Immigration, OT 2017, Weekly Roundup

April Argument Review III – Trump v. Hawaii and Presidential Statements

Leave a comment

Trump v. Hawaii, the challenge to the third version of the travel ban issued by President Trump, was the last argument of the Term, argued on April 25.  The case featured two extremely experienced advocates: former Acting Solicitor General for the Obama Administration, Neal Katyal, representing the state of Hawaii, and current Solicitor General, Noel Francisco.

In a proclamation, President Trump limited travel from eight countries: Chad, Libya, North Korea, Iran, Somalia, Syria, Venezuela, and Yemen. Hawaii challenged the proclamation, arguing that it exceeded the president’s authority under the Immigration and Nationality Act (“INA”), specifically section 1182(f), and also violated the Constitution. The federal district court issued a preliminary injunction blocking the order and the Ninth Circuit upheld that ruling. The courts held that the proclamation likely violates the Immigration and Nationality Act.

The government defended the proclamation as within the President’s INA authority because the statute gives the president a “broad and flexible power,” and the proclamation reflects his foreign policy and national security judgment as to whether the government has enough information needed to determine whether aliens from particular countries are admissible. The government also argued that under the 1972 case, Kleindienst v. Mandel, once the government presents a legitimate reason, such as national security, for not admitting aliens, the decision is not subject to judicial review.

Addressing the statutory argument, Katyal argued that Congress already implemented a three-part plan to address the problem of certain countries not providing sufficient information for the U.S. government to vet nationals, and that plan included a ban on nationality discrimination in section 1152, also part of the INA.

The advocates also addressed whether the proclamation violated the Establishment Clause of the First Amendment because an objective observer would conclude that it was adopted for the purpose of excluding Muslims. In a high-stakes concession, Katyal agreed with Chief Justice Roberts that if the President “tomorrow” disavowed any anti-Muslim purpose or rhetoric, the Establishment Clause issue would disappear. In apparent response, in the last 30 seconds of his rebuttal, Solicitor General Francisco stated:

Well, the President has made crystal-clear on September 25 that he had no intention of imposing the Muslim ban. He has made crystal-clear that Muslims in this country are great Americans and there are many, many Muslim countries who love this country, and he has praised Islam as one of the great countries of the world. This proclamation is about what it says it’s about: Foreign policy and national security.

This statement turned out to be one of the most controversial in the case. Observers tried unsuccessfully to identify what September 25 statement the Solicitor General was referring to. (Full disclosure: I am one of many who said publicly that it was important for the government to correct or clarify the statement.) On May 1, the government filed a letter correcting the date in question, indicating that the reference was to January 25, 2017, and statements made that day that were cited in its reply brief. This clarification has not satisfied opponents of the proclamation. Since oral argument, and despite Katyal’s concession, the President and his press secretary have declined to make any disavowals of an intent to ban Muslims.

Bridget Flynn, Chicago-Kent Class of 2019, contributed this post.

 

Opinions of the Court, OT 2017

Opinions – The Calm Before the Storm

Leave a comment

The Supreme Court is expected to issue opinions on Monday morning, May 14. Virtually all of the major cases argued this Term, even some from October, are yet to be decided, and the Court is off to its slowest start in many years, so Monday could be a bit of a blockbuster.

But as we wait for the latest opinions, let’s look back at the Court’s three most recent opinions — all issued during the week of April 2. The most politically charged of those opinions was Jesner v. Arab Bank, in which, by a 5-4 vote, the Court held that foreign corporations may not be defendants in suits brought under the ATS. Justice Kennedy delivered the opinion, joined in part by Chief Justice Roberts, Thomas, Alito, and Gorsuch. (Justice Thomas also filed a concurring opinion, andJustices Alito and Gorsuch filed opinions concurring in part and concurring in the judgment.)J ustice Sotomayor filed a 34-page dissent, joined by Justices Breyer, Kagan, and Ginsburg.

The ATS is a provision of the Judiciary Act of 1789 that grants district courts original 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.” Under the ATS, the petitioners, foreign nationals injured or killed by terrorist attacks between 1995 and 2005 in Israel, the West Bank, and Gaza, brought suit against Arab Bank, PLC, a foreign corporation that allegedly facilitated the acts of terrorism that caused their injuries. The United States District Court of the Eastern District of New York dismissed their claims after the Second Circuit’s decision in Kiobel v. Royal Dutch Petroleum Co., which held that foreign corporations could not be sued under the ATS (the Court affirmed the holding in Kiobel, but on the grounds that claims cannot normally be brought pursuant to the ATS when all conduct relevant to the suit took place outside of the United States). The Second Circuit affirmed the dismissal, which the petitioners appealed, and the Supreme Court affirmed.

The five-justice majority emphasized that Congress enacted the ATS to “promote harmony in international relations by ensuring foreign plaintiffs a remedy for international law violations”, in order to discourage litigation against the United States. This case, the Court emphasized, does the opposite. “At a minimum, the relatively minor connection between the terrorist attacks at issue in this case and the alleged conduct in the United States well illustrates the perils of extending the scope of ATS liability to foreign national corporations like Arab Bank,” stated Kennedy in the opinion. “For 13 years, this litigation has ‘caused significant diplomatic tensions’ with Jordan, a critical ally in one of the world’s most sensitive regions.”

The dissent argued that, by “categorically foreclosing foreign corporate liability” under the ATS, the Court is “[absolving] corporations from responsibility under the ATS for conscience-shocking behavior.” Analogizing to Citizens United v. SEC, Justice Sotomayor concluded that by shielding corporations from liability under the ATS, the Court “allows these entities to take advantage of the significant benefits of the corporate form and enjoy fundamental rights, without having to shoulder attendant fundamental responsibilities.”

While Joan Biskupic at CNN, writes that Jesner is evidence of increasing tension between the liberal and conservative blocs on the Court, Walter Olson, at the Cato Institute, argues that the decision “[confirms] that is it up to Congress, not the judiciary, to decide whether and when American courts should entertain international human rights cases against foreign defendants.”

Oil States Energy Services, LLC v. Greene’s Energy Group, LLC , one of the most highly-anticipated intellectual property opinions of the Term, was written by Justice Thomas. The only dissenters were Justice Gorsuch, who wrote an opinion, and Chief Justice Roberts, who joined him. This case was about inter partes review – an administrative process that allows the Patent and Trade Office (“PTO”) to reconsider and cancel patents that were (allegedly) improperly issued because they fail the novelty or nonobviousness standards. The Court upheld this procedure against claims that it violates Article III or the Seventh Amendment jury right., holding that Congress had properly delegated inter partes review to the PTO, and that “the Seventh Amendment poses no independent bar to the adjudication of that action by a nonjury factfinder.” In the related case of SAS Institute, Inc. v. Iancu, the Court held, 5-4, that when it undertakes inter partes review, the PTO must consider all of the challenges raised to the patent.

Adam Liptak of The New York Times writes that supporters of inter partes review see it as a way to combat “patent trolls” – companies that obtain patents and then, rather than use the patents, demand royalties and sue for damages. Critics of the decision have said that the Court is undermining the stability and effectiveness of patents as property rights that form the foundation of the U.S. innovation economy. And Joe Nocera explored the views of different industries in Bloomberg, painting a picture of tech companies on one side (supporting inter partes review because of how often patents are challenged in court) against drug companies on the other side (criticizing inter partes review because it cuts down on their ability to build “patent fortresses” around a branded drug to maintain that drug’s profitability). In addition, Nocera writes that patent examiners may not be getting it right the first time because the Patent and Trademark Office is entirely overwhelmed with patent applications –receiving upwards of 640,000 applications each year, with only around 8,000 patent examiners.

ISCOTUS Fellows Elisabeth Hieber, Chicago-Kent Class of 2019, and Eva Dickey, 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.

OT 2017, Weekly Roundup

April Argument Review – Part II – Tribal Fishing Rights

Leave a comment

Native American fishing rights are at issue in Washington v. United States, argued in April 18, and covered by ISCOTUS now here. In the “Stevens Treaties,” a series of agreements made in the 1850s between the federal government and Indian Tribes in what are now the states of Idaho, Montana, Oregon, and Washington, the Tribes relinquished most of their territory, but retained in perpetuity “the right of taking fish, at all usual and accustomed grounds and stations. . . in common with all citizens of the Territory.”

In this case, the Tribes, joined by the United States, are seeking “to enforce a duty upon the State of Washington to refrain from constructing and maintaining culverts under State roads that degrade fish habitat.” The Tribes argue that culverts violate the treaties because they prevent salmon from accessing tribal fishing grounds, thus degrading fisheries and interfering with the Tribes’ “right of taking fish.” The district court found for the Tribes, which the Ninth Circuit affirmed, reiterating that the treaties guaranteed that “the number of fish would always be sufficient to provide a ‘moderate living’ to the Tribes.” The petitioner, the state of Washington, argues that while treaties do guarantee the Tribes the right to access fishing grounds, they do not guarantee the Tribes a standard of living of living from fishing.

At argument, the Court focused primarily on the appropriate standard to determine when the state violates the treaties. Noah Purcell, the Solicitor General of Washington, argued that a barrier would violate the treaties only if it causes “a large decline in a particular river and that it’s not justified by substantial compelling interests.” When Justices Alito and Kagan pressed Mr. Purcell to clarify this standard, he explained that “a decline of half the salmon would certainly easily qualify” but a decline between 1 and 5 percent would not qualify. Justice Gorsuch also pressed Mr. Purcell on his assertion that barriers would not violate the treaty if justified by a substantial compelling interest. “I don’t see anything in the treaty…that says: Ah, and your rights to those usual and customary grounds and stations is limited by, and may be completely eliminated, if necessary, to meet other domestic interests that a municipality might have, which is, I think, the position you’re taking…before this Court.”

Allon Kedem argued on behalf of the United States, and William M. Jay, argued on behalf of the Tribes. Both were also asked to clarify the appropriate standard of salmon degradation that would constitute a treaty violation. Mr. Kedem did not provide a specific number, but stated that “substantial degradation” is “harm that is both durable and appreciable, meaning the type of thing that shows up year after year, despite normal fluctuations.” Mr. Jay said that substantial degradation does not mean “a hard and fast number” but is “something that you would determine, factually, in the context of one fish species versus another.”

Reviewing the arguments for SCOTUSblog, Miriam Seifter writes that while the Court “is unlikely to devote its opinion to correcting factual findings”, it “does seem poised to announce some standard for violations of the treaties.”

Also on Wednesday, April 18, the Court heard arguments in Lagos v. United States, which presents the question of whether, under the Mandatory Victims Restitution Act (MVRA), a criminal defendant can be ordered to pay costs to the victim that were “neither required nor requested” by the government, including costs incurred for the victim’s own purposes and which no official government action prompted. The case involves the MVRA’s requirement that courts must order the defendant to “reimburse the victim for lost income and necessary child care, transportation, and other expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.” 18 U.S.C. 3663A(b)(4).

The Fifth Circuit, and other courts of appeals, held that this provision covers the costs of internal investigations and private expenses that were “neither required nor requested” by the government, but the D.C. Circuit has disagreed.

Daniel Geyser, a Dallas attorney, argued on behalf of the defendant, the former owner and CEO of a holding company that owned USA Dry Van Logistics LLC, a trucking company. Lagos induced GE Capital to loan his company tens of millions of dollars by modifying Dry Van’s records, leading GE Capital to incur almost $5 million in debt.

Geyser argued that the MVRA’s language “does not include the cost of hiring four law firms, a consulting firm and forensic experts for a private investigation in bankruptcy litigation.” Unlike other restitution provisions, the MVRA does not provide make whole relief, he argued. Geyser further argued that GE Capital incurred expenses before the government’s investigation, and therefore they did not qualify as expenses incurred during participation in the investigation or prosecution of the offense or attendance at proceedings related to the offense.

Michael Huston, Assistant to the Solicitor General, argued on behalf of the United States, taking the position that the statute is not limited to participation in the government’s investigation. Several justices appeared to disagree, however. Chief Justice John Roberts, for example, stated that the statute refers to only one investigation and that must be the government’s. And Justice Breyer told Huston that he has “a big problem” with the statute’s language because it does not clarify whether a victim should receive restitution for costs incurred during a company’s investigation before a police investigation begins.

On Tuesday, April 17, the Supreme Court heard arguments in Lamar, Archer & Cofrin, LLP v. Appling, in which the Court will decide if an oral statement regarding a single asset is a statement “respecting the debtor’s financial condition,” as described in the United States Bankruptcy Code. Danielle D’Onfro of SCOTUSblog reports that the justices asked few questions of the parties in this case, but when they did, they primarily focused on what types of statements, such as “I’m above water,” “I own a genuine Vermeer,” and “I have a bank account with a billion dollars in it,” can be considered actual statements about one’s “financial condition.” D’Onfro believes the ruling will not “clarify much beyond a few words in Section 523,” and the case “may be in the running for the narrowest decision of the term.” To read more about the case, check out the Jurist’s article, here.

ISCOTUS Fellows Bridget Flynn, Elisabeth Hieber, and Matthew Webber, all Chicago-Kent Class of 2019, contributed to this post, which was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

OT 2017, Weekly Roundup

April Argument Review: Part I – State Taxation of Internet Commerce

Leave a comment

April saw several significant oral arguments, including a case that could change the rules for state taxation of internet commerce, South Dakota v. Wayfair, previewed here. In Wayfair, the state of South Dakota, with the support of forty-one other states, is asking the Court to overrule a 1992 case, Quill Corp. v. North Dakota. Quill held that the commerce clause prohibits state governments from taxing out-of-state retailers that do not have a physical presence in the state on the sale of goods.

South Dakota Attorney General, Marty J. Jackley, argued  first that under Quill, states are losing “massive sales tax revenues” needed for “education, health care, and infrastructure.” Second, he argued that the holding it hurts smaller retailers with brick-and-mortar stores who are trying to compete against the larger, national retailers with an online presence.

Justice Sotomayor asked Jackley “[h]ow much contact is enough to justify placing this obligation on an out-of-town seller?” She was also concerned about logistics, asking what would happen if a company lost track of how much it had sold in a particular state. Chief Justice Roberts pointed out that some of the larger e-commerce companies are expanding to the point that they have a physical presence in most, if not, all 50 states, arguably rendering a reversal of Quill irrelevant. Jackley responded by stating that although a few companies—principally Amazon—are expanding their physical presence, states are expected to miss out on some $100 billion in lost revenue over the next decade. Justice Kennedy, no fan of Quill, stated that “this court has made a statement of constitutional law that … has now, especially in light of the cyber age, proven incorrect.”

Arguing against a reversal of Quill, George Isaacson, representing Wayfair argued that Congress should identify the parameters of taxation across state lines. For example, he argued, “[Congress] can require standard uniform definitions of products so that food and sportswear and clothing doesn’t mean one thing in one jurisdiction ad another elsewhere. “ Similarly, Chavie Lieber of Racked.com highlights a similar argument made by those opposed to the Supreme Court overruling Quill. Such a reversal of  via the Supreme Court would “open a can of worms” as local state tax regimes restructure how they levy those new taxes. Alan Horowitz of Appellate Tax reviewed the oral argument in detail, concluding that signs pointed towards a closely divided court likely to uphold its prior precedent.

In another tax related-case, Wisconsin Central Ltd. v. United States, the issue revolved around whether stock transferred by a railroad company to an employee is taxable compensation under the Railroad Retirement Tax Act. Elizabeth Lowman of Jurist writes that during the argument Wisconsin Central argued that stock is not money as defined as a “generally accepted medium of exchange.” The government on the other hand argued that more than just cash money falls under the purview of the statute and cited other non-cash examples that are taxed for support. Daniel Hemel of SCOTUSblog similarly noted that the main focus of the justices was what is considered “money,” and what is not.

And in WesternGeco LLC v. ION Geophysical Corp., argued the same day as Wisconsin Central, the Court considered whether a domestic patent holder can be awarded foreign lost-profit damages, or if the presumption against extraterritoriality bars such recovery. In this case, the Respondent produced components parts of a patented item that, if put together in the United States, would constitute patent infringement. Instead, however, Respondent shipped the components to foreign parties to be combined and then used outside of the United States.

Petitioner argued that the presumption against extraterritoriality should not apply because the loss of foreign profits is a direct and foreseeable result of a domestic act of infringement. Justice Breyer had questions for Petitioner primarily aimed at the idea of comity – whether or not allowing foreign lost-profits damages in this case could have the effect of foreign corporations going after components manufacturers in the United States for violating foreign patents.

Addressing Justice Breyer’s concerns, the Assistant to the Solicitor General, arguing for the United States in support of the Petitioner, noted that the comity issue should not be very concerning given that similar damages are already awarded in tort, contracts, and copyright law. The United States also argued that once the infringement is established, if the patentee is able to show that such infringement is the proximate cause of the patentee’s lost profits, the patentee should be allowed to recover full compensatory damages.

Respondent argued that the presumption against extraterritoriality should bar the Petitioner from being awarded foreign lost-profit damages, because the harm (downstream loss of foreign profits once the patented device is used abroad) is too far removed from the domestic act of infringement for these damages to appropriately be awarded. Many of the Justices’ questions for the Respondent were based around the idea that applying the presumption against extraterritoriality here would prevent the patentee from being fully compensated for the patent infringement.

Check out a quick overview of the background of the case and oral arguments from Reuters. And write up of the oral arguments from patent law blog Patently-O can be found here.

ISCOTUS Fellows Matthew Webber, Chicago-Kent Class of 2019, and Eva Dickey and Michael Halpin, both 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.

History of the Court, Politics

The Court and the 2016 Election—Lessons From History

Leave a comment

When it comes to the role of the Supreme Court on the presidential campaign trail, how does the 2016 election compare to past elections? For all its precedent-shattering and unpredictable qualities, the 2016 campaign basically fell into a predictable dynamic when it came to the candidates’ treatment of the Court.

Image result for nixon supreme court

As I discussed in my earlier posts in this series on the Court and the 2016 election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves showed relatively little interest in the issue. This limited interest only decreased as Election Day approached. In my last post, I offered factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. In this post, I turn to history to show that the Court has always been a difficult issue on the campaign trail for presidential candidates. Continue reading →

Appointments, Politics

The Court and the 2016 Election—Explaining the Forgotten Issue

Leave a comment

As I discussed in my earlier posts on the Supreme Court and the 2016 presidential election, although the future of the Court played a major role in the election for many voters and for advocacy groups, the candidates themselves seemed uninterested in the issue. Trump released a list from which he promised to select a nominee for Justice Scalia’s vacant seat and he made brief reference to the Court in his stump speeches, but he spent most of his time on the campaign trail on other topics. Clinton rarely mentioned the Court. When she did, it was usually in response to a direct question. The candidates’ limited engagement with the Court only decreased as they got closer to Election Day.

In this post I offer four factors that help explain why neither Trump nor Clinton demonstrated much interest in making the future of the Court a central campaign issue. Continue reading →

Appointments, Politics

The Court and the 2016 Election—Great Expectations

Leave a comment

In the lead-up to virtually every presidential election over the past few decades, legal commentators and journalists have predicted that the future of the Supreme Court would feature prominently as a campaign issue. But these predictions have been consistently wrong—or at least considerably inflated. While the Court has featured as an issue on the campaign trail in every election since the 1960s, it has never been, with only rare exceptions, a prominent campaign issue.

The 2016 election was going to be different. Surely this time the Supreme Court would be one of the leading issues on the campaign trail. Justice Scalia’s death in February 2016 left a Court that was evenly divided between four ideologically conservative Republican-appointed Justices and four liberal Democratic-appointed Justices. Rarely has the direction of the Court been so clearly in the balance. When Republican senators refused to hold hearings on President Obama’s nominee to the Court, Judge Merrick Garland, Democrats predicted that their opponents would pay a price at the polls. Indeed, the justification Republicans gave for why they refused to hold hearings was that they believed the voters should have a chance to express their views on the direction of the Supreme Court. Now the voters had their opportunity. Continue reading →

Appointments, History of the Court, Politics

The Supreme Court and the 2016 Presidential Election

Leave a comment

What role did the Supreme Court play in the 2016 election? This is the question I consider in an article that will be published in a forthcoming issue of the Chicago-Kent Law Review. The article is based on a paper I presented at a symposium organized by ISCOTUS last fall; the law review will be publishing an entire issue of articles from the symposium.

Image result for 2016 election

My article focuses how Donald Trump and Hillary Clinton used the Court as a campaign issue. My central finding is this: Although the Court was an unusually significant factor when people cast their votes in this election, the major party candidates themselves did not seem particularly interested in pressing the Court as a major campaign issue. My articles explains why. Continue reading →

Conference Report, OT 2017

Conference Report: April 13, 2018 Conference

Leave a comment

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

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

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

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

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

OT 2017, Weekly Roundup

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

Leave a comment

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

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

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

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

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

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