(Supreme Court conference room. Photo credit: Supreme Court of the United States).
After one of the slowest starts in history, the Supreme Court has finally started to issue opinions. Only three were issued before the end of 2019, and only two in January. Of these, two were per curiam opinions (“by the court” unsigned opinions) and two were unanimous. None of them was anything like a major case. It was not until late February that opinions on major cases started to appear.
How slow, you might ask? Well, the Empirical SCOTUS blog, which is the go-to place for every statistic, graph, and chart you can imagine, puts it like this:
If the Supreme Court decides all cases already orally argued this term along with the ten additional cases slated for argument in May by signed decisions, the number of decisions for OT 2019 [October Term 2019] will reach 56. Even with several recent terms where the justices’ opinion output dipped to historic lows, 56 signed decisions would be the fewest since 1862 and prior to the blip due to the Civil War it would be the fewest since 1849.
(I recommend Empirical SCOTUS for all you data geeks out there. There really is nothing else like it).
This post will summarize the major cases which have appeared in this blog before, as well as one that has not. If you want to see all the opinions, you can check them out at the Supreme Court website or on SCOTUSblog by clicking the “Merits Cases” tab and looking under “October Term 2019” and click on the cases that have been decided.
The first major case (although that term is subject to disagreement) to be decided came down yesterday (April 20). The Court decided Ramos v. Louisiana, holding 6-3 that the Sixth Amendment right to a jury trial, as incorporated against the states, requires a unanimous verdict to convict a defendant of a serious offense.
It sounds more major than it is. Unanimous jury verdicts have been required in federal criminal cases since the 1972 decision in Apodaca v. Oregon, But Apodaca was a 4-1-4 vote, and it did not hold those unanimous juries were required in state criminal trials. Nevertheless, 48 states require unanimity; only Oregon and Louisiana do not (and since 2019 it’s only Oregon). So, in terms of affecting state criminal procedure, it’s very limited, although it could lead to retrials of defendants in Oregon and Louisiana who were convicted by non-unanimous juries.
The disagreement was not about the result (6-3) but how to get there. The actual vote was more like 5-1-3, with Justice Thomas being the “one” (disagreeing on which part of the 14th Amendment controls incorporation). And the majority opinion was itself very fractured; you can look at the fracture here. And the real arguments centered around whether Apodaca should be overruled (it was) and whether in fact it was a precedent at all (the lead opinion, written by Justice Gorsuch, said it was not, but only gained two other votes, Justices Ginsburg and Breyer). Again, it’s the role of precedent and stare decisis. You can read my post on this issue here and my post about fractured and plurality opinions here.
Ramos then is more significant for how the Justices view precedent than for the actual decision, disagreements that are sure to resurface in the abortion arena.
And now for the other decided cases:
Hernandez v. Mesa, No. 17-1678 [Arg: 11.12.2019 Trans./Aud.; Decided 2.25.2020]
Holding: The holding in Bivens v. Six Unknown Federal Narcotics Agents does not extend to claims based on a cross-border shooting.
In a case closely watched by both criminal and immigration lawyers, 15-year-old Sergio Hernandez was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, while Hernandez was playing on the Mexican side of the border. The Hernandez family filed a lawsuit in federal court, seeking to hold Mesa responsible for their son’s death. The Supreme Court, by a vote of 5-4, held that the lawsuit cannot go forward.
Amy Howe has a complete analysis of the case here. In addition to the tragedy of the case itself and the ongoing criticism of the Border Patrol’s conduct. the status of Bivens was front and center. A 1971 case that allowed a suit for money damages against federal officials for violating the Constitution, its expansion was strictly limited (some said eliminated) by the Court’s 2017 decision in Ziglar v. Abbasi, which held that the Bivens remedy should not be extended to a “new context” when there are “special factors counseling hesitation” and Congress has not affirmatively authorized a suit for damages. That was the line of reasoning the majority followed in Hernandez. Justice Ginsburg in her dissent noted that “[r]ogue U.S. officer conduct” is a familiar, not new, setting, and nothing counsels against a Bivens remedy.
Given the makeup of the Court, any expansion of Bivens style remedies will have to come from Congress.
Kahler v. Kansas, No. 18-6135 [Arg: 10.7.2019 Trans./Aud.; Decided 3.23.2020]
Holding: Due process does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong. As Amy Howe wrote:
Until 1979, every jurisdiction in the United States allowed mentally ill defendants to assert what was traditionally regarded as an insanity defense – that is, to argue that because they did not understand that their actions were wrong, they cannot be held criminally responsible for those actions. Since then, five states, including Kansas, have abolished that defense. Today, by a vote of 6-3, the Supreme Court ruled that a state’s failure to allow a mentally ill defendant to raise such a defense does not violate the Constitution.
The majority opinion was written by Justice Kagan; Justice Breyer wrote a dissenting opinion joined by Justices Ginsburg and Sotomayor.
While this opinion only affects five states, there is some thought that it may encourage other states to follow Kansas’ lead.
I will be posting separately on this case and the insanity defense.
Allen v. Cooper, No. 18-877 [Arg: 11.5.2019 Trans./Aud.; Decided 3.23.2020]
Holding: Congress lacked authority to abrogate the states’ sovereign immunity from copyright infringement suits in the Copyright Remedy Clarification Act of 1990.
Regular readers will remember that this case arose from the discovery of Blackbeard’s flagship, Queen Anne’s Revenge, off the North Carolina coast. Frederick Allen and his company 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 by displaying some of their photographic work online without Allen’s permission. The state countered that it could not be sued in federal court because it is immune from suit under the 11th Amendment.
The Supreme Court unanimously ruled that Congress could not abrogate a state’s 11th Amendment immunity. This is another example of the dangers of predicting the outcome of a case based on the oral argument, which many observers thought did not go at all well for North Carolina.
Mathena v. Malvo, No. 18-217 [Arg: 10.16.2019 Trans./Aud.]
My post on this case can be found here.
The case was dismissed on February 26 after both parties to the case asked the Court to dismiss it. A new law passed in Virginia allows juvenile offenders to apply for parole after serving 20 years of their life sentence. Since the sentencing structure challenged by Malvo (life without parole for juveniles) no longer exists in Virginia, there was no point in the Court deciding the case. Note, however, that Malvo is still challenging his life without parole sentence in Maryland, so this issue could be at the Court again.
And one case I did not post on, but a long-time reader asked about:
Comcast Corp. v. National Association of African American-Owned Media, No. 18-1171 [Arg: 11.13.2019 Trans./Aud.; Decided 3.23.2020] Full analysis from Amy Howe here.
Holding: A plaintiff who sues for racial discrimination in contracting under 42 U.S.C. § 1981 bears the burden of showing that race was a but-for cause of the plaintiff’s injury, and that burden remains constant over the life of the lawsuit. The ruling was unanimous.
I would say that this opinion could be a sleeper, in the sense that it will come around again. The issue is whether one must show, to prove racial discrimination in contracting, that race was the “but-for” cause–that is, that the defendant would have made a different contracting decision were it not for the plaintiff’s race–or showing that race was one of several motives, what is called “mixed-motive” causation. The Court has been chipping away at the “mixed-motives” causation standard since it was first set out in the employment context in Price Waterhouse v. Hopkins (1989), holding that it is not available for age discrimination and retaliation suits under Title VII. With this unanimous opinion stating that “but-for” causation applies to contracting cases, it’s even more chipping.
Civil rights advocates are understandably worried, for the result and the 9-0 vote.
That’s all for now. Opinions may be coming this Thursday (April 23). I’ll keep you updated on the big ones.
And as always, ask questions and comment.