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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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Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information

June 25, 2019 by admin Leave a Comment

In Food Marketing Institute v. Argus Leader Media, the Supreme Court held today that the Freedom of Information Act allows a federal agency to withhold from disclosure records submitted by a private entity when the submitter keeps the records secret and the agency promises to keep the records from disclosure. In an opinion by Justice Neil Gorsuch for a six-justice majority that included the court’s other conservatives and Justice Elena Kagan, the court overruled the U.S. Court of Appeals for the 8th Circuit’s decision below, which was based on longstanding precedent from the U.S. Court of Appeals for the District of Columbia Circuit that had held sway among most of the other circuits. Focusing only on the relevant statutory language, the majority concluded that an agency and private submitter need only show that the records are kept “confidential,” in the court’s broad interpretation of the term, and not that disclosure would cause any harm to the private-sector submitter.

The case concerned a request by a South Dakota newspaper, the Argus Leader, for records that would disclose data about the U.S. Department of Agriculture’s Supplemental Nutrition Assistance Program, known as SNAP. That data included commercial information about the retail grocery stores at which SNAP recipients purchase their groceries. USDA and the grocers whose data had been captured in SNAP transactions claimed that the retailers’ individual market positions, which they keep secret from competitors and the general public, would be revealed by the information’s release. The 8th Circuit, affirming a district court decision, had held that the SNAP data was not exempt from FOIA because the grocers could not meet the prevailing Exemption 4 test first adopted by the D.C. Circuit in 1974 in National Parks & Conservation Association v. Morton. National Parks had held that Exemption 4 applied only to information whose disclosure is likely “(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” The grocers could show that they kept the data from the public and their competitors, and that USDA assured them it would keep the information private (as the United States stated in its amicus brief and during oral argument). But the grocers could not show a likelihood of substantial harm from the information’s disclosure.

After holding that the grocers had standing to sue because the injury they would suffer from disclosure would be fairly traceable to the decision that Exemption 4 does not apply and could therefore be redressed by a decision that it does, the Supreme Court held that the statutory language did not support the National Parks test. FOIA’s Exemption 4 applies to “commercial or financial information obtained from a person and privileged or confidential,” as stated in 5 U.S.C. § 552(b)(4). In interpreting the word “confidential,” Gorsuch focused solely on dictionary definitions from the time of FOIA’s original enactment, none of which considered harm from disclosure to be an aspect of the word’s meaning.

Instead, the contemporaneous understanding of “confidential” extended to information customarily kept private, and also included assurances given by the receiving party that it would keep privately disclosed information secret. This, the Supreme Court observed, had been the test in some circuit courts prior to National Parks. It will now be the authoritative test under Food Marketing Institute: Henceforth, a private-sector submitter of information to an agency will only need to show their efforts to keep the information private and the assurances they received from the agency that it would keep the information from the public. No longer will a submitter need to show any harm, whether substantial or negligible.

Joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Stephen Breyer’s partial dissent agreed with the majority that the statutory text could not support the substantial-competitive-injury test that National Parks had established. But the dissent disagreed with the majority’s decision to remove harm entirely from consideration under Exemption 4. Finding definitions of “confidential” in other contexts (including national security) in which disclosure’s consequences are deemed part of a confidential classification, the dissent would have required more than merely a process-related definition established by the direct parties to the provision and receipt of the information. The dissent worried that the new test would allow, and perhaps even incentivize, private entities and agencies to overstate their efforts to keep information private in contexts in which disclosure would not harm the submitter but would serve a public benefit. A more expansive exemption that does not even consider harm to the submitter, the dissent argued, runs counter to FOIA’s purpose of informing the public and enabling citizens to hold the government accountable for its decisions.

The decision is significant in two regards. First, it will broaden the reach of Exemption 4, making it easier for private records to be kept from disclosure. Food Marketing Institute will benefit businesses in regulated industries who are frequently asked or required to provide information to government agencies that is confidential but does not meet the definition of “trade secret” that federal courts apply to Exemption 4. But it will frustrate news media, watchdogs and competitors who will be less likely to have their FOIA requests met. Notably, the majority never explained that the Argus Leader submitted its FOIA request as part of its investigation into SNAP-related fraud. That investigation will now have to proceed without access to the SNAP data. The decision’s influence will vary among administrations and even among agencies within the same administration, depending on the extent to which agencies provide assurances that they will keep submitted records private. But it will narrow access to information the government holds.

The decision also offers a snapshot of statutory interpretation on the Roberts Court. Gorsuch’s decision began and ended with the statutory text. He interpreted the key term that the statute did not define solely by reference to contemporaneous dictionaries. He did not consider FOIA’s legislative history or Congress’ purpose in enacting it. Nor was he persuaded by the newspaper’s effort to argue for the relevance of common law definitions of “confidential” and of Congress’ implied ratification of National Parks in more recent FOIA amendments and in similar language Congress has incorporated into other statutory provisions. This approach is consistent with Kagan’s 2011 decision in Milner v. Department of Navy, which also overruled an influential and longstanding D.C. Circuit test for a FOIA exemption — although Milner, from which only Breyer dissented, included legislative purpose as a secondary justification. The Food Marketing Institute dissent argued that abandoning harm as a part of Exemption 4 runs counter to FOIA’s general purpose of requiring broad disclosure, and rejects prior statements in Supreme Court FOIA precedent prescribing narrow readings of the statute’s exemptions. The majority considered only the text. Justice Antonin Scalia might well have been pleased by what this decision says about the influence on the court’s interpretive practice of his textualist approach to statutory interpretation.

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A “view” from the courtroom: From the T-shirt shop to the high seas

June 24, 2019 by admin Leave a Comment

With 12 opinions remaining, no one expects today to be the last day of the court’s term. Still, there is an air of anticipation and some special guests are in the courtroom this morning.

In the public gallery, the second group of high-school teachers from the Supreme Court Summer Institute for Teachers is here. (The first group was here last Monday.) Both groups held moot courts on American Legion v. American Humanist Association, about whether a World War I memorial cross in Bladensburg, Maryland, violates the establishment clause. The institute’s first group of teachers serving as high-court justices ruled overwhelmingly to allow the cross to remain. This past weekend, the second group, even with the benefit of the real Supreme Court’s decision last Thursday in favor of the cross, ruled narrowly against the American Legion and the state of Maryland. Those civics teachers are independent spirits.

Opinions announced by Justices Gorsuch, Kagan and Alito (Art Lien)

Elsewhere in the public gallery, there is a group of about a dozen or more high school students, ready for a firsthand civics lesson. They will soon be joined in the courtroom by two more pupils. Margaret and Liza Kavanaugh, the daughters of Justice Brett Kavanaugh, arrive with their mother, Ashley, and take their seats in the VIP section. There are many tender ears here this morning.

Also in the VIP section are Martha-Ann Alito, the wife of Justice Samuel Alito, and Joanna Breyer, the wife of Justice Stephen Breyer.

Justice Kavanaugh’s wife and daughters seated in the courtroom (Art Lien)

In the press section, this is the time of the year when most regular reporters feel duty-bound to stay in the press room on the ground floor, adjacent to the Public Information Office, where opinions are distributed as soon as a justice begins reading from his or her summary from the bench. That way, reporters may immediately take to Twitter or the web to give their first take on the news.

Some news outlets arrange for another reporter to assist their Supreme Court correspondent by going up to the courtroom to observe. The Washington Post’s regular court reporter, Robert Barnes, has been aided in recent days by ace legal reporter Ann Marimow. Adam Liptak, the Supreme Court correspondent of The New York Times, is being assisted today by Peter Baker, the Times’ senior White House correspondent as well as an accomplished author and a familiar face on cable television.

As Solicitor General Noel Francisco and his team arrive, there is another familiar face that has been in the news in recent days. Michael Dreeben, a longtime deputy solicitor general who specializes in criminal matters, is here today for the first time in quite a while. Dreeben was dispatched to special counsel Robert Mueller’s office for the investigation of Russian interference in the 2016 election.

Dreeben, a 30-year Department of Justice veteran who has argued more than 100 cases before the Supreme Court, is leaving the department in coming weeks, the department’s public affairs office has confirmed. He has not indicated publicly where he is going. (Chief Justice John Roberts recognized Dreeben’s 100th argument in April 2016.)

The court takes the bench, and the chief justice announces that Justice Neil Gorsuch “has the opinion this morning in two cases.”

The first is United States v. Davis, about whether a provision of federal law defining a “crime of violence” for purposes of federal criminal prosecution for using a gun during such a crime is unconstitutionally vague.

Right at the outset of his bench announcement, Gorsuch stresses that the two defendants in the case, who robbed several gas stations in Texas and were convicted of multiple federal crimes, “are going to spend a very long time in prison.”

This nonetheless suggests that he is coming down on the side that the provision is unconstitutionally vague, and that is the holding of the court. Gorsuch explains that Kavanaugh has filed a dissenting opinion, joined in full by Justices Clarence Thomas and Alito, and in part by Roberts.

So, it’s another split between the court’s two newest justices, and another 5-4 decision.

Gorsuch’s second opinion is Food Marketing Institute v. Argus Leader Media, about whether certain commercial or financial information provided to the government qualifies as confidential and thus subject to an exemption from disclosure under the Freedom of Information Act.

The case arises from efforts by a South Dakota newspaper, the Argus Leader, to report on fraud in the federal food-stamp program, which is formally called the Supplemental Nutrition Assistance Program, “or SNAP,” Gorsuch says snappily.

The newspaper sought store-level SNAP data as part of its investigation of retailer fraud in the program, but the U.S. Department of Agriculture withheld the data based on FOIA’s Exemption 4, which shields trade secrets and other privileged or confidential commercial or financial information.

The U.S. Court of Appeals for the 8th Circuit ruled for the newspaper, applying the “substantial competitive harm” test developed decade ago by the U.S. Court of Appeals for the District of Columbia Circuit in National Parks & Conservation Association v. Morton.

“Today, we reject National Parks’ ‘substantial competitive harm’ test as a relic from a bygone era of statutory construction,” Gorsuch says.

Breyer has filed an opinion concurring in part and dissenting in part, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

The chief justice announces that Justice Elena Kagan has the opinion in Iancu v. Brunetti, about whether the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks violates the First Amendment.

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

This is when we get anxious about the tender ears of the teenagers and preteens in the courtroom today. The proposed trademark at issue in this highly publicized case is from a line of streetwear founded by Erik Brunetti of California under the name FUCT.

But that name will not be mentioned in the courtroom today. Just as the justices and the arguing counsel did contortions to avoid mentioning Brunetti’s mark or the many variations of vulgarities discussed in the briefs, Kagan keeps her bench announcement at most PG-rated. (She mentions it a mere three times in her written opinion.)

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expressions based on the ideas or viewpoints it conveys,” she says. “The ban on ‘immoral’ and ‘scandalous’ marks does just that.”

The prohibition “allows trademark registration when a mark’s message conforms with society’s sense of decency or morality,” Kagan continues. “But it prohibits any mark expressing a contrary view—when it goes against that societal sense. That’s exactly the kind of discrimination against ideas that the First Amendment prohibits.”

She adds that if that all sounds a little abstract, “some examples should make the point.”

The anxiety meter goes back up a few degrees, but her examples, drawn from the record and the briefs, stay on the tame side. She cites proposed marks such as “Marijuana Cola” and “You Can’t Spell Healthcare Without THC,” which were rejected by the U.S. Patent and Trademark Office because they glamorize drug use. Yet the PTO approved marks such as “Say No to Drugs” that express an anti-drug message. There are similar viewpoint-based distinctions on trademarks in the areas of religion and terrorism, she says. Those in the courtroom unfamiliar with the case would never guess that it stems from a line of clothing that skateboarders have been wearing for more than 20 years.

Kagan says the court cannot accept the limiting construction proposed at oral argument by Deputy Solicitor General Malcolm Stewart to read the statute to cover only marks that are lewd, sexually explicit or profane.

“But although we try to interpret statutes to avoid constitutional problems, we simply can’t rewrite Congress’s words,” she says.

Alito has filed a concurring opinion. Roberts has an opinion concurring in part and dissenting in part. Breyer has an opinion concurring in part and dissenting in part. And so does Sotomayor, joined by Breyer. None of these are read in the courtroom, even though the dissenting portions all suggest that those justices would adopt the government’s limiting principle and bar marks such as Brunetti’s.

The final opinion today is from Alito, and we’re moving from the T-shirt shop at the mall to the high seas.

In The Dutra Group v. Batterton, Alito writes for the court that a plaintiff may not recover punitive damages on a claim of unseaworthiness.

The case arises from an accident in which a hatch on a vessel exploded and seriously injured the hand of Christopher Bratton, a deckhand covered by the Jones Act of 1920.

Alito gives a brief history of legal claims protecting seamen, including “maintenance and cure” (which as his written opinion points out goes back to laws promulgated by Eleanor of Aquitaine in 1160) and “unseaworthiness,” which was meant to give sailors under contract to sail on a ship the right to collect their pay even when they refused to board what they discovered to be an unsafe vessel.

As with his discussion of the Yeti last week in his decision in Gamble v. United States, Alito again sprinkles a lively element into his bench announcement.

Think of the “old salt who put his mark to go out to sea on the S.S. Rusty Bucket,” Alito says. “When the sailor sobered up” he saw that this ship was “not very likely to make it to its destination.” Under a seaworthiness claim, that sailor could still collect his wages.

Alito skips ahead a bit and refers to two cases upon which Batterton relies to establish that punitive damages were traditionally available for breach of the duty of seaworthiness.

But upon close inspection, those cases—The Rolph, from 1923, and The Noddleburn, from 1886—do not support the respondent’s argument, Alito says.

The U.S. Court of Appeals for the 9th Circuit is reversed and the case is remanded. Ginsburg has a dissent, joined by Breyer and Sotomayor.

With that, there is an abrupt bang of the gavel by Marshal Pamela Talkin, who announces Wednesday is the next day of departure for the S.S. SCOTUS.

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