Apply

Supreme Court 2018–2019: A New Justice, A “Capital” Term, and Some Light on the “Shadow Docket”

LinkedInFacebookTwitterPrintFriendlyShare
Citation

Smith, S. R. (2019). Supreme Court 2018–2019: A new Justice, a “capital” term, and some light on the “shadow docket.” Journal of Health Service Psychology, 45, 115–126.

Abstract

The 2018–2019 Supreme Court session included rulings on professional practice issues and social justice matters. No “blockbuster” decisions emerged. A large number of cases examined issues related to capital punishment, particularly around matters of competency. Challenges concerning jury selection and racial bias were addressed. Federal sex offender registration was upheld. Thirty-nine percent of cases were unanimous (down from the recent average), and 26% were decided by a 5–4 vote (up from the recent average).

Registrants can read the full article on CE.NationalRegister.org

Endnotes and References

ENDNOTES

For most of the cases and many other citations in these Endnotes, clicking on the citation will take you to the original material.

 

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/18#list. Note that the Court’s opinion page collapses into the months of the Term. To look of any case, click the “Expand all” located next to “2018.” The “Shadow Docket,” formally known as “Opinions Relating to Orders,” is in a separate web page. It is at https://www.supremecourt.gov/opinions/relatingtoorders/18. Again, it is necessary to “Expand all” to see all of the Orders Opinions for the Term.

 

Anyone who is interested can also sign up for free same-day, digested notification of the decisions of the Supreme Court. The website is: http://www.law.cornell.edu/bulletin. An excellent site for all things Supreme Court is SCOTUSblog at http://www.scotusblog.com/.

 

The citations in this article are to the Slip Opinions of the Court as published on the Court’s web site 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.

 

[1] The American interest in the details of the confirmation process has continued. In July 2019, a book about the process became an instant best seller. Mollie Hemingway and Carrie Severino, Justice on Trial (2019).

 

[2] Moore v. Texas; Madison v. Alabama.

 

[3] Gundy v. United States.

 

[4] Box v. Planned Parenthood of Indiana and Kentucky, Inc.

 

[5] Biestek v. Berryhill.

 

[6] Henry Schein, Inc. v. Archer & White Sales, Inc.

 

[7] Lamps Plus, Inc. v. Varela.

 

[8] New Prime Inc. v. Oliveira.

 

[9] Execution data come from the Death Penalty Information Center website at https://deathpenaltyinfo.org/executions/executions-overview/number-of-executions-by-state-and-region-since-1976 (last visited July 9, 2019). This is the number of actual executions carried out, which is distinct from the number of death sentences imposed (by a jury) in a year. In 2018, 42 death sentences were imposed. In 1996, the number of death sentences in modern times peaked at 315, and slowly declined to 31 in 2016. Debra Cassens Weiss, Death Sentences Show Slight Uptick in 2018 After Big Decline, New Report Says, ABA Journal (July 10, 2019) available at http://www.abajournal.com/news/article/death-sentences-show-slight-uptick-in-2018-after-big-decline-report-says.

 

[10] The Opinions Related to Orders for the current Term as well as earlier Terms are available at the Court’s website at https://www.supremecourt.gov/opinions/relatingtoorders/18.

 

[11] The APA also filed a brief in Dassey v. Dittman asking the Court to grant certiorari. Had the Court granted cert, the case would have been heard this Term. The Court, however, declined to do so and did not hear the case. The APA brief is available at https://www.apa.org/about/offices/ogc/amicus/dassey.pdf.

 

[12] The Court has agreed to hear a case next Term involving the insanity defense. The question essentially is whether a state can abolish the defense. Kahler v. Kansas (this is a link to the SCOTUSblog.com coverage). [12] 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, Kahler v. Kansas (June 7, 2019) available at https://www.apa.org/about/offices/ogc/amicus/kahler.pdf.

 

[13] Moore v. Texas, decided February 19, 2019. This was a per curiam opinion (the opinion was by the Court, rather than a named, specific justice-author). In this case, Chief Justice Roberts concurred in the judgment, and Justices Alito and Gorsuch dissented. This case is sometimes referred to as Moore II, because in 2017 the same defendant was before the Court and in that case the Court defined the rules that should be applied in determining intellectual disability in capital punishment cases. The current Moore case essentially looks at the application of the rules established in the earlier Moore case.

 

[14] Moore at 2.

 

[15] Moore at 6. It is also noteworthy that the prosecutor and trial court had also now determined that under the Supreme Court’s test Moore “is intellectually disabled.” Id.

 

[16] Moore at 10.

 

[17] Shoop v. Hill, decided January 7, 2019. This was a per curiam opinion for a unanimous Court. For procedural reasons, the rules established in the first Moore case in 2017, would not have applied to Shoop, who was tried in 1986.

 

[18] American Psychological Association, American Psychiatric Association, American Academy of Psychiatry and the Law, National Association of Social Workers, and National Association of Social Workers Texas Chapter, Amicus Curiae Brief In Support of Petitioner, in Bobby James Moore V. Texas (2018) available at https://www.apa.org/about/offices/ogc/amicus/moore-2019.pdf.

 

[19] The following are some of the highlights of the brief. “First, any test for intellectual disability should appreciate the current medical consensus that intellectual disability must be diagnosed where there are sufficient deficits in adaptive functioning, even where there is also evidence of adaptive strengths. A proper test for evaluating intellectual disability should focus on an individual’s demonstrated deficits, and it should avoid both over-emphasizing a person’s perceived strengths and ‘weighing’ those strengths against relative deficits. Moreover, any such test should recognize that individuals with intellectual disability are not typically incompetent across all domains, but rather have a range of abilities, some of which may be at odds with lay stereotypes about the limitations of people with intellectual disabilities.

“Second, any assessment of adaptive functioning should focus on the individual’s typical functioning in real-world settings. Although evaluators should be free to consider all information as part of a holistic analysis, they should also acknowledge the limitations of certain types of data. Clinicians agree that information concerning a person’s responses to extreme events is of little probative value in assessing typical functioning. Similarly, information concerning an individual’s functioning in a controlled setting such as a prison may likewise be misleading.” Id. at 5-6.

 

[20] Lance v. Sellers, decided January 7, 2019. The Court denied the petition for a writ of certiorari. The result was that the Court decided not to hear the case. Justices Sotomayor, Ginsburg, and Kagan dissented from the denial of certiorari. At the sentencing stage of a capital case, the defense has the right to present any mitigating factors that might weigh against imposing the death penalty. (In this case, the constitutional complaint was that Lance’s attorneys did not present the mental health evidence to the jury in mitigation. Id.) If even a single juror determines that life in prison is the appropriate punishment (rather than the death penalty), then life imprisonment is the verdict.

Mental health experts, of course, are critical to present this evidence and interpret it for the jury. Four mental health experts testified at an evidentiary hearing on appeal. “They agreed on many points. First, Lance had permanent damage to his brain’s frontal lobe. Second, his IQ placed him in the borderline range for intellectual disability. Third, his symptoms warranted a diagnosis of clinical dementia. The experts differed somewhat, however, over the extent and practical consequences of Lance’s brain damage. Primarily, the experts seemed to disagree about the extent to which Lance’s brain damage affected his impulse control.” Id.at 4.

 

[21] Madison v. Alabama, decided February 27, 2019. This was a 5-3 decision (Justice Kavanaugh did not participate in the case). Justice Kagan delivered the opinion for the Court. Justices Alito, Thomas, and Gorsuch dissented.

 

[22] Madison at 12.

 

[23] Panetti v. Quarterman, 551 U. S. 930, 959 (2007).

 

[24] Madison at 3, quoting Panetti v. Quarterman, 551 U. S. 930, 959 (2007) (internal quotations and punctuation eliminated).

 

[25] Madison at 17.

 

[26] American Psychological Association and American Psychiatric Association, Amicus Curiae Brief In Support of Petitioner, in Madison v. Alabama (2018) available at https://www.apa.org/about/offices/ogc/amicus/madison.pdf.

 

[27] The full text of the Eighth Amendment is: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”

 

[28] Baze v. Rees, 553 U.S. 35 (2008).

 

[29] American Medical Association, Amicus Curiae Brief in Bucklew v. Precythe, in support of neither party (July 23, 2018) available at https://www.supremecourt.gov/DocketPDF/17/17-8151/55061/20180723105907668_17-8151%20tsac%20AMA.pdf. The brief quoted an Ethics Opinion (9.7.3) which states, in part, “as a member of a profession dedicated to preserving life when there is hope of doing so, a physician must not participate in a legally authorized execution.” Id. at 4.

 

[30] For example, in the Oklahoma “drug cocktail” case from a couple of years ago, the Court held that using midazolam to executions was not cruel and unusual punishment. Glossip v. Gross, No. 14-7955, 576 U.S. ___ (2015),

 

[31] Glossip v. Gross, 576 U. S. ___ (2015); Baze v. Rees, 553 U. S. 35 (2008).

 

[32] Bucklew v. Precythe, was decided on April 1, 2019. Justice Gorsuch wrote for the five-justice majority. Justices Breyer, Ginsburg, Sotomayor, and Kagan dissented.

 

[33] Id. at 21. In this case, Russell Bucklew, was concerned that, because of a medical condition, the standard protocol in Missouri might cause great pain. He finally requested execution by nitrogen hypoxia, but Missouri objected saying that it did not have the facilities for it, it had never been tried or used, and it had not been studied adequately. The Court upheld Missouri’s objection to Bucklew’s nitrogen proposal as failing the “readily implemented” standard. All of this creates a somewhat surreal argument over preferred methods of tried and untried execution.

 

[34] Price v. Dunn, Justices Ginsburg, Sotomayor, and Kagan, dissenting from the denial of application for a stay; Price v. Dunn, concurrence by Justices Thomas, Alito and Gorsuch concerning the denial of certiorari; Abdur’rahman v. Parker, Justice Sotomayor, dissenting on certiorari(May 13, 2019); Miller v. Parker , Justice Sotomayor dissenting from the denial of a stay and denial of certiorari (December 6, 2018); Zagorski v. Haslam, Justice Sotomayor dissenting from the denial of a stay and denial of certiorari (November 1, 2018); Zagorski v. Parker, Justices Breyer and Sotomayor dissenting from the denial of a stay and denial of certiorari (October 11, 2018).

 

[35] American Medical Association, Amicus Curiae Brief in Bucklew v. Precythe, in support of neither party (July 23, 2018) available at https://www.supremecourt.gov/DocketPDF/17/17-8151/55061/20180723105907668_17-8151%20tsac%20AMA.pdf, at 3.

 

[36] Batson v. Kentucky, 476 U. S. 79 (1986).

 

[37] Flowers v. Mississippi, decided June 21, 2019. This was a 7-2 decision, with Justice Kavanaugh writing for the majority. This was one of the longest decisions of the Term. The majority, concurrence, and dissent collective occupied 75 pages in the official reports. In part this was because it was such a fact-bound decision.

 

[38] The factors included a review of the peremptory strikes in all of six trials, which the Court characterized as a “relentless, determined effort to rid the jury of black individuals.” Id. at 21. The prosecution asked questions of potential black jurors of a different character than while jurors. Id. at 23-26. Comparing the white jurors that were struck with the black jurors that were left on the jury also suggested race-based decisions to strike. Id. at 26-30.

 

[39] Flowers v. Mississippi, Alito, concurring, at 2.

 

[40] In the Dark, Season 2 available at https://www.apmreports.org/in-the-dark/season-two.

 

[41] Another issue has been racist views of jurors. Where jurors express racial prejudice in the jury room, for example, a court can take evidence about the deliberations of the jury to determine if the verdict of the jury should be set aside. The Court, because of procedural problems, denied a writ of certiorari this Term in a capital case in which a juror had expressed racial slurs and a statement that his decision for the death penalty was at least in part based on race. Tharpe v. Ford, was denied cert on March 18, 2019. Justice Sotomayor issued an opinion concurring in the judgement because of the procedural problem, but wrote the concurrence because she was “profoundly troubled by the underlying facts” of the case. Id. at 1.

 

[42] Dunn v. Ray, decided February 7, 2019. Justices Kagan, Ginsburg, Breyer, and Sotomayor dissented from the denial of a stay of execution.

 

[43] This case was actually three different opinions from March to May. This was the stay: Murphy v. Collier, with Justices Thomas and Gorsuch dissenting, and Justice Kavanaugh writing a concurrence. These are subsequent statements by the justices: Murphy v. Collier, Justices Alito, Thomas, and Gorsuch, dissenting from the grant of application for a stay (May 13, 2019); Murphy v. Collier, Statement by Justice Kavanaugh joined by Chief Justice Roberts respecting the grant of application for stay (May 13, 2109).

 

[44] “Justice-dissents” are the total number of justices dissenting, not the number of separate dissenting opinions. Several justices commonly join the same dissent.

 

[45] The emotional and divisive nature of capital cases was not unique to this Term. In such cases such as Glossip v. Gross, for example, an especially spirited dispute broke about between Justices Breyer and Ginsburg, on one hand (who signaled that they would consider an across-the-board challenge to the death penalty’s validity) and Justice Scalia on the other (who lampooned these Justice’s initiative).

 

[46] The following is from the early part of the majority opinion in Bucklew (pages 2-8). All citations have been removed without ellipses. The Court’s opinion here is quoted below.

“After a decade of litigation, Mr. Bucklew was seemingly out of legal options. A jury had convicted him of murder and other crimes and recommended a death sentence, which the court had imposed. His direct appeal had proved unsuccessful [in 1998]. Separate rounds of state and federal post-conviction proceedings also had failed to yield relief [in 2008]

“As it turned out, though, Mr. Bucklew’s case soon became caught up in a wave of litigation over lethal injection procedures. . . .By the time Mr. Bucklew’s post-conviction proceedings ended, Missouri’s protocol called for lethal injections to be carried  out using three drugs: sodium thiopental, pancuronium bromide, and potassium chloride. And by that time, too, various inmates were in the process of challenging the constitutionality of the State’s protocol and others like it around the country. [The Court reviewed the challenges to lethal injection and that it upheld a system similar to Missouri’s.]

“But that was still not the end of it. Next Mr. Bucklew and other inmates unsuccessfully challenged Missouri’s protocol in state court, alleging that it had been adopted in contravention of Missouri’s Administrative Procedure Act. They also unsuccessfully challenged the protocol in federal court, this time alleging it was pre-empted by various federal statutes. And Mr. Bucklew sought to intervene in yet another lawsuit alleging that Missouri’s protocol violated the Eighth Amendment because unqualified personnel might botch its administration. That lawsuit failed too.

“While all this played out, pressure from anti-death-penalty advocates induced the company that manufactured sodium thiopental to stop supplying it for use in executions. As a result, the State was unable to proceed with executions until it could change its lethal injection protocol again. This it did in 2012, prescribing the use of a single drug, the sedative propofol. Soon after that, Mr. Bucklew and other inmates sued to invalidate this new protocol as well, alleging that it would produce excruciating pain and violate the Eighth Amendment on its face. After the State revised the protocol in 2013 to use the sedative pentobarbital instead of propofol, the inmates amended their complaint to allege that pentobarbital would likewise violate the Constitution.

“Things came to a head in 2014. With its new protocol in place and the necessary drugs now available, the State scheduled Mr. Bucklew’s execution for May 21. But 12 days before the execution Mr. Bucklew filed yet another lawsuit, the one now before us. In this case, he presented an as-applied Eighth Amendment challenge to the State’s new protocol. Whether or not it would cause excruciating pain for all prisoners, as his previous lawsuit alleged, Mr.  Bucklew now contended that the State’s protocol would cause him severe pain because of his particular medical condition. Mr. Bucklew suffers from a disease called cavernous hemangioma, which causes vascular tumors— clumps of blood vessels—to grow in his head, neck, and throat. His complaint alleged that this condition could prevent the pentobarbital from circulating properly in his body; that the use of a chemical dye to flush the intravenous line could cause his blood pressure to spike and his tumors to rupture; and that pentobarbital could interact adversely with his other medications.

“These latest protocol challenges yielded mixed results. The district court dismissed both the inmates’ facial challenge and Mr. Bucklew’s as-applied challenge. But, at Mr. Bucklew’s request, this Court agreed to stay his execution until the Eighth Circuit could hear his appeal. Ultimately, the Eighth Circuit affirmed the dismissal of the facial challenge. Then, turning to the as-applied challenge and seeking to apply the test set forth by the Baze plurality, the court held that Mr. Bucklew’s complaint failed as a matter of law to identify an alternative procedure that would significantly reduce the risks he alleged would flow from the State’s lethal injection protocol. Yet, despite this dispositive shortcoming, the court of appeals decided to give Mr. Bucklew another chance to plead his case. The court stressed that, on remand before the district court, Mr. Bucklew had to identify “at the earliest possible time” a feasible, readily implemented alternative procedure that would address those risks.

[The Court notes that shortly after the Eighth Circuit issued its judgment, this Court reaffirmed its earlier holding that] an inmate cannot successfully challenge a method of execution under the Eighth Amendment unless he identifies “an alternative that is ‘feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain.’”

“Despite the Eighth Circuit’s express instructions, when Mr. Bucklew returned to the district court in 2015 he still refused to identify an alternative procedure that would significantly reduce his alleged risk of pain. Instead, he insisted that inmates should have to carry this burden only in facial, not as-applied, challenges. Finally, after the district court gave him “one last opportunity,” Mr. Bucklew filed a fourth amended complaint in which he claimed that execution by “lethal gas” was a feasible and available alternative method that would significantly reduce his risk of pain. Mr. Bucklew later clarified that the lethal gas he had in mind was nitrogen, which neither Missouri nor any other State had ever used to carry out an execution.

“The district court allowed Mr. Bucklew “extensive discovery” on his new proposal.  But even at the close of discovery in 2017, the district court still found the proposal lacking and granted the State’s motion for summary judgment. By this point in the proceedings, Mr. Bucklew’s contentions about the pain he might suffer had evolved considerably. He no longer complained about circulation of the drug, the use of dye, or adverse drug interactions. Instead, his main claim now was that he would experience pain during the period after the pentobarbital started to take effect but before it rendered him fully unconscious. According to his expert, Dr. Joel Zivot, while in this semiconscious “twilight stage” Mr. Bucklew would be unable to prevent his tumors from obstructing his breathing, which would make him feel like he was suffocating. Dr. Zivot declined to say how long this twilight stage would last. When pressed, however, he referenced a study on euthanasia in horses. He claimed that the horses in the study had displayed some amount of brain activity, as measured with an electroencephalogram (or EEG), for up to four minutes after they were given a large dose of pentobarbital. Based on Dr. Zivot’s testimony, the district court found a triable issue as to whether there was a “substantial risk” that Mr. Bucklew would “experience choking and an inability to breathe for up to four minutes” if he were executed by lethal injection. Even so, the court held, Mr. Bucklew’s claim failed because he had produced no evidence that his proposed alternative, execution by nitrogen hypoxia, would significantly reduce that risk.

“This time, a panel of the Eighth Circuit affirmed. The panel held that Mr. Bucklew had produced no evidence that the risk of pain he alleged “would be substantially reduced by use of nitrogen hypoxia instead of lethal injection as the method of execution.” Judge Colloton dissented, arguing that the evidence raised. . . . On the same day Mr. Bucklew was scheduled to be executed, this Court granted him a second stay of execution. We then agreed to hear his case to clarify the legal standards that govern an as-applied Eighth Amendment challenge to a State’s method of carrying out a death sentence.”

 

[47] Clarence Darrow, quoted in Capital Punishment: Hearing Before Subcommittee No. 3 of the Committee of the Judiciary, House of Representatives, 92d Cong., 2d Sess. 19 (1972).

 

[48] Reynolds v. Florida, Statement of Justice Breyer (November 13, 2018).

 

[49] Reynolds v. Florida, Justice Thomas, concurring at 3 (November 13, 2018).

 

[50] Department of Justice, Federal Government to Resume Capital Punishment After Nearly Two Decade Lapse, Office of Public Affairs (July 25, 2019) available at https://www.justice.gov/opa/pr/federal-government-resume-capital-punishment-after-nearly-two-decade-lapse.

 

[51] Id. The statement noted, “The Federal Execution Protocol Addendum, which closely mirrors protocols utilized by several states, including currently Georgia, Missouri, and Texas, replaces the three-drug procedure previously used in federal executions with a single drug—pentobarbital. Since 2010, 14 states have used pentobarbital in over 200 executions, and federal courts, including the Supreme Court, have repeatedly upheld the use of pentobarbital in executions as consistent with the Eighth Amendment.” Id.

 

[52] The drug is generally not available for executions. States using the drug, have generally turned to compounding pharmacies. Texas is an example. “Texas purchases the drug from compounding pharmacies kept secret from the public, where drugs are mixed without federal regulation. The state has used pentobarbital in 79 executions. Lethal drugs have become hard for states to obtain in the last decade. In 2011, drug manufacturers began blocking their products from being used in lethal injections, making states across the country, including Texas, scramble to find new execution drugs.” Jolie Mccullough, In Restarting the Federal Death Penalty, AG William Barr Looks to Texas, Texas Tribune (July 25, 2019) available at https://www.texastribune.org/2019/07/25/federal-death-penalty-texas-method/.

 

[53] An example of state executive action to stop executions is Governor Newsome of California, who (without a change in the law regarding capital punishment in the state) simply ordered that executions not be carried out.

 

[54] From the 1930s the Gallup Poll showed that public support for the death penalty slowly declined until less than a majority supported it in 1966, then it rose until about 80% supported it in 1980, then started downward again until about 55% supported it in 2018. Gallup, Death Penalty, (accessed July 26, 2019) available at https://news.gallup.com/poll/1606/death-penalty.aspx. Pew does a good opinion survey which is roughly similar, but it does not go back as far—only to 1996. It showed the decline from 1996 (77%) to 2016 (49%), with an increase in 2018 to 54%. June 11, 2018. J. Baxter Oliphant, Public Support For The Death Penalty Ticks Up, Pew Research (June 11, 2018) available at https://www.pewresearch.org/fact-tank/2018/06/11/us-support-for-death-penalty-ticks-up-2018/.

 

[55] United States v. Haymond, decided June 26, 2019. Justice Gorsuch wrote for the four-justice plurality. Justice Breyer wrote a concurring opinion. The other four justices dissented.

 

[56] E.g., 18 U.S.C. §924(c)(3)(B); 18 U.S.C. §924(e) (the Armed Career Criminal Act).

 

[57] United States v. Davis, decided June 24, 2019. Gorsuch wrote for the five-justice majority. Justice Kavanaugh wrote for the dissenting justices. An interesting facet of this decision was Justice Gorsuch, generally regarded as “conservative,” joining the four generally-considered-“liberal” justices to create a bare majority for this result. The many Court watchers and reporters who consider the ideological dimension to be the primary explanation to controversial case outcomes, this unpredictable alignment seems big news.

 

[58] The Court also continues to labor over the Armed Career Criminal Act (it had four ACCA cases this Term). The ACCA, cited above, provides substantial enhancement of prison terms for offenders who have three violent felony convictions. This Term, in two cases, the Court unanimously found that in most states the definition of “burglary” qualifies as a crime of violence under the ACCA. Quarles v. United States, decided June10, 2019, with Justice Kavanaugh writing for a unanimous Court; United States v. Stitt, decided December 10, 2018, with Justice Breyer writing for a unanimous Court.

In another ACCA case the Court split 5-4 on whether a “robbery offense” is a crime of violence under the ACCA. Stokeling v. United States, decided January 15, 2019, with Justice Thomas writing for the majority and Justice Sotomayor for the dissent. The split was interesting in the majority were Justices Thomas, Breyer, Alito, Gorsuch, and Kavanaugh. Joining Justice Sotomayor’s dissent were Chief Justice Roberts and Justices Ginsburg and Kagan.

 

[59] The full text of the Eighth Amendment is: “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” (emphasis added)

 

[60] Timbs v. Indiana, decided February 20, 2019. Justice Ginsburg wrote for the Court. It was a unanimous decision, although there was some disagreement about whether the Due Process Clause or the Privileges and Immunities of the Fourteenth Amendment is the source of the incorporation.

 

[61] It was 40 years after the adoption of the Fourteenth Amendment that the Court held that the amendment had “incorporated” some of the Bill of Rights as protections against the state. Twining v. New Jersey, 211 U.S. 78 (1908)

 

[62] Notably, the Court has never held that the Third Amendment (prohibition on quartering troops) and the Seventh Amendment (guaranteeing a jury trial in certain civil cases) apply to the states.

 

[63] For example, most of the Fifth Amendment has been incorporated, but the right to indictment by a grand jury has not been incorporated. A particularly good summary of what has and has not been incorporated is provided by at Legal Information Institute, Incorporation Doctrine available at https://www.law.cornell.edu/wex/incorporation_doctrine. (Last visited July 18, 2019.)

 

[64] Timbs at 1-3. The sentence also required Timbs to pay fees and costs totaling $1,203. Id.

 

[65] Justice Thomas and Kavanaugh would have held that it was incorporated through the Privileges and Immunities Clause; the rest of the Court preferred the Due Process Clause. Timbs, Thomas concurring.

 

[66] The state had not properly raised that issue at a lower court. The Court had, in Austin v. United States, 509 U. S. 602 (1993), held that in federal cases “forfeitures fall within the Clause’s protection when they are at least partially punitive.” Timbs at 7. The Court noted that for Indiana to prevail it would have to persuade the Court to overrule Austin.

 

[67] Garza v. Idaho, decided February 27, 2019, with Justice Sotomayor writing for the Court. This was a 6-3 decision.

 

[68] Prosecutors are becoming more sophisticated with appeal waivers in plea agreements. There are also increasing number of agreements in which defendants agree not to seek a reduction in the term of imprisonment if there are future changes in sentencing guidelines or the penalties for the offense. Defense attorneys, and mental health experts who assist them, may find ways of challenging such provisions.

 

[69] 34 U.S.C. §20901 et seq.

 

[70] Gundy v. United States, decided June 20, 2019. The opinion of the Court was a plurality—only four justices joined the majority opinion. Justice Alito concurred in the result. Three justices dissented. Justice Kavanaugh did not participate because he had not yet joined the Court when oral argument was heard on the case.

 

[71] The specific provisions are as follows: “The Attorney General shall have the authority to specify the applicability of the requirements of this subchapter to sex offenders convicted before the enactment of this chapter . . . and to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply with subsection (b).” 34 U.S.C. §§20913(b), (d).

 

[72] The dissent described the problem. It noted that “different Attorneys General have exercised their discretion in different ways. For six months after SORNA’s enactment, Attorney General Gonzales left past offenders alone. Then the pendulum swung the other direction when the Department of Justice issued an interim rule requiring pre-Act offenders to follow all the same rules as post-Act offenders. A year later, Attorney General Mukasey issued more new guidelines, this time directing the States to register some but not all past offenders. Three years after that, Attorney General Holder required the States to register only those pre-Act offenders convicted of a new felony after SORNA’s enactment. Various Attorneys General have also taken different positions on whether pre-Act offenders might be entitled to credit for time spent in the community before SORNA was enacted. These unbounded policy choices have profound consequences for the people they affect.” Gundy, Gorsuch dissenting at 4.

 

[73] Article I of the Constitution provides that “all legislative Powers herein granted shall be vested in a Congress of the United States.” “Accompanying that assignment of power to Congress is a bar on its further delegation. Congress, this Court explained early on, may not transfer to another branch powers which are strictly and exclusively legislative.” Gundy, plurality opinion at 4. The very broad delegation to the Attorney General (AG) for pre-Act offenders, without any discernable standards raised a question of whether Congress had transferred to the Executive Branch (the AG) its legislative powers. The Court has traditionally given agencies that make up the Executive Branch very broad powers to adopt regulations subject to fairly broad directives. The plurality summarized the Court’s holdings regarding delegation as: “we have held, time and again, that a statutory delegation is constitutional as long as Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.” Gundy plurality opinion at 5 (internal quotations and punctuation eliminated). Only four justices joined this opinion, however. Justice Alito (the fifth vote) specifically said that he would support an effort to reconsider the very permissive delegation approach the Court has taken for years, but “it would be freakish” to single out this law without considering the broader issue. Gundy¸ Alito, concurring. This was obviously an invitation to future litigation to raise the delegation issue more specifically. Justice Kavanaugh did not participate in the case. The four justices making up the plurality would undoubtedly uphold the current the current very broad delegation authority, and most likely four justices (including Justice Alito and the three dissenting justices) would be interesting in narrowing that authority. Justice Kavanaugh might well be the fifth vote for one side or the other. Stay tuned.

 

[74] Box v. Planned Parenthood of Indiana and Kentucky, Inc., decided May 28, 2019. This was a per curiam opinion. Justice Sotomayor essentially dissented from granting certiorari. Id. at 4. Justice Thomas wrote an extensive concurring opinion, and Justice Ginsburg dissented in part.

 

[75] Justice Ginsburg dissented from this part of the decision. Because Justice Sotomayor objected to granting certiorari in this case, it may mean that she should be counted as dissenting too.

 

[76] Box at 2.

 

[77] Id. at 3.

 

[78] Box, Justice Thomas, concurring.

 

[79] June Medical Services, L.L.C. v. Gee, decided February 7, 2019. Four justices dissented from issuing the stay. The four justices dissenting from the order staying the Louisiana statute noted that all four physicians who currently perform abortions in Louisiana have such privileges; the dissenters reasoned that the Louisiana law therefore had no negative effect on abortion availability.

 

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

 

[81] Gee v. Planned Parenthood of Gulf Coast, Inc., decided December 10, 2019. Justice Thomas, joined by Justices Alito and Gorsuch, dissented from the denial of certiorari. Justice Thomas was obviously unhappy with the failure of the Court to take up this case. “So what explains the Court’s refusal to do its job here? I suspect it has something to do with the fact that some respondents in these cases are named ‘Planned Parenthood.’… Some tenuous connection to a politically fraught issue does not justify abdicating our judicial duty. If anything, neutrally applying the law is all the more important when political issues are in the background.” Id. at 3-4.

 

[82] “Five Circuits have held that Medicaid recipients have such a right, and one Circuit has held that they do not. The

last three Circuits to consider the question have themselves been divided. This question is important and recurring.” Id. at 1.

 

[83] The Social Security Administration indicates that in 2018, there were 2.073 million applications for Social Security disability. https://www.ssa.gov/oact/STATS/table6c7.html. Actually, that is somewhat understates the number of applications, because there were another 1.3 million instances in which the Social Security Administration received potential disability claims from State Disability Determination Services (DDS), Federal Disability Units, Disability Processing Branches, and Extended Service Team Sites. These are sent to Social Security for “an initial evaluation of whether the claimant’s disability meets the definition of disability as set forth in the Social Security Act and appropriate regulations.” https://www.ssa.gov/oact/STATS/dibStat.html. This total of about 3.4 million applications or referrals is variable based on the strength of the economy. In 2010, for example, there were nearly five million of such claims. In 2018 there were 8.5 million Social Security disability recipients. Id.

 

[84] 20 CFR §§404.1560(c)(1), 416.960(c)(1) (2018).

 

[85] 20 CFR §§404.900(b),416.1400(b) (2018).

 

[86] 42 U. S. C. §405(g) (2018).

 

[87] Biestek v. Berryhill, decided April 1, 2019. This was a 6-3 decision. Justice Kagan wrote for the majority, and Justices Sotomayor and Gorsuch wrote dissents (Justice Ginsburg joined the Gorsuch dissent).

 

[88] The ALJ determined that based on his disabilities, Biestek could work at one of these jobs until age 50, and would be eligible for disability then. Id. at 4.

 

[89] The vocational expert, Erin O’Callaghan, indicated that she relied on Bureau of Labor Statistics data and her own “individual labor market surveys.” The BLS data, however, did not specifically address the jobs she was describing, so her own surveys were significant. She first indicated that she did not want to turn over the surveys because they were part of her client files, but she did not turn over the surveys even with the names redacted. Biestek at 4.

 

[90] The three dissenting justices would have been stronger in insisting on the disclosure of the underlying data.

 

[91] Henry Schein, Inc. v. Archer & White Sales, Inc., decided January 8, 2019. Justice Kavanaugh wrote for a unanimous Court.

 

[92] New Prime Inc. v. Oliveira, decided January 15, 2019. Justice Gorsuch wrote for the Court. Justice Kavanaugh did not participate in the decision.

 

[93] Section 1, in its entirety, is as follows: “‘Maritime transactions’, as herein defined, means charter parties, bills of lading of water carriers, agreements relating to wharfage, supplies furnished vessels or repairs to vessels, collisions, or any other matters in foreign commerce which, if the subject of controversy, would be embraced within admiralty jurisdiction; ‘commerce’, as herein defined, means commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation, but nothing herein contained shall apply to contracts of employment of seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” 9 U.S.C. §1.

 

[94] The exception, stripped to its basics, says that the Act does not apply to “to contracts of employment of workers engaged in interstate commerce.” Taken literally, that could mean that all employment contracts (agreements to perform work) were exempt from the FAA. But that is not what the Court meant—it meant that the FAA would not apply to any contract to perform work in the transportation sector. Ronald Mann, Justices Uphold Arbitration Exemption for Transportation Workers in Rare Victory for Arbitration Opponents, SCOTUSBLOG.com (January 15, 2019) available at https://www.scotusblog.com/2019/01/opinion-analysis-justices-uphold-arbitration-exemption-for-transportation-workers-in-rare-victory-for-arbitration-opponents/.

 

[95] Lamps Plus, Inc. v. Varela, decided April 24, 2019. This was a 5-4 decision, with Justice Roberts writing from the majority. There were four dissenting opinions among the four dissenting justices.

 

[96] The Court majority particularly relied on three earlier decisions: Epic Systems Corp. v. Lewis, 584 U. S. ___, ___ (2018) (slip op., at 8); AT&T Mobility LLC v. Concepcion, 563 U.S. 333 (2011); Stolt-Nielsen S. A. v. Animal Feeds Int’l Corp., 559 U. S. 662 (2010).

 

[97] Azar v. Allina Health Services, decided June 3, 2019. This was a 7-1 decision, with Justice Gorsuch writing for the Court. Justice Breyer dissented and Justice Kavanaugh did not participate in the case.

 

[98] Brief of the American Hospital Association, Federation of American Hospitals, and Association of American Medical Colleges as Amici Curiae in Support of Respondents, Azar v. Allina Health Services (December 2018) available at https://www.supremecourt.gov/DocketPDF/17/17-1484/77059/20181220124855784_17-1484bsacAmericanHospitalAssociationEtAl.pdf; Brief of American Medical Association and Medical Society of the District of Columbia Amici Curiae In Support Of Respondents, Azar v. Allina Health Services (December 2018) available at https://www.supremecourt.gov/DocketPDF/17/17-1484/77159/20181220151402459_17-1484bsacAMA.pdf.

 

[99] “These payments are calculated in part using a hospital’s so-called ‘Medicare fraction,’ which asks how much of the care the hospital provided to Medicare patients in a given year was provided to low-income Medicare patients. The fraction’s denominator is the time the hospital spent caring for patients who were ‘entitled to benefits under’ Medicare Part A. The numerator is the time the hospital spent caring for Part-A-entitled patients who were also entitled to income support payments under the Social Security Act. §1395ww(d)(5)(F)(vi)(I)…. [In 1997] Congress created ‘Medicare Part C,’ sometimes referred to as Medicare Advantage…. This development led to the question whether Part C patients should be counted as ‘entitled to benefits under’ Part A when calculating a hospital’s Medicare fraction. The question is important as a practical matter because Part C enrollees, we’re told, tend to be wealthier than patients who opt for traditional Part A coverage…. So counting them makes the fraction smaller and reduces hospitals’ payments considerably—by between $3 and $4 billion over a 9-year period, according to the government. Counting them makes the fraction smaller and reduces hospitals’ payments considerably—by between $3 and $4 billion over a 9-year period, according to the government.” Azar at 4-5.

 

[100] 42 U. S. C. §1395hh(a)(2).

 

[101] Merck Sharp & Dohme Corp. v. Albrecht, decided May 20, 2019, in a unanimous decision. The majority opinion was written by Justice Breyer was joined by a total of seven justices. Two others did not disagree with the outcome of the case, but thought the majority opinion was not sufficiently clear in several respects.

 

[102] Article VI, clause 2, of the Constitution provides, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”

 

[103] Merck at 13-14. Wyeth v. Levine, 555 U. S. 555, 571 (2009).

 

[104] Mount Lemmon Fire Dist. v. Guido, decided November 6, 2019. The Court was unanimous in an opinion authored by Justice Ginsburg. Justice Kavanaugh did not participate in the case because the oral argument was held before his confirmation to the Court.

 

[105] 29 U. S. C. §630(b).

 

[106] The employee must first file a complaint with the federal EEOC (or similar state agency). The agency investigates the claim and it may choose to take action (including filing a lawsuit) against the employer. Even if the agency does not take action, the injured plaintiff may file a lawsuit.

 

[107] Rehaif v. United States, decided June 21, 2019 in a 7-2 decision. Justice Breyer wrote for the majority. Justice Alito wrote a dissenting opinion which Justice Thomas joined.

 

[108] There is limited factual discussion in the majority opinion. Most of the facts are taken from Justice Alito’s dissent.

 

[109] After he was dismissed from school he “moved to a hotel and frequent a firing range. Each evening he checked into the hotel and always demanded a room on the eighth floor facing the airport. Each morning he checked out and paid his bill with cash, spending a total of more than $11,000. This went on for 53 days. A hotel employee told the FBI that petitioner claimed to have weapons in his room. [He was] arrested and charged under §922(g) for possession of a firearm by an illegal alien.” Nielsen¸ Alito, dissenting.

 

[110] The dissent predicted that “the decision will create a mountain of problems with respect to the thousands of prisoners currently serving terms for §922(g) convictions. Applications for relief by federal prisoners sentenced under §922(g) will swamp the lower courts. A great many convictions will be subject to challenge, threatening the release or retrial of dangerous individuals.” Id. at 1.

 

[111] Nielsen v. Preap, decided March 19, 2019, in a 5-4 decision. Justice Alito wrote for the majority, Justice Breyer wrote for the dissent.

 

[112] “These aliens may secure their release by proving to the satisfaction of a Department of Homeland Security officer or an immigration judge that they would not endanger others and would not flee if released from custody.” Id. at 1.

 

[113] 8 U. S. C. §1226(c). The statute provides that these aliens must be arrested “when [they are] released” from custody on criminal charges and (with one narrow exception not involved in these cases) must be detained without a bond hearing until the question of their removal is resolved. Id. at 2.

 

[114] One potential difficulty in “immediately” taking someone into custody when released by a state or local authority is that some of these authorities may not tell federal officials when they are releasing an alien from their custody. Some sanctuary cities or states may take this position as a matter of policy.

 

[115] Trump v. Sierra Club, decided July 26, 2019. The decision was effectively 5-4.

 

[116] Department of Commerce v. New York, decided June 27, 2019. This was essentially a 5-4 decision. The complex split of opinion is demonstrated the by official summary of the Reporter of Decisions: “ROBERTS, C. J., delivered the opinion for a unanimous Court with respect to Parts I and II, and the opinion of the Court with respect to Parts III, IV–B, and IV–C, in which THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined; with respect to Part IV–A, in which THOMAS, GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., joined; and with respect to Part V, in which GINSBURG, BREYER, SOTOMAYOR, and KAGAN, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part, in which GORSUCH and KAVANAUGH, JJ., joined. BREYER, J., filed an opinion concurring in part and dissenting in part, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. ALITO, J., filed an opinion concurring in part and dissenting in part.”

 

[117] The result mooted concerns from several States and immigrant-rights advocates that inclusion of the question would suppress Census participation by noncitizens and Latino households, in turn affecting allocation of House of Representative seats and funding levels for some federal programs.

 

[118] Rucho v. Common Cause, decided June 27, 2019. This was a 5-4 decision, with Chief Justice Roberts writing for the majority. In another case (Virginia House of Delegates v. Bethune-Hill, decided June 17, 2019, with the majority decision by Justice Ginsburg, in a 5-4 decision) the Court held that the House of Delegates in Virginia did not have standing to appeal a lower court’s decision to the Supreme Court. The Attorney General of Virginia did not appeal the decision of the lower court. This case represents a potentially growing problem regarding standing—where a public official who represents the state (commonly the attorney general) does have standing, but likes the outcome of the lower decision and essentially precludes the state receiving appellate review by failing to file an appeal.

 

[119] Yovino v. Rizo, decided (without oral argument) on February 25, 2019, in a per curiam opinion.

 

[120] American Legion v. American Humanist Assn., decided June 20, 2019. The majority opinion was written by Justice Alito. It was a 7-2 decision, although the majority was somewhat fractured.

 

[121] Washington State Dept. of Licensing v. Cougar Den, Inc., decided March 19, 2019. This was a 5-4 decision, with Justice Breyer writing only for a three-justice plurality of the Court. Justices Gorsuch and Ginsburg concurred. Four justices dissented. This split in the Court leaves many unanswered questions.

 

[122] Herrera v. Wyoming, decided May 20, 2019. This was a 5-4 decision, with Justice Sotomayor writing for the majority.

 

[123] Carpenter v. Murphy (link to SCOTUSBlog.com). In this case the question is: “Whether the 1866 territorial boundaries of the Creek Nation within the former Indian Territory of eastern Oklahoma constitute an ‘Indian reservation’ today.”

 

[124] Knick v. Township of Scott, decided June 21, 2019. Chief Justice Roberts wrote for the majority. Justice Kagan wrote the dissent joined by three other justices.

 

[125] Kisor v. Wilkie, decided June 26, 2019. Justice Kagan wrote for the Court. Chief Justice Roberts wrote a brief concurring opinion. Justices Gorsuch wrote a “concurring” opinion, joined by Justices Thomas, Kavanaugh and Alito. This appeared to be a unanimous decision, but in reality, it was a 5-4 decision. The official report of the decision gives a sense of the complexity of the arrangement of justices. “KAGAN, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–B, III–B, and IV, in which ROBERTS, C. J., and GINSBURG, BREYER, and SOTOMAYOR, JJ., Cite as: 588 U. S. ____ (2019) 5 Syllabus joined, and an opinion with respect to Parts II–A and III–A, in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. ROBERTS, C. J., filed an opinion concurring in part. GORSUCH, J., filed an opinion concurring in the judgment, in which THOMAS, J., joined, in which KAVANAUGH, J., joined as to Parts I, II, III, IV, and V, and in which ALITO, J., joined as to Parts I, II, and III. KAVANAUGH, J., filed an opinion concurring in the judgment, in which ALITO, J., joined.” Id. (Syllabus) at 4-5. The next note reviews the decision in some detail.

 

[126] Courts have provided great deference to the interpretations federal agencies give to their own regulations. This sometimes led to so little oversight that agencies took advantage of their latitude or made almost weak claims of what constituted their regulations—in a few cases claiming arguments made in legal briefs were the formal agency policy. This deference has been criticized and the Court heard the Kinsor case to decide whether to overturn this deference to agencies. In the end, the four justices seemed to support strong deference and (it appeared to me) that Justice Roberts, the fifth vote, was willing to do that only with significant limitations on the deference. He joined only part of the decision maintaining the deference. The other four justices would have overturned the earlier cases that provided great deference to the agencies.

Justice Kagan’s opinion for the Court laid out a multiple part test as follows (this quotes various parts of the decision without quotations):

  1. A court should not afford deference unless the regulation is genuinely ambiguous.
  2. A court must carefully consider the text, structure, history, and purpose of a regulation before resorting to deference.
  3. If genuine ambiguity remains, the agency’s reading must still fall within the bounds of reasonable interpretation’ [and] a court must also make an independent inquiry into whether the character and context of the agency interpretation entitles it to controlling weight.
  4. To begin with, the regulatory interpretation must be the agency’s authoritative or official position, rather than any more ad hoc statement not reflecting the agency’s views.
  5. Next, the agency’s interpretation must in some way implicate its substantive expertise, as the basis for deference ebbs when the subject matter of a dispute is distant from the agency’s ordinary duties. Finally, an agency’s reading of a rule must reflect its ‘fair and considered judgment.’ A court should decline to defer, for example, to a merely ‘convenient litigating position’ to a new interpretation that creates ‘unfair surprise’ to regulated parties. Id. at 12-18.

These principles are set forth over seven pages with enough backing and filling to leave room for a lot of interpretation. I had the sense that to keep the vote of Chief Justice Roberts a lot of language had to be added, with qualifications by the other justices in the majority. Thus, Justice Kagan had the task of satisfying both camps, resulting in language that could satisfy both. There is language to support almost anything lower federal courts want to do in a given case, so it is likely that there will be a very long series of future cases trying to give more precise meaning to the principles set out in this decision. My guess is that Chief Justice Roberts probably wanted to do away with the prior decisions without expressly overturning them.

Chief Justice Roberts wrote a brief concurring opinion to say, “I write separately to suggest that the distance between the majority and [the four justices on the other side] is not as great as it may initially appear.” That likely brought laughter from both sides. Kisor, Roberts concurring at 1.

Chief Justice Robert’s other brief point could be more important. He emphasized that this decision was only about agencies’ interpretation of their own regulations and did not deal with deference to agency interpretation of statutes. That is a separate, and very important question. Id. at 2.  That could be a second (and bigger) shoe that will drop over the next few terms.

 

[127] Tennessee Wine and Spirits Retailers Assn. v. Thomas, decided June 26, 2019. This was a 7-2 decision, with Justice Alito writing for the Court and Justice Gorsuch dissenting, joined by Justice Thomas.

 

[128] Apple Inc. v. Pepper, decided May 13, 2019. This was a 5-4 decision with Justice Kavanaugh writing for the majority. Justice Gorsuch wrote for the dissenters. The alignment in this case also struck some observers as noteworthy. Justice Kavanaugh wrote the majority opinion for himself and the four “liberal” justices, Ginsburg, Breyer, Sotomayor and Kagan.

 

[129] Chief Justice Roberts said, “’I will not criticize the political branches. We do that often enough in our opinions. But what I would like to do briefly is emphasize how the judicial branch is, how it must be, very different.’ The chief justice said it was essential that the court remains independent and not yield to politics. ‘As our newest colleague put it, we do not sit on opposite sides of an aisle, we do not caucus in separate rooms, we do not serve one party or one interest. We serve one nation. And I want to assure all of you that we will continue to do that to the best of our abilities, whether times are calm or contentious.’” Chief Justice Roberts, speaking at the University of Minnesota, Wall Street Journal (October 16, 2018) available at https://www.marketwatch.com/story/roberts-says-supreme-court-remains-independent-nonpartisan-2018-10-16.

 

[130] There are a number of ways of calculating the number of cases the Court had during a Terms—some list 67 cases decided, 70 argued, or 74 total cases. The number of opinions released may be the best measure. Most of the data in the following cases came from SCOTUSblog.com. Adam Feldman, Final Stat Pack for October Term 2018, SCOTUSblog (Jun. 28, 2019) available at https://www.scotusblog.com/wp-content/uploads/2019/07/StatPack_OT18-7_8_19.pdf.

 

[131] Id. at 5.

 

[132] The time between oral argument and decision may not reflect the speed of the majority-opinion writer, but rather the time it takes to circulate the different concurring and dissenting opinions, achieve closure on the majority opinion, and the like.

 

[133] Robert Barnes, They’re Not ‘Wonder Twins’: Gorsuch, Kavanaugh Shift the Supreme Court, but Their Differences Are Striking, Washington Post (June 28, 2019) available at https://www.washingtonpost.com/politics/courts_law/theyre-not-wonder-twins-gorsuch-kavanaugh-shift-the-supreme-court-but-their-differences-are-striking/2019/06/28/63754902-99b6-11e9-916d-9c61607d8190_story.html.

 

[134] These are orders, grants of cert, stays, and the like. See the opinions at https://www.supremecourt.gov/opinions/relatingtoorders/18.

 

[135] Justice-dissents are the total number of justices dissenting, not the number of separate dissenting opinions. Several justices commonly join the same dissent.

 

[136] In fact, there is a rich trove of interesting and important cases this Term that received little or no public attention. Space considerations preclude discussing all of them, but here are a few examples of the decisions not covered in the text of the article that I view of important:

  • Gamble v. United States, decided June 17, 2019. In this 7-2 case the Court upheld the “Dual Sovereignty” doctrine in Double Jeopardy cases. That allows both the federal government and state government to file similar criminal changes for the same criminal conduct without violating the Fifth Amendment (Double Jeopardy Clause). The theory is that the clause prevents being tried twice for the same offense by the same sovereign, but the state and federal governments are separate sovereigns. Dual sovereignty has been the rule for many years, but the Court took the case to decide whether to change its mind. It did not.
  • Iancu v. Brunetti, decided June 24, 2019. The Court held that a refusal of the Patent and Trademark Office to register “immoral” or “scandalous” trademarks infringes on the First Amendment. In this case the petitioner sought to register “FUCT” as a trademark for a clothing line.
  • Mitchell v. Wisconsin, decided June 26, 2019 (the last decision of the Term). The Court held that in the event a drunk-driving suspect taken into custody is, or becomes, unconscious, the Reasonable Search provision of the Fourth Amendment generally does not prevent a state from taking a blood sample without a warrant. Wisconsin had a specific “implied consent” law by which someone receiving a driving license consents to a blood draw. Although that is not an effect consent to a search where a driver is conscious and can object to the search, it usually does provide consent where the driver is unconscious and cannot consent or refuse.
  • Return Mail, Inc. v. Postal Service, decided June 10, 2019. The postal service, as a federal government agency, is not a “person” under the Patent Trial and Appeal Board statute, and it, therefore, cannot institute a patent review proceeding. In this case the post office sought to challenge patent that Return Mail had regarding a method for processing undeliverable mail.
  • Franchise Tax Bd. of Cal. v. Hyatt, decided May 13, 2019. The Court overruled an earlier decision. In this case it held that states have sovereign immunity from private suits brought against them in the courts of other states.
  • Taggart v. Lorenzen, decided June 2, 2019. The Court held that a creditor can be held in civil contempt for violating a bankruptcy court’s discharge order. The whole purpose of bankruptcy proceedings, of course, is to settle all claims for payment. If, however, the creditor has “fair ground” to doubt that the bankruptcy court’s order barred his collection effort, then the creditor may avoid civil contempt.
  • Fourth Estate Pub. Benefit Corp. v. Wall-Street.com, decided March 4, 2019. Copyright registration occurs, and a copyright holder may start infringement lawsuits when the Copyright Office officially “registers” the copyright.

 

[137] Tonja Jacobi and Matthew Sag, Taking Laughter Seriously at the Supreme Court (March 9, 2019). Vanderbilt Law Review, forthcoming, available at SSRN: https://ssrn.com/abstract=3345077 at 56 (from this abstract the reader can click through to the full text). The authors argue that, “Laughter in Supreme Court oral arguments has been misunderstood, treated as either a lighthearted distraction from the Court’s serious work, or interpreted as an equalizing force in an otherwise hierarchical environment. Examining the more than 9000 instances of laughter witnessed at the Court since 1955, this Article shows that the justices of the Supreme Court use courtroom humor as a tool of advocacy and as a signal of their power and status.” Id.at 1.

 

[138] In addition to the listed cases, the Court has also scheduled a hearing in a technical patent case.

 

[139] Kahler v. Kansas (this is a link to the SCOTUSblog.com coverage).

 

[140] 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, Kahler v. Kansas (June 7, 2019) available at https://www.apa.org/about/offices/ogc/amicus/kahler.pdf.

 

[141] Ramos v. Louisiana (this is a link to the SCOTUSblog.com coverage).

 

[142] Bostock v. Clayton County, Georgia; Altitude Express Inc. v. Zarda (this is a link to the SCOTUSblog.com coverage).

 

[143] R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission (this is a link to the SCOTUSblog.com coverage).

 

[144] Brief of the American Psychological Association, American Psychiatric Association, American Association for Marriage and Family Therapy, Georgia Psychological Association, Michigan Psychological Association, New York State Psychological Association as Amici Curiae in Support of the Employees, in Gerald Lynn Bostock v. Clayton County; Altitude Express v. Melissa Zarda; R.G. & G.R. Harris Funeral Homes, v. Equal Employment Opportunity Commission (July 19, 2019) available at https://www.apa.org/about/offices/ogc/amicus/bostock.pdf.

Thank You to Our Advertisers for This Issue

Earn CE Credit

CE.NationalRegister.org

Learn More

1200 New York Ave NW, Ste 800

Washington DC 20005

p: 202.783.7663

f: 202.347.0550

Endorsed by the National Register