This Week at the Court – June 5, 2017

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

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

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

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

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

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

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

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

Weekly Roundup – June 2, 2017

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

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

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

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

This Week at the Court – Week of May 29, 2017

On Tuesday, the Supreme Court issued three opinions and announced that will hear a case involving voter registration next Term. In one of the three opinions the Court issued on Tuesday, County of Los Angeles v. Mendez, the Court held, in a unanimous (8-0) opinion by Justice Alito that an officer’s reasonable use of force could not be understood to be unconstitutional by reference to things the officer had done earlier. In Mendez, the officers reasonably fired at a man pointing a BB gun at them. The question was whether their unconstitutional entry — without a warrant and without a knock-and-announce — into a shed where the man and his girlfriend, who were homeless, rendered the shooting unreasonable. As Rory Little explains in a particularly insightful SOCTUSblog post, it appears that the Court worked hard to achieve unanimity in this case and that it cabined its holding in significant ways, reminding courts that reasonableness is assessed on the totality of the circumstances and that law enforcement officers can be held responsible for the foreseeable consequences of their actions and even leaving open the possibility that the plaintiffs could prevail on remand.

In Impression Products, Inc. v. Lexmark International, Inc., the Court held that a patent holder cannot restrict a purchaser’s use or subsequent sale of a patented product, and it made clear that this legal rule applies to products sold both within in the United States and abroad. (The decision was 7-1, with Justice Ginsburg dissenting with respect to products sold abroad.) More analysis is available at Ars Technica. And in a unanimous (8-0) opinion by Justice Thomas, the Court held in Esquivel-Quintana v. Sessions that an immigrant’s conviction for sexual abuse of a minor arising out of a consensual relationship between the immigrant when he was 21 and his 17-year-old girlfriend did not qualify as an aggravated felony leading to automatic deportation.

And the Court agreed to hear Husted v. A. Philip Randolph Institute, in order to review a Sixth Circuit decision holding that Ohio’s method of removing voters from the rolls violated two federal laws. The Atlantic provides some background about the case and related issues. At the same time, the Court failed to act in a number of closely watched cert petitions. It did not act in Pavan v. Smith, for example, which addresses whether it is a violation of the Fourteenth Amendment to deny married same-sex couples to have both their names on their child’s birth certificate. And yet again, it 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. SCOTUSblog, which keeps a running list of “Petitions We’re Watching,” summarized Tuesday’s orders here.

In other news, President Trump’s administration may find itself before the Supreme Court for a last chance to argue that its travel ban is constitutional. As Reuters reports, multiple federal courts have again declined to lift injunctions placed on the ban. It is unclear if the administration would file for appeal soon, or if they will wait for the 9th Circuit to rule on the issue. If they take on the case, the Court will be “called upon to decide whether courts should always defer to the president over allowing certain people to enter the country, especially when national security is the stated reason for an action as in this case.” They will also decide if the ban does indeed “favor one religion over another,” an action prohibited by the Constitution. Experts believe this case will most likely make its way to the Court for a final decision. However, as Lyle Denniston of Constitution Daily reports, the administration must act quickly if they want the issue settled before fall. As this is a very important and hotly debated case, the Court might even hold a special sitting in the summer if they believe it is urgent enough.

Finally, Gill v. Whitford has been in the recent news. In this case, a three-judge district court struck down Wisconsin’s State Assembly map “because it was drawn to neutralize the votes of Democrats, depriving them of representation.” USA Today reports that this case and other similar cases “will present the court with a fundamental question about political power: How far can lawmakers go in choosing their voters, rather than the other way around?” The Court declined for decades to set a standard regarding partisan gerrymandering, and this case may lead it to do so for the first time. Alternatively, the Court could hold, as four justices urged the last time the Court considered the issue in Vieth v. Jubelirer, that legislative districting is a nonjusticiable political question. (Because of the type of case, which was heard by a three-judge district court, the parties have an appeal as of right to the Supreme Court. The Court can summarily affirm, but it is likely to order full briefing and argument because of the significance of the case.The state of Wisconsin has requested a stay so that it does not have to redraw the districts in the meantime. Justice Kagan has ordered a response by June 7.) Ariane de Vogue of CNN explains the background of this very important legal issue.

 

Weekly Roundup – May 25, 2017

On Monday, in Cooper v. Harris, the Supreme Court upheld a lower court decision to strike down two North Carolina congressional districts as unconstitutional racial gerrymanders. Since the opinion’s release, the case has continued to garner attention. Linda Greenhouse of the New York Times argues that Cooper highlights the Court’s role “as a forum for electoral struggle,” and she notes the ways in which justices have invited parties to use it in that way. Greenhouse surveys other recent election- and voting-related cases, and she calls Justice Kagan’s majority opinion in Cooper “her most important since joining the Supreme Court seven years ago.” And commentators continue to debate the implications of the case going forward. Chris Elmendorf, for example, worries that the Cooper could lead to a weakening or even elimination of state obligations under Section 2 of the Voting Rights Act, insofar as it outlaws race consciousness in redistricting. And the SCOTUSblog symposium continues to have fascinating commentary from across the political spectrum. ISCOTUS co-director Carolyn Shapiro also discussed the case on WGN’s Legal Face Off this week. (For more information about Cooper and the other cases decided on Monday, see ISCOTUSnow’s post earlier this week.)

On Thursday evening, the Supreme Court also declined to grant certiorari or issue a stay in Thomas Arthur’s execution by the state of Alabama. Arthur, who maintained his innocence, was challenging the use of midazolam as part of the execution protocol. When the Court rejected his earlier cert petition in February, Justice Sotomayor, joined by Justice Breyer, dissented and laid out an extensive argument about why the Court should consider (and reject) the constitutionality of the execution protocol that uses midazolam. (The allegation is that midazolam does not render the individual unconscious, but does paralyze him, so he experiences tremendous pain when injected with the other two execution drugs but has no way to react or communicate what is happening.) In her opinion on Thursday, dissenting from denial of certiorari and denial of a stay, Sotomayor accused Alabama of worsening the situation by impeding Arthur’s access to the courts by refusing to allow his lawyer to have a phone with him during the execution. As a result, if the execution were botched or otherwise problematic, the lawyer would have difficulty seeking judicial intervention. The execution was carried out on Thursday evening.

In other news, Fix the Court released a report on transparency in the judiciary. The organization, which supports live video or audio streaming from both the United States Supreme Court and the federal Courts of Appeals, commented on video and audio access in the high courts of California, Iowa, Minnesota, Texas, and Utah. The report found that live-streaming is on the rise. Iowa provides live-streaming for cases of particular public interest, and video records all arguments. The Iowa Supreme Court even allows journalists to use social media in the courtroom. The Minnesota Supreme Court provides same-day video of its arguments, And in 2016, the California Chief Justice decided to live-stream all of that court’s arguments, joining Texas and Utah in doing so. The Texas judiciary has been particularly open to cameras in the courtroom, with Texas Justice Don Willett arguing that they help “demystify this inscrutable branch of government.” As United States Representative Ted Poe, a former judge from Texas, explains, “we have the greatest judicial system in the world for determining guilt or innocence…why would we not want the world to see it?” (The Fix the Court report also addresses tenure and mandatory retirement policies for judges in the five states.)

The Supreme Court will announce its Order List from yesterday’s Conference on Tuesday, and it may also release opinions. ISCOTUSnow will be back with a summary of that and other Court-related news.

The Week of May 22, 2017 at the Court

On Monday, the Supreme Court issued three opinions and its Order List from last week’s Conference. The most newsworthy of the decided cases, Cooper v. Harris, involved a challenge to two congressional districts in North Carolina. The plaintiffs  alleged that the districts were an unconstitutional racial gerrymander. The three-judge district court agreed, and the case was appealed automatically to the Supreme Court, which affirmed, striking down the districts. (If this sounds familiar, it may be because earlier this Term, the Court unanimously vacated a decision by a district court to uphold parts of a Virginia state legislative map that was challenged as an unconstitutional racial gerrymander, in a case called Bethune-Hill v. Virginia Board of Elections. The two cases were argued on the same day, by the same lawyers.)

In Cooper, in an opinion by Justice Kagan, the Court unanimously (8-0) rejected the state’s claim that, to comply with the Voting Rights Act, it needed to increase the black voting age population in one of the two districts. And by a 5-3 vote, the Court upheld the district court’s factual findings, with respect to the second district, that race predominated over other, constitutionally neutral, districting criteria. Many people were surprised by the line-up in Cooper. In Cooper, the 5-3 part of Justice Kagan’s opinion was joined by the other three liberal justices (Breyer, Ginsburg, and Sotomayor), but the fifth vote was supplied by Justice Thomas. But as I tweeted on the morning that Cooper came down and Mark Joseph Stern explained in more detail in Slate, Justice Thomas’s vote should not be a surprise. As he explained in detail in his partial concurrence and partial dissent in Bethune-Hill and reiterated in his concurrence in Cooper, he believes that the conscious use of race in government decisionmaking should be subject to the strictest of scrutiny – and it is this hostility to the use of race in decisionmaking that has made him hostile to the way the Voting Rights Act is interpreted and applied (see his dissent in Alabama Legislative Black Caucus v. Alabama for some discussion of this point). In other words, Justice Thomas’s views about the law across these cases are fairly consistent, even if they do not map onto a traditional liberal-conservative understanding.

As prolific election law blogger and scholar Rick Hasen suggests, however, the bigger surprise may be that Justice Kennedy, who authored the opinion for the Court in Bethune-Hill, joined Justice Alito’s partial dissent here. Hasen speculates persuasively that Kennedy was uncomfortable with the majority’s handling of an earlier precedent requiring racial gerrymandering plaintiffs to produce an alternative map that meets the state’s legitimate criteria; the Cooper majority reads that requirement as simply setting out one way, but not the only way, for plaintiffs to prove that race predominated. Justice Alito’s partial dissent vehemently disagrees with that reading.

Cooper is very important, although just how important is in dispute. Some, like Hasen, think that these cases may make it harder for racial gerrymanders to be defended as partisan gerrymandering, at least in the South where race and party affiliation are very highly correlated, thus giving voting rights advocates more ammunition. Others, like equally prominent scholar Richard Pildes, argue that Cooper involves only a fact-specific disagreement about application of well-established legal propositions. There is no question, however, that Cooper, along with Bethune-Hill, will be pored over by legislators, and courts alike. Indeed, SCOTUSblog is sponsoring a symposium to discuss these cases.

The Court made other election-related news yesterday when it declined to hear full argument in Republican Party of Louisiana v. Federal Election Commision, instead simply summarily affirming. (There are a small number of cases, like this one and the voting cases just discussed, in which there is a three-judge district court and an appeal as of right. The Court can summarily affirm or, at least theoretically, summarily reverse, or it can set the case for argument and consider it on the merits. The precedential value of a summary affirmance is weaker than merits consideration because it does not contain any reasoning or approval of the lower court’s reasoning; it only affirms the bottom line.) Republican Party of Louisiana involves an unsuccessful challenge to the McCain-Feingold campaign finance law’s regulation of certain donations, known as “soft money,” to state and local parties. This summary affirmance was particularly notable, however, because Justices Thomas and Gorsuch indicated that they would have set the case for oral argument and a full merits decision. Kate Ackley of Roll Call rounds up reaction to the Court’s action and to Thomas and Gorsuch’s disagreement with it.

The Court also issued opinions in two other cases on Monday. First in an 8-0 opinion by Justice Alito, it held in Water Splash, Inc. v. Menon that under an international treaty known as the Hague Service Convention, international service of process by mail is permissible. And in an 8-0 opinion by Justice Thomas in TC Heartland LLC v. Kraft Food Group Brands LLC, the Court limited the places where patent suits can be brought by interpreting the statute to mean that a defendant’s “residence” is its place of incorporation only. This ruling limits a patent infringement plaintiff’s ability to forum shop, and will particularly affect the district in Texas where 40% of patent suits are filed due to a perception about friendly judges and juries, Reuters explains. In the same article, IIT Chicago-Kent law professor Greg Reilly points out that as a result, fewer cases are likely to be filed at all, which would be “a positive step for those who think there is a problem of a lot of poor-quality patents being enforced.” Adam Liptak for the New York Times explains that the decision is a blow to “patent trolls,” companies or individuals who buy patents for the sole purpose of “demand[ing] royalties or sue[ing] for damages.”

Finally, this paragraph from last week’s post remains true today:

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The Court will hold Conference on Thursday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when it does.

This Week at the Court – May 15, 2017

On Monday, the Supreme Court issued its Order List from last week’s Conference and also issued opinions in three cases. Perhaps the biggest news of the day was the Court’s denial of certiorari in North Carolina v. North Carolina State Conference of the NAACP. The North Carolina case involved a challenge to the state’s particularly strict voter ID law, a law that also cut back on early voting and made other changes in voting that had a particularly negative effect on African-Americans voters. The law was passed in the immediate wake of Shelby County v. Holder, in which the Court struck down the preclearance requirement of the Voting Rights Act. As a result, for the first time in decades, North Carolina was able to make wholesale changes to its voting and election laws without demonstrating, either to the Justice Department or to the D.C. District Court, that the changes would not harm minority voters. The law was challenged as violating the Voting Rights Act and the Fourteenth and Fifteenth Amendments. The district court held that the plaintiffs had not established either discriminatory effect or discriminatory intent. The Fourth Circuit reversed, holding that the legislature had targeted African-American voters “with almost surgical precision,” and it enjoined the law.

The State of North Carolina, its then-Governor, a Republican, and other officials, represented by the then-Attorney General, also a Republican, filed a cert petition. In January 2017, however, a new Governor and Attorney General, both Democrats, were sworn in, and the new Attorney General sought to withdraw the cert petition. The state legislature, which is and was under Republican control, objected, arguing that state law did not authorize the Attorney General to withdraw and that state law authorized them to retain their own counsel. As Chief Justice Roberts put it in a statement respecting the denial of certiorari, “a blizzard of filings” ensued. In light of the complex state-law dispute that the Court was faced with, Roberts admonished that the denial of certiorari is not a decision on the merits.

The Supreme Court’s denial of certiorari, however, does leave the Fourth Circuit decision intact. This is a victory for voting rights advocates, but it may not be a permanent one, as Ian Millhiser for Think Progress explains. Noted election law scholar and commentator Rick Hasen argues that the Chief Justice, who also wrote a statement respecting the denial of certiorari in a Texas voter ID case, is both encouraging states to continue to litigate these cases and is likely to be particularly unfriendly to plaintiffs’ claims under the Voting Rights Act when such a case finally reaches the Court. And the New York Times reports that the leadership of the Republican-controlled legislature in North Carolina is vowing to enact new voting restrictions.

The Court also declined, yet again, to act on the cert petition in Masterpiece Cakeshop v. Colorado Civil Rights Commission, the case involving a bakery that refused to create a wedding cake for a same-sex marriage and was found to have violated Colorado’s antidiscrimination law. Nor did the Court act on the petition in Peruta v. California, a Second Amendment challenge to San Diego’s requirement that an individual show “good cause” before being issued a license to carry a firearm. Unlike Masterpiece Cakeshop, Peruta is relatively new to the conference list, having been considered for the first time only on April 28. The Court’s inaction on the case this week tells us only that one or more justices are taking a hard look at it. On the other hand, Masterpiece Cakeshop has been relisted repeatedly. Some thought that it would be granted once Justice Gorsuch joined the Court, in large part because of Gorsuch’s well-known concerns about religious freedom. And while the case may yet be granted, it seems at least as likely that it will be denied, accompanied by a dissent from the denial of certiorari.

The three opinions issued yesterday are in contrast to the three high-profile issues at issue in the cert petitions just discussed, although the issues presented are important. In Kindred Nursing Centers Limited Partnership v. Clark, the Court held 7-1 that a state cannot impose a requirement for a power of attorney to enter into an arbitration agreement that it does not impose on other contract provisions. The lone dissenter, Justice Thomas, adhered to his view that the Federal Arbitration Act does not apply in state courts, but the rest of the justices (other than Justice Gorsuch), in an opinion written by Justice Kagan, emphasized that arbitration clauses cannot be treated differently from other contractual terms. Indeed, as several commentators noted, the opinion could have implications for a variety of state attempts to protect consumers from arbitration agreements. This almost unanimous holding is surprising in some ways, as the Court has often split 5-4 on its reading of the FAA. But it is unsurprising in light of Justice Breyer’s expressed concern at oral argument “that Kentucky just doesn’t like the federal law … [s]o they’re not going to follow it.”

In Midland Funding LLC v. Johnson, the Court held 5-3 (with Justice Breyer joining the conservatives) that a creditor does not violate the Federal Debt Collection Practices Act by filing a proof of claim in bankruptcy court for a debt it could not otherwise collect due to the statute of limitations. In the Wall Street Journal, Jess Bravin provides some real world context for the “big business” of collecting time-barred debts. Bloomberg has more here. And in Howell v. Howell, the Court held that a veteran who waives military retirement pay in favor of disability payments does not have to indemnify his spouse for the lost retirement. Amy Howe of SCOTUSblog provides more information and explanation.

The Court will have Conference on Friday, but is unlikely to issue orders or opinions until next week. ISCOTUSnow will be back when they do.

The Week Ahead – May 1, 2017

On Monday morning, the Court took the bench and issued two opinions, both by Justice Breyer. The more high-profile opinion, in Bank of America v. City of Miami, involves whether and when a municipality can bring a lawsuit under the Fair Housing Act. In this lawsuit, and in a companion suit against Wells Fargo, Miami alleged that the banks engaged in predatory lending in minority communities, leading to disproportionate numbers of foreclosures and vacancies in those neighborhoods, which in turn harmed the City in a variety of ways, including making it harder for it to assure integrated neighborhoods, reducing property tax revenues, and increasing the need for a variety of city services. In a 5-3 opinion, written by Justice Breyer and joined by the Chief Justice and Justices Ginsburg, Sotomayor, and Kagan, the Court held that the City’s alleged injuries fell within the “zone of interests” of the Fair Housing Act, so it could bring the lawsuit. The Court, however, imposed a vague but increased burden of establishing causation — more than mere foreseeability — on the City. It expressly declined to determine the precise contours of that burden. Justice Thomas, joined by Justices Kennedy and Alito, dissented from the Court’s holding that the City could sue, agreed that a higher level of causation was appropriate assuming the lawsuit could go forward, but concluded that the City could not meet that level of causation. Robert Barnes of The Washington Post has more.

In today’s other opinion, in Venezuela v. Helmerich & Payne, the Court construed an aspect of the Foreign Sovereign Immunities Act and concluded that a party alleging expropriation of property must allege facts establishing that the property was taken in violation of international law.

The Court issued its Order List from last week’s Conference — the first one in which Justice Gorsuch fully participated, other than recusing himself from a couple of cases that came from the Tenth Circuit, his former court. The Court granted certiorari in two cases, neither of which were among the most closely watched petitions. Amy Howe of SCOTUSblog summarizes the cases that were granted and some of the still-pending petitions.

Others are also making predictions about what the Court may have in store for the upcoming months. Perry Grossman of Slate believes that the Supreme Court is looking for cases involving civil forfeiture. Grossman notes that the Court recently decided Nelson v. Colorado, which took down Colorado’s demanding procedures required of those seeking to get their court costs refunded once their convictions were overturned. He argues the Court laid down this holding in order to make a point highlighting Due Process rights of those who have had property seized without actually being convicted, and will take on more of these cases in the future. And he describes Leonard v. Texas, in which the Court denied cert but Justice Thomas wrote a statement respecting that denial highlighting his concerns about civil forfeiture.

In other news, Justice Ginsburg recently gave a speech at Georgetown University. Henry Kronk of Western Journalism describes how Justice Ginsburg recalled her own confirmation to the Court, and contrasted it with the most recent nomination of Justice Gorsuch. Ginsburg expressed wishes of removing the tense political divisions that surrounds the Court, and noted that there was much more “collegiality” and “civility” in her hearing and other past hearings. She believes that partisan politics did not play a significant role in her confirmation, and noted that her biggest supporter on the Judiciary Committee was Republican Senator Orrin Hatch. Justice Ginsburg also commented, “every time we have a new justice, we have a new court.”

And Justice Gorsuch himself continues to make news, most recently with the revelation that he has not joined the “cert pool” — the group of justices whose law clerks collectively divide up the cert petitions for review. As Adam Liptak explains, Justice Alito also has stayed out of the pool, which has been blamed for the Court’s shrinking caseload.

The Court will not issue either orders or opinions again until next Monday, and it is done hearing argument for the year. Unless something unexpected happens, therefore, our Weekly Roundup is on hiatus this week. We will be back at the beginning of next week, however, to report on the latest developments.

Weekly Roundup – April 28, 2017

This week, the Court heard arguments in seven cases and issued an opinion in one.

Perhaps the most high profile case of the week was the last one, particularly in light of the Trump administration’s aggressive enforcement of immigration laws. Maslenjak v. United States asks whether a naturalized citizen may be stripped of her citizenship in a criminal proceeding because of an immaterial false statement made during her application process. The government argued that when Divna Maslenjak applied to become a citizen, she knew that she had lied to immigration officials when seeking refugee status. Christopher Landau, representing Maslenjak, argued that because the government had not established that lie she told, regarding her husband’s service in the Bosnian Serb military, was “material” to the granting of citizenship,  it should not cause her to be stripped of her citizenship.

Robert Barnes of the Washington Post provided a particularly detailed summary of the argument, in which the justices appeared skeptical of the government’s position, noting that Justice Kennedy criticized the government’s position for “demeaning the priceless value of citizenship.” Barnes then summarized an amusing, but important, discussion:

[T]he Justice Department lawyer said that because “naturalization is the highest privilege the United States can bestow upon on individual,” Congress has required that individuals “scrupulously comply with every rule governing the naturalization process.”

Roberts, who had asked no questions of Landau, lay in wait.

The chief justice noted that question 22 on the naturalization form asked “Have you ever committed, assisted in committing, or attempted to commit a crime or offense for which you were not arrested?”

Roberts then confessed: “Some time ago, outside the statute of limitations, I drove 60 miles an hour in a 55-mile-an-hour zone.” There was laughter in the courtroom and more confessions followed.

His point, the Chief Justice explained, was “that if he was in an immigrant’s position and had answered ‘no’ on question 22, ‘20 years after I was naturalized as a citizen, you can knock on my door and say, “Guess what, you’re not an American citizen after all.” ’ ”

On Monday, the Court started its week with two habeas cases. The first was McWilliams v. Dunn, which analyzed whether the experts assisting indigent defendants in their defense must be independent of the case’s prosecution under Ake v. Oklahoma. Attorney Stephen Bright arguing for James McWilliams, argued that his client’s clearly established constitutional rights under Ake were violated when an Alabama judge denied his plea to consult with an independent psychiatrist. Adam Liptak of the New York Times discusses the highlights of the McWilliams arguments and the justices’ apparent disagreement with how to read Ake. And the Atlanta Journal-Constitution profiles Stephen Bright, who is stepping down from the Southern Center for Human Rights, which he took over in 1982. McWilliams was Bright’s fourth argument before the Court, and he prevailed in the other three, all of which were also death penalty cases.

Also on Monday, the Court heard Davila v. Davis, which asks whether the Court’s precedent that ineffective state habeas counsel can overcome the procedural default of an ineffective assistance of trial claim should also apply to the procedural default of claims of ineffective assistance of appellate counsel. Attorney Seth Kretzer argued that the Court should excuse Erick Davila’s failure to raise the ineffectiveness of his appellate lawyer in a post-conviction proceeding because of the ineffectiveness of Davila’s post-conviction lawyer. Texas Solicitor General Scott Keller said that for the Court to hold that such a failure is excusable on those grounds would “have a huge systemic cost by opening up the entire trial and everything that happened at trial to Federal habeas review.”

On Tuesday the Court heard cases involving jurisdiction. In Bristol-Myers Squibb Co. v. Superior Court of California, they are considering whether a plaintiff’s claims sufficiently arise out of, or relate to, a defendant’s forum activities to create specific jurisdiction when the plaintiff’s claims would be the same even if the defendant had no forum contacts. Neal Katyal, representing the pharmaceutical company, argued that state courts should not usually have jurisdiction over nonlocal claims involving nonresidents of the state. Thomas Goldstein, representing nonresident plaintiffs, argued that the company’s contacts with California residents should render the company vulnerable to a suit filed in that state. The company marketed across the nation. Both Katyal and Goldstein are particularly experienced and impressive Supreme Court advocates. Katyal was Acting Solicitor General for the Obama Administration after Justice Kagan’s appointment, and Goldstein is the founder and publisher of SCOTUSblog.

Also on Tuesday the Court heard arguments in BNSF Railway v. Tyrell. This case analyzes suits filed under the Federal Employers’ Liability Act and decides if a state court may decline to follow Daimler AG v. Bauman, which held that a state court cannot exercise personal jurisdiction over a defendant that is not “at home” in the forum state. Attorney Andrew Tulumello, representing the railroad, argued that the Montana law requiring a company to register in the state specifically states that such registration cannot be the sole basis of personal jurisdiction. Attorney Julie Murray, representing the plaintiffs, argued that when Congress passed the Act, it considered the mobile nature of rail work and therefore intended for rail workers to be allowed to sue in states where neither the worker nor the injury is connected.

On Wednesday, in addition to Malsenjak,  the Court heard arguments in Sandoz Inc. v. Amgen Inc., which presents technical questions involving requirements that companies give notice before marketing “biosimilar product” under the Biologics Price Competition and Innovation Act of 2009.  Bloomberg BNA offers more information about the case, here.

The Court issued only one opinion this week, in Lewis v. Clarke. There, the Court declined to extend sovereign immunity to a tribal employee in a case in which the employee, and not the Tribe, is the real party in interest. Todd Henderson provides more analysis at SCOTUSblog.

In other news, The Wall Street Journal and USA Today both take stock of Justice Gorsuch’s first two weeks on the bench.

This Day in Supreme Court History—April 26, 1978

On this day in 1978, the Supreme Court decided First National Bank of Boston v. Bellotti, a seminal case involving corporate speech rights.

In a 5-4 ruling, the Court struck down a Massachusetts law that prohibited corporations from spending money to influence the outcome of referenda, unless the referenda issue “materially affected” them.

Justice Lewis Powell Jr. wrote the majority opinion. The Court had repeatedly upheld the speech rights of media outlets and the right of corporations to advertise, Powell noted. These First Amendment decisions were based not on corporate business interests, but on a concern for “the preservation of free and uninhibited dissemination of information and ideas.” By denying corporations the ability to spend money to advance their views on issues that cannot be “proved to affect adversely their property or business interest,” the Massachusetts law deprives the public of their views on issues of general public interest. Massachusetts failed to identify an interest that was important enough to justify the restriction of public access to ideas and information, Powell wrote. “The inherent worth of the speech in terms of its capacity for informing the public does not depend upon the identity of its source, whether corporation, association, union, or individual.”

In a footnote to his opinion, Powell noted that the Court’s ruling “implies no comparable right in the quite different context of participation in a political campaign for election to public office.” The Court would later recognize the right for corporations to spend their money in political campaigns in the controversial 2010 Citizens United case.

Chief Justice Burger and Justices Blackmun, Stewart, and Stevens joined Justice Powell’s opinion.

Justice White wrote a dissent in which Justices Brennan and Marshall joined. The First Amendment does not forbid the state from interfering with “managerial decisions of this kind,” wrote Justice White. “Government has a strong interest in assuring that investment decisions are not predicated upon agreement or disagreement with the activities of corporations in the political arena.” Because of their wealth, White explained, corporations can “acquire an unfair advantage in the political process.” He noted that the Court’s holding invalidated a longstanding statute and brought into question similar statutes in 30 other states as well as federal law.
Justice Rehnquist filed a separate dissent in which he argued a corporation does not necessarily need the right of political expression to carry out its functions, and the state law does not violate corporations’ Fourteenth Amendment protections. “Court observers were startled by the view of Justice Rehnquist, almost universally regarded as the most conservative member of the Burger court, on an issue with such powerful ideological consequences” the New York Times reported.  

The Week Ahead – April 24, 2017

This morning, the Court issued orders from the April 21 Conference, and convened to hear arguments in McWilliams v. Dunn and Davila v. Davis. The Order List was somewhat anticlimactic, as the Court did not grant any new cases. Many were expecting to see some grants now that Justice Gorsuch has joined the Court, but as it turned out, he did not participate in most of the orders, and several high profile cases remain pending. Among today’s denials of certiorari was Salazar-Limon v. City of Houston, in which a district court granted summary judgment to an officer who shot the plaintiff despite a disagreement between the plaintiff and the officer about exactly what happened. Justice Sotomayor, joined by Justice Ginsburg, dissented from the denial of certiorari, while Justice Alito, joined by Justice Thomas, wrote a brief opinion explaining that the case involved the kind of case-specific error-correction that the Court generally avoids. William Baude takes issue with Alito’s argument, here, and Amy Howe of SCOTUSblog has more on today’s Order List.

The issue in the first case being argued on Monday, McWilliams, is whether, following the Court’s holding in Ake v. Oklahoma, an indigent defendant is entitled to independent expert psychiatric assistance. In 1986, James McWilliams was tried and convicted of for the rape and murder of Patricia Reynolds. Before the sentencing hearing, the court appointed a psychiatrist who examined McWilliams and issued a report to the prosecution, the defense, and the court two days before the hearing. The Eleventh Circuit determined that McWilliams was given adequate expert assistance required by Ake, but McWilliams, in his appeal, contends that the assistance is only adequate if the expert is independent and reports only to the defendant. As Alan Blinder of the New York Times explains, the issue in McWilliams is also presented in two pending cases in Arkansas, where officials have been trying to carry out an unusually large number of executions in a short period of time before their supply of drugs expires. In the two cases that parallel McWilliams, both the Arkansas Supreme Court and SCOTUS have agreed that the executions should be stayed until that case is decided.

Davila concerns a plea for habeas relief filed by Erick Daniel Davila. Davila was convicted of capital murder in 2009. Davila lost his direct appeal in front of the Texas Court of Criminal Appeals and was then denied state habeas. He then filed for federal habeas relief, citing that he received ineffective counsel at the trial, appellate, and state habeas levels. The federal district court denied this claim, concluding that because Davila did not raise his claim of ineffective appellate counsel at the state habeas level, his federal claim was procedurally flawed, a holding that was affirmed by the Fifth Circuit. Davila appeals to the Court, arguing that precedent established in Martinez v. Ryan and Travino v. Thaler – that ineffective state habeas counsel can overcome the procedural default (failure to raise in state court) of an ineffective assistance of trial counsel claim – should also be applied to overcome the procedural default of an ineffective assistance of appellate counsel claim. In his article “Supreme Court to consider when a criminal defendant must pay with his life for his lawyer’s error,” Michael Dorf of Justia analyzes ineffective counsel law and precedent.

Tuesday’s theme is personal jurisdiction, as the Court will hear arguments in two cases concerning general and specific jurisdiction: Bristol-Myers Squibb Co. v. Superior Court of California and BNSF Railway Co. v. Tyrrell. The issue in Bristol-Myers Squibb Co. is whether 575 non-California residents (along with 86 California residents) are able to bring a class-action suit against Bristol-Myers Squibb (BMS) for injuries received from Plavix, a drug manufactured by BMS. Leslie Brueckner from the Legal Examiner provides a synopsis of the case here and describes the personal jurisdiction defense brought by BMS, which argues that it would be fundamentally unfair to bring the corporation into a jurisdiction that it had only a minimal connection to. She also describes an amicus brief (that she coauthored) filed by Public Justice on behalf of the plaintiffs, arguing “that there is nothing unfair about suing a national corporation in a state where it has aggressively marketed and sold massive numbers of defective products to an unsuspecting public, particularly where it was simultaneously being sued on identical claims by dozens of in-state residents. In fact, given the extent of Bristol Myers’ contacts with California, and the fact that it is has conceded jurisdiction over identical claims brought by in-state residents, the notion that it would be “unfair” to require the company to be “haled” into a California court on the plaintiffs’ claims is almost laughable.”

BNSF Railway Co. is another case about personal jurisdiction, and it comes from the Supreme Court of Montana. The issue is whether or not the state court can exercise personal jurisdiction over a defendant who is not at home in the forum state in a FELA suit filed against the defendant, contrary to the Court’s holding in Daimler AG v. Bauman. Will Baude, in an article for the Washington Post, describes a notable amicus brief filed by Professor Stephen Sachs, from Duke University School of Law. The brief urges the Court to rule solely on the statutory question in the case, and not the constitutional argument raised by BSNF, that FELA, as enacted in 1910, would allow state courts to exercise personal jurisdiction in a way that violated the Fourteenth Amendment. Baude describes the importance of briefs that urge the Court not to act, stating that they “perform an important service by trying to prevent bad precedent from being made or extended, especially in cases where that may not be the first priority of the parties and may not be obvious to the court. . . such briefs are more likely to be effective than briefs which ask the court to adopt an unargued academic theory, since they make the more modest request to ‘do no harm.’”

On Wednesday, the Court will hear arguments in Sandoz Inc. v. Amgen Inc. and Maslenjak v. United States. Sandoz Inc. is an intellectual property case that asks whether or not Sandoz properly complied with the notice requirement stipulated by the Biologics Price Competition and Innovation Act of 2009, and if the company did not, whether Amgen Inc. is entitled to damages, despite the fact that they are not alleging patent infringement. Sanya Sukduang and Jonathan R. Davies, partners at Finnegan, a large intellectual property firm, discuss Sandoz, Inc. and its impact on patenting biosimilar products, in a podcast here.

Maslenjak comes from the Sixth Circuit and concerns whether or not a naturalized American citizen can lose her citizenship in a criminal proceeding based on an immaterial false statement of fact. Divna Maslenjak and her family were granted refugee status following the Bosnian civil war, after Maslenjak told an immigration official that her family feared persecution in modern-day Bosnia because her husband, Ratko, had avoided being drafted into the Bosnian Serb militia. Maslenjak became a naturalized citizen in 2007, which is the same year that Ratko was convicted of making false statements during his immigration process, as he concealed the fact that he actually was an officer in the Serbian military during the same period that the Serbian military orchestrated a genocide against Bosnian Muslim civilians. Maslenjak was charged and convicted of naturalization fraud because of these false statements and was deported back to Serbia. In contrast to holdings in the 1st, 4th, 7th and 9th Circuits, the 6th Circuit affirmed Maslenjak’s conviction and concluded that the lower court was correct to strip her citizenship even though the false statements she provided were immaterial. Amy Howe of SCOTUSBlog provides an argument preview here, and describes other implications that the holding in this case might have for other immigrants. “The stakes in this case are high, not just for Divna Maslenjak but also for the millions of people who became naturalized U.S. citizens in recent years,” she write. “Most of those naturalized citizens, of course, did not make false statements during the process of securing citizenship. But a ruling in the government’s favor could potentially expose many new citizens to the possibility of losing their right to live in the United States, even if their false statements did not necessarily influence the government’s decision to give them citizenship.”