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

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