2020: What We Have To Look Forward To

(Supreme Court conference room. Photo credit: Supreme Court of the United States).

Well, 2020 is here, I have finally stopped writing appellate briefs (for a while), and so it is well past time to update this blog. What better topic than the present term of the Supreme Court, details of which have been obscured by other news. The good news: no major cases have been decided (in fact, only one).

The other news: there are plenty of major cases pending that have been argued and more that have been accepted but not argued, plus any cases for which the Court has yet to grant review that could be argued this term. This posting will be a guide to the first set of cases (and by no means all of them), with a brief summary of each. As each one is decided, I will detail the decision and its rationale. As you can see, that will keep this blog going well into June.

(A note about the other big legal issue: impeachment. There is nothing I could write that has not been written on this subject, and I trust my readers have kept up on the news, but I do want to say two things. First, if you have any questions about impeachment, please ask. If I don’t know the answer, I’ll be sure to find it, or at least the reasonable alternatives. Second, I cannot recommend too highly Neal Katyal’s book Impeach: The Case Against Donal Trump. You could not ask for a shorter, yet clear and  detailed book not only on the case against Trump but on the history of impeachment and how the impeachment process works.)

October Sitting

A “sitting” is made up of the cases heard at oral argument during a month. All links are to SCOTUSblog. Every case listing has a link to the SCOTUSblog postings on that case, the docket number (which takes you to all the documents and orders in the case), and both the transcript and (where available) the audio of the oral argument. So if there is a case that really sparks your interest, it’s all readily available.

The Court really hit the ground running in October. They started off with Kahler v. Kansas, No. 18-6135 [Arg: 10.7.2019 Trans./Aud.] which has a simply stated but enormously consequential issue: whether the Eighth and 14th Amendments permit a state to abolish the insanity defense. As Amy Howe points out, “Kansas is one of only five states that have abolished the insanity defense, so a ruling for Kahler may not have a widespread effect. On the other hand, a ruling for Kansas might prompt more states to consider abolishing the insanity defense and adopting a rule similar to the Kansas law,” which had replaced the insanity defense with a new law that allows a defendant to argue that, because of mental illness, he could not have intended to commit the crime but makes clear that mental illness “is not otherwise a defense”: mental illness mitigates, but does not eliminate, criminal liability.

That same day, the Court heard arguments in Ramos v. Louisiana, No. 18-5924 [Arg: 10.7.2019 Trans./Aud.] The issue here is whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict. (For a discussion of the basics of the incorporation doctrine, see this article from LII, though it needs updating to reflect last term’s decision in Timbs v. Indiana.) This case also involves a topic we see quite often: stare decisis, or the power of legal precedent. (You can read my post about it here). In 1972, in Apodaca v. Oregon, the court ruled that the Sixth Amendment guarantees a right to a unanimous jury, but that such a right does not extend to defendants in state trials. Four justices would have ruled that the Sixth Amendment does not require a unanimous jury at all, while four others would have ruled that the Sixth Amendment establishes a right to a unanimous jury that applies in both state and federal courts. Justice Lewis Powell provided the controlling vote: He believed that the Sixth Amendment requires a unanimous jury for federal criminal trials, but not for state trials.

Amy Howe’s report of the oral argument makes it clear that there were a lot of tough questions of both attorneys from all of the Justices (except Justice Thomas, who virtually never asks a question) focusing on both the Apodaca case and what could happen if it is overruled. (Only Louisiana and Oregon have the non-unanimous jury rule). A ruling in favor of Ramos could expand the incorporation of the Sixth Amendment; a ruling for Louisiana would reaffirm Apodaca. The court’s decision to take up this appeal and the oral argument suggests that the justices may be ready to strike down the non-unanimity rule once and for all, but the broader ongoing dispute over the importance of adhering to precedent is clearly in play, especially for controversial issues like abortion rights.

The next day the Court heard arguments in three Title VII cases R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, No. 18-107 [Arg: 10.8.2019 Trans./Aud.], Bostock v. Clayton County, Georgia, No. 17-1618 [Arg: 10.8.2019 Trans./Aud.] and Altitude Express Inc. v. Zarda, No. 17-1623 [Arg: 10.8.2019]. Along with the DACA cases, the Affordable Care Act cases and everything Trump-related, these are the most anticipated cases of the term.  All have to do with whether Title VII of the Civil Rights Act prohibits discrimination based on sexual orientation (LGBTQ) or sexual identity (transgendered status). In order, the issues are: (1) whether Title VII prohibits discrimination against transgender people based on (1) their status as transgender or (2) sex stereotyping under Price Waterhouse v. Hopkins ; (2) whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of . . . sex” within the meaning of Title VII of the Civil Rights Act of 1964; and (3) whether the prohibition in Title VII of the Civil Rights Act of 1964 against employment discrimination “because of . . . sex” encompasses discrimination based on an individual’s sexual orientation. A lot of the arguments, and we can guess a lot of the eventual opinions, turn on the phrase “because of. . . sex”. There were several points in the oral arguments where Justice Gorsuch seemed to side with the more liberal justices based on his commitment to what is called “textualism”, which basically means the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as the intention of the law when passed or the problem it was intended to remedy. Of course, it is risky to base any predictions on oral arguments. A decision on these cases is not expected until late in the term. The impact of these cases cannot be overemphasized.

Mathena v. Malvo, No. 18-217 [Arg: 10.16.2019 Trans./Aud.]
This case brings up a terrible memory for many.  In the fall of 2002, John Allen Muhammad and Lee Boyd Malvo terrorized the Washington, D.C., metropolitan area. Dubbed the “D.C. snipers,” Muhammad and Malvo randomly shot and killed 12 people and badly injured six more. Muhammad was sentenced to death and executed in 2009, while Malvo – who was only 17 at the time of the shootings – was sentenced to life in prison without the possibility of parole. The Supreme Court must decide whether a pair of decisions from 2012 and 2016, involving life sentences for juveniles, require Malvo to be resentenced.  In 2012, in a case called Miller v. Alabama, the Supreme Court announced that mandatory life-without-parole (LWOP) sentences for defendants who were under the age of 18 when they committed their crimes violate the Eighth Amendment’s ban on cruel and unusual punishment. Four years later, in Montgomery v. Louisiana, the court ruled that Miller’s ban on life-without-parole sentences applies retroactively to convictions that had become final before Miller was decided. The key question in Wednesday’s oral argument is how broadly those decisions apply. The constitutionality of LWOP sentences for juveniles under the Eighth Amendment has bedeviled the court twice previously. Such sentences have been declared unconstitutional when mandatory, but not when discretionary. In other words, you can decide to sentence a juvenile to LWOP as one of a set of sentencing options; you cannot make it mandatory with that as the only option.  This case will examine what exactly that means.

Malvo – who admitted that he had been the “triggerman” in several of the shootings – went to the federal district court in Virginia, seeking a ruling that his sentences were unconstitutional (Miller and Montgomery were not decided before his trial). The district court agreed, and the U.S. Court of Appeals for the 4th Circuit upheld that decision. It reasoned that although Miller and Montgomery had both involved mandatory life-without-parole sentences, the Supreme Court in Montgomery had made clear that the Constitution more broadly “bars life-without-parole sentences for all but those rare juvenile offenders whose crimes reflect permanent incorrigibility.” Therefore, the court of appeals concluded, although the “crimes committed by Malvo and John Muhammad were the most heinous, random acts of premeditated violence conceivable,” Malvo should be resentenced because the jury and judge had not considered whether a less severe sentence might be more appropriate in light of Malvo’s youth. Virginia asked the Supreme Court to review that ruling. The oral argument had a bit of a surprise in that the swing vote might well be Justice Kavanaugh. Time will tell.

November Sitting

Allen v. Cooper, No. 18-877 [Arg: 11.5.2019 Trans./Aud.]

Issue: Whether Congress validly abrogated state sovereign immunity via the Copyright Remedy Clarification Act in providing remedies for authors of original expression whose federal copyrights are infringed by states.

Think copyright law is boring? Well, the law itself might be (confession: I think it is fascinating, but that’s just me) but the facts behind the cases are anything but. So I’ll just repost what I wrote when the case was originally granted:

Take this case. It involves videos and photos of the salvage of Blackbeard’s flagship, Queen Anne’s Revenge.  I’ll let Amy Howe tell the tale:

In Allen v. Cooper, the justices will consider whether Congress had the power to repeal the states’ immunity from lawsuits for copyright infringement when it enacted the Copyright Remedy Clarification Act.

The case arises from the discovery of Blackbeard’s flagship, Queen Anne’s Revenge, off the North Carolina coast. Frederick Allen and his company, Nautilus Productions, filmed the shipwreck and registered copyrights for the videos and photos that they created; in 2015, they filed a lawsuit claiming that North Carolina had violated their copyrights. The state countered that it could not be sued in federal court, and the U.S. Court of Appeals for the 4th Circuit agreed. The 4th Circuit ruled that the CRCA had not validly repealed the immunity granted to the states by the 11th Amendment.

Allen asked the justices to weigh in, telling them that, unless the Supreme Court intervenes, the “creators of original expression will be left without remedy when States trample their federal copyrights.”

As Howard Wasserman put it in his analysis of the oral arguments, “Blackbeard went unmentioned in Tuesday’s arguments in Allen v. Cooper. But the justices plundered North Carolina’s argument that it enjoyed sovereign immunity from suit for damages for copyright infringement.” It is not looking good for Noth Carolina.

The DACA Cases.

The statement of the issues sums up these cases. As Amy Howe began her summary of the oral arguments,

It has been more than two years since the Trump administration announced that it would end the Deferred Action for Childhood Arrivals program, known as DACA, an Obama-era policy that allows undocumented young adults who came to the United States as children to apply for protection from deportation. Today the Supreme Court heard oral argument in a set of challenges to the Trump administration’s decision. After roughly 80 minutes of debate in a packed courtroom, before an audience that included politicians and dozens of DACA recipients, it wasn’t clear how the case is likely to turn out. Several justices appeared concerned that the Trump administration’s decision-making process had not adequately considered the effects of rescinding DACA, but on the other hand they weren’t necessarily convinced that sending the case back for a do-over would actually make much of a difference.

The stakes in today’s oral argument were high. Since the policy was announced in 2012, over 700,000 people have obtained protection from deportation under DACA, which permits them to work legally in the United States and also gives them access to benefits like health insurance and driver’s licenses. The challengers in three cases argued together today – originally filed in California, the District of Columbia and New York – contended that the Trump administration’s decision to end DACA violated the Administrative Procedure Act, which is the federal law governing administrative agencies, and the lower courts ordered the government to keep DACA in place

These cases will not be decided quickly, with the possible exception of a majority of the Court agreeing the cases need to be sent back, an unlikely outcome.

Hernandez v. Mesa, No. 17-1678 [Arg: 11.12.2019 Trans.]

Issue(s): Whether, when the plaintiffs plausibly allege that a rogue federal law-enforcement officer violated clearly established Fourth and Fifth amendment rights for which there is no alternative legal remedy, the federal courts can and should recognize a damages claim under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics.

This case has, in my mind, has not received the attention it deserves. It involves the U.S.-Mexico border, an allegedly rogue Border Patrol agent, and the death of a 15-year old boy. Here is the story.

For the second time in less than three years, the family of Sergio Hernandez was at the Supreme Court. In 2010, Sergio – who was then 15 years old – was on the Mexican side of the U.S.-Mexico border when he was shot and killed by a U.S. Border Patrol agent, Jesus Mesa. The Hernandez family filed a lawsuit against Mesa in federal court in Texas, arguing that Mesa had used excessive force against Sergio, which violated Sergio’s rights under the Fourth and Fifth Amendments to the U.S. Constitution. The dispute now before the Supreme Court centers on whether the family’s lawsuit can go forward.

As pointed out in the statement of the issues, the Hernandez family’s case hinges on a 1971 case named Bivens v. Six Unknown Named Agents, in which the Supreme Court allowed a lawsuit seeking money damages from federal officials for violating the Constitution to go forward. When the family’s case was at the Supreme Court for the first time in 2017, the justices sent it back to the lower court for another look in light of their decision that term in a case brought against federal officials by Middle Eastern men who were in the United States illegally and were detained after the September 11 attacks. In that case, Ziglar v. Abbasi, the court concluded that a Bivens remedy should not be extended to a “new context” when there are “special factors counseling hesitation” and when Congress has not affirmatively created such a remedy. Ziglar was decided by a six-member Court on a 4-2 vote (Justices Sotomayor, Kagan and Gorsuch took no part in the decision) and it was written by the now-retired Justice Kennedy. The 5th Circuit followed Ziglar and the Hernandez family is at the Supreme Cout again.

Justices Alito and Thomas and Chief Justice Roberts remain from the Ziglar majority, Justice Gorsuch can participate in this one, and Justice Kennedy was replaced by the admittedly more conservative Justice Kavanaugh. And the oft-repeated 5-4 split is just how this case could go.

The decision is anticipated by the summertime.

There are many more cases that you can view on SCOTUSblog for the October, November and December sittings, including a fascinating copyright case form December Georgia v. Public.Resource.Org Inc., No. 18-1150 [Arg: 12.2.2019 Trans./Aud.] (whether the government edicts doctrine extends to—and thus renders uncopyrightable—works that lack the force of law, such as the annotations in the Official Code of Georgia Annotated). Yes, I know, more copyright. But just take a moment and explore; you might find a case you are interested in.

And as always, ask questions! 

The Court is fully back in session tomorrow, January 13., and Ignorantia Legis is right there with them.