Been a bit, but better belated than benever. (Seriously, Henry Benever was a uniquely undistinguished Member of Parliament.) As we tread water nervously in anticipation of a deluge of decisions next week (and each remaining week of the term), it’s high tide time we worked our way through the current logjam. (We’re obviously counting on alliteration and bad puns to make up for the delay in getting these summaries out to you.) Here’s what’s in the queue:
- Sessions v. Dimaya (No. 15-1498), holding that the definition of a “violent felony,” as used in the aggravated-felony removal provision of the Immigration and Nationality Act, is unconstitutionally vague;
- Jesner v. Arab Bank (No. 16-499), holding that foreign corporations may not be sued in U.S. courts under the Alien Tort Statute;
- United States v. Microsoft (No. 17-2), a per curiam order vacating the Second Circuit’s judgment quashing a warrant that issued pursuant to the Stored Communications Act (SCA) in light of the fact that the SCA has been amended in a manner that mooted the legal question before the Court;
- Wilson v. Sellers (No. 16-6855), holding that, where a federal court is reviewing a state conviction under the Antiterrorism and Effective Death Penalty Act, it must “look through” an unreasoned decision of the state’s highest court to the last reasoned decision and—unless the State rebuts the presumption—assume that high court’s summary affirmance adopted the same rationale for upholding the conviction;
- Oil States Energy Servs. v. Greene’s Energy Group (No. 16-712), holding that inter partes review (the process by which the U.S. Patent and Trademark Office (PTO) may reconsider and cancel already-issued patent claims) does not violate Article III of the Constitution; and
- SAS Institute v. Iancu (No. 16-969), holding that, when the PTO institutes inter partes review (which, we’ll remind you, is constitutional, see Oil States Energy, supra), it must decide the patentability of all claims that the petitioner has challenged.
That’s a lot to cover, so we’ll be bringing you summaries of the non-patent cases below and follow up separately with the patent summaries for the nerdiest of our Court nerds. Here goes!
Sessions v. Dimaya (No. 15-1498) started out as one of the biggest cases of OT16, but ended up fighting for space on OT17’s B-list, given the huge number of potential blockbusters on the docket this term. Still, the Court’s holding—that the federal definition of “violent felony,” as used in the aggravated-felony removal provision of the INA, is unconstitutionally vague—is quite significant, both for its impact on folks like James Dimaya who may be spared deportation and for what it tells us about the views of The Nine on vagueness, due process, and the separation of powers.
First, the statutory landscape. The INA subjects an alien convicted of an “aggravated felony” after entering the United States to mandatory removal and renders him ineligible for most forms of discretionary relief from removal. An “aggravated felony” is defined to include “a crime of violence (as defined in [18 U.S.C. § 16] . . . ) for which the term of imprisonment [is] at least one year.” Section 16, in turn, defines a “crime of violence” as “(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.” It’s the second clause, commonly called the “residual clause,” that was at issue in Dimaya. To determine whether a crime counts as an aggravated felony under the residual clause, the Court applies a modified categorical approach, which looks not to the particular facts of an individual case, but rather asks whether the offense poses a substantial risk of force in “the ordinary case.”
The Supreme Court, and the lower courts, have struggled mightily to apply §16(b)’s residual clause. Respondent James Dimaya’s case shows the difficulties. The Government sought to deport Dimaya after his second conviction for first-degree burglary under California law. To do so, it had to show that the “ordinary case” of first-degree burglary in California involves a substantial risk of physical force. But just how risky is an “ordinary case” of first-degree burglary in California? As the Court noted, the crime “applies to everyone from armed home intruders to door-to-door salesmen peddling shady products.”
The same uncertainties led the Court, in Johnson v. United States (2015), to strike down a similarly worded provision of the Armed Career Criminal Act, which subjected certain defendants to a 15-year mandatory minimum sentence if they had three prior convictions for a crime that “involves conduct that presents a serious potential risk of physical injury to another.” Johnson was decided while Dimaya’s case was winding its way through the lower courts. Following the Supreme Court’s decision striking down the ACCA’s residual clause, the Ninth Circuit concluded that §16(b) was also unconstitutionally vague.
The Supreme Court granted cert and the case was originally argued in October Term 2016, when the Court was shorthanded. On the last day of the term, the Court, apparently unable to avoid a 4-4 split, set the case for reargument before a full bench in OT17. That meant the fate of James Dimaya and others like him almost surely rested solely in the hands of the junior Justice of the Supreme Court. And, to the surprise of many (but not those familiar with his views on the Administrative State, Justice Gorsuch provided the fifth vote to strike down the joined the four “liberals” to strike down §16(b)’s residual clause (as incorporated in the INA) as unconstitutionally vague.
Justice Kagan wrote for the majority, joined in full by the other “liberals” and in part by Justice Gorsuch. (Fun fact: This appears to be the first time in her career that Justice Ginsburg has been the senior justice in a majority, and therefore responsible for assigning the opinion of the Court.) In Kagan’s view, the holding in Dimaya was dictated entirely by Johnson. Although the Government had argued that a less exacting vagueness review should apply in this case because, unlike Johnson, it arose in a civil context, Justice Kagan noted that the Court had already held that “the most exacting vagueness standard should apply in removal cases,” which have become increasingly more intertwined with the criminal process. (Justice Gorsuch did not join this portion of Kagan’s opinion, because he thinks an exacting vagueness standard should apply in all instances.) Applying Johnson, Justice Kagan noted that the two features of the ACCA’s residual provision that the Court found problematic in the earlier case were also present in §16(b)’s residual clause. First, it ties the judicial assessment of risk to “a hypothesis about the crime’s ‘ordinary case,'” but provides no reliable way to discern what the ordinary version of the offense looks like. “How,” Justice Kagan asked, parroting Justice Scalia’s Johnson opinion, “does one go about divining the conduct entailed in a crime’s ordinary case? Statistical analyses? Surveys/ Experts? Google? Gut instinct?” Second, and relatedly, §16(b) is vague about the level of risk that makes a crime “violent” in the first place. Because “§16(b) has the same two features that conspired to make ACCA’s residual clause unconstitutionally vague,” due process required that it be struck down in like manner.
Justice Gorsuch joined most of the majority opinion, providing the critical fifth vote in favor of striking down §16(b) as incorporated in the INA, but wrote separately to underscore the originalist chops of the vagueness doctrine. While his constitutional fellow traveler, Justice Thomas, has questioned whether the vagueness doctrine “can fairly claim roots in the Constitution as originally understood,” Justice Gorsuch catalogued 18th century decisions of British and American courts refusing to apply vague statutes against individuals and concluded that the original understanding of the Due Process Clause was that individuals must have fair notice of the meaning impact of both criminal and civil laws. He further stressed that, beyond due process, the constitutional separation of powers requires that vague laws go unenforced, lest courts take on too great a legislative gap-filling role. In part because the original understanding of the vagueness doctrine was not limited to serious criminal statutes, Justice Gorsuch parted company with Justice Kagan’s majority opinion insofar as it limited application of the vagueness doctrine to statutes imposing criminal or serious civil penalties, like deportation. “Grave as [the deportation] penalty may be,” Gorsuch wrote, “I cannot see why we would single it out for special treatment when (again) so many civil laws today impose so many similarly severe sanctions.” Beyond that disagreement, though, Justice Gorsuch agreed with Kagan’s application of the Johnson test to §16(b). Particularly to the extent it requires an “ordinary case” analysis, §16(b)’s residual clause is unconstitutionally vague. But he stressed the narrowness of the Court’s decisions, which applied only to the residual clause of §16, “where Congress ended its own list [of violent crimes] and asked us to begin writing our own.” Congress, he noted, could still certainly expand the list of violent crimes or otherwise make clearer what sorts of offenses require mandatory removal under the INA.
The Chief Justice dissented, joined by Justices Kennedy, Thomas, and Alito. In the Chief’s view, the “distinctive textual features” of §16(b) make it “more predicable than ACCA’s residual clause,” and therefore not unconstitutionally vague. In particular, he cited three differences between the two statutes. First, the ACCA residual clause refers to a potential risk of injury, while §16(b) looks only to everyday concept of “risk,” alone and therefore “calls for a commonsense inquiry that does not compel a court to venture beyond the offense elements to consider contingent and remote possibilities.” Second, §16(b) looks only at the risk of force being used against person or property, not the more nebulous risk of injury resulting from the use of force. And third, there’s a temporal limit to the §16(b) inquiry, which considers only whether force will likely be used “in the course of committing the offense.” The Chief further noted that the ACCA residual clause was more confusing than §16(b) because it was preceded by a list of enumerated crimes, whereas §16(b) “is not tied to a disjoined list of paradigm offenses.” (Justice Kagan, in her opinion for the Court, characterized each of these as distinctions without a difference.) Because §16(b) was sufficiently distinct from the ACCA residual clause, the dissenters felt they were not bound by Johnson and would have upheld §16(b) against Dimaya’s constitutional challenge.
Justice Thomas joined the Chief’s dissent, but went still further. In his view, the whole void-for-vagueness enterprise is itself constitutionally unmoored. (This was the key point Justice Gorsuch attempted to rebut, from an originalist perspective, in his concurrence.) Moreover, he opined (now joined by Kennedy and Alito) that the problem with §16(b) and the ACCA residual clause was not really the statutes themselves, but the judge-made categorical approach to applying them. If, instead of hypothesizing about an “ordinary case,” courts simply looked at the defendant’s actual conduct, there would be no vagueness issue in Thomas’s view. (The majority rebuffed this argument, noting that the Government had not asked the Court to abandon the categorical approach, perhaps because doing so would create Sixth Amendment problems, at least in criminal cases relying on §16(b). In any event, Justice Kagan noted, the text of §16(b) seems to demand a categorical approach by referring only to the statute of conviction and not the underlying conduct behind the conviction.)
All told, there were five votes to strike down §16(b), at least as incorporated in the INA’s aggravated-felony removal provision. But there remain a great many open questions about how far the Court will take the vagueness doctrine. Will all other statutes referring to §16(b) also be struck down? As of “press [send] time,” the Tenth Circuit (Gorsuch’s old stomping grounds) had already relied on Dimaya to strike down 18 U.S.C. § 924(c), which refers to §16 in making it a crime to use a firearm during or in relation to “any crime of violence.”
Next up, in Jesner v. Arab Bank, PLC (No. 16-499), the Court answered a long-simmering question about suits under the so-called Alien Tort Statute, 28 U.S.C. § 1350. That statute, enacted in 1789 and left on the books untouched ever since (well, basically), gives federal courts original jurisdiction in “any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States.” It was almost entirely ignored for roughly two-hundred years, until it was discovered by human-rights lawyers in the 1980s and used as a jurisdictional basis to sue foreign government officials and others for human rights abuses, beginning with a 1980 Second Circuit decision called Filartiga v. Pena-Irala. The suits that followed raised a series of questions about how to interpret and apply this cryptic statute. Back in 2010, the Second Circuit in Kiobel v. Royal Dutch Petroleum Co. concluded that foreign corporations (popular ATS defendants) could not be held civilly liable under the ATS for violation of human rights, primarily because there is no clearly established international-law norm of corporate liability for the human-rights offenses of their agents. The Supreme Court granted cert to resolve a conflict with other circuits, but when the case was argued, several justices became more interested in a different question: Can U.S. courts hear claims under the ATS brought by foreign plaintiffs against foreign defendants for events occurring abroad (sometimes called “foreign cubed” cases)? The Court set the case for reargument on that question and, in 2013, held that the presumption against extraterritorial application of federal statutes prevents the ATS from being invoked in suits like Kiobel that don’t “touch and concern” the United States.
While corporate defendants in ATS litigation surely agreed with that result, they weren’t so happy that the Court had ducked the corporate liability issue. After all, while a lot of ATS cases had no connection to the U.S. at all, and were dismissed under Kiobel, another lot did have some tie, which forced lower courts to decide whether Kiobel applied to the specific cases before them. Those corporate defendants preferred and continued to argue in favor of the Second Circuit’s Kiobel approach—that ATS suits against foreign corporations are always barred. The circuit split lingered.
Now comes Jesner, another case out of the Second Circuit involving several lawsuits by foreign plaintiffs against Arab Bank (a Jordanian bank), alleging that Arab Bank helped finance attacks by Hamas and other terrorist groups. The suits could not be dismissed under the Supreme court’s Kiobel decision, because they’re not quite foreign cubed. (The plaintiffs alleged that Arab Bank’s financing of terrorists involved significant dollar-denominated transactions that took place in the United States.) So the Second Circuit relied on its Kiobel precedent, and held (again) that corporations cannot be liable under the ATS. The Supreme Court again granted cert and this time, rather than ducking the original Kiobel question, it reached the merits. Kind of.
We say “kind of” because there’s definitely a result in this case, but there’s not a great deal more. Justice Kennedy’s majority opinion, joined by the Court’s four other conservatives, affirmed the Second Circuit: Suits against foreign corporations are not permitted under the ATS. But the majority rationale for that is narrow, relying only on two points. First, the ATS is a one-sentence, jurisdictional statute, one that, as interpreted by the Court in Sosa v. Alvarez-Machain (2004), requires federal courts to imply federal common-law causes of action. Sosa held that such causes of action should be regarded with “great caution.” Absent a direct indication from Congress, that caution counsels against extending liability to corporations for the acts of their agents, a theory of liability that is at least debatable. Second, the basic purpose of the ATS was to promote harmony in international relations, primarily by giving foreign plaintiffs a remedy in the U.S. for violations of international law for which the U.S. might be held responsible. But suits like Jesner, by foreign plaintiffs against foreign companies in U.S. courts, promote disharmony, creating diplomatic tension between the U.S. and foreign countries over U.S. courts’ meddling in foreign nations’ business. Given these risks of foreign-policy consequences from ATS suits, the majority would exercise its discretion not to imply corporate liability for the acts of their agents absent some more-direct command to do so by Congress. These two points can be summed up with two words, “judicial caution”: Because the ATS is judge-made law, and because that law has the potential to cause foreign-policy problems, liability under the ATS should not be extended to corporate actors absent some clear mandate to do so.
Justice Kennedy offered other rationales, too, for applying the ATS narrowly and not extending it to corporate liability, but none of these commanded a majority. Meanwhile, the Court’s other conservatives voiced even stronger views. Justice Alito, writing only for himself (though with a favorable nod from Justice Thomas), voiced doubts about the Court’s basic ATS jurisprudence. As mentioned above, on a plain reading, the statute is purely jurisdictional, giving federal courts jurisdiction to hear particular types of claims (claims by foreigners for torts committed in violation of the law of nations or a treaty) rather than creating causes of action. That wasn’t a problem in 1789, because Congress assumed that federal courts would obviously just make up federal common law causes of action. But federal common law went bust in 1938 with Erie Railroad v. Tompkins, leaving the ATS as a statute that gave the federal courts jurisdiction over non-existent causes of action. In Sosa, the Court solved this puzzle by holding that the ATS required courts to imply federal common-law causes of action based on the jurisdictional grant, something it should do cautiously (hence the majority’s “judicial caution” approach). But Justice Alito doubted whether Sosa was correct at all and, even if it were, he thought the task of implying causes of action should be done even more cautiously than the majority or Sosa had done, by limiting causes of action to those situations where it seemed to advance the basic purposes of the ATS.
Not to be outdone, Justice Gorsuch kicked further sand on Sosa and argued that even if its basic premise was good law, the federal courts shouldn’t imply any causes of action under the ATS other than those expressly recognized in 1789. Thus, in his view, there’s simply no place to be implying new causes of action at all, even on the limited terms permitted by Sosa. What’s more, he questioned whether the ATS was intended to create jurisdiction in foreign squared cases—foreign plaintiffs against foreign defendants—instead suggesting that perhaps the ATS only provides jurisdiction against for suits brought by foreign plaintiffs against US defendants.
Justice Sotomayor wrote a lengthy dissent, joined by Ginsburg, Breyer, and Kagan. Much of it was addressed toward the issue that was central in the Second Circuit’s long-ago Kiobel case: Whether international law recognizes a norm of corporate liability for human rights violations committed by the corporation’s agents. Like the dissent in the Second Circuit, Justice Sotomayor concluded it did. But that, you may note, is not a rationale we discussed above: While Justice Kennedy did argue the point (agreeing with the Second Circuit) that portion of his opinion was brief and only joined by a plurality. Turning to the majority’s primary rationale—judicial caution—the dissenters recognized the majority’s legitimate concerns (e.g., the diplomatic friction resulting from foreigners’ suits in the US against foreign corporations). But, they noted, few of these concerns seemed to have anything to do with the particular question before the Court: corporate liability. Why would a suit against a Jordanian corporation be any more threatening to diplomatic peace than a suit against a natural person (e.g., Jordanian government officials)? So how does precluding corporate liability help remedy these problems, other than by arbitrarily stopping one species of suit? And, the dissenters argued, when diplomatic tension or other problems arise from ATS suits, the problem should be dealt with more directly, for example by using doctrines such as forum non conveniens to dismiss suits that don’t really have much to do with the U.S.
Speaking of extraterritoriality (or weren’t we?), the Court dodged a bullet in U.S. v. Microsoft (No. 17-2), which posed a significant question about whether U.S. email service providers must comply with warrants issued under the Stored Communications Act when the electronic communications requested are stored in servers abroad. This was poised to be at least a second-tier blockbuster this term, involving important issues of international law enforcement and extraterritoriality, but all along it was evident that Congress could moot the case by enacting the so-called CLOUD Act which expressly requires service providers to comply with Government warrants for electronic communications even when they are stored abroad. Because the statute was amended, and because the Government secured a new warrant under the amended statute, the case was mooted and the Court instructed the Second Circuit to order the case dismissed.
Finally (for today), in Wilson v. Sellers, No. 16-6855, the Court held that when a federal court deferentially reviews a state court’s unexplained, summary decision on the merits of a habeas petitioner’s claims, it should “look through” that decision to the last reasoned state court decision and presume, unless the state shows otherwise, that the same reasoning was the basis for the later unexplained decision upholding the judgment. In an opinion by Justice Breyer (joined by the Chief, Kennedy, Ginsburg, Sotomayor, and Kagan), the Court overturned the Eleventh Circuit’s holding that a federal court should not look through an unexplained state court decision but should instead review and defer to the various reasons that “could have supported” the decision.
If all this seems familiar, it is because in Ylst v. Nunnemaker (1991), the Court adopted the look-through rule in the context of an unexplained state court decision that was preceded by a decision finding the petitioner’s claim procedurally barred. The Eleventh Circuit stood alone among Circuits in declining to apply Ylst‘s look-through rule outside the procedural bar context. The Eleventh Circuit’s position was not, however, without a basis. Only a few years ago, in Harrington v. Richter (2011), the Court held that a federal habeas court was required to defer to an unexplained state court decision unless “there was no reasonable basis” for the decision. From that, one might infer (as the Eleventh Circuit did) that the look-through rule was dead or of very limited application.
But the Court didn’t think so. Writing for the majority, Justice Breyer pointed out that the Court had applied Ylst’s look-through rule in another case decided the very same day as Richter and characterized Richter as being limited to the unusual factual scenario that it presented—a federal habeas petition for which there was no prior state court decision that explained its reasons. Outside of that unusual scenario, it is far easier for federal courts to apply the look-through rule than it is to imagine and then defer to all potential legal grounds that could reasonably have supported a state court decision. Further, because appellate courts quite often base a summary affirmance on their review of the legal reasoning actually adopted by the lower court, it is realistic to presume as much. But that’s only a presumption. Should the record suggest that the higher court based its silent decision on some other alternative ground, the state would be free to attempt to rebut the presumption.
Justice Gorsuch led the dissenters, joined by Thomas and Alito. In their view, it was Ylst, not Richter, that should be read narrowly, and they took issue with the notion that the look-through rule reflects a realistic view of how appellate courts make decisions. They also depicted the majority’s holding as, ultimately, a fairly meaningless confusion of the issue, because the same process required by Richter—looking at the record to see what the state court’s grounds might reasonably have been—will very often result in rebuttal of the presumption adopted by the majority.
That’ll do it for now. We’ll have summaries of the Court’s recent patent decisions, as well as an update on recent cert grants, next time. And then the real fun begins—46 remaining decisions to be decided in the last six weeks of the term. Pray for us.