The Supreme Court 2017–2018: Justice Kennedy, Wedding Cakes, and Immigration

Endnotes

[1] Justice Kennedy’s letter was as follows:

“My dear Mr. President,

“This letter is a respectful and formal notification of my decision, effective July 31 of this year, to end my regular active status as an Associate Justice of the Supreme Court, while continuing to serve in a senior status, as provided in 28 U.S.C 371 (b).

“For a member of the legal profession it is the highest of honors to serve on this Court. Please permit me by this letter to express my profound gratitude for having had the privilege to seek in each case how best to know, interpret, and defend the Constitution and the laws that must always conform to its mandates and promises.

“Respectfully and sincerely,

“Anthony M. Kennedy”

[2] Justice Kennedy was sworn in on February 18, 1988.

[3] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, decided June 4, 2018, in a 7-2 decision. Justice Kennedy wrote for the Court. Justice Kagan filed a concurring opinion, in which Justice Breyer joined. Justice Gorsuch filed a concurring opinion, in which Justice Alito joined. Justice Thomas wrote an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justices Ginsburg and Sotomayor dissented.

[4] Epic Systems Corp. v. Lewis, decided May 21, 2018. Justice Gorsuch wrote for the majority in a 5-4 decision. Justice Thomas concurred. Justice Ginsburg wrote a dissent in which Justices Breyer, Sotomayor, and Kagan joined.

[5] Ayestas v. Davis, decided March 21, 2018. Justice Alito wrote for a unanimous Court.

[6] Dunn v. Madison, decided November 6, 2018. The decision was unanimous.

[7] Trump v. Hawaii, decided June 26, 2018. This was a 5-4 decision.

[8] Sessions v. Dimaya, was decided April 17, 2018. This was a 5-4 decision, with Justice Gorsuch providing the fifth vote for the majority. Justice Kagan wrote the majority opinion.

[9] Carpenter v. United States, was a 5-4 decision, announced June 22, 2018. Chief Justice Roberts wrote for the Court.

[10] Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm’n, decided June 4, 2018, in a 7-2 decision.

[11] Amicus Curiae Brief of the American Psychological Association (and others), Masterpiece Cakeshop v. Colorado Civil Rights Commission (October 2017) available at http://www.apa.org/about/offices/ogc/amicus/cakeshop.pdf . The APA maintains an excellent website which tracks all of its amicus briefs: http://www.apa.org/about/offices/ogc/amicus/index-chron.aspx. The APA filed a brief during the Term asking the Court to hear a case involving false confessions (Dassey v. Dittman), but the Court did not accept the case. http://www.apa.org/about/offices/ogc/amicus/dassey.pdf. In addition, in May 2018, the APA filed a brief for a case that will be heard next year, Madison v. Alabama, which involves the execution of a defendant with vascular dementia. That brief is available at: https://www.supremecourt.gov/DocketPDF/17/17-7505/47770/20180522160831269_36320%20pdf%20Setzer.pdf .

[12] Id.at 3. “To Phillips, creating a wedding cake for a same-sex wedding would be equivalent to participating in a celebration that is contrary to his own most deeply held beliefs.” Id.

[13] Id. at 11.

[14] Id. at 3.

[15] The Colorado statute at issues provides, “It is a discriminatory practice and unlawful for a person, directly or indirectly, to refuse, withhold from, or deny to an individual or a group, because of disability, race, creed, color, sex, sexual orientation, marital status, national origin, or ancestry, the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation.” Colo. Rev. Stat. §24–34–601(2)(a) (2017).

[16] The Colorado Civil Rights Commission “ordered Phillips to ‘cease and desist from discriminating against . . . same-sex couples by refusing to sell them wedding cakes or any product [they] would sell to heterosexual couples.’ …. It also ordered additional remedial measures, including ‘comprehensive staff training on the Public Accommodations section’ of CADA ‘and changes to any and all company policies to comply with . . . this Order.’ …. The Commission additionally required Phillips to prepare ‘quarterly compliance reports’ for a period of two years documenting ‘the number of patrons denied service’ and why, along with ‘a statement describing the remedial actions taken.’” Masterpiece Cakeshop at 8.

[17] Id. at 3. Phillips’ claim of a violation of free speech was based on what is known as “compelled speech.” There are limited circumstances in which a state can compel a person to engage in speech with which she disagrees, and Phillips claimed that creating a cake would compel speech, much like requiring someone to paint a portrait might. The Court did not decide the speech claim, apparently because there were some gaps in the case record.

[18] Justice Kennedy referred to elements of “clear and impermissible hostility toward” sincere religious beliefs of Phillips. There were several instances of that, perhaps the most vivid as follows from one of the commissions: “I would also like to reiterate what we said in the hearing or the last meeting. Freedom of religion and religion has been used to justify all kinds of discrimination throughout history, whether it be slavery, whether it be the holocaust, whether it be—I mean, we—we can list hundreds of situations where freedom of religion has been used to justify discrimination. And to me it is one of the most despicable pieces of rhetoric that people can use to—to use their religion to hurt others.” Id. at 13, citing the commission transcript.

[19] Id. at 14-15.

[20] Id. at 16.

[21] Justice Kagan, dissenting, joined by Justice Breyer.

[22] Justice Thomas, concurring, joined by Justice Gorsuch.

[23] Justice Ginsburg, dissenting, joined by Justice Sotomayor at 7.

[24] Another element of this case, mostly related to the compelled speech/freedom of speech claims that the Court did not decide, is that the reason the baker could raise this issue was that he was designing specific cakes for weddings. The “artists” or “designers” who could make a claim of compelled artistic speech is fairly narrow. In this case, had the cake simply been an ordinary “rack” cake out of the front display case, then there would have been no claim of compelled speech. But Phillips in effect was making the argument that like a portrait artist, he was an artist being asked to make a piece of art with which he disagreed.

[25] Amicus Curiae Brief of the American Psychological Association (and others), Masterpiece Cakeshop v. Colorado Civil Rights Commission (October 2017) available at http://www.apa.org/about/offices/ogc/amicus/cakeshop.pdf .

[26] Id. at 2-3, 4, 9, 12, 20.

[27] The Federal Arbitration Act of 1925 (Pub.L. 68–401, 43 Stat. 883, enacted February 12, 1925) is codified at 9 U.S.C. ch. 1.

[28] The FAA provides in part that, “A written provision in any maritime transaction or a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction, or the refusal to perform the whole or any part thereof, or an agreement in writing to submit to arbitration an existing controversy arising out of such a contract, transaction, or refusal, shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C §2. In 1983, the first held that the FAA states a “liberal federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983).

[29] Epic Systems Corp. v. Lewis, decided May 21, 2018. Justice Gorsuch wrote for the majority in a 5-4 decision. Justice Thomas concurred. Justice Ginsburg wrote a dissent in which Justices Breyer, Sotomayor, and Kagan joined. This case actually was a consolidation of: Ernst & Young LLP et al. v. Morris et al., on certiorari to the United States Court of Appeals for the Ninth Circuit, and National Labor Relations Board v. Murphy Oil USA, Inc., et al., on certiorari to the United States Court of Appeals for the Fifth Circuit.

[30] Dissenting were Justices Ginsburg, Breyer, Sotomayor, and Kagan.

[31] “In many cases over many years, this Court has heard and rejected efforts to conjure conflicts between the Arbitration Act and other federal statutes. In fact, this Court has rejected every such effort to date (save one temporary exception since overruled), with statutes ranging from the Sherman and Clayton Acts to the Age Discrimination in Employment Act, the Credit Repair Organizations Act, the Securities Act of 1933, the Securities Exchange Act of 1934, and the Racketeer Influenced and Corrupt Organizations Act. Italian Colors, 570 U. S. 228; Gilmer, 500 U. S. 20; CompuCredit Corp. v. Greenwood, 565 U. S. 95 (2012); Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U. S. 477 (1989) (overruling Wilko v. Swan, 346 U. S. 427 (1953)); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987)….Given so much precedent pointing so strongly in one direction, we do not see how we might faithfully turn the other way here.” Id. at 16-17.

[32] “In 1983, the Court declared, for the first time in the FAA’s then 58-year history, that the FAA evinces a “liberal federal policy favoring arbitration.” Moses H. Cone Memorial Hospital v. Mercury Constr. Corp., 460 U. S. 1, 24 (1983) (involving an arbitration agreement between a hospital and a construction contractor). Soon thereafter, the Court ruled, in a series of cases, that the FAA requires enforcement of agreements to arbitrate not only contract claims, but statutory claims as well. E.g., Mitsubishi Motors Corp. v. Soler Chrysler-Plymouth, Inc., 473 U. S. 614 (1985); Shearson/American Express Inc. v. McMahon, 482 U. S. 220 (1987). Further, in 1991, the Court concluded in Gilmer v. Interstate/Johnson Lane Corp., 500 U. S. 20, 23 (1991), that the FAA requires enforcement of agreements to arbitrate claims arising under the Age Discrimination in Employment Act of 1967, a workplace antidiscrimination statute. Then, in 2001, the Court ruled in Circuit City 22 EPIC SYSTEMS CORP. v. LEWIS GINSBURG, J., dissenting Stores, Inc. v. Adams, 532 U. S. 105, 109 (2001), that the Arbitration Act’s exemption for employment contracts should be construed narrowly, to exclude from the Act’s scope only transportation workers’ contracts.” Ginsburg, dissenting, at 21-22. The dissent clearly thought this trend was wrong, but it was not clear whether it would have overruled all of this line of cases.

[33] Kindred Nursing Centers L. P. v. Clark, 581 U. S. ___ (2017) (slip op., at 4). In that case Olive Clark and Joe Paul Wellner became residents of Winchester Centre for Health and Rehabilitation and died some months later. They were admitted by relatives on the basis of powers of attorney they had given to relatives. The relatives of both filed what were essentially malpractice-maltreatment actions against Winchester regarding the care Ms. Clark and Mr. Wellner received. They claimed personal injury, violations of Kentucky statutes regarding long-term care facilities, and wrongful death. But the admission agreements included arbitration agreements. The legal question was whether Kentucky could allow the heirs of Clark and Wellner to bring the lawsuits rather than go to arbitration. Because the contract was to arbitrate any disputes that might arise, the center claimed that the maltreatment lawsuits should be dismissed. The center argued that, under the FAA, any claims against the center had to be arbitrated, not litigated. In a 7-1 decision the Court agreed with the arguments of the center—these claims had to go to arbitration rather than to court. In so ruling, the majority held that states cannot directly or indirectly single out arbitration agreements for special attention. Thus, state contract rules that affect arbitration contracts more so than other contracts are likely to receive a very skeptical look by the federal judiciary. Justice Kagan, writing for the majority, was a bit sarcastic about the efforts of states to limit arbitration. She indicated that the FAA not only precludes a state from prohibiting arbitration, but the “Act also displaces any rule that covertly accomplishes the same objective by disfavoring contracts that (oh so coincidentally) have the defining features of arbitration agreements.” Id. (Despite this comment last Term, Justice Kagan dissented this Term that labor agreements are different as a result of federal labor statutes. (A portion of this note was taken from last year’s Supreme Court article.)

[34] Ayestas v. Davis, decided March 21, 2018. Justice Alito wrote for a unanimous Court. Justices Sotomayor, and Ginsburg joined the primary decision but concurred to emphasize that it was clear that the lower court should make the finding that funding for the expert was necessary.

[35] The full text of the Sixth Amendment is: “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.”

[36] In capital cases, the trial is divided into two parts. The first deals with guilt, the second with sentencing. The first part essentially deals with the questions common to criminal cases: has the stated proved beyond a reasonable doubt each of the elements of the crime charged. The second part of the trial is whether the penalty should be the death penalty or imprisonment (commonly, a life sentence). In the penalty phase the defense may introduce any mitigating evidence, and the prosecution presents aggravating evidence. The same jury hears both parts of the case, so what the defense does in the course of the guilt phase can affect how the jury sees the defendant during the penalty phase. For that reasons, attorneys generally feel that maintaining credibility for the penalty phase is critical.

[37] 18 U. S. C. §3599(f).

[38] Wilson v. Sellers, decided April 17, 2018. It was a 6-3 decision. Justice Breyer wrote the majority opinion. Justice Gorsuch wrote a dissent in which Justices Thomas and Alito joined.

[39] Id. at 3.

[40] This was a technical decision of what federal courts should do when the highest state court to decide a capital case did not explain in detail the reasons for its decision. The two options available to federal courts were: (1) use the reasoning of the earlier state court to determine the basis for the state’s decision (“look through” to the lower state court’s actual decision) , or (2) determine what state arguments “could have supported” the state court’s decision. The “could have supported” would mean that the federal courts would have defaulted to the most persuasive argument the state could have had, while the “look through” will sometimes find a less acceptable basis for the state court’s determination. Thus, the “look through” process is likely to benefit capital defendants when the state court was a little sloppy in stating the reasoning for its decision.

[41] Trevino v. Davis, petition for writ of certiorari denied on June 4, 2018. Justices Sotomayor and Ginsburg dissented. Their dissent (from which the facts of the case are taken) is at https://www.supremecourt.gov/opinions/17pdf/17-6883_6j36.pdf.

[42] Id. at 6.

[43] Id. at 6.

[44] This same defendant raised the ineffective assistance claims in Trevino v. Thaler, 569 U. S. 413 (2013), where the Court sent the case back to the Fifth Circuit to determine whether there really was ineffective assistance claim. The problem was that presenting the psychological evidence was a “double-edged” problem in that it was both mitigating and aggravating evidence. Thus, they denied to order a new sentencing trial at which the psychological evidence could be considered. The Fifth Circuit’s “double-edged” decision was that an attorney could make a reasonable judgement call not to present the evidence of mitigation because it might help convince the jury that the defendant was dangerous. In Texas, dangerousness is a factor that the jury takes into account in determining to impose the death penalty.

Because this was a petition for a writ of certiorari (which requires only four votes to grant), there was not opinion setting out the reasons for denying the petition. The dissent, in objecting to the Court decision not to hear the case noted that “Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered. That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.” Id. at 13.

[45] Note that “competency to be executed” is different from “competency to stand trial.” They occur at different times—competency to stand trial applying before and during trial. The question in competency to stand trial is whether the defendant has sufficient mental capability to understand the charges against him and to assist his attorney in presenting a defense. The question of what “competency to be executed” means was an issue in this case, but generally it means at least that the defendant must understand where he is, what the sentence means, and that he will be executed. The insanity defense is an entirely different matter. There are several formulations of the insanity defense, but most commonly it asks whether the defendant, at the time the crime was committed, knew what he was doing and had the capacity to understand that it was wrong. All three of these concepts relay on the existence of a mental incapacity of some sort as the cause of the incompetency.

[46] Dunn v. Madison, decided November 6, 2018. The decision was unanimous. This was a per curiam opinion—meaning for the Court, but not authored by a named Justice. There were two concurring opinions, one written by Justice Ginsburg and joined by Justices Breyer and Sotomayor. A second concurring opinion was written by Justice Breyer—an opinion that will be noted later in the article.

[47] Id. at 1-2.

[48] Id.at 2, quoting Dr. Goff’s report.

[49] Ford v. Wainwright, 477 U. S. 399 (1986); Panetti v. Quarterman, 551 U. S. 930 (2007).

[50] Madison was challenging a state conviction via a writ of habeas corpus in the federal courts. Since 1996, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) allows federal habeas relief for state prisoners only if the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by” by the Supreme Court, or was “based on an unreasonable determination of the facts in light of the evidence presented” in the state court proceedings. (AEDPA at 28 U. S. C. § 2254(d)) The Court noted, “A habeas petitioner meets this demanding standard only when he shows that the state court’s decision was ‘so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.’” (citing Harrington v. Richter, 562 U. S. 86, 103 (2011). Dunn at 2-3.

[51] Id. at 4.

[52] Justice Ginsburg, dissent, joined by Justices Breyer and Sotomayor.

[53] Petition for a writ of certiorari and motion for leave to proceed in forma pauperis, available at https://www.supremecourt.gov/DocketPDF/17/17-7505/28375/20180118192824324_Final%20Esigned%20USSC%20Petition.pdf .

[54] Madison v. Alabama, Docket 17-7505, available at https://www.supremecourt.gov/docket/docketfiles/html/public/17-7505.html .

[55] Petition for a writ of certiorari at iii.

[56] Brief amici curiae of American Psychological Association and American Psychiatric Association in Madison v. Alabama (May 29,2018) available at https://www.supremecourt.gov/DocketPDF/17/17-7505/48518/20180529145355243_17-7505%20tsac%20APA%20et%20al.pdf . This was the first amicus filed in the case.

[57] Madison suffers from vascular dementia as a result of several strokes. The brief addresses that condition on pages 7-10, and diagnostic reliability on pages 13-17. Those are quite helpful. Restating the legal arguments in amicus briefs is, in my view, wasteful of time and a little irritating. Experts in an area (such as psychology) do not have any special expertise in legal arguments and the Court does not particularly care what are the legal views of organizations. At best the legal arguments appear to be made for internal-organizational political purposes. At worst, presenting legal arguments threatens to undercut the scientific evidence presented by creating an atmosphere of bias (“here is how we see the science in light of our legal/political views on the case”). It is not an uncommon problem in amicus briefs.

[58] Madison’s initial briefs are at https://www.supremecourt.gov/DocketPDF/17/17-7505/28375/20180118192824324_Final%20Esigned%20USSC%20Petition.pdf; https://www.supremecourt.gov/DocketPDF/17/17-7505/28755/20180122162953301_Esigned%20Final%20Reply.pdf ;https://www.supremecourt.gov/DocketPDF/17/17-7505/47770/20180522160831269_36320%20pdf%20Setzer.pdf . Madison will also have the opportunity to file additional briefs during the course of the proceedings.

[59] Justice Breyer, concurring. Justice Breyer reported that “In 1987, the average period of imprisonment between death sentence and execution was just over seven years. See Dept. of Justice, Bureau of Justice Statistics, T. Snell, Capital Punishment, 2013—Statistical Tables 14 (rev. Dec. 19, 2014) (Table 10). A decade later, in 1997, the average delay was about 11 years. Ibid. In 2007, the average delay rose to a little less than 13 years. Ibid. In 2017, the 21 individuals who have been executed were on death row on average for more than 19 years. See Death Penalty Information Center, Execution List 2017, online at https://deathpenaltyinfo.org/ execution-list-2017 (as last visited Nov. 3, 2017). Alabama has executed three individuals this year, including Thomas Arthur, who spent 34 years on death row before his execution on May 26, 2017, at the age of 75; Robert Melson, who spent 21 years on death row before his execution on June 8, 2017; and Torrey McNabb, who spent nearly two decades on death row before his execution on October 19, 2017.” Id.at 2-3. Justice Breyer also raised the issue, as he has before, that the Court should consider the “constitutionality of the death penalty itself.” Id. at 3.

[60] McCoy v. Louisiana, decided May 14, 2018. Justice Ginsburg wrote for the majority. The decision was 6-3, with Justices Alito, Thomas, and Gorsuch dissenting.

[61] Id. at 5-8.

[62] Tharpe v. Sellers was decided January 8, 2018. It was a per curiam opinion, with Justices Thomas, Alito, and Gorsuch dissenting. It is discussed in a following section.

[63] Trump v. Hawaii, decided June 26, 2018. This was a 5-4 decision. The majority opinion was written by Chief Justice Roberts. Justices Thomas and Kennedy each filed concurring opinions. There were two very different dissenting opinions, one by Justice Breyer joined by Justice Kagan, and the other by Justice Sotomayor joined by Justice Ginsburg.

[64] Travel Ban I was issued January 27, 2017, and was, among other things, a 90-day ban on entry from seven predominantly Muslim countries. Travel Ban II was issued in March 2017, was similar and went to the Supreme Court in the 2016-2017 Term. Travel Ban III was issued in September 2017, and is the order that was before the Court this Term.

[65] The countries were Chad (later removed from the list), Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen. (Iraq and Sudan, on earlier lists, were removed before the September 2017 order).

[66] 8 U. S. C. §1182(f). Justice Thomas, in a concurring opinion, expressed his belief that in addition to the statutory authority, the President has the inherent authority to exclude aliens from the US. Thomas, concurring, at 1.

[67] 8 U. S. C. §1152(a)(1)(A).

[68] Trump, majority opinion at 19-20. For example, President Carter denied visas to Iranian nationals and President Reagan suspended issuing visas to Cuban nationals.

[69] Here is how the Court described that program: “According to the Proclamation, consular officers are to consider in each admissibility determination whether the alien demonstrates that (1) denying entry would cause undue hardship; (2) entry would not pose a threat to public safety; and (3) entry would be in the interest of the United States. §3(c)(i); see also §3(c)(iv) (listing examples of when a waiver might be appropriate, such as if the foreign national seeks to reside with a close family member, obtain urgent medical care, or pursue significant business obligations). On its face, this program is similar to the humanitarian exceptions set forth in President Carter’s order during the Iran hostage crisis.” Id.at 37.

[70] Brief for Association of American Medical Colleges and Others as Amici Curiae Supporting Respondents, Trump v. Hawaii available at https://www.supremecourt.gov/DocketPDF/17/17-965/40128/20180327105855912_17-965%20Amicus%20Br.%20Proclamation.pdf .

[71] Id. at 3-4, 31-42.

[72] Sessions v. Dimaya, decided April 17, 2018. This was a 5-4 decision. Justice Kagan wrote for the majority, with Justice Gorsuch writing a concurring opinion (and he did not join parts of the majority opinion). Chief Justice Roberts wrote a dissenting opinion in which Justices Kennedy, Thomas, and Alito joined. Justice Thomas also filed a dissenting opinion in which Justices Kennedy and Alito joined.

[73] For lesser crimes, there is the possibility that the person may be permitted to stay in the US. These provisions are set out in several places of federal law, including 8 U.S.C. §1227(a)(2)(A)(iii), and 8 U.S.C. §1229b(a)(3), (b)(1)(C).

[74] 8 U.S.C. §1101(a)(43)(f) contains the definition of “aggravated felony.”

[75] Section 18 U.S.C. §16 contains the definition of “crime of violence”—a term that is used in several places beyond the immigration laws. This is the definition: “The term ‘crime of violence’ means—

(a) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(b) any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The first part of the definition was not questioned in this case. The second part (that is, (b) was at issue in this case.

[76] The part struck down is (b) in the statute set out above. Part (a) is still valid. In addition, federal law sets out a number of specific crimes and forms of misconduct that may result in automatic removal. E.g., 8 U.S.C. §1227(a)(2)(A)(iii), and 8 U.S.C. §1229b(a)(3), (b)(1)(C).

[77] The due process argument is the fundamental sense that it is unfair to be taking action against someone—even civil action—when the person does not have fair notices about what the consequences of her or his acts will be. The ex post facto concern is that defining a crime after it has been committed, in essence, creates (or defines) the crime after it is committed.

[78] The earlier case was Johnson v. United States, 576 U. S. ___ (2015) available at https://www.supremecourt.gov/opinions/14pdf/13-7120_p86b.pdf. In that criminal case the Court found similar language in the Armed Career Criminal Act was void for vagueness.

[79] Gorsuch, concurring.

[80] Andrew Nieton, Sessions v. Dimaya: SCOTUS Demands Clarity and Due Process in Immigration Laws, ThinkImmigration (April 25, 2018) available at http://thinkimmigration.org/blog/2018/04/25/sessions-v-dimaya-scotus-demands-clarity-and-due-process-in-immigration-laws/. A statement from an ICE official said that the decision “will have an adverse impact on our ability to establish that aliens convicted of certain violent crimes — such as sexual offenses, kidnapping, and burglary — are removable from the United States and ineligible for certain immigration benefits.” Tom Homan, Deputy Director of ICE (April 18, 2018) available at https://www.ice.gov/news/releases/ice-deputy-director-statement-sessions-v-dimaya.

[81] Leah Litman, Vague Criminality and Mass Incarceration: Will Dimaya End the Insanity?, Harvard Law Review Blog (April 17, 2018) available at https://blog.harvardlawreview.org/vague-criminality-and-mass-incarceration-will-dimaya-end-the-insanity/ .

[82] Justice Gorsuch suggested that “void for vagueness” is a separation of powers issue. That is, the Courts should not be expected to do the work of Congress in writing statutes that are sufficiently clear to be understood. Id. 8-10. “Allowing the legislature to hand off the job of lawmaking risks substituting this design for one where legislation is made easy, with a mere handful of unelected judges and prosecutors free to ‘condem[n] all that [they] personally disapprove and for no better reason than [they] disapprove it.” Id. at 9.

[83] The Supreme Court’s consideration of the right to bail hearing in these immigration cases has been somewhat equivocal. In 2001 the Court said that courts should review detention decisions (Zadvydas v. Davis, 533 U. S. 678 (2001)), but later it upheld an immigration statute requiring detention of immigrants awaiting removal for criminal convictions (Demore v. Kim, 538 U. S. 510, 523 (2003)).

[84] Jennings v. Rodriguez, decided February 27, 2018. The case was 5-3 because Justice Kagan recused herself (probably because she had worked on the case as Solicitor General). Justice Alito wrote for the majority. Justices Thomas and Gorsuch joined with the majority opinion but also wrote a separate opinion. Justice Breyer wrote a dissenting opinion, joined by Justices Ginsburg and Sotomayor.

[85] Pereira v. Sessions, decided June 21, 2018. The decision was 8-1. Justice Sotomayor wrote for the Court, with Justice Alito dissenting.

[86] The process was established by the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA). Under it there is discretion to “cancel removal” and allow some noncitizens to remain in the country, notwithstanding the fact that they are not in the country legally. 8 U.S.C. §1229b(b). One of the conditions of the “cancel removal” relief is that the person must have “been physically present in the United States for a continuous period of not less than 10 years immediately preceding the date” for the application to “cancel removal.” 8 U.S.C. §1229b(b)(1)(A). The ten year clock stops, however, if the government provides a formal “notice to appear” for a removal proceeding. In this case, the government sent Pereira a notice to appear for such a proceeding but did not specify the date of the hearing, so the question in this case was whether the clock was stopped by a notice that did not specify the date of the hearing. The Court held that the clock did not stop.

[87] United States v. Booker, 543 U. S. 220 (2005).

[88] 18 U. S. C. §3582(c)(2). That section provides, “[I]n the case of a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission pursuant to 28 U. S. C. §994(o), . . . the court may reduce the term of imprisonment, after considering the factors set forth in section 3553(a) to the extent that they are applicable, if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”

[89] Administrative Office of the US Courts, Criminal Cases available at http://www.uscourts.gov/about-federal-courts/types-cases/criminal-cases .

[90] The six cases do not include the several capital cases in which the death sentence rather than guilt was the issue.

[91] Hughes v. United States, decided June 4, 2018. This was a 6-3 decision, with Chief Justice Roberts and Justices Thomas and Alito dissenting.

[92] Id. at 10-11.

[93] Koons v. United States, decided June 4, 2018. This was a unanimous decision, written by Justice Alito.

[94] Chavez-Meza v. United States, decided June 18, 2018. Justice Breyer wrote for the majority. Justices Kennedy filed a dissent, joined by Justices Sotomayor and Kagan. Justice Gorsuch did not participate in the decision.

[95] Rosales-Mireles v. United States, decided June 18, 2018. This was a 7-2 decision,with Justices Thomas and Alito dissenting.

[96] Class v. United States, decided February 21, 2018. This was a 6-3 decision, with Justice Breyer writing for the majority. Justice Alito wrote a dissenting opinion in which Justices Kennedy and Thomas joined.

[97] Id. at 8-10.

[98] Kernan v. Cuero, decided November 6, 2017. This was the first decision announced by the court. It was an unanimous per curiam opinion.

[99] Id. at 7. The Court also not so subtly reminded the Ninth Circuit that, “as we have repeatedly pointed out, ‘circuit precedent does not constitute ‘clearly established Federal law, as determined by the Supreme Court.’ … Nor, of course, do state-court decisions, treatises, or law review articles.” Id. at 8. That is a principle that the Ninth Circuit has sometimes had a problem remembering.

[100] Carpenter v. United States, decided June 22, 2018. This was a 5-4 decision in which Chief Justice Roberts wrote for the Court. Justices Kennedy, Thomas, Alito, and Gorsuch wrote dissenting opinions—there were four dissenting opinions which Justices joined in various combinations.

[101] Id. at 2-3. Under the Store Communications Act the cell company provided the requested information. This included Carpenter’s (a suspect in a series of robberies) movement over 127 days. It included 12,898 specific location points—an average of 101 data points per day. Id. Unlike the “probably cause” requirement for a warrant, the Stored Communications Act requires only a showing of “reasonable grounds” for believing that the records were “relevant and material to an ongoing investigation.” 18 U. S. C. §2703(d).

[102] The Court has held, for example, that there is no expectation of privacy in financial records turned over to a bank. United States v. Miller, 425 U. S. 435, 443 (1976).

[103] The case dealt only with past data over lengthy periods. The case did not deal with the issues of whether law enforcement may obtain “real time” data from cell providers, data about all of the phones connected to a single tower at a particular time, data connection for a single phone for a short period of time, or related to emergencies (bomb threats) . In addition, it did not deal with conventional surveillance techniques (such as security cameras), or other collection techniques involving national security. Id. at 17-18.

[104] Several different theories for the underlying basis for the Fourth Amendment are suggested—property rights, expectation of privacy, historical understanding, and some mix of these. A very good summary of how all if this played out in the four extensive dissenting opinions (the four opinions are nearly 100 pages in the Slip Opinions) is provided by Amy Howe:

“Justice Anthony Kennedy dissented,… in an opinion that was joined by Alito and Justice Clarence Thomas. Kennedy conceded that ‘the Cyber Age has vast potential both to expand and restrict individual freedoms in dimensions not contemplated in earlier times.’ But he rejected the idea that cell-site location information should be treated any differently than other kinds of business records that can be obtained under the third-party doctrine: Carpenter should not have had any expectation of privacy in his records because he doesn’t own or control them. In its holding to the contrary, Kennedy lamented, the Supreme Court has disconnected its Fourth Amendment doctrine from its focus on property rights, creating ‘an unprincipled and unworkable line between cell-site records on the one hand and financial and telephonic records on the other.’ As a result, Kennedy posited, police ‘can acquire a record of every credit card purchase and phone call a person makes over months or years without upsetting a legitimate expectation of privacy,’ but they need a warrant to get a week’s worth of cell-site records ‘in order to determine whether a person was within several hundred city blocks of a crime scene.’

“Alito filed a lengthy dissent, joined by Thomas, in which he stressed that, as originally understood, the Fourth Amendment would not have applied at all to the methods that law-enforcement officials use to obtain documents. Alito predicted that today’s ruling will lead to one of two outcomes, both of which he regarded as undesirable: Either the decision will apply broadly to all kinds of documents containing personal information, or the court will have to admit that the ruling is ‘subject to all sorts of qualifications and limitations that have not yet been discovered,’ creating ‘a crazy quilt of the Fourth Amendment.’ Alito suggested that the court should have instead deferred to Congress’ judgment, in legislation known as the Stored Communications Act, that police do not need a warrant in cases like Carpenter’s. And he warned ominously that ‘some of the greatest threats to individual privacy may come’ not from the government, but instead from ‘powerful private companies that collect and sometimes misuse vast quantities of data about the lives of ordinary Americans.’ ‘If today’s decision encourages the public to think that this Court can protect them from this looming threat to their privacy,’ Alito concluded, ‘the decision will mislead as well as disrupt.’

“In addition to joining Alito’s dissent, Thomas also wrote alone to suggest that the court should reconsider its use of the ‘reasonable expectation of privacy’ test, complaining that it ‘has no basis in the text or history of the Fourth Amendment.’ But the most interesting separate dissent of the day came from Justice Neil Gorsuch, who specifically agreed with what he described as the majority’s ‘implicit but unmistakable conclusion that the rationale’ for the third-party doctrine is wrong. Gorsuch would scrap both the third-party doctrine and the ‘reasonable expectation of privacy’ test and focus instead on whether someone has a property interest (even if not a complete one) in the records at issue. But here, he pointed out, the court does not have any information on this question, because Carpenter didn’t make this argument in the lower courts.” Amy Howe, Opinion analysis: Court holds that police will generally need a warrant for cellphone location information (Updated), Howe on the Court (June 22, 2018) available at http://amylhowe.com/2018/06/22/opinion-analysis-court-holds-that-police-will-generally-need-a-warrant-for-cellphone-location-information/ .

[105] In addition to the three search cases discussed below, the Court decided another search case that involved a technical matter of a warrant that was issued that was too broad because a federal judge issued a warrant that included a search in another state. The Court held that the government could still use the evidence from the part of the search that was appropriate (in the right state). Dahda v. United States, decided May 14, 2018. Justice Breyer wrote for a unanimous Court (Justice Gorsuch did not participate in the case).

[106] Collins v. Virginia, decided May 29, 2018. Justice Sotomayor wrote for the Court, joined by all of the other Justices, except Justice Alito, who dissented.

[107] California v. Carney, 471 U. S. 386, 390 (1985); South Dakota v. Opperman, 428 U. S. 364 (1976).

[108] Collins at 1-3.

[109] Id.at 6-11.

[110] Byrd v. United States, decided May 14, 2018 by a unanimous Court. Justice Kennedy delivered the opinion of the Court. Justice Thomas (joined by Justice Gorsuch) and Justice Alito filed concurring opinions.

[111] United States v. Microsoft Corp., decided April 17, 2018. This was a unanimous per curiam opinion.

[112] Clarifying Lawful Overseas Use of Data Act (CLOUD Act), Pub. L. 115–141. “A [service provider] shall comply with the obligations of this chapter to preserve, backup, or disclose the contents of a wire or electronic communication and any record or other information pertaining to a customer or subscriber within such provider’s possession, custody, or control, regardless of whether such communication, record, or other information is located within or outside of the United States.” CLOUD Act §103(a)(1).

[113] National Institute of Family and Life Advocates v. Becerra, decided June 26, 2018. This was a 5-4 decision with Justice Thomas writing for the majority. Justices Beyer, Ginsburg, Sotomayor, and Kagan dissented. The procedural posture of the case was that the clinics that objected to the requirements requested a restraining order stopping the enforcement of the requirements, which was turned down by the district court and the Ninth Circuit. This denial was appealed to the Supreme Court which was deciding whether the restraining order should have been granted. The decision was based on the probability that the clinics would prevail on the merits of the First Amendment claims.

[114] California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), Cal. Health & Safety Code Ann. §123470 et seq. (West 2018). Facilities that are not licensed by the state were also required to include that information. The law applied to only some clinics. It exempted clinics run by the federal government, enrolled as a MediCal provider, or participating in a California state program.

[115] National Institute of Family and Life Advocates at 14-20.

[116] The Court found that California might inform low-income women about its services with a pubic-information campaign. It could post the information on public property near the clinics.

[117] Id. at 20.

[118] Kennedy, concurring. Justice Kennedy’s brief opinion (joining fully in the Court’s opinion) stressed that “the apparent viewpoint discrimination here is a matter of serious constitutional concern.” Id. at 1. “This law is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression. For here the State requires primarily pro-life pregnancy centers to promote the State’s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these.” Id.

[119] Justice Breyer wrote for the dissenting Justices. They noted that the state can require a doctor to notify a woman seeking an abortion about alternatives (adoption) as part of informed consent, so it seems only right that non-abortion clinics be required to provide information about abortion alternatives. Breyer, dissenting, at 8-18.

[120] Azar v. Garza was decided June 4, 2018. It was a unanimous, per curiam decision.

[121] Id. at 4.

[122] Id.at 5.

[123] “On the one hand, all attorneys must remain aware of the principle that zealous advocacy does not displace their obligations as officers of the court. Especially in fast-paced, emergency proceedings like those at issue here, it is critical that lawyers and courts alike be able to rely on one another’s representations. On the other hand, lawyers also have ethical obligations to their clients and not all communication breakdowns constitute misconduct.” Id. at 4-5.

[124] Psychologists and other behavioral scientists have noted the problems of gambling addiction. Curtis L. Barrett and and Richard F. Limoges. Addictions 255-274 in Handbook of Forensic Assessment: Psychological and Psychiatric Perspectives (Eric Y. Drogin, Frank M. Dattilio, Robert L. Sadoff and Thomas G. Gutheil, eds. 2011); Filipa Calado, Joana Alexandre and Mark D. Griffiths, Prevalence of Adolescent Problem Gambling: A Systematic Review of Recent Research, 33 Journal of Gambling Studies 397 (2017); Melanie Hartmann and Alex Blaszczynski, The Longitudinal Relationships Between Psychiatric Disorders and Gambling Disorders, 16 International Journal of Mental Health and Addiction 16 (2018).

[125] Murphy v. National Collegiate Athletic Assn., decided May 14, 2018. This was essentially a 6-3 decision, although it was split in unusual ways. “This is how the Reporter of Decisions described it: ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, KAGAN, and GORSUCH, JJ., joined, and in which BREYER, J., joined as to all but Part VI–B. THOMAS, J., filed a concurring opinion. BREYER, J., filed an opinion concurring in part and dissenting in part. GINSBURG, J., filed a dissenting opinion, in which SOTOMAYOR, J., joined, and in which BREYER, J., joined in part.”

[126] The Tenth Amendment provides, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

[127] The Professional and Amateur Sports Protection Act makes it unlawful for a State to “authorize” sports gambling schemes. 28 U. S. C. §3702(1). The argument of the federal government, the NCAA, and others was that when a state repeals a law outlawing gambling, it is “authorizing” it. The federal law made “grandfather” exceptions for Nevada, and more limited exceptions for three other states.

[128] Murphy at 14-18.

[129] Pena-Rodriguez v. Colorado, 580 U. S. ___ (2017) https://www.supremecourt.gov/opinions/16pdf/15-606_886b.pdf. The holding in that case was, “Where a juror makes a clear statement indicating that he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.” Id. at 6. Last Term the Court also held that racial comments made to a jury by an expert created the likelihood of prejudice. Buck v. Davis, 580 U. S. ___ (2017) https://www.supremecourt.gov/opinions/16pdf/15-8049_f2ah.pdf ;

[130] Tharpe v. Sellers, decided January 8, 2018. This was a per curiam opinion. Justices Thomas, Alito, and Gorsuch dissented. The affidavit was provided by Barney Gattie. The Court quotes the affidavit as follows: “there are two types of black people: 1. Black folks and 2. Niggers”; that Tharpe, “who wasn’t in the ‘good’ black folks category in my book, should get the electric chair for what he did”; that “[s]ome of the jurors voted for death because they felt Tharpe should be an example to other blacks who kill blacks, but that wasn’t my reason”; and that, “[a]fter studying the Bible, I have wondered if black people even have souls.” Id. at 2 quoting from the record of the case.

[131] Id. at 2.

[132] Id. at 2. Justices Alito and Gorsuch joined a dissent by Justice Thomas. They felt that Tharpe had a steep hill to climb, but and impossible hill. The dissenters suggested that the majority was engaged in a “pointless exercise” of sending this back to the lower courts—the procedural problems with the case mean that it is unlikely that Tharpe should, or can, prevail. This case presents a difficult problem for the Court, which it is likely to face again, and the core problem is difficult. This was outrageous conduct, but statutes and Court precedent make it nearly impossible to consider this case on its merits. Id. at 1.

[133] A system of easy patents “ties up” technology by making it difficult to use. Small additions in technology, basic scientific principles, and even ideas could thus be removed from general use and available only for sale. This would slow down progress in the useful arts. The balance between a weak patent and one that is too easy is an essential part of a productive and innovative country.

[134] 35 U. S. C. §§311–319.

[135] Oil States Energy Services, LLC v. Greene’s Energy Group, LLC, decided April 24, 2018. This was a 7-2 decision. The majority opinion was written by Justice Thomas. Justice Gorsuch and Chief Justice Roberts dissented.

[136] These are generally referred to as “Article III judges” because their role is established by Article III of the Constitution.

[137] SAS Institute Inc. v. Iancu, decided April 24, 2018. This was 5-4 decision, with Justice Gorsuch writing for the Court. Justices Ginsburg, Breyer, Sotomayor, and Kagan dissented.

[138] 42 U.S.C. §1983 That section reads in full: “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, except that in any action brought against a judicial officer for an act or omission taken in such officer’s judicial capacity, injunctive relief shall not be granted unless a declaratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.”

[139] Kisela v. Hughes, decided April 2, 2018. The case was decided without oral argument. There was a per curiam opinion. Justice Sotomayor, joined by Justice Kagan, dissented.

[140] Id. at 5.

[141] District of Columbia v. Wesby, decided January 22, 2018. Justice Thomas wrote for the Court. Justice Sotomayor, joined by Justice Ginsburg, dissented.

[142] Id. at 7-11. The majority said that even if there were not reasonable cause, the officers’ qualified immunity would preclude liability because they could have reasonably (although mistakenly) believed that they had probable cause for the arrest. Id. at 13-16.

[143] Sause v. Bauer, decided June 28, 2018. This was a unanimous per curiam opinion.

[144] Lozman v. Riviera Beach, decided June 18, 2018. Justice Kennedy wrote for the Court, and all joined the opinion except Justice Thomas, who dissented.

[145] Id.at 2-5.

[146] Id. at 10-13.

[147] Murphy v. Smith, decided February 21, 2018. Justice Gorsuch wrote for the majority. Justices Sotomayor, Ginsburg, Breyer, and Kagan dissented.

[148] Sotomayor, dissenting, at 2-3

[149] 42 U.S.C. §1997e(d)(2). “Whenever a monetary judgment is awarded in [a civil-rights action brought by a prisoner], a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendant. If the award of attorney’s fees is not greater than 150 percent of the judgment, the excess shall be paid by the defendant.”

[150] The practice goes back at least to 1812, when Massachusetts Governor Elbridge Gerry helped create a state senate district that political cartoonists said looked like a salamander. The term was formed from the governor’s name (Gerry…) the creature (..mander).

[151] Gill v. Whitford, decided June 18, 2018. Chief Justice Roberts wrote for the Court. Although there was unanimity on the “no standing” outcome of the case, there were two concurring opinions in which six Justices participated.

[152] Benisek v. Lamone, decided June 18. This was a unanimous per curiam opinion.

[153] Husted v. A. Philip Randolph Institute, decided June 11, 2018. This was a 5-4 decision. Justice Alito wrote for the majority. Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented.

[154] The statute involved is primarily the National Voter Registration Act (NVRA), 52 U. S. C. §20501(b).

[155] Husted majority opinion at 6-7.

[156] Id. at 21.

[157] Minnesota Voters Alliance v. Mansky, decided June 14, 2018. This was a 7-2 decision. Chief Justice Roberts wrote for the majority and Justices Sotomayor and Breyer dissented (largely on the narrow ground of whether the Minnesota courts should have been allowed to clarify the statute’s reach.

[158] From the official Court transcript of the oral argument on February 28, 2108:

“JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

“MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be –

“JUSTICE ALITO: How about the First Amendment? (Laughter.)

ROGAN: No, Your Honor, I don’t - I don’t think the First Amendment. And, Your Honor, I –

“CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed? “MR. ROGAN: It would be allowed.

“CHIEF JUSTICE ROBERTS: It would be?

“MR. ROGAN: It would be. And — and I think the — I understand the — the idea, and I’ve — I’ve — there are obviously a lot of examples that — that have been bandied about here –”

Transcript of Minnesota Voters Alliance v. Mansky, oral argument at 40, https://www.supremecourt.gov/oral_arguments/argument_transcripts/2017/16-1435_f2ag.pdf .

[159] Janus v. State, County, and Municipal Employees, decided June 27, 2018. This was a 5-4 decision with Justice Alito writing for the majority. Justice Kagan, Ginsburg, Breyer and Sotomayor dissented.

[160] CNH Industrial N. V. v. Reese, decided February 20, 2018. This was a unanimous per curiam decision.

[161] South Dakota v. Wayfair, Inc., decided June 21, 2018. Writing for the five-Justice majority was Justice Kennedy. Dissenting were Chief Justice Roberts and Justices Breyer, Sotomayor, and Kagan.

[162] Ohio v. American Express Co., decided June 25, 2018. This was a 5-4 decision, with Justice Thomas writing for the Court and Justices Breyer, Ginsburg, Sotomayor, and Kagan dissenting.

[163] In Jesner v. Arab Bank, PLC (decided April 24, 2018 in a 5-4 decision written by Justice Kennedy) the Court determined that foreign corporations may not be sued as defendants under the Alien Tort statute. This case was filed in the US by victims of terrorist attacks in Israel, the West Bank, and Gaza who claimed that the defendant bank kept accounts for known terrorists. In Rubin v. Islamic Republic of Iran (decided February 21, 2018, in a 8-0 decision with the opinion written by Justice Sotomayor) the Court held that one section of the Foreign Sovereign Immunities Act does not permit private parties to attach property in the US in order to pay judgements against the foreign entity.

[164] Lagos v. United States, decided May 29, 2018. This was a unanimous decision. The opinion was written by Justice Breyer.

[165] Lucia v. SEC, decided June 21, 2018. Justice Kagan wrote for the Court. It was a 6-3 decision..

[166] The Court held that the appropriate remedy for Lucia was a “new hearing before a properly appointed official” Id. at 12-13.

[167] Although the Court’s last official sitting was June 27, there were some per curiam (opinions written for the Court without a named author) decisions announced on June 28.

[168] The data in this section come from a number of sources, but the primary sources is SCOTUSblog, available at http://www.scotusblog.com/. An especially useful resource on the website is the StatPack, available at http://www.scotusblog.com/2018/06/final-october-term-2017-stat-pack-and-key-takeaways/.

[169] Adam Liptak and Alicia Parlapiano, Conservatives in Charge, the Supreme Court Moved Right, New York Times (June 28, 2018) available at https://www.nytimes.com/interactive/2018/06/28/us/politics/supreme-court-2017-term-moved-right.html.

[170] Justice Kagan, dissenting, in Janus at 26. Justice Kennedy did not write the opinion in Janus, Justice Alito do. Justice Kennedy joined the opinion. The point of Justice Kagan was not just this case, but the approach to protecting First Amendment rights at the cost of other values.

[171] The following in a commentary about the concerns that the First Amendment was being “weaponized.” Justice Kagan wrote, “The majority overthrows a decision [allowing public employee unions to collect agency fees] by weaponizing the First Amendment, in a way that unleashes judges, now and in the future, to intervene in economic and regulatory policy.” “And maybe most alarming, the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy.” Kagan, dissenting, in Janus at 26-27. The New York Times carried a long article on the same theme, Adam Liptak, How Conservatives Weaponized the First Amendment, New York Times (June 30, 2018) https://www.nytimes.com/2018/06/30/us/politics/first-amendment-conservatives-supreme-court.html.

This complaint about the First Amendment (freedom of religion, speech/press, assembly, and association) is somewhat puzzling. The First Amendment is a sword, of course. By definition anytime the First Amendment is used, it is a sword against some form of government action and a related public value or interest. The New York Times should not be surprised that the First Amendment is a sword—without that sword in two major Free Speech cases, the Times would have been seriously injured (New York Times Co. v. United States, 403 U.S. 713 (1971) (Pentagon Papers case); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (defamation). But those were weaponized uses of the First Amendment that did some harm to other values, national security in one case and reputation-defamation in the other. And both cases modified or rejected centuries of Anglo-American law which had been based on the importance of freedom of the press and speech. And of course, these cases had the effect of protecting the economic interests of a corporation—the New York Times.

If it is a sword, the First Amendment is a sword that cuts both ways. At its core it must be content neutral, so that principles that apply to one political view are ultimately likely to be applied to the opposite one. There is evidence this has happened in a conservative-liberal way. For example, restrictions on conservative speech represented 22% of the speech cases in the Burger Court (1969-1986); then to 42% in the Rehnquist Court (1986-2005); and so far to 65% in the Roberts Court (2005- present). (These data were from a study by Lee Epstein, Andrew D. Martin, and Kevin Quinn, a political scientist at the University of Michigan quoted in the New York Times article.)

Justice Kennedy demonstrated a strong, principled position on speech and religion from early in his Supreme Court career (flag burning, Texas v. Johnson, noted below) to the last day (mandatory agency fees). One person’s weapon is another’s shield. There is some risk that claiming that the First Amendment is “weaponized” invites the loss of an important shield during the time when speech, press, religion, and association are being redefined by the internet.

[172] Lawrence v. Texas, 539 U.S. 558 (2003). Previously Justice Kennedy had voted to strike down a Colorado law that prohibited cities from having anti-discrimination law that protected against discrimination based on sexual discrimination. Romer v. Evans, 517 U.S. 620 (1996).

[173] United States v. Windsor, 570 U.S. 744 (2013).

[174] Obergefell v. Hodges, 576 U.S. ___ (2015).

[175] Kennedy v. Louisiana, 554 U.S. 407 (2008).

[176] Roper v. Simmons, 543 U.S. 551 (2005).

[177] Hall v. Florida, 572 U.S. ___ (2014). (This case defined the extent of disability that would categorically disqualify someone for the death penalty under Atkins v. Virginia, 536 U.S. 304 (2002).)

[178] Davis v. Ayala, decided Jun18, 2015, Justice Kennedy concurring at 1-5. In this concurring opinion Justice Kennedy noted the toll that solitary confinement can extract and hinted that it could be found to be a violation of the Eighth Amendment.

[179] Texas v. Johnson, 491 U.S. 397 (1989). In a concurrence, Justice Kennedy noted, “Though symbols often are what we ourselves make of them, the flag is constant in expressing beliefs Americans share, beliefs in law and peace and that freedom which sustains the human spirit. The case here today forces recognition of the costs to which those beliefs commit us. It is poignant but fundamental that the flag protects those who hold it in contempt.”

[180] In a variety of cases, Justice Kennedy turned to social science data. Notably were opinions dealing with the Eighth Amendment.

[181] Planned Parenthood v. Casey, 505 U.S. 833 (1992). Justice Kennedy was one of the three authors of this opinion.

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

[183] Fisher v. University of Texas (Fisher II), 579 U.S. ____ (2016).

[184] In Fisher II, Justice Kennedy gave half a dozen qualifications and warnings regarding the use of race in admissions decisions.

[185] Ashcroft v. Iqbal, 556 U.S. 662 (2009).

[186] A good example of citing international standards in US constitutional cases was Roper v. Simmons, 543 U.S. 551 (2005). Justice Kennedy wrote that, “the Court has referred to the laws of other countries and to international authorities as instructive for its interpretation of the Eighth Amendment’s prohibition of “cruel and unusual punishments.” Id.at 575. He noted that “only seven countries other than the United States have executed juvenile offenders since 1990: Iran, Pakistan, Saudi Arabia, Yemen, Nigeria, the Democratic Republic of Congo, and China. Since then each of these countries has either abolished capital punishment for juveniles or made public disavowal of the practice.” Id. at 577. Justice Scalia, in dissent, strongly disagreed, saying that “the basic premise of the Court’s argument—that American law should conform to the laws of the rest of the world—ought to be rejected out of hand.” Scalia, dissenting, at 624.

[187] Marcia Coyle and Tony Mauro, Kennedy’s Legacy, New York Law Journal (June 28, 2018) Vol. 259; No. 124, p.1, col.6.