Supreme Court 2019–2020: Insanity, Discrimination, and DACA—And a Pandemic

Author’s Note: Cited Notes for This Article

The citations in this article are to the Slip Opinions of the Court as published on the Court’s website referenced above. In Slip Opinions the Court separately paginates each opinion within a case. Therefore, in a case, the majority opinion begins on page one, a concurring opinion will again begin on page one, and a dissenting opinion will once again begin on page one. When opinions are published in hard copy in the U.S. Reports and other bound sources, however, pagination is continuous.

The opinions published by the Court are subject to correction and minor modification. The Court has been criticized for these changes and has now adopted the practice of noting the date of such revisions. That is included in the “Revised” column on the Court’s opinion website provided above.

For most of the cases in these Endnotes, clicking on the name of the case will take you to the opinion on the Supreme Court’s website. For other materials, many citations have included a link to the cited material. For many non-court citations, there are perma.cc links, which are permanent as of the date they were recorded.

The general format of the citations is based on traditional legal citations, modified to provide some additional information about the cases decided this Term.

U.S. Supreme Court decisions are readily available (and free) on the Court’s website. It is www.supremecourtus.gov. The website for the opinions for this Term is https://www.supremecourt.gov/opinions/slipopinion/19#list. Note that the Court’s opinion page collapses into the months of the Term. To see the opinions for the entire Term, click the “Expand all” located next to “201.” The “Opinions Relating to Orders,” is in a separate web page. It is at https://www.supremecourt.gov/opinions/relatingtoorders/19. Again, it is necessary to “Expand all” to see all of the Orders Opinions for the Term.

There are a number of other very good sources for someone following the Court. One source for free, same-day, digested notification of the decisions of the Supreme Court is http://www.law.cornell.edu/bulletin. An excellent site for all things Supreme Court is SCOTUSblog at http://www.scotusblog.com/.

[1] Kahler v. Kansas.

[2] Bostock v. Clayton County.

[3] Ramos v. Louisiana.

[4] Department of Homeland Security v. Regents of Univ. of Cal.

[5] June Medical Services L.L.C. v. Russo.

[6] Kahler v. Kansas, decided March 23, 2020. Justice Kagan wrote for the majority in this 6-3 decision. Justice Breyer dissented, joined by Justices Ginsburg and Sotomayor.

[7] M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843).

[8] Kahler, at 6, quoting Leland v. Oregon, 343 U.S. 790, 798 (1952).

[9] Justice Breyer, dissenting at 1. (Justices Ginsburg and Sotomayor joined the dissent.)

[10] The dissent raises an example of why the moral capacity branch matters. It imagines two defendants, both charged with murder. They both have severe mental illness. The mental illness causes the first defendant to think “the victim was a dog;” it causes the second to think “that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first.” There are not additional facts given in the hypothetical. Id. at 1-2.

It is clear in the first example that wrongly believing the person is a dog would be a defense because the defendant would not understand, given the delusion, that he is killing a person. As to the second defendant, however, it is not so clear (absent unstated facts). The question essentially is, why would a delusion that a dog told a defendant to kill a person implicate the moral capacity defense. How would he be morally justified in killing the victim even if the dog had, in fact, ordered him to do so?

On page 20, the dissent returns the hypothetical, restates it and asks, “Now ask, what moral difference exists between the defendants in the two examples? Assuming equivalently convincing evidence of mental illness, I can find none at all.” Id. at 20. One difference is that a defendant thinking he is shooting a dog does not believe, in fact, does not know, that he is committing a crime (or at least a serious crime). A defendant killing what he believes to be a person cannot legitimately (without more facts) think he is morally or legally justified in doing so just because a dog ordered him to do so.

[11] The appendix that begins on page 24 of the dissent was put together by some of the finest legal minds of the country—justices and their clerks. Its categorization of the “camps” into which states fall is understandable. In some cases, however, the reader should be cautious about the provision quoted for each state. It sometimes does not really capture the state law. In California, for example, the following is the entry, “In any criminal proceeding, including any juvenile court proceeding, in which a plea of not guilty by reason of insanity is entered, this defense shall be found by the trier of fact only when the accused person proves by a preponderance of the evidence that he or she was incapable of knowing or understanding the nature and quality of his or her act and of distinguishing right from wrong at the time of the commission of the offense.” Cal. Penal Code Ann. §25(b) (West 2014).” This is what that provision of the Code provides. It is not, however, literally what the law of California is. Note that there is no specific requirement that the cognitive or moral incapacity be because of mental illness. Even more strange, taken literally, it says that to be found not guilty by reason of insanity, the defendant must show both the cognitive incapacity and moral incapacity. That is not the law of California either.

Despite the apparently clear language of this statute, the California courts have held, “Although § 25(b), uses the conjunctive ‘and’ rather than the disjunctive ‘or,’ in view of the fact that the disjunctive M’Naghten test is among the fundamental principles of criminal law, and applying §25(b), as a conjunctive test would erase that fundamental principle and would raise difficult constitutional questions, it could not be assumed that the electorate intended such a fundamental, far-reaching change in the law of insanity when it adopted §25(b), as part of an initiative measure, popularly known as Proposition 8, in 1982. People v. Skinner (Cal. Sept. 16, 1985), 39 Cal. 3d 765, 217 Cal. Rptr. 685, 704 P.2d 752, 1985 Cal. LEXIS 335. “Pen C §25(b), was intended to reinstate the M’Naghten test for the insanity defense. Although that subdivision uses the word ‘and’ between the prongs of the test as to defendant’s capacity to understand the nature and quality of his or her act and as to defendant’s capacity to understand right and wrong at the time the crime was committed, the trial court in a murder prosecution erred in using the statutory language in instructing the jury since the traditional test used the word ‘or’ between the two prongs.” People v. McCowan (Cal. App. 3d Dist. June 5, 1986), 182 Cal. App. 3d 1, 227 Cal. Rptr. 23, 1986 A Cal. App. LEXIS 1687. “To find a criminal defendant insane, the trier of fact must conclude that a criminal defendant was incapable, at the time of the crime, of knowing and understanding the nature and quality of his or her act or incapable of distinguishing right from wrong.” (Pen C §25(b)). “The incapacity must be based on a mental disease or defect, even though that requirement is not specifically mentioned in §25(b).” People v. Stress (Cal. App. 4th Dist. Nov. 15, 1988), 205 Cal.App. 3d 1259, 252 Cal. Rptr. 913, 1988 App. LEXIS 1061. Thus, reading the quoted part of the statute, as cited in appendix of the dissent gives a misguided notion of what the insanity defense law is in California.

[12] The APA has a considerable history of filing amicus briefs in the Supreme Court (as well as other courts). The APA amicus program is very nicely described at Nathalie Gilfoyle & Joel A. Dvoskin, APA’s Amicus Curiae Program: Bringing Psychological Research to Judicial Decisions, 72 American Psychologist 753 (2017), https://arts-sciences.und.edu/academics/psychology/_files/docs/article-2-gilfoyle-and-dvoskin-2017.pdf [https://perma.cc/5TF9-43QF].

[13] Brief of American Psychiatric, Association, American Psychological Association, American Academy of Psychiatry and the Law, Judge David L. Bazelon Center for Mental Health Law, and Mental Health America, as Amici Curiae in Support of Petitioner, James K. Kahler v. State of Kansas (June 7, 2019), https://www.apa.org/about/offices/ogc/amicus/kahler.pdf [https://perma.cc/Q9QL-5P4U].

[14] The Supreme Court Rules (37.1) emphasize, “An amicus curiae brief that brings to the attention of the Court relevant matter not already brought to its attention by the parties may be of considerable help to the Court. An amicus curiae brief that does not serve this purpose burdens the Court, and its fling is not favored.” The excellent Gilfoyle-Dvoskin article cited above note this rule at, 753-54.

[15] APA Brief at 25-30.

[16] APA Brief at 30-32.

[17] Justice Breyer wrote for the dissent that “individuals suffering from mental illness may experience delusions—erroneous perceptions of the outside world held with strong conviction. They may believe, incorrectly, that others are threatening them harm (persecutory delusions), that God has commanded them to engage in certain conduct (religious delusions), or that they or others are condemned to a life of suffering (depressive delusions)….Such delusions may, in some cases, lead the patient to behave violently.” Breyer, dissenting, at 20-21.

[18] Arthur Miller, Quotes, 70 A.B.A. J. 44 (1984) (responding to the news that the AMA Board of Trustees supported eliminating the insanity defense from criminal trials).

[19] E.g., Jeffrey Stuart Janofsky, Mitchell H. Dunn, Erik J. Roskes, J. K. Briskin & Matthew Rudolph, Insanity Defense Pleas in Baltimore City: An Analysis of Outcome, 153 Am. J. Psychiatry 1464 (1996); Henry J. Steadman, Margaret A. McGreevy, Joseph P. Morrissey, Lisa A. Callahan, Pamela Clark Robbins, & Carmen Cirincione, Before and After Hinckley: Evaluating Insanity Defense Reform (1993); APA Brief, supra, at 30-32.

[20] Rita James Simon, The Jury and the Defense of Insanity (1967); Richard A. Pasewark, Robert L. Randolph & Stephen Bieber, Insanity Plea: Statutory Language and Trial Procedures, 12 J. Psychiatry & L. 399 (1984); Randy Borum & Solomon M. Fulero, Empirical Research on the Insanity Defense and Attempted Reforms: Evidence Toward Informed Policy, 23 L. & Hum. Behav. 117 (1999).

[21] Ford v. Wainwright, 477 U. S. 399 (1986).

[22] Barr v. Purkey, decided July 16, 2020. This was a 5-4 decision. Because it was an “Orders” decision, there was no majority opinion.

[23] There were two dissents, representing four justices. Justice Sotomayor wrote the opinion that is discussed in this article. Justices Ginsburg, Breyer, and Kagan joined the dissent. Justice Breyer also wrote another dissent, joined by Justice Ginsburg (it should be available with the link above). Justice Breyer recounted arguments he had made in earlier cases that the death penalty might be unconstitutional because of unconscionable delays and unequal application.

[24] 42 U.S.C §2000e–2(a)(1). More specifically, the law makes it “unlawful . . . for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.”

[25] Bostock v. Clayton County, decided June 15, 2020. Justice Gorsuch wrote for the majority in a 6-3 opinion. Justice Alito, joined by Justice Thomas wrote a dissenting opinion, Justice Kavanaugh wrote a separate dissent.

[26] Id. at 9-10. The Court used similar reasoning regarding transgender employees. “Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth. Again, the individual employee’s sex plays an unmistakable and impermissible role in the discharge decision.” Id. at 10.

[27] Id. at 19.

[28] Justice Alito provided to lengthy appendices quoting many past and current dictionary definitions of “sex” to make this point. Justice Alito, dissenting at 55, 63.

[29] The opening sentence of Justice Alito’s opinion was “There is only one word for what the Court has done today: legislation.” Id. at 1. In his first paragraph, Justice Kavanaugh wrote, “Under the Constitution’s separation of powers, the responsibility to amend Title VII belongs to Congress and the President in the legislative process, not to this Court.” Justice Kavanaugh, dissenting at 1-2.

[30] Brief of American Psychological Association, American Psychiatric Association, Association for Marriage And Family Therapy, Georgia Psychological Association, Michigan Psychological Association, and New York State Psychological Association as Amici Curiae in support of the Employees, in Bostock v. [Clayton County,] Georgia (July 3, 2019) available at https://www.apa.org/about/offices/ogc/amicus/bostock.pdf [https://perma.cc/CPK7-8CHK].

[31] Id. at 7, 11. Similarly, the brief said, “A person is transgender because of the nonalignment of their gender identity with the sex to which they were assigned at birth; a person is gender nonconforming because of the nonconformity of their gender expression with the norms and expectations of gender expression for persons of the male or female sex.” Id. at 11 (emphasis in original).

[32] Brief of the American Medical Association, The American College of Physicians and 14 Additional Medical, Mental Health and Health Care Organizations as Amici Curiae In Support of the Employees, Bostock v. Clayton County (July 3, 2019), https://www.supremecourt.gov/DocketPDF/17/17-1618/107177/20190703172548842_Amicus%20Brief.pdf [https://perma.cc/W5ZD-FV4L]. The core of the argument of the brief was, “Employment discrimination against transgender people frustrates the treatment of gender dysphoria by preventing transgender individuals from living openly in accordance with their true gender identity and impeding access to needed medical care. Experiencing discrimination in one of the most important aspects of adult life—employment—makes it nearly impossible to live in full congruence with one’s gender identity. The fear of facing such discrimination alone can prompt transgender individuals to hide their gender identity, directly thwarting the goal of social transition…. Lack of treatment, in turn, increases the rate of negative mental health outcomes, substance abuse, and suicide.” Id. at 4-5. The brief was not cited in the opinions in the case.

[33] The list of these statutes is set out in Alito, dissenting, at 66-81.

[34] United Steelworkers of America v. Weber, 443 U.S. 193 (1979). The language and approach in United Steelworkers are about as different as possible regarding the language of the statute. The Court in United Steelworkers said that discrimination based on race was prohibited by the words of the statute, but should not be interpreted contrary to the meaning of the statute in light of what Congress intended. It said that “reliance upon a literal construction of [Title VII] is misplaced…. It is a ‘familiar rule that a thing may be within the letter of the statute and yet not within the statute, because not within its spirit nor within the intention of its makers.’” Holy Trinity Church v. United States, 143 U.S. 457 (1892). The prohibition against racial discrimination in …Title VII must therefore be read against the background of the legislative history of Title VII and the historical context from which the Act arose.” Id. at 201.

[35] Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, 565 U. S. 171 (2012) (holding that the First Amendment prevented employment discrimination legal action by, or on behalf of, a religious school teacher, especially having been given the title of “minister”). This was based on the principle that religious organizations can “decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” Kedroff v. Saint Nicholas Cathedral of Russian Orthodox Church in North America, 344 U. S. 94, 116 (1952).

[36] Our Lady of Guadalupe School v. Morrissey-Berru, decided July 8, 2020. This was a 7-2 decision. Justice Alito wrote for the majority. Justice Sotomayor filed a dissenting opinion, joined by Justice Ginsburg.

[37] Id. at 9-10.

[38] Ramos v. Louisiana, decided April 20, 2020, in a 6-3 decision. The majority opinion was written by Justice Gorsuch. There were three concurring opinions (Justices Sotomayor, Kavanaugh, and Thomas). There was a dissenting opinion by Justice Alito, joined by Chief Justice Roberts and Justice Kagan.

[39] The full text of the Sixth Amendment reads, “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”

[40] Apodaca v. Oregon, 406 U. S. 404 (1972) (plurality opinion).

[41] The Court was sufficiently split that it requires a small map to determine which justice was where on the decision. This is how the Report of Decisions described the alignment, “GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II–A, III, and IV–B–1, in which GINSBURG, BREYER, SOTOMAYOR, and KAVANAUGH, JJ., joined, an opinion with respect to Parts II–B, IV–B–2, and V, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined, and an opinion with respect to Part IV–A, in which GINSBURG and BREYER, JJ., joined. SOTOMAYOR, J., filed an opinion concurring as to all but Part IV–A. KAVANAUGH, J., filed an opinion concurring in part. THOMAS, J., filed an opinion concurring in the judgment. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., joined, and in which KAGAN, J., joined as to all but Part III–D.”

[42] Ramos v. Louisiana, Thomas concurring at 6-8. No other justice joined this concurrence. Justice Thomas was the sixth justice in the majority. He would have used the “Privileges or Immunities Clause” of the Fourteenth Amendment as the basis for the decision. The two clauses appear in the same sentence of the Fourteenth Amendment. (“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”) (emphases added). For more than a century, the Court has declined to try to decide what the privileges or immunities clause means. Justice Thomas has an interesting argument that it is a better “fit” in incorporating the first eight amendments to the states than due process is.

[43] Justice Alito, dissenting, joined by Chief Justice Roberts and Justice Kagan.

[44] The majority opinion noted that “a ruling for Louisiana would invite other States to relax their own unanimity requirements. In fact, 14 jurisdictions have already told us that they would value the right to ‘experiment’ with nonunanimous juries.” Ramos at 25.

[45] United States v. Texas, 579 U. S. ___ (2016) (per curiam).

[46] Department of Homeland Security v. Regents of Univ. of Cal., decided June 18, 2020. This was a 5-4 decision, with Chief Justice Roberts writing for the majority. Justices Thomas (joined by Justices Alito and Gorsuch), Alito, and Kavanaugh each wrote dissenting opinions.

[47] Id. at 26.

[48][48] An especially good review of the case is Glenn C. Smith, In Significant DACA-Rescission Ruling, Chief Justice Roberts Again “Threads the Needle,” Jurist (July 7, 2020), https://www.jurist.org/commentary/2020/07/glenn-smith-daca-scotus/ [https://perma.cc/T6UU-UNTG].

[49] Two of the three dissents also took aim at the Chief Justice’s effort to avoid political controversy. “Today’s decision must be recognized for what it is: an effort to avoid a politically controversial but legally correct decision.” Justice Thomas, dissenting at 3. “DACA presents a delicate political issue, but that is not our business.” Justice Alito, dissenting at 2.

[50] For example, “DHS has provided the most compelling reason to rescind DACA: The program was unlawful and would force DHS to continue acting unlawfully if it carried the program forward. The majority’s demanding review of DHS’ decision-making process is especially perverse given that the 2012 memorandum flouted the APA’s procedural requirements—the very requirements designed to prevent arbitrary decision-making.” Justice Thomas, dissenting at 16.

[51] Id. at 3.

[52] Justice Alito noted that “the Federal Judiciary, without holding that DACA cannot be rescinded, has prevented that from occurring during an entire Presidential term. Our constitutional system is not supposed to work that way.” Alito, dissenting at 2.

[53] Brief for Association of American Medical Colleges [and more than 30 other organizations, including the American Medical Association, and American Psychiatric Association] Amici Curiae, In Support of Respondents, Department of Homeland Security v. Regents of University of California (October 4, 2019), https://www.supremecourt.gov/DocketPDF/18/18-587/118129/20191004130646281_Brief%20for%20AAMC%20et%20al%20Supporting%20Respondents.pdf [https://perma.cc/H47T-QDWZ]

[54] “In this case, the government failed to make any serious effort to consider any of the substantial reliance interests affected by the rescission of the Deferred Action for Childhood Arrivals (DACA) program. This is particularly true with respect to the health care sector, for which the avoidance of unnecessary harm is a guiding principle. At this moment, an estimated 27,000 health care workers and support staff depend on DACA for their authorization to work in the United States. Among those 27,000 are nurses, dentists, pharmacists, physician assistants, home health aides, technicians, and others. The number also includes nearly 200 medical students, medical residents, and physicians who depend on DACA for their eligibility to practice medicine.” Id. at 2-3.

[55] June Medical Services L. L. C. v. Russo, decided June 29, 2020. This was a 5-4 decision. There was no opinion that was joined by five members of the Court. The plurality of four justices in the majority was written by Justice Breyer. Chief Justice Roberts issued a concurring opinion, but did not join the plurality opinion. The four dissenting justices joined most of an opinion by Justice Alito, but there were also additional dissenting opinions by Justices Thomas and Gorsuch.

[56] Whole Woman’s Health v. Hellerstedt, 579 U. S. ___ (2016).

[57] June Medical Services, Justice Breyer, plurality opinion, joined by Justices Ginsburg, Sotomayor, and Kagan. Justice Breyer had earlier written the majority opinion in Whole Woman’s Health.

[58] Planned Parenthood of Southeastern Pa. v. Casey, 505 U. S. 833 (1992).

[59] June Medical Services, Chief Justice Roberts, concurring at 2.

[60] “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike. The Louisiana law imposes a burden on access to abortion just as severe as that imposed by the Texas law, for the same reasons. Therefore, Louisiana’s law cannot stand under our precedents.” Id. Chief Justice Roberts, however disagreed with Justice Breyer’s view that there should be a balancing of the benefits and harms of the statute.

[61] The Association of American Physicians and Surgeons (which should not be confused with the “National Board of Physicians and Surgeons”) filed an amicus brief. The brief argued, “Abortion, like other outpatient surgical procedures, sometimes results in patient hospitalization. Requiring abortion providers to maintain admitting privileges will improve communication between physicians in the transfer of patients to the hospital and allow them to participate in the care of their patients while in the hospital, in line with their ethical duty to ensure their patients’ continuity of care.” Brief of Association of American Physicians and Surgeons as Amicus Curiae in Support of Respondent–Cross-Petitioner, June Medical Services v. Russo 2 (December 27, 2019), https://www.supremecourt.gov/DocketPDF/18/18-1323/126828/20191227104605915_18-1323%20-1460%20bsac%20AAPS–PDFA.pdf [https://perma.cc/3V2M-AWRD]. Especially notable was that “Medical Staff Professionals” filed an amicus brief. Brief of Medical Staff Professionals, Amici Curiae in Support of June Medical Services, June Medical Services v. Russo (December 2, 2019), https://www.supremecourt.gov/DocketPDF/18/18-1323/124147/20191202175610979_18-1323%20Amici%20Brief.pdf [https://perma.cc/32MR-9LJK]. This is apparently not an association, but rather a group of individuals (“healthcare practitioners, managers, and consultants”) who filed under the Medical Staff Professionals title. The brief, among other things, particularly pointed out the process of obtaining and keeping medical staff privileges.

[62] Brief of Amici Curiae American College of Obstetricians and Gynecologists, American Medical Association, American Academy of Family Physicians, American Academy of Nursing, American Academy of Pediatrics American College of Nurse-Midwives, American College of Osteopathic Obstetricians and Gynecologists, American College of Physicians, American Osteopathic Association, American Public Health Association, American Society for Reproductive Medicine, North American Society for Pediatric and Adolescent Gynecology, Society for Maternal-Fetal Medicine, and Society of Ob/Gyn Hospitalists, Amicus Curiae In Support of June Medical Services, June Medical Services v. Russo (December 2, 20219), https://www.supremecourt.gov/DocketPDF/18/18-1323/124091/20191202145531124_18-1323%2018-1460%20tsac%20American%20College%20of%20Obstetricians%20and%20Gynecologists%20et%20al.pdf [https://perma.cc/8T8V-4D6S].

[63] The American Association of Pro-Life Obstetricians and Gynecologists also filed an amicus brief. American Association of Pro-Life Obstetricians and Gynecologists Amicus Curiae, in Support of [Russo] Louisiana Dept. of Health and Hospitals, June Medical Services v. [Russo] (December 27, 2019), https://www.supremecourt.gov/DocketPDF/18/18-1323/126927/20191227154424488_AAPLOG%20Amicus%20Brief.pdf [https://perma.cc/F94B-S9XS]. The brief was solely directed at arguing that the American College of Obstetricians and Gynecologists was not presenting reliable science. It summarized its argument: “The American College of Obstetricians and Gynecologists has always presented itself to the Court as a source of objective medical knowledge. However, when it comes to abortion, the College today is primarily a pro-abortion political advocacy organization.” Id. at 2. It concluded that the “Court should read ACOG’s amicus brief not as an authoritative recitation of settled science, but as a partisan advocacy paper on behalf of a mere subset of American obstetricians and gynecologists. Id. at 27-28.

[64] Ky. Rev. Stat. § 311.727(2) requires that prior to an abortion (except in emergency situations), the physician show the woman a display an ultrasound image of the child, provide a medical description of the ultrasound, including the dimensions of the child and the presence of any external members or internal organs, and if a fetal heartbeat is audible, auscultate the fetal heartbeat so that it can be heard.

[65] Brief for Amici Curiae American College of Obstetricians and Gynecologists, the American Medical Association, the North American Society for Pediatric and Adolescent Gynecology, the American College of Osteopathic Obstetricians and Gynecologists, and the American Academy of Family Physicians Supporting Petitioners, EMW Women’s Surgical Center v. Meier (October 28, 2019) https://www.supremecourt.gov/DocketPDF/19/19-417/120550/20191028184956458_19-417%20ACOG%20et%20al.%20-%20cert.%20amicus%20brief.pdf [https://perma.cc/CJ8V-DXRV]. The brief primarily argued that the law interferes with the informed consent process, requiring physicians provide information that the patient may ask not be provided. It thereby “unduly interferes with the patient-clinician relationship, which is built on trust, honesty, and confidentiality.” Id. at 5-6, 19-23.

[66] “Today, Louisiana’s and Oregon’s laws are fully—and rightly—relegated to the dustbin of history…. While overruling precedent must be rare, this Court should not shy away from correcting its errors where the right to avoid imprisonment pursuant to unconstitutional procedures hangs in the balance.” Justice Sotomayor, concurring in Ramos v. Louisiana, at 4-5, discussed above. The “dustbin” phrase is commonly attributed to Leon Trotsky when the Mensheviks walked out of the All-Russian Congress of Soviets in 1917: “You are pitiful, isolated individuals! You are bankrupts. Your role is played out. Go where you belong from now on – into the dustbin of history!”

[67] For a good review of stare decisis see, Brandon J. Murrill, The Supreme Court’s Overruling of Constitutional Precedent, Congressional Research Service Report (September 24, 2018), https://fas.org/sgp/crs/misc/R45319.pdf, [https://perma.cc/NG3E-9EDQ].

[68] Jonathan Turley, “The Dustbin of History”: Could Roe Be Next To Be Swept Away After Ramos?, Res Ipsa Loquitur (April 23, 2020), https://jonathanturley.org/2020/04/23/the-dustbin-of-history-could-be-roe-next-to-be-swept-away-after-ramos/.

[69] Justice Kavanaugh, concurring, at 2. Justice Kavanaugh cited as examples, Knick v. Township of Scott, 588 U. S. ___ (2019); Franchise Tax Bd. of Cal. v. Hyatt, 587 U. S. ___ (2019); Janus v. State, County, and Municipal Employees, 585 U. S. ___ (2018); Hurst v. Florida, 577 U. S. ___ (2016); Obergefell v. Hodges, 576 U. S. 644 (2015); Johnson v. Cite as: 590 U. S. ____ (2020) 3 KAVANAUGH, J., concurring in part United States, 576 U. S. 591 (2015); Alleyne v. United States, 570 U. S. 99 (2013). Kavanaugh, concurring at 2-3.

[70] Allen v. Cooper, decided March 23, 2020. The Court was unanimous. Justice Kagan wrote for the majority, with Justice Thomas writing a concurring opinion, and Justice Breyer (joined by Justice Ginsburg) also writing a concurring opinion.

[71] Justice Kagan’s majority opinion included a couple of references that reversing an earlier decision demands “special justification.” Id. at 9, 16. Justice Thomas’ concurring opinion declined to join those stare decisis paragraphs, indicating “If our [decision in another, earlier case] were demonstrably erroneous, the Court would be obligated to correct the error, regardless of whether other factors support overruling the precedent.” Justice Thomas, concurring at 1 (internal quotation marks omitted.) Finally, Justice Breyer (with Ginsburg) made a point in a separate decision of noting that he disagreed with an earlier decision, but recognized that the earlier decision “controls.” Justice Breyer, concurring at 2.

[72] Hague Convention on the Civil Aspects of International Child Abduction (Hague Convention), implemented in the United States by the International Child Abduction Remedies Act, 22 U. S. C. §9001 et seq. (a child wrongfully removed from the country of “habitual residence” generally must be returned to that country).

[73] Monasky v. Taglieri, decided December 11, 2019. Justice Ginsburg wrote for the Court. Although this was a 9-0 decision, two justices wrote concurring opinions.

[74] The Court’s formal statement was that “we hold that a child’s habitual residence depends on the totality of the circumstances specific to the case.” Id. at 2.

[75] Id. at 8 (internal quotation marks omitted).

[76] Art. 13(b) of the Treaty, discussed by the Court a 3, and 13-14.

[77] 8 U. S. C. §1252(a)(2)(C).

[78] Nasrallah v. Barr, decided June 1, 2020. This was a 7-2 decisions, with Justice Kavanaugh writing for the Court. Justice Thomas dissented, joined by Justice Alito. This case means that Convention Against Tortures final orders of removal can be reviewed by federal appeals courts both in terms of the law in the case, but also the facts in the case.

[79] Department of Homeland Security v. Thuraissigiam, decided June 25, 2020, by a 7-2 margin. Justice Alito wrote for the majority. Justice Breyer wrote a concurring opinion, joined by Justice Ginsburg. Justice Sotomayor wrote a dissenting opinion, joined by Justice Kagan. The Constitution prohibits the “suspension” of the writ of habeas corpus, “unless when in Cases of Rebellion or Invasion the public Safety may require it.” (Article I, Section 9). The majority of the Court held that constitutional provision did not apply to certain immigration matters, so Congress did have the authority to limit access to federal courts in the asylum law.

[80] The Court noted, “The statutory list of aggravated felonies is long: murder, rape, drug trafficking, firearms trafficking, obstruction of justice, treason, gambling, human trafficking, and tax evasion, among many other crimes. §§1101(a)(43)(A)–(U).” Barton at 2, cited infra.

[81] 8 U. S. C. §§1229b(a), (d)(1)(B). The period of continuous residence is “deemed to end” upon conviction of a crime that would make the person inadmissible to, or removable from the U.S.

[82] Barton v. Barr, was decided April 23, 2020. It was a 5-4 decision with Justice Kavanaugh writing for the majority. Justice Sotomayor dissented, joined by Justices Ginsburg, Breyer, and Kagan.

[83] See Hernández v. Mesa, decided February 25, 2020.

[84] 8 U. S. C. §1324 makes it a federal felony to encourage or induce “an alien to come to, enter, or reside in the United States, knowing or in reckless disregard of the fact that such coming to, entry, or residence is or will be in violation of law.” §1324(a)(1)(A)(iv). Conviction can result in a prison term up to five years. If, however, the crime is “done for the purpose of commercial advantage or private financial gain” the prison term can be up to ten years. §1324(a)(1)(B)(i).

[85] United States v. Sineneng-Smith, decided May 7, 2020. This was a unanimous decision, with Justice Ginsburg writing for the majority.

[86] In the appeal at the Ninth Circuit, after the briefs were filed, and after oral argument, but before it announced a decision, the Ninth Circuit asked three organizations to brief legal points neither of the parties had raised at trial or on appeal. The Court noted that “no extraordinary circumstances justified” the Ninth Circuit judges “takeover of the appeal.” Id. at 8. In addition, the three organizations the Ninth Circuit asked to file briefs (the Federal Defender Organizations of the Ninth Circuit, the Immigrant Defense Project, and the National Immigration Project of the National Lawyers Guild) were hardly balanced. They would have all been expected to very strongly advocate for the defendant in the case. Although the Court did not address this bias issue, it may have created a “we know what is going on” atmosphere surrounding the case. It was interesting that the Court attached an Addendum to its opinion setting out and explaining the instances in which the Court itself had asked for non-party briefing or representation. Id. at 10-11.

[87] Gamble v. United States, decided June 17, 2019. It was a 7-2 decision.

[88] 42 U. S. C. §1983, provides, “Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress.” The exception stated in the section is for actions against “judicial officers.”

[89] Baxter v. Bracey, decided June 14, 2020. Justice Thomas, dissenting from the denial of certiorari. “I continue to have strong doubts about our §1983 qualified immunity doctrine. Given the importance of this question, I would grant the petition for certiorari.” Id. at 6.

[90] Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971).

[91] Hernández v. Mesa, decided February 25, 2020. This was a 5-4 decision, with Justice Alito writing for the majority and Justice Ginsburg writing for the dissent. Hernández was a 5-4 decision. Four justices would have expanded the implied liability to cover this case; at least two justices (Thomas and Gorsuch) suggested that the Court should consider whether the judicially-created liability for federal officials should be eliminated. “The analysis underlying Bivens cannot be defended….It is time to correct this Court’s error and abandon the doctrine altogether.” Thomas, dissenting at 6.

[92] The ACA required both that insurance companies pay some money to the federal government if their profits from the ACA got too high, and that the government pay the insurance plans if they lost too much money. 42 U.S.C. §1342, §18063.

[93] Maine Community Health Options v. United States, decided April 27, 2020. This was an 8-1 decision, with Justice Sotomayor writing for the major and Justice Alito dissenting.

[94] There is already considerable interest, with many amicus briefs in this case. For links to all of the documents at SOCUSblog.com see https://www.scotusblog.com/case-files/cases/california-v-texas/.

[95] If you are thinking that the Court already decided the constitutionality of the individual mandate, you are right. But there are new circumstances. Here is how Amy Howe summarizes the issue: “In 2017, Congress enacted an amendment to the ACA that set the penalty for not buying health insurance at zero – but left the rest of the ACA in place. That change led to the dispute that is now before the court: A group of states led by Texas (along with several individuals) went to federal court, where they argued that because the penalty for not buying health insurance is zero, it is no longer a tax and the mandate is therefore unconstitutional. And the mandate is such an integral part of the ACA, they contended, that the rest of the law must be struck down as well. California and the other states joined the lawsuit to defend the mandate.” Amy Howe, Justices Grant Affordable Care Act Petitions, SCOTUSblog.com (March 2, 2020), https://www.scotusblog.com/2020/03/justices-grant-affordable-care-act-petitions/.

[96] New York State Rifle & Pistol Assn., Inc. v. City of New York, decided April 27, 2020. This was a 6-3 per curiam decision. Justice Kavanaugh concurred; and Justice Alito dissented, joined by Justices Thomas and Gorsuch.

[97] New York State Rifle, Justice Alito dissenting.

[98] New York State Rifle, Justice Gorsuch concurring, at 1.

[99] The failure to take any one of these ten cases was s surprise. In Rogers v. Grewal, petition for certiorari denied, June 15, 2020, Justices Thomas and Kavanaugh dissented from the denial of cert in a Second Amendment case, saying that the Court needs to clarify the law. It is very likely the Justices Alito and Gorsuch would be willing to hear the right 2^nd Amendment case (they filed concurrences in the New York case). It takes four justices to grant cert, so it may be that Justices Alito and Gorsuch (and perhaps Chief Justice Roberts) would be willing to take the right case that clearly raises the issues they would like to consider.

[100] Justice Thomas, joined by Justice Gorsuch, dissented in the denial of cert to one of these cases, Rogers v. Grewal, dissent from the denial of cert, June 15, 2020. They argued that the lower courts are misapplying Second Amendment jurisprudence and the Court needs to provide greater guidance on the rights of gunowners.

[101] Brief of American Medical Association and Wisconsin Medical Society, Amici Curiae, In Support of Petition for Certiorari, Daniel v. Armslist (August 19, 2019) https://www.supremecourt.gov/DocketPDF/19/19-153/112730/20190819102831354_19-153%20Amicus%20Brief–PDFA.pdf [https://perma.cc/5P32-2HRV]. The online service did not sell guns, but rather matched potential buyers and sellers. The buyer connected with a seller and used the gun to kill three people. The Wisconsin Supreme Court held that Armslist was protected from liability by the Communications Decency Act which immunizes an interactive computer service provider from liability for passively displaying content created by third parties.

[102] The act (now codified at 26 U. S. C. §5000A(f )(2); §§4980H(a), (c)(2)) requires employers to provide women with “preventive care and screenings” without “any cost sharing requirements.” “Preventive care and screenings,” is left undefined by the statute, so it has to be determined by regulations.

[103] Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, a 7-2 decision. Justice Thomas wrote for the majority. Justice Ginsburg wrote a dissent, joined by Justice Sotomayor.

[104] The American College of Obstetricians and Gynecologists and other medical groups filed an amicus brief arguing that contraception is an essential preventive service. “Contraception not only helps to prevent unintended pregnancy, but also helps to protect the health and well-being of women and their children.” Brief of American College of Obstetricians and Gynecologists, American Nurses Association, American Academy of Nursing, Physicians for Reproductive Health, and Nurses for Sexual and Reproductive Health, Amici Curiae in Support of Respondents and Affirmance, Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania 4-5 (Apr. 8, 2020) https://www.supremecourt.gov/DocketPDF/19/19-431/141177/20200408152340136_19-431%20and%2019-454%20Amici%20Curiae.pdf [https://perma.cc/BS2H-5BXG]. It was cited only by Justice Ginsburg in her dissent. Justice Ginsburg, dissenting at 5, 17.

[105] Justice Alito predicted as much. He would have decided that the Religious Freedom Restoration Act requires the exemption that the current regulation allows. Alito, concurring at 2.

[106] United States Leadership Against HIV/AIDS, Tuberculosis, and Malaria Act (“the Leadership Act”), 22 U. S. C. §7601 et seq. One estimate is that the program has saved 17 million lives, primarily in Africa. Agency for International Development at 1.

[107] Agency for International Development v. Alliance for Open Society, 570 U. S. 205 (2013).

[108] Agency for Int’l Development v. Alliance for Open Society, decided June 29, 2020. This was a 5-3 decision (Justice Kagan did not participate in the case). Justice Kavanaugh wrote for the majority, and Justice Breyer wrote a dissent, which Justices Ginsburg and Sotomayor joined. Id. at 3.

[109] The Court noted that “separately incorporated organizations are separate legal units with distinct legal rights and obligations…. Even though the foreign organizations have affiliated with the American organizations, the foreign organizations remain legally distinct from the American organizations.” Id. at 5.

[110] Trump v. Mazars USA, LLP, decided July 9, 2020. This was a 7-2 decision, with Chief Justice Roberts writing for the Court and Justices Thomas and Alito dissenting.

[111] Trump v. Vance, decided July 9, 2020, in a 7-2 decision. The opinion for the majority was written by Chief Justice Roberts. Justices Thomas and Alito dissented.

[112] The Court emphasized that the law allows challenges to subpoenas based on undue burden, bad faith, or overbreadth. In addition, the respect owed to the office should inform the conduct of the subpoena. The President might be able to challenge the subpoena as an attempt to influence or intimidate in violation of the Supremacy Clause, or that it would impede his constitutional duties. Id. at 17-21.

[113] Seila Law LLC v. Consumer Financial Protection Bureau, decided June 29, 2020. Chief Justice Roberts wrote for the majority in a 5-4 decision. All other independent agencies have multiple directors.

[114] The Constitution give Congress the authority to spend federal funds, and the CFPB receives its appropriation through the Federal Reserve, not through congressional appropriations. The Federal Reserve funds are not money the CFPB earns through fees or the like.

[115] Barr v. American Assn. of Political Consultants, Inc., decided July 6, 2020. The decision was fractured on details (see below), but the decision was essentially 6-3 on the First Amendment issue, and 7-2 on the severability issue. Here is how the Reporter of Decisions described the division: “KAVANAUGH, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and ALITO, J., joined, and in which THOMAS, J., joined as to Parts I and II. SOTOMAYOR, J., filed an opinion concurring in the judgment. BREYER, J., filed an opinion concurring in the judgment with respect to severability and dissenting in part, in which GINSBURG and KAGAN, JJ., joined. GORSUCH, J., filed an opinion concurring in the judgment in part and dissenting in part, in which THOMAS, J., joined as to Part II.”

[116] The Court reached this conclusion by determining that the provision allowing the government-debt calls could be “severed” from the rest of the law. Thus, the unconstitutional exemption (for government-debt calls) was, in effect, removed from the law, leaving the rest of the law constitutional.

[117] Patent and Trademark Office v. Booking.com B. V., decided June 30, 2020. This was an 8-1 decision, with Justice Ginsburg writing for the Court. Justice Sotomayor wrote a concurring opinion and Justice Breyer dissented.

[118] Justices Sotomayor (concurring) and Breyer (dissenting) expressed significant degrees of skepticism about overreliance on consumer surveys to establish a trademark, but it seems inevitable that those surveys will likely play a significant role in many .com trademark applications.

[119] Allen v. Cooper, decided March 23, 2020. The Court was unanimous.

[120] Id. at 11-13.

[121] McGirt v. Oklahoma, decided July 9, 2020. This was a 5-4 decision, with Justice Gorsuch writing for the majority. Chief Justice Roberts filed a dissenting opinion, joined by Justices Alito and Kavanaugh. Justice Thomas also filed a dissent.

[122] Texas Democratic Party v. Abbott, decided June 26, 2020. The Court unanimously voted not to dissolve a stay, stopping an order that required Texas to change its absentee voter rules. A federal district court had ordered Texas to expand absentee voting, but the Fifth Circuit stayed that order. The Supreme Court refused to vacate the stay.

[123] Republican National Committee v. Democratic National Committee, decided April 6, 2020. This was a 5-4 decision, with a per curiam opinion for the majority. Justice Ginsburg filed a dissent, joined by Justices Breyer, Sotomayor and Kagan. The federal court in Wisconsin had ordered the state to accept absentee ballots for a week longer than state law called for. The Supreme Court stayed that order.

[124] Little v. Reclaim Idaho, decided July 30, 2020. This was an order without a formal opinion from the Court. Justice, and it is not entirely clear what the vote of the Court was. Perhaps it is reasonable to speculate that the vote was 6-3 or 5-4. A federal court in Idaho had ordered that, in light of COVID, Idaho change its rules regarding a citizen petition to place an initiative on the November ballot. (The actions taken by the district court are described by Chief Justice Roberts as follows, “The District Court in this case ordered Idaho either to certify an initiative for inclusion on the ballot without the requisite number of signatures, or to allow the initiative sponsor additional time to gather digital signatures through an online process of solicitation and submission never before used by the State. When the State chose neither option, the District Court authorized the sponsor to join with a third-party vendor to develop and implement a new online system over the course of nine days.” (Id. Chief Justice Roberts concurring, joined by Justices Alito, Gorsuch, and Kavanaugh.) Justice Sotomayor, joined by Justice Ginsburg, dissented.

[125] Espinoza v. Montana Dept. of Revenue, decided June 30, 2020. This was a 5-4 decision. Chief Justice Roberts wrote for the Court. Justices Alito (joined by Justice Gorsuch) wrote a concurring opinion. Justices Ginsburg, Breyer, and Sotomayor wrote dissenting opinions. Justice Kagan joined the opinions by Justices Ginsburg and Breyer.

[126] The prohibition on any funding for religious schools is a provision in the Montana constitution. A similar provision is present in a number of states. It is known as a “Blaine Amendment” after House Speaker James Blaine, who failed, in the 1870s, to get an amendment to the Constitution to preclude public funding for religious schools. When the U.S. constitutional amendment failed, many states adopted their own version of the amendment. This was essentially based on anti-Catholic concern, as Justice Alito describes in detail. Justice Alito, concurring at 2-13.

[127] Chiafalo v. Washington, decided July 6, 2020. This was a unanimous opinion, although Justice Thomas concurred in the result, but wrote a separate opinion. Approximately 15 states punish faithless electors—and the number is likely to grow after this decision. Some (like Washington) fine faithless electors, others (like Colorado) do not count their vote and remove them. The Chiafalo case was from Washington. The Colorado case has a one-sentence opinion referring to Chiafalo. Colorado Dept. of State v. Baca.

[128] Barr v. Lee, decided July 14, 2020. This was a per curiam opinion (by the Court). It was a 5-4 decision, with Justice Breyer dissenting (joined by Justice Ginsburg) and Justice Sotomayor (joined by Justices Ginsburg and Kagan).

[129] Id. at 2. The Court also mentioned that it has never held that a state’s method of execution qualifies as cruel and unusual punishment. Id. Justice Breyer, in dissent, noted his earlier opinion that he believes the death penalty “may well violate the constitution.” (Breyer, dissenting at 1.) Justice Sotomayor dissented, saying that there was no urgency in deciding this case, and the lower courts should be given a chance to review it more fully. (Justice Sotomayor, dissenting).

[130] According to a witness to his execution, Daniel Lewis Lee’s final words were, “You’re killing an innocent man.” U.S. Carries Out the First Federal Execution in Nearly Two Decades, Los Angeles Times (July 14, 2020), https://www.latimes.com/world-nation/story/2020-07-14/us-carries-out-the-1st-federal-execution-in-nearly-2-decades [https://perma.cc/5REH-H6YQ].

[131] Adam Liptak, In a Term Full of Major Cases, the Supreme Court Tacked to the Center, New York Times (July 10, 2020).

[132] Most of the data in this section come from the SCOTUSBLOG.com Stat Pack for the Term. It is an excellent resource. Adam Feldman, Final Stat Pack for October Term 2019 (July 10, 2020), https://www.scotusblog.com/2020/07/final-stat-pack-for-october-term-2019/ [https://perma.cc/B2SV-HBZQ].

[133] Thomas-Sotomayor, Thomas-Kagan, Ginsburg-Kavanaugh, Breyer-Kavanaugh, Alito-Sotomayor, and Alito-Kagan.

[134] In a press release on March 16, 2020, the Court announced, “In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session (March 23-25 and March 30-April 1). The Court will examine the options for rescheduling those cases in due course in light of the developing circumstances. The Court will hold its regularly scheduled Conference on Friday, March 20. Some Justices may participate remotely by telephone.” https://www.supremecourt.gov/publicinfo/press/pressreleases/pr_03-16-20.)

[135] David Hejmanowski, Flush Heard Around the World, Delaware Gazette (May 8, 2020), https://www.delgazette.com/opinion/columns/83610/flush-heard-around-the-world.

[136] South Bay United Pentecostal Church v. Newsom, decided May 29, 2020 (this link contains both the concurrence and the dissent). There was no opinion of the Court because it was a denial of a temporary injunction, and without oral argument. Justice Kavanaugh wrote a dissent, joined by Justices Thomas and Gorsuch. Chief Justice Roberts wrote a concurring opinion explaining why he opposed the injunction. None of the other justices wrote an opinion, so it is difficult to know with certainty how they voted. It seems likely the Justices Ginsburg, Breyer, Sotomayor, and Kagan voted against the injunction. Justice Alito did not sign the dissent, but he may well have been a fourth vote to grant the injunction. It appears that the vote was probably either 6-3 or 5-4.

[137] Calvary Chapel Dayton Valley v. Sisolak, decided July 24, 2020. This was an order, so there was no opinion of the Court. It was a 5-4 decision. There were three dissenting opinions.

[138] There was no opinion explaining the decision of the majority, so the reasoning of the majority (Chief Justice Roberts, and Justices Breyer, Ginsburg, Kagan, and Sotomayor, is uncertain. Undoubtedly, the concurring opinion of Chief Justice Roberts in the May case, South Bay United Pentecostal Church, case provides some hint of his reasoning (“Similar or more severe restrictions apply to comparable secular [entities as were placed on churches] (Id. at 1, Chief Justice Roberts, concurring). But the Nevada church’s argument was that different rules were placed on other, similar, organizations than on churches. (Some organizations in Nevada had limitations similar to churches, including museums, art galleries, and zoos, so perhaps that was enough to convince the majority that churches were at least not being singled out.)

[139] There was so much in the current Term that we did not have a chance to discuss an international arbitration case, in which the Court held that the treaty did not precluded extended arbitration remedies that extend beyond the provisions of the definition in the treaty. GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC. The arbitration case for next Term concerns the details of arbitration agreements.