(Celebrating the Women’s World Cup. Image credit: Arthur Lien. See more of his work at courtartist.com)
Since my last post (June 6), the Supreme Court has handed down 19 cases, leaving only 8 to go. Four of these (the census citizenship question (Commerce), gerrymandering (Rucho and Benisek), and Kisor (whether the Supreme Court should overrule cases which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation) are arguably the four most important cases this term. Also to be decided is a case that generated a lot of interest from the Ignorantia Legis faithful, Tennessee Wine. (All the links in this post are to the case analysis pages at SCOTUSblog). Of the 19 cases that were decided, only 2 earned he SCOTUSblog”s “major cases” designation, although I would argue that there are at least two more (see below). Here is a summary (and a little bit of commentary) on the four most important cases (and a bonus one).
Argued back in December, this is the much-anticipated dual sovereignty doctrine case. In plain English, can a state and the federal government try you for the same offense without violating the Double Jeopardy Clause of the Fith Amendment? By a vote of 7-2, the answer (as it has been for 170 years) is “yes”.
I posted about this case here and here. Much of the fireworks in the opinions had more to do with stare decisis–the role of precedent–than double jeopardy. (You can see my post on stare decisis here). The dissenters were Ginsburg and Gorsuch. Ginsburg has long been a critic of the dual sovereignty doctrine, and Gorsuch tipped his hand at the oral argument.
Gamble. who was tried by Alabama and the federal government for the same firearm offense, argued that there is no basis for the dual sovereignty doctrine in the Constitution, it does violate the Duble Jeopardy Cause and the fact that it has been around for 170 years is no reason to keep it.
The majority opinion, written by Justice Alito, gave very short shrift to Gamble’s arguments, finding them “flimsy”. The majority found not only that there were insufficient arguments for overturning 170 years of precedent, but there were, in fact, good reasons for allowing two separate sovereigns (state and federal, federal and a foreign government) to try someone for the same offense. For example, suppose someone was tried by a foreign power and the United States did not have confidence in that country’s judicial system?
Although Justice Thomas joined in the majority opinion but filed a concurring opinion that got a lot of people talking. As Amy Howe put it:
Thomas joined Alito’s opinion, but he filed his own concurring opinion that focused on what he described as the “proper role of stare decisis.” Thomas’ view appeared starkly different from the majority’s, as he explained that, “if the Court encounters a decision that is demonstrably erroneous—i.e., one that is not a permissible interpretation of the text—the Court should correct the error, regardless of whether other factors support overruling the precedent.” Perhaps with an eye toward upcoming battles over issues like abortion, Thomas lamented that “proponents of stare decisis tend to invoke it most fervently when the precedent at issue is least defensible,” and he lamented that the doctrine of stare decisis “has had a ‘rachet-like effect,’ cementing certain grievous departures from the law into the Court’s jurisprudence.”
You can see why this opinion was a red flag to many. This goes to show that in many cases, the opinions written may be far more important–and telling–than the result reached.
Those who had hoped that this case would clarify the law of the Establishment Clause did not (in my view) get their wish. The 40-foot tall Bladensburg (MD) cross, a monument to World War I dead, was on private land when it was erected in 1925. Over time, the land came to be owned, along with the Latin (Christian) cross, by the Maryland-National Park and Planning Commission. Can a religious symbol be maintained by the government without violating the Establishment Clause, especially when it is an explicitly Christian symbol?
Do not let some news stories mislead you (not that they are trying). On one level, the vote was 7-2 to allow the cross to remain on public land and be maintained by the state. Sounds like a clear case. But if you look at the opinions, five justices could not agree on one opinion. So there were seven: one dissent (Justice Ginsburg joined by Justice Sotomayor) and six others that argued in one way or another that the cross can stay where it is.
As one can easily see, and as I posted before (on plurality opinions), there really is only a result, not an opinion, in this case. This only scratches the surface; 87 pages of opinions have a lot to say about the Establishment Clause and the tests that inform it. Interested readers can forward me questions. My read is that it was allowed to stand primarily (though not exclusively) because of its age and that fact that the symbol of the cross had become more secular (World War I memorial) than religious. Erecting it on public land today would be a very different case.
In a case that sounds like it is something only a lawyer could love, the Court held that a when a government violates the Takings Clause by taking property without just compensation, a property owner may bring a Fifth Amendment claim under 42 U. S. C. §1983 (a civil right statute) at that time. The property owner does not have to work his way through the state courts first. The state-litigation requirement of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City is overruled, in a 5-4 opinion by Chief Justice Roberts. Justice Thomas filed a concurring opinion. Justice Kagan filed a dissenting opinion, in which Justices Ginsburg, Breyer, and Sotomayor joined.
Although this did not get a “major case” designation from SCOTUSblog, I would disagree. For starters, Williamson is a 34-year old precedent, a case that has been the benchmark for takings law for over three decades. So stare decisis–precedent–is again front and center, and this time, unlike Gamble, not controlling. Secondly, the ability of property owners to go directly to federal court really upends taking law. TYhis is a major chamge in takings law. And as Miriam Seifter on SCOTUSblog writes:
To sum it up: The Knick opinion is a win for those who lamented the difficulty local takings plaintiffs faced in accessing federal courts. Local takings plaintiffs may now go directly to federal court, without first proceeding in state court. The theory the Supreme Court relies upon—that a constitutional violation is complete at the time property is taken, even if mechanisms are available to seek compensation—may have other implications for local, state and federal regulators, though the majority emphasizes that regulatory programs are unlikely to be invalidated or enjoined on the basis of today’s ruling. Finally, the opinion provides another round of debate within the court about the meaning of stare decisis, now and going forward.
Stare decisis is alive and well in the Supreme Court, with surely more to come.
Maybe this case should not be “major”. And if you believe Justice Kavanaugh, who wrote the opinion for a 7 member majority, it is merely an application of a 1986 Supreme Court precedent. And it was. But when you consider the facts of the case and remember that it is 2019, well, I will let you decide:
In 2010, Curtis Flowers stood trial for the 1996 murders of four people in a Mississippi furniture store. The local district attorney, Doug Evans, who is white, struck five of the six potential black jurors in the jury pool, resulting in a jury with just one black member. Flowers was convicted and sentenced to death….the Supreme Court threw out Flowers’ conviction, with seven justices agreeing that the jury selection in his case violated the Constitution.
The court’s opinion, written by Justice Brett Kavanaugh…depicted Flowers’ case as one that broke “no new legal ground.” Instead, the court characterized the ruling as a fairly straightforward application of the Supreme Court’s 1986 ruling in Batson v. Kentucky, holding that prosecutors cannot discriminate based on race when using their peremptory strikes, which allow them to remove jurors without providing a reason, to what they described as the “extraordinary facts” of Flowers’ case….
In the first four trials, Evans “tried to strike all 36” black prospective jurors. “The State’s relentless, determined effort,” Kavanaugh concluded, “to rid the jury of black individuals strongly suggests that the State wanted to try Flowers before a jury with as few black jurors as possible, and ideally before an all-white jury.” Such a history, Kavanaugh stressed, cannot be ignored when considering Evans’ intent going into Flowers’ sixth trial.
At Flowers’ sixth trial, Kavanaugh continued, Evans struck five of the six prospective black jurors. Kavanaugh acknowledged that Evans allowed one black juror to sit on Flowers’ jury, but he noted that in a 2005 case the Supreme Court suggested that a Texas prosecutor might have accepted a black juror to camouflage a general opposition to seating black jurors. “The overall record of this case,” Kavanaugh wrote, “suggests that the same tactic may have been employed here,” creating more evidence that Evans intended to discriminate against black jurors.
And then there is this:
Justice Clarence Thomas dissented…He alleged that the case didn’t meet the justices’ traditional criteria for granting review, and he seemed to suggest that the justices might have taken up the case because it hailed from the south – which, quoting an opinion from Justice Antonin Scalia, he described as a “familiar object of the Court’s scorn” – or because of the media attention that the case had garnered. But in any event, Thomas continued, prosecutors had good reasons – that had nothing to do with race – for striking the five black jurors at Flowers’ final trial. And to the extent that the court relied on the prosecution’s conduct at Flowers’ earlier trials, Thomas added, that story “might make for an entertaining melodrama, but it has no basis in the record.”
Mississippi Attorney General Jim Hood also issued a statement that left open the possibility that Evans could try Flowers again. Hood indicated that when the case returns to Mississippi, “it will be the duty of the district attorney” – Evans – “to re-evaluate the case. If the decision is to retry the case,” Hood said, he is “confident the Court’s guidance will be followed.”
We’ll see. This one is not over.
And one more…
Holding: The Lanham Act [the act that regulates copyrights and trademarks] prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment.
FUCT streetwear can be registered as a trademark.
In a 6-3 ruling, the Supreme Court today struck down a provision of the Lanham Act that prohibited trademark registration for marks deemed “immoral” or “scandalous.” This is a win for Eric Brunetti, whose trademark for a streetwear brand, FUCT, had been rejected on these grounds. The case follows the court’s 2017 decision in Matal v. Tam, which invalidated a ban on registration for disparaging trademarks on the same basis; the winner there was an Asian dance band who wanted to be called “The Slants” and wanted that registered as a trademark. The disparagement bar had allowed trademark owners to register a mark that was positive about a person but denied registration to derogatory marks.
The three votes were not pure dissents; they were “concurring in part, dissenting in part”. Put simply, Justices Breyer, Sotomayor, and Chief Justice Roberts would not have affirmed the lower court; they would have not allowed the registration of FUCT. Anyone can use a trademark, they argued, they just cannot register it, and the government has an interest in not being associated with vulgar or obscene speech, though this does not apply to “immoral” speech, which all nine Justices agreed could amount to viewpoint bias in violation of the First Amendment.
Yes, distinctions do get that fine at the Supreme Court.
Multiple Justices asked Congress to write a better Lanham Act.
And no, “FUCT’ was not uttered during the reading of the majority opinion.
Children were present.
Eight more opinions to come this week.