Archives for June 2019

Third Interim Stat Pack for October Term 2018

June 26, 2019 by admin Leave a Comment

This is a busy time for the Supreme Court, which is slated to provide decisions in 24 cases over the final two-week span of the term. This equates to over one third of its 69 argued cases with expected decisions. In the court’s last week of business before summer recess, the justices are expected to release 12 decisions, with eight still remaining.

The Supreme Court released its decision in Gundy v. United States last week, 261 days after the case was argued. This is three days longer than the court took last term with Gill v. Whitford and the longest it has taken the court to reach a decision in a case since 1993.

The justices have already written more dissents this term than in either of the past two terms. The leading justice in this category is Justice Stephen Breyer with nine dissents, followed by Justices Sonia Sotomayor and Neil Gorsuch with eight dissents each. Justice Clarence Thomas has written the most majority opinions so far with eight. He has also written the most 5-4 decisions with four. No other justice has written more than two 5-4 decisions so far this term. As I mentioned in a prior post, Thomas will set a record for himself in a term if he writes a fifth 5-4 decision.

Thomas also wrote the most total slip-opinion pages of the justices this term with 267 and the longest opinion this term with his dissent in Flowers v. Mississippi, which runs 42 pages.

The 5-4 decision coalitions look very different this term from last. With 16 of these decisions so far, the five more conservative justices (Chief Justice John Roberts, Thomas, Justice Samuel Alito, Gorsuch and Justice Brett Kavanaugh) voted together in six cases, while permutations of justices including the four more liberal justices (Justice Ruth Bader Ginsburg, Breyer, Sotomayor and Justice Elena Kagan) voted together in seven. This is quite a difference from OT 2017, when the five more conservative justices (with Justice Anthony Kennedy instead of Kavanaugh) voted together in 14 of the court’s 19 5-4 decisions, and the more liberal ones only voted together in the majority in three.

A few points are worth noting from the Justice Agreement Table. The justices with the highest agreement in full, part or judgment only are Roberts and Kavanaugh at 93 percent. By comparison the two newest justices, Gorsuch and Kavanaugh, were in agreement 72 percent of the time. The lowest agreement level is a tie between Thomas and Kagan, Sotomayor and Breyer each, at 53 percent apiece.

As usual, the Supreme Court has saved some of its biggest decisions for release in the final days of the term, including in the census and partisan-gerrymandering cases. After the final decisions of the term are released, we will have to wait until October before the court starts hearing arguments again in a new slate of cases, 37 of which have already been granted for next term, for a total of 29 arguments.

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Government responds in census case; 4th Circuit remands Maryland case for more fact-finding (Updated)

June 25, 2019 by admin Leave a Comment

Editor’s Note: This post, originally published at 3:45 p.m., was updated at 5:30 p.m. to reflect the government’s latest submission to the court.

The Supreme Court is expected to rule on the challenge to the Trump administration’s decision to include a question about citizenship on the 2020 census by the end of the week. But even as the justices presumably push to finalize their opinion in the case, new developments – both at the Supreme Court and elsewhere – relating to the discovery of new evidence could make their task more complicated.

Today the government responded to yesterday’s filing by lawyers for the civil-rights groups challenging the use of the question. In a letter from Dale Ho of the ACLU, the groups notified the justices that a federal district judge in Maryland had ruled that new evidence discovered in the files of Thomas Hofeller, a Republican redistricting strategist, had created a “substantial issue” about whether Secretary of Commerce Wilbur Ross had intended to discriminate against Hispanic voters. Although the Maryland case had been pending in the U.S. Court of Appeals for the 4th Circuit, the judge in that case, George Hazel, indicated that, if the case were returned to him, he would fast-track the Maryland plaintiffs’ discrimination and civil-rights claims. Moreover, the groups added, a new study by the Census Bureau suggested that, if the citizenship question is included on the 2020 census, the effect on the response rate for households with residents who are not U.S. citizens will be more significant than previously believed.

The government pushed back, telling the justices in a letter that the “changed circumstances” outlined in the challengers’ letter should not affect the Supreme Court’s ruling on either the merits or the challengers’ motion to send the case back to the lower court for more fact-finding. The recent ruling by the Maryland district court, Solicitor General Noel Francisco argued, suffers from the same problem as the challengers’ other filings since the oral argument: It “is based on a speculative conspiracy theory that is unsupported by the evidence and legally irrelevant to demonstrating that” Secretary of Commerce Wilbur Ross added the citizenship question because he intended to discriminate against Hispanics. And although it is not relevant to the merits of this case for a variety of reasons, the Census Bureau paper that the challengers cite does not reflect the bureau’s official position, Francisco noted.

Shortly after the government submitted its letter to the Supreme Court, the 4th Circuit sent the Maryland case back to the district court for it to consider the Maryland plaintiffs’ discrimination and civil-rights claims in light of the new evidence. In a concurring opinion, Judge James Wynn observed that the government has emphasized the need to finalize the census questionnaire by Sunday, June 30. If the district court isn’t going to decide the plaintiffs’ claims by then – which, Wynn wrote, “appears highly likely” – it might want to consider whether to temporarily block the government from putting the citizenship question on the census until the issues are finally resolved, Wynn suggested. Otherwise, Wynn contended, if the government were to go ahead and start printing the questionnaire forms, the case would be moot.

This afternoon the government responded to the 4th Circuit’s order with another letter to the Supreme Court. Francisco urged the justices to resolve both the question whether Ross intended to discriminate against Hispanic voters and the dispute about the relevance of the new evidence in their upcoming opinion. If, as Wynn had suggested, the district court in Maryland were to temporarily block the government from including the citizenship question on the census while it conducts more fact-finding, the government argued, the justices would inevitably have to resolve these issues one way or the other, so it would make more sense to do it now, rather than on an emergency basis in the Maryland case.

The justices are expected to issue opinions tomorrow at 10 a.m. There is no way to know whether the census case will be one of them.

This post was originally published at Howe on the Court.

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From 12 to 8: Final countdown at the Supreme Court

June 25, 2019 by admin Leave a Comment

In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court reviews Monday’s Supreme Court orders and opinions. The justices released their decisions in four argued cases: Iancu v. Brunetti, United States v. Davis, Food Marketing Institute v. Argus Leader Media and The Dutra Group v. Batterton. The justices also granted review in eight cases, for a total of five hours of oral argument. The Supreme Court will release decisions in more of its eight remaining cases on Wednesday, June 26.

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Challengers notify justices about additional developments in census case

June 25, 2019 by admin Leave a Comment

The Supreme Court is expected to rule any day now on the legality of the Trump administration’s decision to include a question about citizenship on the 2020 census. Despite that looming deadline, the wrangling over new evidence, some of which was discovered in the files of a Republican redistricting specialist, continued today, with lawyers for the challengers notifying the justices about new developments outside the Supreme Court.

The justices heard oral argument in the case in late April. At the end of May, the challengers notified the Supreme Court about new evidence that, they said, demonstrated that the strategist – Thomas Hofeller, who died last year – was involved in the decision to add the citizenship question to the census. The evidence, the challengers argued, showed that the government wanted to add the citizenship question to give an advantage to whites and Republicans in upcoming elections – not, as the government has long maintained, to better enforce federal voting-rights laws.

Earlier this month, the challengers asked the Supreme Court to put off its ruling on the citizenship question in light of the new evidence. Instead, they contended, the justices should send the case back to the district court for it to look at whether government officials shared Hofeller’s motives. The government resisted, calling the challengers’ suggestion a “conspiracy theory” that is “implausible on its face.” The justices need to resolve the legality of the citizenship question by the end of June, the government stressed, so that the Department of Commerce can finalize the census questionnaire and start printing the forms.

With no sign of any action on the challengers’ request, today the challengers returned to the Supreme Court to inform the justices about two more developments. A federal judge in Maryland, explained lawyer Dale Ho of the ACLU, ruled that the new evidence had created a “substantial issue” about whether Secretary of Commerce Wilbur Ross had intended to discriminate against Hispanic voters. Although the case is now pending in the U.S. Court of Appeals for the 4th Circuit, U.S. District Judge George Hazel indicated that if it were sent back to him, he would move quickly to rule on the Maryland challengers’ discrimination and civil-rights claims.

The challengers also told the justices about a new Census Bureau paper that indicates that the effect of including the citizenship question on responses by households with residents who are not U.S. citizens will be more significant than previously believed.

The justices will take the bench to release opinions again on Wednesday morning at 10 a.m. There is no way to know whether the census case will be one of those opinions or – if it is not – when the decision will be released.

This post was originally published at Howe on the Court.

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Opinion analysis: Long-time prohibition on registration of scandalous and immoral trademarks is struck down

June 25, 2019 by admin Leave a Comment

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 disparagement bar had allowed trademark owners to register a mark that was positive about a person, but denied registration to derogatory marks.

Justice Kagan with opinion in Iancu v. Brunetti (Art Lien)

Writing for the majority, Justice Elena Kagan found that the “immoral or scandalous” bar discriminated on the basis of viewpoint and violated the First Amendment: “It distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint discriminatory application.” Justices Ruth Bader Ginsburg, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined the majority opinion.

No one seemed to like the statute in its current form, although the justices expressed some discomfort with getting rid of it entirely, both during oral argument and in the Supreme Court’s divided opinions. For its part, the government argued that if the statute were upheld, it would interpret the provision more narrowly going forward. The government agreed that the statute as it has been interpreted incorporates viewpoint bias, yet suggested that the “immoral or scandalous” bar is capable of being limited in a way that would remove such bias — for example, by narrowing it to marks that are offensive or shocking because of their mode of expression, independent of viewpoint. The majority rejected this argument, noting that although the court may interpret ambiguous statutory language to avoid serious constitutional doubts, this provision was not ambiguous: “To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.”

Justice Stephen Breyer wrote a divided opinion, concurring in the court’s holding that the bar on registering “immoral” marks violates the First Amendment holding but dissenting from that holding as applied to “scandalous” marks. He reasoned that this portion of statute passes First Amendment muster because the harm to the First Amendment interests is proportional in light of relevant regulatory objectives. Under his analysis, the First Amendment harm is limited because trademark owners can still use offensive trademarks, just not register them, and the government has a reasonable interest in not promoting or associating with highly vulgar or obscene speech.

Breyer also joined Justice Sonia Sotomayor’s divided opinion. Sotomayor was particularly concerned about outcomes from the decision, including a likely “rush to register” offensive marks and the “Government’s powerlessness to say no.” To avoid these problems, Sotomayor proposed separating “scandalous” and “immoral,” eliminating the “immoral” prong, and construing “scandalous” narrowly. In Sotomayor’s view, the majority opinion collapsed the two concepts. Standing alone, the term “scandalous” need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expression — marks that are obscene, vulgar or profane.

Multiple justices explicitly raised or alluded to the possibility that Congress could move forward with a more carefully focused statute that does not discriminate on the basis of viewpoint. In a concurrence, Justice Samuel Alito noted that the Supreme Court’s role is limited and it cannot substitute a new statute in place of this one as it is written. In particular, his concurrence explicitly stated that new legislation could preclude registration of marks that contain terms that “play no real part in the expression of ideas.” Chief Justice John Roberts also focused on narrower statutory language in his divided opinion. Roberts commented that the government is not required to “give aid and comfort to those using obscene, vulgar, and profane modes of expression.” And in his opinion, Breyer asserted that the statute would not discriminate based on viewpoint if it prohibited registration of only highly vulgar or obscene words.

In light of the decision in Tam, today’s outcome seemed the most likely one. To hold otherwise could have produced an anomalous situation in which the only types of “offensive” trademarks that could be registered are ones that disparage particular individuals or groups of people. And although Alito lamented that the “registration of such marks serves only to further coarsen our popular culture,” whether or not Congress steps in at this point remains to be seen.

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Opinion analysis: Punitive damages not available under general maritime law in personal-injury unseaworthiness action

June 25, 2019 by admin Leave a Comment

In a decision implicating two of its recent admiralty precedents and its role in fashioning general maritime law more generally, the Supreme Court today held 6-3 that a seaman cannot recover punitive damages for injuries allegedly caused by the unseaworthiness of a vessel to which he was assigned.

Justice Samuel Alito rested his majority opinion largely on the absence of a “historical basis for allowing punitive damages in unseaworthiness actions” and “to promote uniformity with the way courts have applied parallel statutory causes of action.” That formulation allowed Alito to reconcile the two precedents, the 2009 decision in Atlantic Sounding Co. v. Townsend and the 1990 opinion in Miles v. Apex Marine Corp. In the process, Alito, who had written a forceful dissent in Atlantic Sounding, was joined in today’s opinion by Justice Clarence Thomas, the author of the majority opinion in Atlantic Sounding, even though Justice Ruth Bader Ginsburg, who had joined Thomas then, argued in dissent that the logic of Thomas’ majority opinion dictated a contrary result.

The Supreme Court had held 5-4 in Atlantic Sounding that punitive damages are available to a seaman for an employer’s willful and wanton disregard of its obligation to pay maintenance and cure, a strict remedy essentially affording a very limited allowance for some living and medical expenses. Christopher Batterton argued in this case that Atlantic Sounding supports allowing recovery of exemplary damages for personal injuries due to a vessel owner’s willful and wanton failure to provide a vessel reasonably fit for its intended purpose, the test for the unseaworthiness action the general maritime law provides.

Yet Miles had held that the estate and survivors of a deceased Jones Act seaman could not recover for nonpecuniary loss under the general maritime-law unseaworthiness doctrine because such relief was unavailable under the Jones Act, a statute that provides a seaman a negligence remedy against his or her employer, modeled on the Federal Employers Liability Act applicable to railroad workers. The Dutra Group argued that the logic of Miles precludes allowing a seaman to recover punitive damages under a general maritime-law unseaworthiness action because the Jones Act and FELA were thought to bar such recovery.

Alito found that “the overwhelming historical evidence” suggests that exemplary damages were unavailable in an unseaworthiness action for personal injuries. The absence of such recovery in “traditional maritime law cases” was “practically dispositive.” The “overwhelming historical evidence” precluded creating “a novel remedy” unless necessary to preserve “uniformity with Congress’s clearly expressed policies,” a formulation drawn from Miles.

The majority also thought the uniformity consideration led to the same result as its historical inquiry. Consistent with his Atlantic Sounding dissent, Alito concluded that long-standing Supreme Court and lower court precedent precluded recovery of punitive damages under FELA and the Jones Act. In Atlantic Sounding, Thomas had relied on “historical evidence” that punitive damages had been available in maintenance-and-cure cases, but the absence of such proof regarding unseaworthiness cases made it unnecessary for the court to revisit the long-standing interpretation of these federal statutes. The situation accordingly did not call on the court to fashion a novel remedy “to maintain uniformity with Congress’s clearly expressed policies.”

Alito was unpersuaded by multiple public-policy arguments raised by Batterton. The Supreme Court’s “overriding objective” in maritime cases is “to pursue the policy expressed in congressional enactments.” Because the Supreme Court had created “unseaworthiness in its current strict-liability form” following the Jones Act, “it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas.” The need for uniformity between maritime common law and maritime statutory law is particularly compelling because unseaworthiness, more than maintenance and cure, resembles and duplicates the Jones Act. Punitive damages are a needed incentive to deter an employer from abandoning an ill or injured seaman in a distant port, but vessel owners have other incentives to avoid unseaworthy conditions. Allowing punitive damages in injury cases would also create various anomalies and would disadvantage American shippers.

Finally, Alito rejected the argument that the doctrine that seamen deserve “special solicitude” justifies a punitive-damages remedy. Alito reasoned that in view of changes in the respective maritime-law roles of the Supreme Court and the political branches and in the position of seamen, “the special solicitude to sailors has only a small role to play in contemporary maritime law,” a statement that seemed at odds with the court’s invocation of that doctrine to “reinforce[]” its decision in Justice Brett Kavanaugh’s majority opinion in Air & Liquid Systems Corp. v. Devries just over three months ago. Chief Justice John Roberts and Justices Elena Kagan and Kavanaugh joined both majority opinions, which seem to assign different weight to the “special solicitude” doctrine.

Ginsburg’s dissent, which Justices Stephen Breyer and Sonia Sotomayor joined, started from the premise that punitive damages are normally available in maritime cases, and accordingly viewed the court’s decision as an exception that followed Miles instead of Atlantic Sounding. She distinguished Miles as involving the more narrow situation in which a judge-made cause of action was created as a gap-filler. In her view, Atlantic Sounding provides the appropriate approach. The court reasoned in that case that punitive damages had a long common-law pedigree whose general applicability was not undermined by anything in maritime law. Contrary to Alito’s claim that Atlantic Sounding relied on evidence of the availability of punitive damages in maintenance and cure cases, Ginsburg cited Alito’s Atlantic Sounding dissent for the proposition that little such authority existed. Nor did Congress preclude punitive damages under the Jones Act, a question Atlantic Sounding had reserved. The Jones Act had expanded, not contracted, a seaman’s remedies and had not barred punitive damages in unseaworthiness actions. The general availability of punitive damages in maritime matters should govern here, too.

Both opinions, as had Kavanaugh’s earlier Air & Liquid Systems Corp. majority opinion, explicitly or implicitly reaffirm the court’s role in fashioning federal common law in an admiralty context. Alito’s majority opinion endorses the approach Justice Sandra Day O’Connor took in Miles in suggesting that the court’s formulation of general maritime law will be somewhat constrained by legislative policies in areas in which Congress has been active.

The decision produced a somewhat unusual alignment, as Alito’s opinion was joined by Roberts, Thomas, Kagan, Justice Neil Gorsuch and Kavanaugh. Ginsburg and Breyer had been part of the five-justice majority in Atlantic Sounding, but significantly, Thomas, who wrote that opinion, silently joined Alito’s majority opinion in this case. At oral argument, Kagan had focused on how the justices might reconcile their general maritime-law-making role with the Jones Act and she may have found appealing a resolution that expressed deference to congressional policies and perceived doctrine, especially given her recent protests against the court’s overturning long-standing precedents.

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