On This Day in Supreme Court History—November 28, 1872—Justice Nelson Retired from the Court

On this day in 1872, Supreme Court Justice Samuel Nelson retired from the Court.

Samuel Nelson - Brady-Handy.jpgNelson was born on a farm in New York in 1792. After graduating from Middlebury College in 1813, he clerked and eventually became a partner at a law firm. He was also active in the Democratic-Republican Party.  At the age of 31, he became a New York state judge, eventually gaining appointment to the state’s supreme court in 1831; he was appointed Chief Justice in 1837.

In 1845, Nelson’s strong reputation as a judge earned him a nomination to the U.S. Supreme Court. President John Tyler’s lack of support in the Senate limited his options in selecting nominees to the Supreme Court, but he found in Nelson a person of held in such high esteem that he easily was approved the join the Court.

During the Civil War and Reconstruction period, he often voted against the North. He dissented in the Prize Cases, where he argued that since Congress had never declared war, the Civil War was not an official war, and therefore President Lincoln’s blockade of southern ports was illegal. In another case, he voted to overturn the conviction of a man accused of being a Confederate sympathizer. He generally opposed expanding federal power.

Justice Nelson served 27 years on the Court, until his retirement on November 28, 1872. He died a little over a year later, on December 13, 1873.


This Post was Written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator Matthew Webber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director and Chicago-Kent Faculty Member Christopher W. Schmidt.

The Census Case Grant and Other Orders

On Friday November 16, 2018, the Court granted the petition for certiorari in In Re Department of Commerce, et al., a case in which they previously denied the request to delay a trial over a dispute about whether a question relating to citizenship status should be included on the 2020 census. As The Hill discusses, the dispute arises out of a lower court decision to allow Commerce Secretary Wilbur Ross to be questioned under oath about adding a citizenship question to the 2020 census. For more on what the Court will weigh in on in this case, read this NPR article; the New York Times also has more. The Court also agreed to hear Cochise Consultancy, Inc. v. United States ex rel. Hunt, a case about the statute of limitations in False Claims Act cases. More information about that case is available from Bloomberg BNA here.

The Court released the remaining orders from its November 16 Conference the following Monday. One notable order included an opinion dissenting from the denial of certiorari in Stuart v. Alabama, which arose out of a DUI conviction. This case involved an Alabama criminal court allowing the introduction of a State laboratory employee’s formal report regarding Petitioner-Stuart’s blood alcohol level into evidence as actual evidence of her blood alcohol level, without testimony from the person who performed the tests and signed the reports. Stuart alleged in her petition for certiorari that the Alabama court’s decision to admit the evidence violated her Sixth Amendment right to confront her accusers, in conflict with the Court’s 2011 precedent set in Bullcoming v. New Mexico. This 2013 Slate article discussed Bullcoming, and the ABA Journal has more background on the Court’s Confrontation Clause precedent.

While the Court declined to hear Stuart’s case, Justice Gorsuch, joined by Justice Sotomayor, wrote a dissent to the denial of certiorari to express his disagreement: “[T]he Constitution promises every person accused of a crime the right to confront his accusers. Amdt. 6. That promise was broken here. . . The engine of cross-examination was left unengaged, and the Sixth Amendment was violated.” Justice Gorsuch did not limit his criticism to the trial court, though, also writing: “To be fair, the problem appears to be largely of our creation. This Court’s most recent foray in this field, Williams v. Illinois(2012), yielded no majority and its various opinions have sown confusion in courts across the country. . . This case supplies another example of that confusion.”

While alluding to what his opinion in the case might have been had the Court granted certiorari, Justice Gorsuch’s main concern was focused on the consequences that not granting certiorari would have for continuing confusion in cases presenting similar Sixth Amendment questions. This reason article discusses Justice Gorsuch’s dissent, noting that the pairing of Justices Gorsuch and Sotomayor is not unheard of in criminal justice cases. The ABA Journal and Daily Report also covered the dissent, and this Slate article discusses offers a perspective on Justices Sotomayor and Gorsuch  “Teaming Up to Protect Criminal Defendants.”

Written 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 Carolyn Shapiro, ISCOTUS Co-Director.

DACA Filings and the Terms’s First Opinion

On Monday the Department of Justice (“DOJ”) made a rare request of the Supreme Court. The department filed a petition for a writ of certiorari before judgment in the case U.S. Department of Homeland Security v. Regents of the University of California, which the Ninth U.S Circuit Court of Appeals is currently deciding. That court heard oral arguments May 15.

In the lawsuit, the challengers argue that the Trump administration acted “capriciously and arbitrarily” in ending DACA (“Deferred Action for Childhood Arrivals). DACA is a program the Obama administration implemented that defers deportation of immigrants who were brought to the U.S. as children.

This petition was the second such filing the Department has filed made in this case. DOJ filed a similar petition in January after U.S. District Judge William Alsup in San Francisco issued a temporary injunction halting the Trump administration’s dismantling of the program. The Supreme Court denied that request, indicating that it believed that the lower court would “proceed expeditiously to decide this case.” The department in its newer petition has emphasized this order from the Supreme Court and noted that the lower court has not yet ruled in the case.

DOJ has not been shy about filing unusual requests with the Supreme Court. Last week, the Washington Post published an op-ed criticizing this trend.

In other news, Justice Ginsburg issued the first opinion of the term on Tuesday, November 6th. This marks the third consecutive Term in which Justice Ginsburg wrote the inaugural opinion. In the 8-0 opinion (Justice Kavanaugh had not joined the Court when parties argued the case October 1) the Court held that Age Discrimination in Employment Act prohibits age discrimination by state and local governments regardless of their number of employees. The case was brought by firefighters John Guido and Dennis Rankin. The Mount Lemmon Fire District in Arizona laid off the two men, who, at ages 46 and 55, were its oldest.

Justice Ginsburg found unpersuasive the fire district’s argument that applying the law to small political subdivisions could risk vital public services. The Justice noted that the Equal Employment Opportunity Commission has consistently interpreted the ADEA for three decades as the Court did Tuesday, and most states prohibit age discrimination by political subdivisions of all sizes and “…No untoward service shrinkages have been documented.”

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.


November 13 Orders: Redistricting and Unsolicited Faxes

On November 13, 2018, the Court issued orders from its November 9th conference.  The justices added two new cases to their docket. Among the cases the Court announced it will hear is Virginia House of Delegates v. Bethune-Hill, a challenge to the use of race in legislative redistricting. Based on the 2010 Census, the Virginia General Assembly redrew districts for the Virginia House of Delegates. However, the new legislative map contained twelve majority-minority districts. The plaintiffs argued the districts constituted racial gerrymandering, which violates the Equal Protection Clause of the 14th Amendment. Bethune-Hill is coming to the Court for the second time. When the Court heard the case in 2017, it ruled that the district court had applied the wrong legal standard when it upheld the twelve challenged districts. After applying the standard outlined by the Court, the district court determined that race was the predominant factor used to create eleven of the twelve districts and ordered a special redistricting process.

The Republican-controlled House of Delegates and its Speaker, a Republican legislator, filed an appeal to stop the redistricting.  The state’s Democratic attorney general, Mark Herring, however, stated “Virginia law is clear that in the commonwealth, like in most states, the ultimate authority to speak for the state in federal court rests with its elected attorney general.” Mr. Herring believes the state would be better served to not pursue the lawsuit.  As part of its order last week, the Court ordered both parties in to fully brief whether the appellants, Republican legislators, have the right to appeal. The case could decide the partisan control of the Virginia House of Delegates as Republicans currently hold a 51-49 advantage.

The Court also decided to consider PDR Network v. Carlton & Harris. In 2013, PDR sent Carlton & Harris, a West Virginia chiropractor practice, a fax offering a free reference book. Carlton & Harris declined the offer and sued PDR, alleging a violation of the Telephone Consumer Protection Act, which prohibits unsolicited advertisements. PDR contends a fax is not an advertisement, but Carlton & Harris point to a supporting FCC interpretation. The district court agreed with PDR, but the U.S. Court of Appeals for the 4th Circuit reversed that decision. The Court granted writ of certiorari, but only to the question of whether the Hobbs Act required the district court to accept the FCC’s legal interpretation.  

Additionally, the Court denied writs of certiorari review to a group of cases challenging the Court’s decision in Hurst. Hurst held that pursuant to the 6th Amendment, a jury must find every element required to impose a death sentence. Since the decision, the Florida Supreme Court has rejected appeals from death sentences if the jury was unanimous in their decision to recommend the sentence. Several inmates urged the Court to overturn the Florida Supreme Court decision and cited Caldwell v. Mississippi. In Caldwell, the Court held a death sentence is not valid when the jury believes it is not responsible for determining whether a death sentence is appropriate.

The Court denied a review of the cases, but there was dissent among the justices. Justice Breyer wrote respecting the denials, highlighting three issues: (1) the cruelty of delay defendants face when waiting for execution, (2) whether the decision in Hurst should be applied retroactively, and (3) whether the 8th Amendment requires a jury, rather than a judge, to make the decision to sentence a defendant to death. Justice Thomas agreed with the decision to deny review, rebutted Justice Breyer’s arguments, and stated “The only thing ‘cruel and unusual’ in this case was the petitioner’s brutal murder of three innocent victims.” Justice Sotomayor dissented from the denial of review, providing “The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.”

The remainder of the Court’s November 13, 2018, orders can be found here.

Written by ISCOTUS Fellow James O’Brien, 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.

On This Day in Supreme Court History—November 15, 1882

On this day in 1882, Supreme Court Justice Felix Frankfurter was born in Vienna, Austria. At the age of twelve, he moved to New York’s lower east side with his parents and five siblings. Despite not learning English until he came to the United States, he soon became an exceptional student. He graduated first in his class from Harvard Law School and then joined its faculty. He went on to become a renowned scholar, a major public intellectual, and a trusted advisor to President Franklin D. Roosevelt. Roosevelt nominated him to the Supreme Court in 1939, and the Senate confirmed him without a single dissenting vote.

Newsweek Jan 16 1939 Felix Frankfurter.jpg

Never one to doubt his own abilities, Frankfurter believed that the fact that he had never served as a judge in no way hindered  him as a justice. “The correlation between prior judicial experience and fitness for the Supreme Court,” he once said, “is zero.”

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

Procedural Requirements with Big Impacts: November 7 Oral Arguments

The Supreme Court heard arguments in Republic of Sudan v. Harrison on November 7, 2018, where it is being asked to resolve a circuit split on whether plaintiffs suing a foreign state under the Foreign Sovereign Immunities Act (FSIA) can serve the foreign state under 28 U.S.C. § 1608(a)(3) by mail to the foreign state’s embassy in the United States, notwithstanding differing provisions under the Vienna Convention on Diplomatic Relations (VCDR). The U.S. Courts of Appeals for the District of Columbia, Fifth Circuit, and Seventh Circuit have all held “no,” while the Second Circuit in the present case has held that plaintiffs may be allowed to serve a foreign state in this way.

           The case arises out of the October 2000 bombing of the USS Cole that killed 17 sailors, injuring dozens more, for which a group of victims and their families sued Sudan, alleging that it had provided support to al-Qaida, who claimed responsibility for the attack. Read CNN’s fast facts article for background on the attack. The argument for petitioner – Republic of Sudan – is that the proper interpretation of §1608(a)(3), as held by the District of Columbia, Fifth, and Seventh Circuits, is that someone suing a foreign state needs to send process directly to the head of the ministry. In support of that position, counsel for petitioner argued that there is no language in §1608(a)(3) that explicitly provides for service through an intermediary, and the specific statutory provision should be applied literally and strictly.  The respondent – Rick Harrison – countered that the Second Circuit properly held that he could send process through an intermediary, in this case the Sudanese Embassy. They further alleged that Sudan was using an unstated procedural requirement to avoid paying the $300 million judgment to Harrison and the other victims of the attack on USS Cole. The Associated Press and LMT Online have more on the arguments.

           The Court also heard arguments in another circuit-split case involving a question of statutory interpretation, Culbertson v. Berryhill, which centers around 42 U.S.C. § 406(b)’s 25-percent cap on fees relating to the representation of individuals claiming Social Security benefits. The cap provides that an attorney can take a contingent fee of no more than 25 percent of the claimant’s past-due benefits. The Sixth, Ninth, and Tenth Circuits have held that the 25-percent cap applies only to fees relating to representation in court, whereas the Fourth, Fifth, and Eleventh Circuits have held that the 25-percent cap applies to the maximum aggregate amount of proceedings, whether there are solely court proceedings or both administrative and court proceedings. The petitioner, Culbertson, argued that the phrase at issue – “such representation” – should be read to mean that § 406(b)’s cap applies only to representation fees for work done before a court. Respondent Barryhill, acting commissioner of Social Security, argued that limiting the cap on fees to past-due benefits as they apply to court proceedings would open the door to attorneys being able to collect the 25-percent representation fee from proceedings in multiple jurisdictions. UVA Today has more on Culbertson, and The Jurist covers both of the cases argued on Wednesday November 7, 2018.

This post was written 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.


Cruel and Unusual Punishment in a Capital Case: November 6 Oral Arguments

On Tuesday, November 6, the Supreme Court heard oral arguments in a case challenging the method of execution in a capital case. In Bucklew v. Precythe, the Court must consider a claim that a state’s chosen method of execution will cause excruciating pain due to an inmate’s particular medical conditions can violate the Eighth Amendment’s prohibition on cruel and unusual punishment.

In 1996, Russell Bucklew killed the owner of a home his former girlfriend was living in, kidnapped and raped his former girlfriend, and was apprehended after a shootout with Missouri police.  In 1998, Bucklew was convicted of murder, kidnapping, and rape and was sentenced to death. Bucklew alleges that execution by lethal injection, Missouri’s chosen method, would constitute cruel and unusual punishment because he suffers from cavernous hemangioma, a rare congenital condition which causes clumps of blood vessels to grow in his head, neck, and face. Bucklew claims that because of his condition, a lethal injection would cause excruciating pain.  

A federal district court dismissed Bucklew’s claim because he failed to identify a feasible alternative execution method, as required by the United States Supreme Court in Glossip v. Gross and Baze v. Rees.  The Supreme Court granted a stay of Buckley’s execution in March, hours before he was to be executed, with Justice Kennedy providing the fifth vote for the stay.  Bucklew later proposed execution by lethal gas to the district court, but the court held Bucklew failed to provide adequate evidence that this methodology would significantly reduce a substantial risk of severe pain. The issue before the Supreme Court is whether the inmate challenging a method of execution, even where — as here — the challenge is unique to his medical condition — must show that there is a proposed alternative method of execution that would provide a substantially greater chance of reducing unnecessary pain.

During oral argument, Justice Kavanaugh expressed concern stating “even if the method imposes gruesome brutal pain you can still go forward?”  As The Washington Post reports, Kavanaugh directed all of his questions to the Missouri Solicitor General, John Sauer. Sauer argued execution methodology can impose extreme pain, but cannot be a historically gruesome method prohibited by the Eighth Amendment nor a deliberate attempt to inflict pain for the sake of pain. Justice Kagan suggested prior Supreme Court decisions defending lethal injection were not applicable; “I think all of that stuff that we talked about in Baze about why we should refer to state-considered judgments really falls away because there’s been no considered judgment, surely by the legislature and, in general, by officials, about one particular person.”  Most of the Court’s more conservative justices, other than Justice Kavanaugh, seemed to side with the Missouri Department of Corrections. Chief Justice Roberts, for example, posited: “If the death penalty is constitutional, as it now is, there must be a way to administer it. But, if you can show that there’s another way that is less painful, then the theory is again that it’s an Eighth Amendment claim because it’s unnecessary pain.  But again, it seems to me that you can’t make that showing with respect to something that’s never been used by any other state.” More information is available in this AP story.

           In another case  BNSF Railway Company v. Loos, Michael Loos, a former employee of BNSF Railway Company, incurred attendance policy violations, some of which were attributed to a workplace injury.  BNSF terminated Loos’ employment due to the attendance policy violations and Loos brought suit alleging retaliation under the Federal Railroad Safety Act (FRSA) and negligence under the Federal Employers Liability Act (FELA). A jury awarded $30,000 for lost wages for the FELA claim and the district court ruled none of the award was subject to Railroad Retirement Tax Act (RRTA) taxation. The RRTA withholds income from railroad employees to pay for retirement benefits under the Railroad Retirement Act (RRA). Loos’ jury award is creditable towards retirement benefits. BNSF appealed and believes the award should be taxable under the RRTA, meaning BNSF would withhold taxes from the award on behalf of Loos and put the amount towards RRTA retirement benefits.  The district court denied BNSF’s motion and the United States Court of Appeals for the Eighth Circuit affirmed the decision. The case is unusual because BNSF is asking the court to impose more federal taxes on the company, although the amount is only $3,765.  The Court will determine whether damages for lost wages in a personal injury suit brought under FELA are taxable as “compensation” under the RRTA.  

Justice Ginsburg asked BNSF for clarity regarding its stake in the appeal, to which the company responded “the employer cares because under a system that would credit all lost wage FELA awards to retirement benefits but without any tax burden has a long-term risk of insolvency or instability to the system.”  Justice Sotomayor expressed concern over the practical application of taxing lost-wage awards, questioning how it would be determined what part of the awards would be subject to the RRTA provisions. According to SCOTUSblog, at least four justices (Ginsburg, Sotomayor, Kagan, and Gorsuch) asked questions sympathetic to Loos’ case, while justices Breyer and Kavanagh asked questions sympathetic to BNSF.

Written by ISCOTUS Fellow James O’Brien, 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.


Hovercrafts & Uranium: Oral Argument Roundup for November 5, 2018

On Monday, November 5, 2018, the Supreme Court heard oral arguments in two cases: Sturgeon v. Frost and Virginia Uranium, Inc. v. Warren.

Sturgeon v. Frost

In Sturgeon, the Court faced the question of whether the National Park Service (NPS) can prohibit the use of hovercrafts on public waterways. John Sturgeon, an Alaskan moose hunter, has been fighting the NPS for years, filing lawsuits and appeals seeking to gain permission to operate his hovercraft over the Nation River in the Yukon-Charley National Preserve conservation unit. Alaska says he can; the NPS says he can’t. The case hinges on the Alaska National Interest Lands Conservation Act, which says Alaskan Native and private land are not subject to federal “regulations applicable solely to public lands.” Specifically, the question is the meaning in this provision of “public lands.”

At oral argument, Sturgeon’s lawyer, Matthew T. Findley, argued that the law exempted a waterway such as the Nation River from the regulatory control of the NPS. Justice Alito said he “burned up an awful lot of gray cells trying to put together the pieces of this statute.” Justice Sotomayor wondered how the Court could interpret the meaning of “public lands” differently in multiple sections of the statute. “I’m struggling with this,” confessed Justice Kagan.

SCOTUSblog has a full summary of oral arguments here.

This “little case” may have big consequences, noted Matthew J. Sanders in the ABA newsletter Trends last year. Sturgeon may come to define the nature and reach of the federal government’s authority over waters in and beyond Alaska.”

Virginia Uranium, Inc. v. Warren

The Court also heard oral arguments in Virginia Uranium, Inc., involving a jurisdictional question regarding the safe handling of radioactive material. Specifically, the issue is whether the federal Atomic Energy Act (AEA) preempts a Virginia state law regulating radioactive material within its jurisdiction.

In the early 1980s, in response to the nuclear disaster in 1979 at  Three Mile Island, Virginia passed a law banning the mining of uranium within the state. The law had a sunset clause that went into effect a year after its enactment. In 1983, the Virginia legislature renewed the law indefinitely. Virginia Uranium, Inc. saw the potential in one of the largest untapped uranium deposits in the country (roughly $7 billion as of 2011), and wants to mine the prospect but is prevented from doing so by this state law.

The case hinges on Virginia’s reasoning behind its prohibition of mining uranium. Laws involving improper extraction and storage of materials are regulated by federal law, namely the AEA, which designates the Nuclear Regulatory Commission (NRC) as responsible for this issue.

As Justice Kagan noted at oral argument, because the legislative history shows that the Virginia law was in response to safety concerns, it is more vulnerable to preemption than state bans on mining motivated for other reasons.

“Suppose Virginia had said, ‘We think that the extraction is a dangerous activity, so we are justifying this ban on mining to protect the workers from the hazards associated with mining,’” Justice Ginsburg asked the attorney arguing the case for Virginia Uranium, Charles J. Cooper. Cooper responded that the company would lose if that were the case.  

Solicitor General Noel J. Francisco warned that if the Court allowed a ban on mining for reasons besides concerns for extraction and storage, the Court would be “giving state and local governments a road map for undermining a multibillion-dollar industry.”

SCOTUSblog has a full summary of oral arguments here.


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.


Conference Report: November 2 Conference

At its November 2 Conference, the Supreme Court granted certiorari in six cases. Two of the cases, which have been consolidated, involve challenges to a cross on public land. Those cases were brought by the American Humanist Association against the American Legion and the Maryland-National Capital Park and Planning Commission. In a 2-1 decision, he Fourth Circuit held that the large cross, a 93-year-old World War I memorial, excessively entangled the government with religion and so violated the Establishment Clause. More information about the case is available in this Washington Post article.

The Court also granted certiorari in Flowers v. Mississippi. In Flowers, the defendant stood trial six times on the same charges due to three judgments being reversed because of prosecutorial misconduct and the two other trials ending in hung juries. In three of the earlier trials, the prosecutor used peremptory challenges to strike African-Americans. In one of those cases, the trial judge disallowed one of those challenges as racially motivated, and in another, the Mississippi Supreme Court reversed the conviction as violating Baston v. Kentucky, which held that excluding jurors due to their race is unconstitutional. In the last trial, Flowers was convicted and sentenced to death by a jury made up of eleven whites and one African-American. Flowers alleged that the prosecutor again violated Batson, but the Mississippi Supreme Court held otherwise in a 6-3 decision. After the Supreme Court decided Foster v. Chatman, a 2016 case involving race-based jury exclusions, it remanded Flowers to the Mississippi Supreme Court to reconsider its decision in light of Foster. That court issued a substantially similar majority opinion, and Flowers has again asked the Supreme Court to review, in part due to the Mississippi court’s failure to consider the prosecutor’s past history of adjudicated purposeful race discrimination in striking minority prospective jurors.

The other cases granted certiorari on November 2 can be viewed here, and SCOTUSblog discusses them here.

Among the cases in which the Supreme Court denied certiorari was Smith v. Clinton, which gained much media attention, including this Politico article from May of 2017. Patricia Smith and Charles Woods brought this action together against former Secretary of State Hillary Clinton. They claimed that due to Clinton’s use of the private email server, which was later hacked, their sons Sean Smith and Tyrone Woods died because it revealed their location to terrorists who took their lives in Benghazi in September 2012. The plaintiffs also had defamation claims. The district court dismissed the case, and the D.C. Circuit affirmed. The Supreme Court will not hear the case, so the lower court ruling stands.

Other cases that were denied certiorari were a group of linked cases against the Federal Communications Commission (FCC) challenging the Obama-era net neutrality rules. Although the FCC has since changed the rules, it agreed with the plaintiff communications company that the D.C. Circuit’s decision upholding the rules should be vacated as moot. The Court disagreed, simply denying the petition. Justice Thomas, Alito, and Gorsuch, would have granted the request for vacatur. Chief Justice Roberts and Justice Kavanaugh were both recused. More information can be found in this NPR story. The other cases denied certiorari on November 5 can be viewed here.

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.

October 31 Oral Argument Report

On October 31, the Court heard arguments in Frank v. Gaos. The case presents the issue of whether, or in what circumstances, a cy pres award of class action proceeds that provides no direct relief to class members supports class certification and complies with the requirement that a settlement binding class members must be “fair, reasonable, and adequate.” The doctrine of cy pres (from a French phrase for “as close as possible”) allows courts to interpret wills or charitable gifts to fulfill the giver’s intention as closely as possible when they are unable to implement the terms precisely. Ted Frank, an attorney, is challenging an $8.5 million settlement of a class action against Google, which alleged that Google had violated its users’ privacy. About $5 million of the settlement went to groups that work on privacy-related issues and the plaintiffs’ lawyers’ alma maters.

Frank argued that because the class members were not the primary beneficiaries of the settlement, the settlement was neither fair nor reasonable and therefore violated Rule 23. The settlement was particularly abusive, he argued, because it was feasible to distribute the money to class members, but instead the class’s counsel agreed to direct the money from the settlement elsewhere. Class members are capable of donating their money to charity themselves if they so wish, instead of having their lawyers do so, he noted. Jeffrey Wall argued for the United States, a non-party, and stated the plaintiffs lacked standing when the district court entered the judgment and that lower federal courts should enforce limits on fee proportionality so those limits are not reduced to “paper tigers.” Attorney Andrew Pincus argued on behalf of Google that nothing in Rule 23 or the Rules Enabling Act strictly prohibits settlements in which the money goes only to third parties. Pincus agreed with the government that there is a “serious question about whether this action was ever properly in federal court.”  Jeffrey Lamken argued on behalf of the respondents (the plaintiffs against Google) that Rule 23(e)’s fairness standard is better met when courts give large amounts of the settlement money to institutions for particular uses than when courts give small amounts close to zero to individual class members. Lamken argued that it is “critical” that the class members’ lawyers, not Google’s lawyers, determined the recipients.

For more commentary on this case, check out The New York Times and MarketWatch.   

On the same day, the Court heard arguments in Jam v. International Finance Corporation. The case presents the question of whether the International Organizations Immunities Act (IOIA), which gives international organizations the “same immunity” from lawsuits that foreign governments have, confers the same immunity on such organizations as foreign governments have under the Foreign Sovereign Immunities Act (FSIA).

International Finance Corporation loans money to private businesses for projects in developing countries. In 2008, the IFC loaned $450 million to Coastal Gujarat Power Limited to partially fund the construction of a power plant in India. The plaintiffs/petitioners are mostly farmers and fishermen whom the plant has harmed.

Jeffrey Fisher argued on behalf of the petitioners that the IOIA’s plain text, structure and drafting history clearly give international organizations the same immunity as the FSIA. Fisher argued that the IOIA incorporates the immunity of the FSIA as of the moment of the filing of the lawsuit against the IFC, not the level of immunity that was applicable when Congress enacted the statute in 1945.  Assistant to the Solicitor General Jonathan Ellis argued on behalf of the United States, a nonparty. Ellis argued that the IOIA “provides a whole host of immunities” by setting “a fixed rule of immunity” and by setting the immunity by reference to foreign governments.” Donald Verrilli argued on behalf of the IFC that Congress enacted IOIA to fulfill the obligations imposed by treaties which commit the courts to give “virtually absolute immunity” to international organizations, a step beyond the immunity given to foreign states.


[Disclosure: Chicago-Kent College of Law’s Center for Information, Society and Policy is one of the designated cy pres recipients at issue in Frank v. Gaos, as reported here.)

This post was written by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, 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.