This Week at the Court – Week of June 19, 2017

The Supreme Court hit the ground running this week, handing down five opinions, one per curiam, and releasing its order list from its June 15 conference.

Matal v. Tam (previously named Lee v. Tam) stems from a challenge by an Asian-American band wishing to trademark their band name, “The Slants,” with the U.S. Patent and Trademark Office (PTO). Under the governing statute, known as the Lanham Act, the PTO was not required to register any trademark that is “disparaging” to “persons, living or dead, institutions, beliefs, or national symbols.” The Court decided that the Lanham Act’s disparagement clause violates the free speech clause of the First Amendment. This unanimous victory for Simon Tam and “the Slants” sparked discussions about the Washington Redskins and their controversial team name. The decision was unanimous as to result, but there was a majority as to only part of the primary opinion, written by Justice Alito. Both Justice Kennedy (joined by Justices Ginsburg, Sotomayor, and Kagan) and Justice Thomas concurred in part and concurred in the judgment. The Washington Post discusses the arguments on either side of this debate, noting that “while this may be the right result under the First Amendment and the principles of free speech that are foundational to our country, it seems the responsibility will not pass to the public.” And in an unusual move, The New York Times confessed in an editorial that it had determined its previous position supporting the anti-disparagement provision, in the context of the PTO’s denial of a trademark for the Redskins, had been wrong, and it published a profile of Simon Tam and the band here. Matal v. Tam served as the ISCOTUSnow’s teaching focus at Constitutional Rights Foundation Chicago (CRFC)’s event in June. Simon Tam joined our discussion via Skype to explain his argument, which prevailed in the high court. Read more about the event, here. SCOTUSblog is sponsoring a symposium on the decision.

In Ziglar v. Abbasi, the Court addressed whether a group of non-citizens who were detained after the terrorist attacks on September 11, 2001 could sue for damages against two groups of federal officials for their “harsh pretrial conditions for a punitive purpose” in violation of their Fifth Amendment rights. (Former FBI Director Robert Mueller was among the federal officials sued in this suit.) The legal theory stemmed from Bivens v. Six Unknown Fed. Narcotics Agents, in which the Court created a remedy for constitutional violations carried out by agents of the federal government even in the absence of statutory authorization for such a lawsuit. But the Court, in an opinion by Justice Alito and joined by Chief Justice Roberts and Justices Kennedy and Thomas, held in Ziglar that a Bivens type remedy should not be extended to the plaintiffs in this case in part because of the national security context. Justice Breyer, joined by Justice Ginsburg, dissented, and in an unusual move, he read part of his dissent from the bench. It was the first time this Term that any Justice has done so. Garrett Epps of The Atlantic recounts his powerful words calling them “civil but furious.” Justice Breyer used a metaphor of arson in his decision, warning his colleagues that a decision such as this, Epps explains, burns down “the entire structure of constitutional torts to shelter officials in national-security matters.” Because Justices Sotomayor and Kagan were recused and Justice Gorsuch had not yet joined the Court when the case was argued, Ziglar was heard by only six Justices.

The question in Packingham v. North Carolina, the Court was whether it was violated the First Amendment to restrict the access of registered sex offenders to social media websites where minors are allowed to have accounts. Lester Packingham, a convicted sex offender was arrested after the police found his Facebook profile, and he was charged with violating North Carolina’s law that made it a crime for offenders to access sites such as Facebook. (Mr. Packinhgham was convicted for violating the law after he thanked God on Facebook for getting out of a traffic ticket.) On Monday, the Court, in an opinion by Justice Kennedy, struck down the law. According to Ephrat Livni of Quartz, “the justices unanimously held that states can’t broadly limit access to social media because cyberspace ‘is one of the most important places to exchange views.’” Livni went on to note that this case has implications for society as a whole, not just offenders, and the court “appears to be extreme conscious of the broader effect.” Justice Kennedy wrote “A fundamental First Amendment principle is that all persons have access to places where they can speak and listen, and then, after reflection, speak and listen once more.” The court also stated that criminals are especially in need of being able to freely use the internet for the many different types of information available, such as employment ads and “exploring the vast realms of human thought and knowledge. Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment. Check out ScotusBlog, The Atlantic, and The New York Times for more commentary on this case.

The fourth opinion announced on Monday was in McWilliams v. Dunn. As Ryan Lovelace of The Washington Examiner explained, James McWilliams was convicted of the rape and murder of Patricia Reynolds and sentenced to death. He requested neuropsychological testing, but his attorneys did not have an opportunity to work with an expert to review and analyze the results. Justice Breyer, joined by the other three liberals and Justice Kennedy, wrote the opinion in this case, which sided with McWilliams. The opinion stated that he did not get the assistance that he was guaranteed under Ake v. Oklahoma. As Lawrence Hurley of Reuters noted, Ake guarantees that indigent defendants are entitled to expert assistance, but the McWilliams ruling does not clarify whether defendants are entitled to have their own expert, or if one expert for both the defense and prosecution is good enough if the defense has the appropriate assistance in assessing the expert report. Taylor Dolven of Vice comments on Justice Alito’s dissent (joined by the Chief Justice and Justices Thomas and Gorsuch), which stated that the decision was too narrow and “case-specific.”

Finally, in an 8-1 decision written by Justice Alito, the Court held in Bristol-Myers Squibb v. Superior Court of California that a state court does not have jurisdiction over claims brought by out-of-state residents over out-of-state conduct by a defendant that is domiciled out of- state, even if the state court would have jurisdiction over comparable claims brought by its own residents. Justice Sotomayor was the only dissenter, and she argued that this case would have substantial effects, in particular making it much more difficult for plaintiffs to aggregate their claims. Indeed, the scheduled trial in one class action has already been postponed in light of this decision.

In other news, on Monday, the Supreme Court unanimously reversed the Sixth Circuit — not for the first time — in a per curiam habeas case, Jenkins v. Hutton. And it announced that it would hear Gill v. Whitford, a major partisan gerrymandering case out of Wisconsin.

Justice Neil Gorsuch has been a member of the Supreme Court for more than two months and has even drafted his first opinion. But it wasn’t until late last week that Justice Gorsuch participated in his formal investiture ceremony. Justice Roberts delivered the judicial oath to an audience of lawmakers, federal judges, and President Trump. The New York Times recounts the event, noting that while it is “purely ceremonial,” it is a tradition that is “stately and steeped in history.” Photos from the event can be found at the Supreme Court’s official website.

Chief Justice Roberts has been busy on and off the bench in the last few weeks. He served as the commencement speaker for Cardigan Mountain School, his son’s junior high school. The Chief Justice had words of wisdom for the graduates: “From time to time, in the years to come, I hope you will be treated unfairly, so that you will come to know the value of justice.” View his full commencement address, here.

The Court has two more opinion announcement days scheduled — Thursday, June 22 and Monday, June 26, when it will also issue orders from the last Conference of the year — although it could add more announcement days next week if it needs to. Among other orders, the Court is expected to rule on the stay applications and petitions for certiorari in the travel ban cases by Monday. Stay tuned for these and other developments.

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