(8) Finally, Dalmazzi v. United States, Cox v. United States, Ortiz v. United States (consolidated cases) all involve the propriety of a judge serving simultaneously on the United States Court of Military Commission Review and either the Army or Air Force Court of Criminal Appeals.

This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS co-director Carolyn Shapiro.


Gill v. Whitford Oral Argument Preview

Next Tuesday the Court will hear oral arguments in Gill v. Whitford, a controversial and widely anticipated case about partisan gerrymandering in Wisconsin. In addition to reviewing the district court’s analysis and holding, the Court will have to answer the basic question of whether partisan gerrymandering cases even present issues that courts are able to decide.

Amy Howe of SCOTUSblog has provided background into the case that Justice Ruth Bader Ginsburg suggests may be the “most important” case of the term. In 2011, following the 2010 census, the Republican-controlled legislature in Wisconsin passed a new legislative map. William Whitford, a retired law professor, filed suit after the 2012 elections. He alleged that the map favors Republican candidates and disadvantages Democrats to such an extent that it violates Democrats’ First Amendment right to freedom of association and Fourteenth Amendment guarantee of equal protection. Whitford argues that the Wisconsin Legislature deliberately decreased effectiveness of the Democratic vote by “cracking” some Democratic voters — breaking them up between Republican-dominated districts, thereby diminishing their electoral influence —  and “packing” other Democratic voters into a small number of districts that some argue was drawn to lock in Republican control. Supporting data shows inconsistencies between the number of voters and the electoral outcomes. For example, in 2008, before the maps were redrawn, Democrats won 57% of the vote for state assembly elections and controlled 52 seats in the assembly compared to the 46 held by Republicans. Four years later, however, Democrats won 52% of votes but retained only 39 assembly seats compared to the 60 seats held by Republicans. Check out The New York Times for more detailed information on the mapping and election results.

Defending the map, the state argues that partisan considerations have long been commonplace in drawing legislative maps and that the current districts are similar to the prior map, which were drawn in 2002 by the federal courts. The state also argues that Whitford lacks standing to challenge the 2010 map because his district has historically been held by Democrats, calling his claim a “subjective preference,” not a judicially cognizable injury. And the state argues that gerrymandering in general is a political question for state legislatures, not courts.

At the trial court level, a three-judge district court sided with Whitford, concluding that the plaintiffs had adequately established unconstitutional partisan gerrymandering. One judge dissented. The state then appealed to the Supreme Court.

This is not the first partisan gerrymandering case brought before the Supreme Court. In 2004 the Court heard Vieth v. Jubelirer, a case challenging partisan gerrymandering in Pennsylvania. The Court in Vieth declined to intervene in the issue. Four justices agreed that partisan gerrymandering is simply not justiciable. Justice Kennedy, who supplied the majority’s fifth vote, wrote that a “workable standard” needs to be offered before the Court should consider the constitutionality of politically motivated redistricting, leaving the door open to hear such cases again.

Whitford claims such a standard — called the “efficiency gap” — now exists and meets Justice Kennedy’s demand for a workable standard. This approach uses mathematical formulas to identify maps that involve “cracking” and “packing” of one party at a significantly higher rate than the other. This formula was proposed by two academics, Nicholas Stephanopoulos and Eric McGee. On the other hand, as Adam Liptak of The New York Times reports, the Republican National Committee has argued, in an amicus brief supporting the state, that the efficiency gap “is a tool that advances the partisan interests of the Democratic Party,” and that the high concentration of Democrats in cities, as opposed to the more even distribution of Republicans in cities and rural areas, is to blame for Democrats lack of electoral power.

A transcript of the oral argument is likely to be released on Tuesday afternoon, and audio of the argument will probably become publicly available on Friday, October 6.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS co-director Carolyn Shapiro.

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, 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 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, 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 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.


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.