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.”

This Day in Supreme Court History—April 22, 2014

On this day in 2014 the Supreme Court announced its opinion in Schuette v. Coalition to Defend Affirmative Action.

The case involved a 2006 amendment to the Michigan constitution, approved by a statewide referendum, that prohibited “all sex- and race-based preferences” in public education, employment, and contracting. The referendum was organized in response to Grutter v. Bollinger, the Supreme Court’s 2003 decision upholding the University of Michigan Law School’s use of affirmative action. Following passage of the amendment, an alliance of progressive interest groups—the Coalition to Defend Affirmative Action, Integration and Immigration Rights and Fight for Equality by Any Means Necessary—challenged the amendment in court, claiming that it violated the Equal Protection Clause of the Fourteenth Amendment.

The Court denied the challengers’ claim. Six justices agreed that Michigan’s amendment did not run afoul of the U.S. Constitution, although they divided on their reasoning. Writing the opinion of the Court, Justice Kennedy insisted that the case was not about the constitutionality of using race as a factor in determining admissions, but whether states can choose to prohibit race preferences. This issue should be determined by the voters, Kennedy insisted, and nothing in the Constitution prevented them from concluding that government use of race classifications could “perpetuate the same racism such policies were meant to alleviate.”

The case produced several concurring opinions. Justice Scalia made clear his belief that the Equal Protection Clause not only did not prevent Michigan from adopting this policy, but that it required them to do so. Justice Breyer, who unlike the other justices in the majority had been a consistent defender of the constitutionality of affirmative action, wrote his own concurrence, emphasizing that regardless of one’s view on affirmative action, this was a matter that Michigan’s voters should be allowed to decide for themselves.

Justices Sotomayor and Ginsburg dissented. (Justice Kagan had worked on this case when she was Solicitor General and recused herself.) Justice Sotomayor wrote the dissenting opinion on behalf of herself and Justice Ginsburg, and, for the first time in her five years on the Supreme Court, she chose to read her dissent from the bench. In previous postings on this blog, I analyzed in some detail Sotomayor’s first oral dissent. Most of the remainder of this post draws from from those previous posts (available in full here and here):

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.


Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position….

According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She concluded her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

Chief Justice Roberts wrote a short concurrence to take issue with Justice Sotomayor’s effort to frame the case as about the constitutionality of affirmative action rather than about deference to the decision making of Michigan’s voters. He wrote: “To disagree with the dissent’s views on the costs and benefits of racial preferences is not to ‘wish away, rather than confront’ racial inequality. People can disagree in good faith on this issue, but it similarly does more harm than good to question the openness and candor of those on either side of the debate.”

The Weekly Roundup – April 21, 2016

Having a full complement of justices can be a matter of life and death, as became clear this week. In Justice Gorsuch’s first vote as a Supreme Court Justice, he provided fifth vote to overturn a stay issued by the Eighth Circuit, thus allowing Arkansas to proceed with the first in a series of executions, which occurred last night. Before last night, Arkansas had not carried out an execution since 2005, but had decided to execute as many as eight men in an 11-day period because one of its execution drugs was nearing its expiration date. Ledell Lee was convicted of the 1995 murder of Debra Reese but had maintained his innocence. Among other arguments, his lawyers sought DNA testing that, they said, could exonerate him. Without Justice Gorsuch’s vote, the Court would have split 4-4, leaving the Eighth Circuit order in place. Justice Breyer issued a written dissent highlighting what he viewed as the arbitrariness of the execution. The New York Times reports here.

On Monday the Court heard arguments in three cases. In Perry v. Merit Systems Protection Board, the plaintiff, who was an employee of the Census Bureau, had complaints about his treatment and complained to the federal Merit System’s Protection Board (“MPSB”). His complaint included a discrimination claim, and the issue presented involves which court should review such an MPSB decision. Perry was the first case heard by Justice Neil Gorsuch on the Supreme Court, and many reported on his performance. Michael Doyle of McClatchy DC Bureau said that Gorsuch exuded “considerable self-confidence” and displayed a “seamless blend of preparation, persistence and humor.” The Justice asked his questions based with a textualist leaning, asking repeatedly why the Court should not just follow the plain text of the statute. Mark Joseph Stern of provided a more critical review of Gorsuch’s performance and noted that at least two of his colleagues — Justices Alito and Kagan — seemed to think that his textualism would not be able to resolve the case.

Additionally on Monday, the Court heard arguments in Town of Chester v. Laroe Estates was also before the Court on Monday.  Former Chicago-Kent Law Professor Michael Scodro notes in Chicago Lawyer Magazine that this case will bring an end to a civil procedure question that has divided lower courts for years, whether or not Article III of the Constitution demands that third parties in a lawsuit must have their own standing to join the case. ISCOTUSnow discussed this case earlier this week, along with a third case argued on Monday, California Public Employees’ Retirement System v. ANZ Securities, Inc. ISCOTUSnow also discussed the two Tuesday cases — Kokesh v. Securities and Exchange Commission, and in Henson v. Santander Consumer USA, Inc. In Kokesh the Court will decide if the SEC can order defendants to return illegal profits that were taken over five years ago. In  Henson, the Court must decide if a company that buys debts but was not the original debtor considered a debt collector subject the Fair Debt Collection Practices Act.

Wrapping up the week’s arguments, on Wednesday the Court heard Trinity Lutheran Church v. Comer, and Weaver v. Massachusetts. Trinity involves the separation of church and state, making this case highly anticipated due to Justice Gorsuch’s prior rulings in favor of religious plaintiffs. The Court must decide if the Equal Protection Clause invalidates the Missouri Constitution’s prohibition of providing state funds to religious groups for secular purposes. According to Adam Liptak of the New York Times, the majority of the Court, including Justice Kagan seemed to favor the church. The final case for the week, Weaver, will determine if defendants must show prejudice in a claim of ineffective assistance of counsel that may have resulted in a structural error.

Also this week, the Court issued several opinions, although none of them were in cases that had garnered significant public attention. Most notably, on Wednesday, the Court ruled in Nelson v. Colorado, holding that the state must return fees paid by people who have had their convictions overturned without having to establish their innocence. That decision was 7-1, with only Justice Thomas dissenting. The other cases decided this week were Manrique v. United States, a 6-2 decision about the timing of notices of appeals from restitution orders, Goodyear Tire & Rubber Co. v. Haeger, in which the Court held 8-0 that a sanction for misconduct cannot require payment for fees not incurred as a result of that misconduct, and Coventry Health Care of Missouri, Inc. v. Nevils, an 8-0 decision holding that a federal law governing federal employees’ health insurance preempts state law. Justice Gorsuch did not participate in any of these decision.

In other news, Senator Chuck Grassley has predicted a Supreme Court vacancy as early as this summer. ABC News reported that the Senator expects one of the Justices to resign, as he stated an upcoming resignation is “rumored.”

And a correction: ISCOTUSnow reported Monday that Justice Gorsuch participated in last week’s Conference. But in fact, according to a footnote in Monday’s Order List, he did not. His first Conference is presumably today, and as SCOTUSblog reports, there are a host of important petitions awaiting his participation.

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The Week Ahead – April 17, 2017

The Court began the week by welcoming Associate Justice Neil Gorsuch to the bench. As Richard Wolf of USA Today reports, Gorsuch was not shy about asking questions, and his questions focused forcefully on the text of the statutes the Court was considering. On Monday, the Court also issued its Orders List from the first Conference that Justice Gorsuch participated in. [Correction: Justice Gorsuch did not in fact participate.] It did not issue any new grants of certiorari, and it denied certiorari in one closely watched case: Mickelson v. County of Ramsey, which challenged charging fees to people who have been arrested but not convicted. Once again, however, the Court did not act in Masterpiece Cakeshop, Ltd. v. Colorado Commission on Civil Rights, a case about the clash between a baker’s religious convictions and a state’s prohibition on discrimination on the basis of sexual orientation. ISCOTUSnow discussed Mickelson and Masterpiece Cakeshop here, along with several other cases the Court has yet to act on.

On Monday, the Court heard arguments in Perry v. Merit Systems Protection Board, Town of Chester v. Laroe Estates, Inc., and – in a rare afternoon session – California Public Employee’s Retirement System v. ANZ Securities, Inc. Perry addresses whether a Merit Systems Protection Board decision is subject to review in the district court or in the U.S. Court of Appeals for the Federal Circuit. Howard Wasserman in a USA Today article notes that this is the type of “detailed, procedural, one-off” opinion that is usually pawned off on the junior-most justice. Justice Gorsuch was particularly active in the questioning in this case, as SCOTUSblog reports

Town of Chester focuses on whether a party that does not itself have Article III standing may nonetheless intervene in a suit over which a federal court has jurisdiction. Neal Katyal of Hogan Lovells argued the case on behalf of the Town of Chester. Katyal, who served as Acting Solicitor General in the Obama Administration, supported Gorsuch’s nomination both by writing an op-ed in The New York Times entitled Why Liberals Should Back Neil Gorsuch and by introducing Gorsuch at his confirmation hearing. As a result of Katyal’s vocal support for Gorsuch’s confirmation, there was speculation about whether Gorsuch would recuse himself from Town of Chester, as the National Law Journal reported. Justice Gorsuch in fact stayed on the bench during the argument, although he did not ask Katyal any questions, according to USA Today.

Lastly on Monday, in California Public Employee’s Retirement Systems (CalPERS), the Court heard argument about the timely filing of class actions in securities cases. Alison Frankel of Reuters explains the background of the case, including delving into the differences between statutes of limitation and statutes of repose, and also reports on the “trash talking” that ensued among the advocates on either side before the argument.

On Tuesday, the Court will hear oral arguments in Kokesh v. Securities and Exchange Commission and Henson v. Santander Consumer USA, Inc. In Kokesh, the Court’s second securities case of the week, the Court will consider whether a five-year statute of limitations applies to claims for “disgorgement” sought by the SEC. Disgorgement is an action against a wrongdoer to return to the rightful owner whatever profits the wrongdoer gained in the course of the illegal activity. BloombergBNA discusses the case further, here. In Henson, the Court will decide what constitutes a “debt collector” for purposes of the Fair Debt Collection Practices Act (FDCPA). Lexology explains that the circuits are split on the issue, and how important this issue is to state debt collection and enforcement activity.

On Wednesday the Court will hear arguments in cases with less technical issues, Trinity Lutheran Church of Columbia, Inc. v. Comer and Weaver v. Massachusetts. Trinity stems from a challenge to Missouri’s denial of grant to resurface a daycare playground. The denial stems from a provision of the state constitution that prohibits state aid from going to religious institutions. The Church argues this is a violation of the Equal Protection Clause. Above the Law addresses how Judge Gorsuch, given his prior decisions about the separation between church and state, could affect this case. And the case presents a new procedural twist. Last week, the Missouri governor announced that the state would now allow churches to receive funds under the playground surfacing program. The Court ordered the parties to submit letter briefs about whether this decision moots the case by noon on the day before argument.

In Weaver, the Court will analyzes ineffective counsel, structural error, and prejudice. The case involves a criminal defendant whose lawyer failed to object to the public (including the defendant’s mother and other supporters) being excluded from the courtroom during jury selection. Normally, the denial of a public trial is considered a “structural error” and the defendant does not need to demonstrate that he was prejudiced to receive a new trial. Here, however, the defendant’s public-trial claim is nested within an ineffective assistance of counsel claim. To win a new trial for ineffective assistance of counsel, the defendant must show that he was prejudiced by his attorney’s ineffectiveness. The state and intermediate federal courts have split on whether prejudice must be shown where structural error is the underlying basis for an ineffectiveness claim. And aside from the core issue of this case, there is a question of what constitutes a “public trial,” and what happens if a courtroom cannot accommodate everyone who would like to observe? Rory Little of SCOTUSblog explores further.

Finally, the Court may release opinions on Tuesday and/or Wednesday this week, and it will meet for Conference on Friday.

Weekly Roundup – (delayed from) April 14, 2017

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On Monday, April 10, Neil Gorsuch was sworn in as the next associate Supreme Court justice, filling the seat of the late Justice Antonin Scalia which remained vacant for the past 422 days. ISCOTUSnow described the swearing-in ceremonies in the Week Ahead post here.

During the second ceremony, Gorsuch was sworn in by Justice Kennedy, for whom Gorsuch clerked in 1993. As Julie Hirschfield Davis of the New York Times notes, this is the first time in Supreme Court history that a sitting justice will serve alongside a justice who had previously served as his clerk, noting that “Justice Kennedy’s presence was symbolic personally for Justice Gorsuch” as he considers him a mentor. In an article for CNN, Joan Biskupic speculates as to when Justice Kennedy might retire, mentioning that he has privately hinted to close friends and former law clerks that he intends to retire in the next few years. Kennedy, appointed by Ronald Reagan in 1988, is a center-right justice who has joined the liberal voting bloc in several high-profile cases, including Obergefell v. Hodges, the case that legalized same-sex marriage and for which Kennedy penned the majority opinion. His departure from the Court would, as Biskupic describes, “be more momentous than the one filled on Monday after the February 13, 2016 death of rigid conservative Scalia. If President Donald Trump were to choose someone on the right-wing like Gorsuch to succeed Kennedy, the nation’s highest court would become significantly more conservative.”

Seung Min Kim of Politico addresses the fallout of the “nuclear option” triggered by Senate Republicans to secure Gorsuch’s confirmation. Kim quotes Sen. Ed Markey (D-Mass), who vowed to restore the 60-vote threshold formerly needed to break a filibuster on confirmation hearings for Supreme Court nominees should Democrats relinquish control of the Senate: “We will ensure that for the Supreme Court, there is that special margin that any candidate has to reach because that is essential to ensuring that our country has a confidence in those people who are nominated. Rather than just someone who passes a litmus test.” Kim suggests, however, that “[i]f history is any guide, Democrats are unlikely to actually revive that 60-vote threshold, particularly if they also win the White House along with the Senate majority [in 2020]. Though Republicans were enraged after Senate Democrats deployed the nuclear option in 2013 for all nominations other than the Supreme Court, the GOP chose to keep the lower threshold for nominees when they retook the Senate majority in 2014.”

On Wednesday, Terry Gross, in a segment of Fresh Air on NPR, discussed Leonard Leo, a conservative lawyer who has had extensive involvement in the selection of Justices Roberts, Alito, and Gorsuch. Gross interviewed Jeffrey Toobin, who profiled Leo in a recent article for the New Yorker titled “The Conservative Pipeline to the Supreme Court.” Leo is the executive vice- president of the Federalist Society, a nationwide organization of conservative lawyers that has been “very engaged in identifying and recruiting for judges candidates who are ultra-conservatives.” Toobin argues that “Gorsuch is likely to be only the first of Leo’s Trump Administration appointees: he is preparing for yet more vacancies on the Supreme Court, and also finding candidates for some of the hundred-plus vacancies on the lower courts, deepening his imprint on the judiciary.”