Oral Argument: Preemption and Mortgage Foreclosures

The Supreme Court began the new year with oral arguments on Monday January 7, 2019. Justice Ginsburg did not join the bench, however, following surgery for cancerous nodules on her lung — the first time she has ever missed oral argument despite a series of health issues over the years. There has been much reporting and discussion about her health, but she is working from home and will participate in deciding the cases.

The first case on Monday was Merck Sharp & Dohme Corp. v. Albrecht, in which the Court is being asked to decide whether the state laws in a failure-to-warn lawsuit are pre-empted by federal law when the Food and Drug Administration (FDA), knowing the relevant scientific data, rejected the drug manufacturer’s proposed warnings, or whether the question of why the FDA rejected the proposed warning should go to a jury. The Third Circuit Court of Appeals found that Merck Sharp & Dohme Corporation, manufacturer of the drug Fosamax, could be liable for failing to warn about a health risk even though they proposed a warning label that the FDA ultimately rejected (click here for some background information on the drug). Lawyers for petitioner Merck Sharp argued that under § 355(o)(4), the Secretary of the FDA has an obligation to discuss proposed changes to drug warnings with manufacturers if they disagree with the phrasing, and cannot reject it without discussions. Respondents’ position was that “brand name drug makers are responsible at all times for keeping their labels up to date.” For more coverage of the arguments, see the Seymour Tribune, ABC News, and The Epoch Times.

The Court then heard arguments in Obduskey v. McCarthy & Holthus LLP, in which the Court is being asked to decide whether the Fair Debt Collection Practices Act (FDCPA) applies to non-judicial foreclosure proceedings (this Chicago Tribune article discusses the differences between judicial and non-judicial foreclosures). Petitioner, a homeowner who found himself dealing with the non-judicial process, takes the position that the FDCPA applies to non-judicial foreclosure proceedings and argued that if Congress had intended for the FDCPA to apply only to judicial foreclosures, then it would have included an express exclusion in the law. Disagreeing about the meaning of the term “debt collector,” respondents argued that non-judicial foreclosure proceedings are not truly debt collection within the meaning of the law. A lot is at stake in the case because a broad opinion in favor of the petitioner could effectively invalidate the laws of more than half the states. This CNBC article and this Westword article have more background on the case.

This post was ritten by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


Rethinking the Supreme Court — The Case for Term Limits

In recent months, there has been increasing talk about restructuring the Supreme Court. Ideas previously confined to the fringes of political and academic debate have gone mainstream. Demands to rethink the way the Court operates have become particularly prominent among those on the political left who have been scarred by a series of recent setbacks: the Republican refusal to hold hearings on Merrick Garland during Barack Obama’s last year in office, culminating in the appointment of the reliably conservative Neil Gorsuch to the vacant seat; last Term’s string of highly consequential conservative 5-4 rulings; and, most recently, the Republican victory in placing Brett Kavanaugh on the Court after a spectacularly controversial and partisan confirmation process.

With the conservatives basically running the table over the past couple years when it comes to the Supreme Court, liberal activists, politicians, and commentators have been urging an array of Court reforms. In a series called “Rethinking the Supreme Court,” ISCOTUS will explore some of these proposals. In this post, we’ll look at term limits for Supreme Court justices.

The idea of abandoning life tenure for Supreme Court justices in favor of fixed terms is not particularly new. In the early 1980s, John Roberts, then a lawyer in the White House counsel’s office during the Reagan administration, expressed support for term limits. In 2006, law professors Steven Calabresi and James Lindgren wrote a lengthy law review article advocating this reform. But in recent years the idea seems to have gained strength. The most common proposal is for fixed 18-year terms for justices, staggered so that each President gets two appointments per four-year term.

The biggest challenge for this reform: most assume it would require a constitutional amendment, and it’s hard to envision getting the super-majority support required to make this happen. Yet recent polls show that a solid majority of Americans support term limits for Supreme Court justices, suggesting the possibility of a viable amendment campaign.

The leading advocate for term limits for Supreme Court justices today is a judicial reform organization called Fix the Court. Rather than a constitutional amendment, this group is pushing a proposal for term limits by congressional statute,.

The proposal, called the Regularization of Supreme Court Appointments Act, aims to “depoliticize and regularize the U.S. Supreme Court confirmation process.” The plan would allow the presidents to nominate a justice in the first and third year of each of their terms, which would eliminate the “randomness” of the confirmation process.

To get around the constitutional requirement that federal judges “hold their Offices during good Behaviour”—i.e., judicial lifetime tenure—Fix the Court’s proposal requires that when a new justice is appointed to the Court, the longest serving justice moves to the status of “Senior Justice.” A Senior Justice would no longer be a regular member of the Court. Rather, this justice would have a more limited role, serving on cases where there’s a conflict of interest for another judge; breaking ties on the most controversial cases; fulfilling vacancies that arise because a justice dies, retires, or is removed; and serving on lower federal courts.

According to Gabe Roth, Fix the Court’s executive director, the proposal “lower[s] the stakes in a way that would make each nomination seem less like partisan Armageddon.” He argues that such a reform would allow for the appointment of justices who are older, more experienced, and less ideological.

“Suddenly everybody wants to explore term limits for Supreme Court justices” Yale Law Professor Stephen Carter recently wrote. “Welcome aboard. I’ve been on that train for almost a quarter of a century.”

“At a time when American institutions seem increasingly fragile, a compromise like term limits for Supreme Court justices would be a much-needed vote for long-term stability,” writes Lee Drutman in Vox. “If not, the politics of Supreme Court appointments will only get worse.”

“The current system began, obviously, in the 18th century, when both politics and human lifespans were very different,” wrote David Leonhardt in the New York Times during the Kavanaugh hearings. “It’s time for a change.”

This post was written by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.



Oral Argument: Double Jeopardy and Separate Sovereigns

As many observers of the legal drama surrounding President Trump have noted, under current Supreme Court precedent, a state can prosecute someone for a crime after the federal government has already done so — or vice versa. Recently, the Supreme Court heard oral argument in the case of Gamble v. United States, which raises the issue of whether to reverse that longstanding doctrine, known as the “separate sovereigns” exception to the Double Jeopardy Clause. (The Clause guarantees that no one shall “be twice put in jeopardy” “for the same offence,” which generally means that a person cannot be tried twice for the same crime.

In 2015, police pulled over Terance Gamble for a faulty headlight. After the police officer smelled marijuana and searched the car, he found a handgun. Both the state of Alabama and the federal government also charged Gamble with possession of a firearm as a felon, and he was convicted in state court.

Gamble then argued that the federal court should dismiss the charge against him under the Double Jeopardy Clause. The trial court rejected his argument, relying on the separate sovereigns doctrine, and the Eleventh Circuit affirmed.

In oral argument on December 6, Gamble’s attorney argued that the separate sovereigns exception to the Clause is inconsistent with the Clause’s text and original meaning. He pointed out that the Clause’s drafters intended the text to incorporate English practice, and there was no practice of inter-sovereign successive prosecutions in English history.  

Justice Alito expressed concern about the ramifications Gamble’s argument would have for national security. The Justice posed a hypothetical in which terrorists kill American tourists in a foreign country and an inept prosecution yields an acquittal or light sentence. The Justice asked whether Gamble’s position would be that no prosecution could take place in the United States under the statute Congress enacted to permit prosecution of individuals who murder Americans abroad. Although Gamble’s attorney responded that the Court does not have to reach that question in this case, Justice Kavanaugh disagreed, stating that Gamble’s position would logically extend to Justice Alito’s hypothetical.

Justices also repeatedly expressed concerns about invalidating the separate sovereigns doctrine because such an invalidation would not be in keeping with the principle of stare decisis. Justice Kagan noted that the separate sovereigns rule is 170 years old and 30 Justices have voted in favor of it. The Justice characterized stare decisis as a “doctrine of humility” and expressed doubt that the Court would be comfortable “throwing over 170-year-old rules that 30 Justices have approved just because we think we can kind of do it better.”  Justice Gorsuch expressed the same concern. Justice Gorsuch elicited laughter when he asked “…of all the errors this Court has made over the years…why this one? Why should we care about this one?” Justice Gorsuch noted that the Court did not overrule the 1944 case of Korematsu v. United States, (widely regarded as one of the worst rulings in Supreme Court history), until last year.

Eric Feigin, Assistant to the Solicitor General, argued on behalf of the Department of Justice in support of maintaining the separate sovereigns rule, and he followed up on the Justices’ concerns. Feigin relied on stare decisis in his opening statement, noting 170 years of precedent. He went on to argue that an overruling of the separate sovereigns doctrine would create adverse consequences for law enforcement, for legislatures and for courts, including a deterrence of cooperation between state and federal agencies or courts, the encouragement of aggressive prosecutions, races to the courthouse, and defendants’ trying to “play each sovereign off against the other where one sovereign will have the ability to unilaterally bargain away the other sovereign’s ability to enforce its interests.”

Feigen returned to the hypothetical Justice Alito had posed to his opponent and said it’s not just a hypothetical problem but “a real one.” Feigin noted that in 2003 the FARC (Revolutionary Armed Forces of Colombia) rebels in Colombia kidnapped American journalists and held them hostage for five years. The Colombian government eventually dropped charges against the rebels.

Kyle Hawkins, Texas Solicitor General, argued as an amici curiae, in support of maintaining the separate sovereigns doctrine. Hawkins said he represented a coalition of 36 states that are united in urging the Court not to overrule the doctrine. Hawkins said an overruling of the separate sovereigns doctrine would force courts across the country to determine how to apply double jeopardy analysis when charges related to the same set of acts or transactions are brought under different completely different statutory schemes.

Check out The Atlantic, The New York Times, and The Washington Post for more information on this case.

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Oral Argument: Disability Benefits and Patents

To obtain Social Security disability benefits, an applicant must first establish that he has a disability. But he can be denied benefits if the Social Security Administration determines that there is work that he can do despite the disability. (See here for a more detailed explanation.) In Biestek v. Berryhill, argued on December 4, the applicant, Michael Biestek, was denied benefits because a vocational expert testified that there was other work that he could have done. The expert said her data was based on private data, job analyses, and personal discussions with employers. When Biestek asked for the underlying data that supported this expert’s conclusion, the expert refused and the Administrative Law Judge did not require her to hand over the data. Biestek appealed to the Sixth Circuit which affirmed. The technical issue in the case is whether the vocational expert’s testimony, in the absence of the underlying data, provides the requisite substantial evidence to deny benefits.

The second case the Court heard on Tuesday was Helsinn Healthcare v. Teva Pharmaceuticals. This is an appeal from a Federal Circuit decision which invalidated Helsinn Healthcare’s patent on an anti-nausea drug called Aloxi. The issue the Supreme Court will be deciding is whether under the America Invents Act, an inventor’s licensing of an invention to a manufacturer, where neither party discloses the details of the invention to the public, qualifies as prior art which would affect the patentability of the invention. Check out IPPro and The National Law Review for more information.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.





Oral Argument: State Tax of Federal Pensions & Securities Fraud

On December, the Court heard argument in Dawson v. Steager, which implicates a nearly-200-year-old case: McCulloch v. Maryland, as tax professor Daniel Hemel explains at SCOTUSblog.. In McCulloch, the Court, led by Chief Justice John Marshall, held that the state of Maryland could not tax the Bank of United States, at least as long as it exempted state banks from similar taxation.  In Dawson, retired United States Marshal James Dawson argues that West Virginia local and state law enforcement personnel can entirely exempt their benefits, while he can only exempt $2,000, a distinction he challenges under 4 U.S.C. § 111, which in relevant part permits states to tax federal retirement benefits only if “the taxation does not discriminate against the officer or employee because of the source of the pay or compensation.”

At oral argument Dawson claimed that he had the same law enforcement authority as state employees whose retirement benefits are tax exempt, and argued that “the State can’t justify discriminatory tax treatment just based on whether he has some additional administrative responsibilities, but his basic law enforcement function is the same.” On the other hand, respondents argue that the differences in tax exempt status arise out of differences in the particular retirement plans that the two groups belong to, pushing back against the argument that the West Virginia Code was facially discriminatory. The Telegraph reported on the arguments, suggesting that the Court appeared to be more likely to side with Dawson; Herald-Mail Media had a similar perspective on the Dawson arguments. Petitioners James and Elaine Dawson are clients of the WVU Law School’s U.S. Supreme Court Clinic.

The Court also heard arguments in Lorenzo v. Securities and Exchange Commission, in which the Court is being asked to decide a question relating to the Securities Exchange Act Rule 10b-5, which prohibits the manipulative and deceptive tactics in connection with the purchase or sale of any security. Specifically, the Court is being asked to decide whether a false statement by someone who does not retain “ultimate authority” over the statement still subjects the person to a fraudulent-scheme claim under Rule 10b-5 (click here for more background on the Securities and Exchange Commission). At issue in the case are statements in two emails that Francis Lorenzo sent – false financial information to potential investors. Lorenzo claims he is not liable for engaging in a deceptive act under Rule 10b-5 because, as his lawyer put it, he “just sent an email at the direction of his boss with content that was provided by his boss to the recipients.”

The respondent, the Securities and Exchange Commission, emphatically argued against this point, saying “And this email was extraordinarily deceptive, as was commented earlier. There were – there were three gross mischaracterizations of the company under the representation that they would provide different layers of protection.” The New York Times has some background on the case in this July 3, 2018 article,  and the Epoch Times gives an overview of the case and Monday’s arguments.

Oral arguments were not the only events of Monday December 3, 2018 at the Court. The day started with a formal recognition of Anthony Kennedy’s retirement through an old-fashioned exchange of letters that Chief Justice Roberts read from the bench, in which the justice expressed their affection and appreciation for Kennedy. As Bustle reports, the letter praised Kennedy for his “kindness, camaraderie, and generosity.”

ISCOTUS Fellows Zoe Arthurson-McColl and Michael Halpin, both Chicago-Kent Class of 2020, contributed to this post, which was edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Oral Argument: The First Amendment, Retaliatory Arrest, and Probable Cause

What happens if police officers arrest someone because the officers don’t like the arrestee’s speech — but the officers also have probable cause. Can the arrestee sue for retaliatory arrest in violation of the First Amendment? This was the question in Nieves v. Bartlett, argued on November 26.

The case began when two Alaska state troopers, Luis Nieves and Bryce Weight, arrested Russell Bartlett, an allegedly intoxicated and belligerent attendee at Arctic Man Festival. Bartlett was charged with disorderly conduct and resisting arrest. After a court dismissed the charges, he sued the officers under §1983. Bartlett complained that the arrest was retaliation for his refusal to talk to them and for his challenge to their attempt to question a teenager in the absence of the youth’s parent or guardian.

The officers argue that retaliatory arrest claims should be governed by the common-law rule that probable cause protects officers from liability for enforcing the law, partially because determining causation for arrests is difficult. Principal Deputy Solicitor General Jeffrey Wall argued on behalf of the U.S., supporting the officers. Wall argued that claims of retaliatory arrest should be screened from purely subjective probes into officers’ motivations because such claims are easy to allege and expensive to defend against.

The plaintiff, Bartlett, argued that the Court should reject the common-law rule for three reasons: it would bar meritorious First Amendment retaliation cases regardless of supporting evidence; the rule is unnecessary for screening out meritless cases; and the rule lacks any grounding in the common law as it existed in 1871 when Congress enacted §1983. Bartlett’s lawyer, Zane Wilson, argued that would-be-litigants frequently have trouble finding lawyers for meritless cases, and that they frequently decide not to litigate for retaliatory arrest they’ve been convicted for the crime they were arrested for. Wilson faced a hot bench when he said that arrestees who are eventually convicted would have no damages, saying that as a result, “you’ve eliminated that entire category of cases” from the hypothetical onslaught of litigation the officers warned about. Chief Justice Roberts, Justice Kavanaugh and Justice Alito simultaneously asked “Why?!” Wilson pointed to the sparseness of retaliatory arrest cases that have been cited before the Supreme Court on First Amendment grounds. Justice Kavanaugh challenged him, noting that theoretically, convicts could still bring claims, arguing that the retaliatory motive was the “but for” cause of their arrest.

More in-depth analysis about the case is available from Professor Garrett Epps at The Atlantic.

This post was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Oral Argument: Excessive Fines and the States

The Court heard arguments in Timbs v. Indiana on Wednesday November 28, 2018, in which the Court is being asked to decide whether the Eighth Amendment’s Excessive Fines Clause is incorporated against the States under the Fourteenth Amendment. Before discussing the case and arguments made by both sides, here is a quick primer on background information to help the question in Timbs make more sense:

  •      The Eighth Amendment states “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” The Excessive Fines Clause portion of the amendment limits the government’s power to punish an offense by taking payments in cash or in kind. The underlying principle is that the amount taken must bear some relationship to the gravity of the offense being punished. Justia has more background on the Excessive Fines Clause.
  • The Eighth Amendment, like all of the Bill of Rights, applies to the federal government, but the Fourteenth Amendment, enacted after the Civil War, limits the powers of the states to violate people’s rights. Through a doctrine known as incorporation (click here for more on the incorporation doctrine), most of the Bill of Rights has been made fully applicable to the states through the Fourteenth Amendment. This is why, for example, state and local governments cannot constitutionally violate individuals’ First Amendment or Fourth Amendment rights (among others). The Eighth Amendment, however, has been made only partially applicable because the Excessive Fines Clause has not been incorporated. Whether it should be is at issue in this case.

Tyson Timbs pled guilty to dealing heroin and conspiracy to commit theft and was sentenced to one year of home detention and five years of probation. A private law firm also filed a civil forfeiture case to seize Timbs’ Land Rover LR2 on behalf of the State of Indiana. The trial court found that, because the cost of the vehicle was about four times the maximum monetary fine for Timbs’ crimes, the forfeiture should be considered unconstitutional under the Excessive Fines Clause. The Indiana Court of Appeals affirmed, acknowledging that the United States Supreme Court had not yet held that the Excessive Fines Clause applicable to the States, but held that its own precedent supported its application in state forfeiture proceedings. The Indiana Supreme Court reversed, and the Supreme Court will now take up the case.

In an article explaining the civil proceedings in which Timbs’ vehicle was seized in more detail, Ilya Somin at Reason discusses why he thinks the arguments in Timbs suggest that the Court will hold that the Excessive Fines Clause applies to the states, calling such an outcome (potentially) a “big win for property rights and civil liberties.” Mark Stern at Slate wrote that Justices Sotomayor and Gorsuch “came out swinging” against civil asset forfeiture in their questioning of Indiana Solicitor General Thomas Fisher. Coverage in the New York Times and CNBC also agrees that the Clause is likely to be applied to the states. As Hot Air explains, “Rarely does oral argument before the Court go so badly for one side that legal observers will dare to say afterward that the other is likely to win.”

This post was written by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020, with contributions from ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

On this day in Supreme Court History—December 10, 1862: Justice Davis takes the oath of office

On this day in 1862, Justice David Davis took his oath of office.

Judge David Davis

David Davis was born March 9, 1815, in Cecil County, Maryland. He moved to Illinois, where he became a state representative in 1845 and then a State Circuit Judge from 1848 to 1862. During this time he formed a friendship with Abraham Lincoln, who as a lawyer was a regular on Davis’ circuit. When Lincoln ran for the presidency in 1860, Davis was an active supporter.

Lincoln repaid his loyal friend by nominating him to replace Supreme Court Justice John A. Campbell on December 1, 1862. The Senate confirmed the nomination by voice vote on December 8, 1862, and two days, after taking his oath, he joined the Court.

Among Davis’ most famous opinions was Ex Parte Milligan. A military commission sentenced Lambden P. Milligan to death in Indiana during the Civil War for acts of disloyalty. Milligan’s lawyers sought a writ of habeas corpus, questioning the sentence’s constitutionality. In March 1863, Lincoln had signed into law the Habeas Corpus Suspension Act, which suspended the the writ of habeas corpus in cases of rebellion or invasion that threaten the public safety. In Milligan, the Court held that presidentially created military commissions’ trials of civilians are unconstitutional unless there is no civilian court available. The military commission therefore lacked jurisdiction to try or sentence Milligan, and he was entitled to discharge.

Davis’s tenure was also notable for his voting with the 5-member majority in the 1863 Prize cases. The majority held that the Lincoln administration was within its Article II rights to seize vessels bound for Confederate ports absent a declaration of war.

Davis served fourteen years on the Court. He resigned on March 4, 1877, when the Illinois State Legislature elected him to the United States Senate. He served one term in the Senate, retiring in 1883.

This Post Was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

Oral Argument in Apple v. Pepper: An Antitrust Challenge to the App Store

The oral argument in Apple, Inc. v. Pepper, included analogies of cell phone apps to fruits and vegetables.

The case presents the question of whether consumers may sue Apple for antitrust damages for the prices they pay for apps. Those prices are set by third parties — the app developers — but the consumers allege that it is Apple’s conduct that causes the prices to be as high as they are.

Multiple iPhone users filed their lawsuit in a federal trial court in California. That court dismissed the case, citing Illinois Brick Co. v. Illinois, a 1977 case in which the Supreme Court ruled that only direct purchasers of a product can bring a lawsuit for violations of federal antitrust laws. To put it another way, courts generally cannot award antitrust damages (which are treble damages) to plaintiffs who allege that the defendant overcharged someone else, who then passed that charge on to the plaintiffs. In the trial court’s view, Illinois Brick was perfectly spot on. App developers were paying Apple a 30 percent commission and then charging iPhone users more because of the commission, so the iPhone users had no case.

The iPhone users appealed to the Ninth Circuit, which reversed the dismissal. The court reasoned that Apple sells the apps to users directly through its App Store.

During the oral argument on November 26, Daniel Wall argued for the tech giant that the app developers are the direct buyers of distribution services from Apple in what Wall has called a “two-sided market.” (The argument transcript is here.) The other side of the market was the sale of apps by Apple to customers. Justice Breyer expressed frustration with some of the jargon of the case, saying, “You, know, there are an awful lot of words in this case that I tend to have trouble understanding. One is ‘two-sided market.’ Another is a lot that you used.” Justice Breyer went on to analogize Apple’s two-sided market to advising United Fruit Company to buy fruit from farmers at low prices, plus 30 percent commission, selling the fruit worldwide, charging customers for the 30 percent commission, then giving the same advice to John Rockefeller and United Shoe.

Solicitor General Noel Francisco argued on behalf of the federal government as amicus curiae, supporting Apple. Francisco argued that app makers’ increase of prices, not Apple’s commission, is the proximate cause of the injury to customers. Justice Kagan challenged his arguments as “not intuitive.” “I mean I pick up my phone,” she said, “I go to Apple’s app store. I pay Apple directly with the credit card information that I’ve supplied to Apple. From – from my perspective, I’ve just engaged in a one-step transaction with Apple.”

David Frederick argued on behalf of the iPhone users. Fredercik argued that the Illinois Brick rule is a bright-line rule that the iPhone users easily satisfy; that Apple directed its monopolistic abuses at iPhone users, so those users should be allowed to sue Apple; and that Apple wanted to expand the Illinois Brick rule to deny direct purchasers an antitrust remedy, a change that would render the rule “a standardless inquiry that will be hard to apply at the pleadings stage.”  Frederick assured the court that developers might have different claims against Apple based on lost profits, but Apple, as a monopoly, has the power to control prices of the apps. Frederick compared the apps to vegetables: “It’s no different that if there was a grocery store chain that monopolized the sale of all vegetables. If they—if that is the only place you could buy vegetables, we would say that that monopoly store outlet was able to control prices and affect output.”

More commentary on the argument is available from the Washington Post, The Verge, and CNBC.

This post was Written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, edited by Matthew Webber ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.

Opinion: The Dusky Gopher Frog Faces a Setback at the Court

The Supreme Court issued a unanimous 8-0 opinion in Weyerhaeuser Co. v. United States Fish and Wildlife Service, also known as the dusky gopher frog case. (Chief Justice Roberts, who wrote the opinion, began it with a brief exegesis about the frog, leading to some positive Twitter commentary on his writing style.)

The Endangered Species Act (ESA) requires the Fish and Wildlife Service (FWS), when identifying a species as endangered, to also designate land as critical habitats for that species. Once a critical habitat is identified, uses of that land may be limited, but the FWS generally has the discretion to exclude some land from the critical habitat if “the benefits of such exclusion would outweigh the benefits of” designation. In this case, the FWS designated some land as a critical habitat for the dusty gopher frog, and the landowners sued, alleging both that the land should not have been considered a candidate for critical habitat at all and that the agency did not properly weigh the costs and benefits of the designation. The lower courts held that the land was properly designated and that the cost/benefit analysis was not reviewable by the courts. The Supreme Court reversed.

Regarding the first issue, whether the designated land in question could be a critical habitat at all, the Court held that the lower courts erred in not determining if the land in question was actually a “habitat,” which may also require the courts to determine what a “habitat” is, within the meaning of the statute, and it remanded for those determinations. The key statutory issue is whether a “habitat” must be somewhere that the species could live if there were modifications made, or whether a “habitat” must be currently capable of supporting the species. As relevant here, the frogs need three things in their habitats: (1) ephemeral ponds (ponds that dry up part of the year which stops predatory fish from living in them and eating the frogs’ eggs; (2) an open-canopy forest; and (3) holes and burrows the frogs could live in. The land in question has ephemeral ponds but lacks the open-canopy forests with holes and burrows. FWS concluded, however, that the forests could be restored.

Regarding the second issue, the Court held that the agency’s decision not to exclude land from its critical habitat designation is reviewable by courts, and it remanded the case for that review.

Although the overall ruling was a loss for those trying to conserve the frogs and potential habitats to keep the species alive, it’s not the end of the road for them. The case will be back in the lower court on remand where both parties will continue to battle it out. Check out CNBC, Bloomberg, and The Washington Post for more information on the decision, and this ISCOTUSnow post from when the case was argued.

This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.