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

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

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

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

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

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

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

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

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

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

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


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

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

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


Koons v. United States

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

Hughes v. United States

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

Lamar, Archer & Cofrin, LLP v. Appling

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

Masterpiece Cakeshop v. CCRO

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

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

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

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

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

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

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


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


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

Opinions: Searching Vehicles Next to a Home and Restitution

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Opinions: Sports Betting, Admissions of Guilt, and Rental Cars

The Term’s final stretch is here, and the Court is releasing opinions every Monday. (At some point in June, it will probably begin releasing opinions on Thursdays as well, and perhaps on other days.) On Monday, May 14th, the Court released five opinions dealing with issues as disparate as lawyers who concede their clients’ guilt, who has a right to privacy in a rental car, and the legality of sports betting. (ISCOTUS co-director Carolyn Shapiro discussed several of them on WGN’s Legal Face-Off.)

McCoy v. Louisiana

The Court ordered a new trial in McCoy v. Louisiana, a capital murder case in which the defendant’s counsel, in the hopes of avoiding a death sentence, admitted that the defendant had killed the victims, despite the defendant’s express objections. Robert McCoy was charged with of first degree murder in the deaths of the mother, stepfather, and son of his estranged wife. McCoy’s lawyer, Larry English, urged McCoy to take a guilty plea; McCoy refused, continuing to maintain his innocence. Then, two weeks before the trial, English told McCoy that he intended to admit that Mr. McCoy had killed the victims, a move that McCoy emphatically opposed. At trial, English in fact “conceded McCoy’s role in the killings” both in his opening and closing arguments, arguing for second degree murder. McCoy expressly objected to this strategy, and exercised his right to testify during the trial that he was innocent and present his alibi at the time of the murders. Ultimately, the jury found McCoy guilty of first degree murder and sentenced him to death.

In a 6-3 opinion written by Justice Ginsburg, the Court held that, unlike strategic decisions that serve to achieve a client’s objectives, the decision to assert innocence is one for the client to make – it is his choice about what his actual objectives are. The Court further clarified that because McCoy did not make an admission that he intended to commit perjury in asserting his innocence, nor did English doubt that such an assertion would be truthful, English’s actions in going against his client’s wish to profess innocence violated McCoy’s right to autonomy under the Sixth Amendment. The Court emphasized  McCoy’s fundamental right to make his own decisions about how to proceed with his defense, and that a jury is almost certain to be swayed by a lawyer who admits his own client’s guilt. The dissent, written by Justice Alito and joined by Justices Thomas and Gorsuch, argued that English did not admit that McCoy was guilty of first-degree murder, but that he was guilty of committing one element of the offenses charged with (the actus reus: killing the victims) but not the other (the mens rea: intent). Slate and the Cato Institute praise the majority’s ruling, and the Washington Post provides more background.

Byrd v. United States

A second criminal case, Byrd v. United States asked whether a driver has a reasonable expectation of privacy in a rental car when he has the permission of the renter to drive the car but the rental agreement does not have that person listed as an authorized driver. If so, the driver can assert a Fourth Amendment claim related to the search.

Terrence Byrd was stopped at a checkpoint when he was driving a car that his girlfriend had rented. After searching the car, alleging that they had obtained Byrd’s consent and thus had probable cause (which he disputes), state troopers found heroin and body armour in the car.

The Court, in a unanimous opinion by Justice Kennedy, stated “[f]ew protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures.” The Court criticized the Government’s proposed rule that drivers of rental cars whose names are not on the rental agreement always lack an expectation of privacy, because the rental company has not explicitly authorized them as drivers, as too restrictive. But the Court also disagreed with Byrd’s contention that the sole occupant of a car always has a reasonable expectation of privacy via mere possession and control, because that would afford privacy expectations to people who would have no such expectation, such as a car thief. The Court remanded the case on this issue. NPR discusses the implications that both McCoy and Byrd have for individual rights in criminal justice cases.

Murphy v. NCAA

Murphy v. NCAA also received significant news coverage, as it invalidated a federal statute that prohibited modifications or repeal of state-law prohibitions on sports gambling. More specifically, the Court held that the statute unconstitutionally “commandeered” the regulatory power of States in contravention of New York v. United States and the Tenth Amendment. USA Today notes states now have the opportunity to legalize sports gambling “as they see fit,” and the Washington Post explores other implications here. As Forbes notes, however, states do not have to legalize such gambling and can regulate it in a variety of ways. The case also suggests that the Trump administration’s efforts to require state and local government cooperation in immigration enforcement faces an uphill battle.

Justice Breyer joined most of Justice Alito’s majority opinion but joined the portion of Justice Ginsburg’s dissent that addressed “severability,” the fate of the parts of the statute that were not expressly held unconstitutional but that the majority held could not be separated from the unconstitutional portion. Stephen Wermiel of SCOTUSblog explains how this case may not be 6-3 or 7-2 but rather 6-1-2. (Severability was last a major issue in the first Obamacare case, NFIB v. Sebelius.)

United States v. Sanchez-Gomez and Dahda v. United States

In a unanimous decision, the Court vacated and remanded a case for mootness. U.S. v. Sanchez-Gomez dealt with a challenge to full restraints used during non-jury, pretrial proceedings. The restraints at issue in this case include full five-point restraints where the “defendant’s feet are shackled together and a waist chain connects to tightly restrain their cuffed hands,” Jurist reports. The Court declined to reach the merits of the claim, however, but made clear that there were other ways defendants subjected to this practice could litigate its constitutionality. And in the 8-0 decision in Dahda v. U.S. (Justice Gorsuch was recused), the Court analyzed the use of wiretapping as a means by which to intercept communications of drug dealers in Kansas, and rejected the argument that the orders were facially insufficient under the relevant statute, 18 U.S.C. §2518(3).

The Court will continue to release opinions through May and June, so don’t forget to check back with ISCOTUSnow for updates!

ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro contributed to this post.

The Rise and Fall of the No-Litmus-Test Rule

For decades, presidential candidates disclaimed the idea that they would have “litmus tests” for their nominees to the Supreme Court. Republicans and Democrats alike agreed that to demand that their judicial nominees decide particular cases particular ways would be wrong. Judicial litmus tests were bad. They were what candidates accused opponents of having. In the 2016 election, this taboo was exploded.

The idea of a Supreme Court litmus test first became prominent in post-Roe v. Wade debates over the right to abortion. The 1980 Republican platform included a promise to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life,” and the party’s nominee, Ronald Reagan, denounced Roe. Yet Reagan always insisted that he would not use opposition to the decision as a requirement for his Supreme Court nominees. Democrats nonetheless attacked Reagan throughout his presidency for having an abortion litmus test. Senator Daniel Patrick Moynihan went so far as to declare “ideological tests for the judiciary” a form of “corruption.”

In 1988, both major party candidates disclaimed having any litmus tests for Court appointments. Four years later, then-incumbent George H.W. Bush again rebuffed accusations that he had any litmus tests. Bush supporters attacked Democratic nominee Bill Clinton when he indicated that a commitment to upholding Roe would be a requirement for his Court nominees. Clinton and his advisors tried to steer clear of the litmus-test label. They ultimately chose largely to sidestep the Court as a campaign issue.

In 2000 and again in 2004, George W. Bush came out strongly in support of a pro-life position on abortion, yet he too insisted he would not make opposition to Roe a litmus test for his Court appointments.

The 2016 election shattered what previously had been a stable precedent that presidential candidates must openly reject litmus tests for potential Supreme Court appointments. In the Democratic primary, Bernie Sanders declared that his nominees would have to be committed to overturning Citizens United, even embracing the previously verboten “litmus test” label. Clinton matched Sanders by also stating opposition to Citizens United would be a litmus test. She then upped the ante by declaring that she would have “a bunch of litmus tests” for her nominees.

Clinton: ‘I have a bunch of litmus tests’ for Supreme Court nomineesOn the other side, Trump went on record declaring opposition to Roe and support for religious liberty and for Heller as litmus tests for his nominees.

Legal commentator and newspaper editors protested the apparent fall of the no-litmus-test norm, but their criticism had little effect on the candidates.

Whether there is any life left in the no-litmus-test norm is a question that will be answered in future presidential elections.

This post was written by ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt. It is the fifth of a multi-part ISCOTUS series on the Supreme Court and the 2016 presidential election.


April Argument Review V – Administrative Law, Deference to Foreign Courts, and More

On April 23, the Court heard oral arguments in Lucia v. Securities and Exchange Commission, a case about whether Securities and Exchange Commission (“SEC”) administrative law judges (“ALJs”) are “Officers of the United States” within the meaning of the Appointments Clause of the Constitution or merely employees of the SEC.  Alison Frankel of Reuters explains that in its Supreme Court brief, the Justice Department acknowledged that SEC ALJs are subject to the Appointments Clause. As Greg Stohr of Bloomberg explains, if the court agrees, there is a possibility that ALJs in a variety of agencies “could be fired for issuing rulings that clash with administration priorities.”

At argument, the justices did not appear to agree as to whether that would be a positive or negative development.  During the argument Chief Justice John Roberts stated this case could bring “political accountability” to federal judges, and in contrast Justice Stephen Breyer said the case could mean “goodbye to the independence” of ALJs. Robert Barnes of The Washington Post noted that Justice Elena Kagan likewise appeared worried about political pressure on ALJs, something they are shielded from as the law stands currently.

David G. Savage of The LA Times reports that some legal experts contend that a decision in favor of Lucia could also open the door for the President to be able to remove other executive officers, such as special counsel Robert Mueller. However, the tenor of the argument did not suggest that the justices have an interest in ruling that broadly. Check out The Wall Street Journal and U.S. News for more commentary on the arguments in this case.

On April 24, the Court heard arguments in Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. The issue in this case is whether U.S. courts should defer to foreign government’s interpretation of their own law, or if U.S. courts can exercise their own interpretation of the foreign law. Greg Stohr of Bloomberg reports that the Trump administration is partially backing Animal Science Products, who sued Hebei alleging they violated U.S. antitrust law by price fixing Vitamin C imports. China’s Ministry of Commerce had their day in the courtroom as they were granted argument time “unprecedently” by the Court. China’s lawyer, Carter Phillips argued that Hebei was just following Chinese law that required them to fix prices. Regarding the argument that U.S. courts should defer to foreign government’s interpretation of their law, Justice Elena Kagan asked, “How can you say that the only thing that shows respect to foreign governments is to do something that we don’t know that any other foreign nation does?”   that Justice Neil Gorsuch appeared to take an opposing stance and questioned why we should not defer to an administrative agency of a foreign sovereign, such as how “Chevron deference” allows courts to defer to interpretations of U.S. administrative agencies. Check out Reuters and Wall Street Journal  for more information on the arguments.

On April 23, the Court also heard oral arguments in Pereira v. Sessions. This is a statutory interpretation case about cancellation of removal (deportation) under 8 U.S.C. §1229b. At issue is whether a “notice to appear” issued by the government must meet certain criteria, as laid out in §1229(a), such as a court date and time. The oral argument transcript can be found here, and the recording can be found at Oyez. And in another case that week, Chavez-Meza v. United States, involving a sentencing issue, “[e]mbattled Deputy Attorney General Rosenstein“, argued on behalf of the government, as he participated in the tradition of a high-ranking Department of Justice Official arguing a case in front of the Court.

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

April Argument Review IV – Race Discrimination and Voting

On April 24, the Court heard arguments in Abbott v. Perez, the third redistricting case that the justices have heard this Term. Unlike the other cases, Gill v. Whitford and Benisek v. Lamone, which involved partisan gerrymandering, this case involves allegations of racially discriminatory redistricting in violation of the Voting Rights Act and/or the Equal Protection Clause.

The case is a 2017 challenge to congressional and state legislative districts created by the Texas Republican-controlled legislature in 2011 and 2013. The three-judge district court concluded that the federal congressional district impermissibly diluted Hispanic voters and that the state legislative district constituted an unconstitutional racial gerrymander. The three-judge district court then ordered the Texas Attorney General to issue a written advisory within three days stating whether the legislature would hold a special session to address the redistricting, and if not, the parties were ordered to appear before the court to prepare remedial redistricting plans. The state of Texas appealed the decision the the Supreme Court.

The plaintiffs argue that the district court order is not an interlocutory injunction that the Court can yet review, while the state of Texas argues that while the order did not include the word injunction, it functioned as one. Thus, before considering the substantive issues as to whether the districts are unlawful, the Court must consider whether it has jurisdiction to hear the case at all.

Scott Keller, Texas Solicitor General, attempted to begin by arguing the state legislature did not have a racially discriminatory purpose when it adopted the court-drawn maps, but Justice Sotomayor directed him to address whether the Court had jurisdiction to consider the case, as the three-judge district court had not issued or denied an injunction. Mr. Keller spent most of his time addressing the jurisdictional question, arguing that when the district court ordered the state to appear for expedited court-drawn redistricting, the order functioned as an injunction. Justice Breyer posited that if the Court treated the order as an appealable injunction, the Court would hear thousands of appeals from similar orders from three-judge courts, and prompted Mr. Keller to point out where the order “says injunction denied or says injunction granted from which there is an appeal.”

U.S. Solicitor General Edwin Kneedler, arguing on behalf of the United States in support of Texas, spent more time discussing the merits. He stated that whether the district enacted by the state legislature in 2013 was impermissibly discriminatory depends on the intent of the legislature at that time. “Here,” he argued, “the presumption of good faith is particularly strong” because the plans that the legislature adopted were created by the district court “following this Court’s careful instructions.”

Max Renea Hicks, arguing on behalf of the plaintiffs, referenced a quip by Justice Scalia from his dissent in Syked v. United States. “Insanity is doing the same thing over and over again and expecting a different result,” he stated. “[T]he Texas legislature is not insane. It knows how to do redistricting maps. . . with respect to diminishing minority voting rights.  So I would ask the Court to look at it this way: if you’ve done it in 2011 and you know the outcome of it, discrimination is doing the same thing over and over again and expecting and achieving exactly the same results.”

Allison J. Riggs, also arguing on behalf of the plaintiffs, also emphasized that Texas adopted the court-made district in 2013 “as a mask for the discriminatory intent that had manifested itself just two years ago.” Justice Alito pushed Ms. Riggs, asking “what is your evidence that the state adopted the plan previously approved by the court for an invidious reason?” To this, Ms. Riggs responded that the “legislature ignored the explicit warnings of the district court that its ruling was preliminary; it wasn’t done looking” and adopted the plan regardless.

More information about the case and the argument is available in Amy Howe’s summary for SCOTUSblog.

ISCOTUS Fellow Elisabeth Hieber, 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.

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

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 – The Calm Before the Storm

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.