This page is primarily for recommending Supreme Court cases to my undergraduate students. I won’t mention all cases (see scotusblogfor that), but rather will highlight days when at least one case is likely to be interesting and accessible to a casual observer with interests that coincide with my course themes. If a case intrigues you enough, see this page for tips on attending the argument (if that’s a possibility) or the information about online access (if that’s best for you &/or the only option for anyone). Browse the other pages for more info about me and my courses.
Surprising no one, the Supreme Court has now found that the CDC eviction moratorium is beyond the scope of the CDC’s powers and effectively blocked it. (Technically, they denied an application to stay, thus directing enforcement of a lower-court ruling. But the opinion makes clear that the majority backs that reasoning on substance, not just technical grounds re when a stay is appropriate.)
While that effectively ends the federal ban, there are many states and localities with eviction moratoria that are still in effect — at least for now. Some but not all of those laws have provisions that are legally infirm for the same reasons that part of NY’s ban was struck down. Others are gradually ending.
From a legal perspective, the opinions and dissents are all worth reading with an open mind; there are good arguments that the CDC overreached, and good arguments that courts should consider it more before blocking the moratorium. In my personal political view, I really wish the focus had been on getting the money out to people so the evictions would be stopped not because of a moratorium but simply because landlords were getting paid and tenants weren’t racking up massive arrears that stick with them and cause problems regardless of a moratorium. There is more than $40 billion allocated specifically for rental assistance (to say nothing of unemployment insurance payments that have also been slow to distribute) that is still sitting there instead of going to the people who are facing eviction. We would have needed a moratorium for several months, because getting that money disbursed is no easy task. But this far out, it seems to me that at least some of that energy expended on demanding repeated extensions of the moratorium (even after noting that it was probably unlawful) should instead have gone into mandating and enforcing procedures to disburse the funds that were allocated (especially since we have models of some localities that managed to do so effectively). Some of that started this week, but the money was allocated last year. The fuss should be over that, rather than moratoria.
has not yet said how arguments will be conducted when it returns from summer recess on “First Monday,” October 4, for its 2021 term. There had been considerable speculation that it would return to in-person arguments, but that was before we saw the full impact of the Delta variant. I’ll update this page when I can, or check the Court’s page on covid announcements. edit: has now announced that although the public will not be allowed in the courtroom this calendar year, the arguments will be in-person with counsel and Justices in the courtroom, so presumably following the old style of questioning.
On the substance of argument options, Scotusblog has an interesting symposium; I fully agree with Lyle Dennison’s critique of the way arguments had been conducted by phone, although others at that symposium feel differently. See the link at the top of this page for “online access.”
Regardless of how the arguments will be conducted, there are some interesting and important cases in the first block of arguments. Highlights include the CIA state secrets privilege, an abortion case (although a preliminary procedural issue this month), and the Boston Marathon bomber’s death penalty appeal.
First Monday, October 4
The first case this term is the unusual case in which the Court has original jurisdiction — a dispute between states. That gives it a certain interest, but I’m afraid that anyone not invested in the dispute (or hydrogeology in general) might find it a bit less compelling than the typical Supreme Court argument. Mississippi v. Tennessee involves groundwater contained in the Middle Claiborne Aquifer; “Mississippi believes the City of Memphis is stealing its groundwater.” That’s the opening line from the Special Master’s report, which is a good place to start if you want to understand the dispute.
Next up is a criminal law case, Wooden v. U.S. The Armed Career Criminal Act provides for enhanced penalties for someone in illegal possession of a gun if they had “three previous convictions . . . committed on occasions different from one another.” 18 U.S.C. § 924(e)(1). In this case, the defendant committed theft from 10 different units in a mini-storage facility. The Court has accepted cert. on “Whether offenses that were committed as part of a single criminal spree, but sequentially in time, were ‘committed on occasions different from one another’ for purposes of a sentencing enhancement under the Armed Career Criminal Act.” NACDL has an interesting amicus brief arguing that whether individual criminal acts are committed on the same “occasion” or not is a factual question that should be resolved by a jury rather than the judge.
Tuesday, October 5
Today’s first case involves federal habeas review of criminal convictions. Two important concepts for this case: “harmless error” and AEDPA’s “clearly established Federal law” standard. Harmless error means the trial court allowed something legally wrong to occur but the outcome would have been the same regardless. In this case, the defendant was shackled during trial, which the Michigan state courts agree was unconstitutional but found to be “harmless error.” The federal courts disagreed, noting that the defendant was claiming self-defense and being shackled might have made a juror less likely to believe that claim (so it was not harmless but rather may have prejudiced the jury). Michigan now says, even if the state court was wrong about harmless error, there needs to be a separate finding that the reasoning was contrary to clearly established Federal law. The Sixth Circuit says that question was “subsumed” in the harmless error analysis (failing to recognize prejudice to the defendant is, necessarily, contrary to clearly established law). There is a “circuit split” on this — several other federal courts of appeal have held that there needs to be a further finding beyond what the 6th Circuit said was sufficient to require a new trial. I’d suggest reading the 6th Circuit’s opinion.
Today’s second case, Servotronics, Inc. v. Rolls-Royce PLC, is an interesting factual context: “Servotronics, which manufactured a valve used in a Rolls-Royce Trent 1000 jet engine installed on a Boeing 787 aircraft, was a defendant in an arbitration proceeding that Rolls-Royce brought in London, England, seeking damages for an engine fire that occurred during a test flight of a Boeing 787 in the United States.” (That’s from the helpful scotusblog preview, which is a good place to start.) However, the legal question is one of technical civil procedure. There’s a federal statute that empowers federal courts to authorize subpoenas to support discovery in foreign “tribunal” proceedings; the question is whether that extends to foreign arbitration.
Wednesday, October 6
Just one case today, but it’s a big one — the CIA state-secrets privilege case, United States v. Zubaydah. Zubaydah currently is being held in Guantanamo, as an alleged former associate of bin Laden. Previously, he says he was tortured at a CIA dark site in Poland, and he “intervened” (became a party to) a criminal investigation by Polish authorities into the CIA operations there. Zubaydah wants to subpoena two CIA contractors. The CIA claimed “state secrets” as to all information he was seeking. The 9th Circuit held that some information was properly classified a state secret, but that certain information was subject to disclosure. This is definitely the shorthand version of all this — see this useful article for the full story, as well as the 9th Cir decision.
[The Court is closed on Monday, Oct. 11 for Columbus / Indigenous Peoples Day]
Tuesday, October 12
This is the first abortion case of the term, but on a preliminary procedural issue. Scotusblog has a succinct write-up:
The Kentucky dispute, Cameron v. EMW Women’s Surgical Center, began as a challenge to a law that generally bans the use of the “dilation and evacuation” method to perform abortions, a procedure commonly employed during the second trimester of pregnancy. Kentucky’s health secretary initially defended the law in court, but declined to continue to do so after the U.S. Court of Appeals for the 6th Circuit struck down the ban.
Daniel Cameron, the state’s attorney general, then asked the 6th Circuit for permission to join the case to defend the law, but the 6th Circuit rejected that request. Cameron appealed to the Supreme Court, asking the justices to weigh in on whether he should have been allowed to intervene. And if so, Cameron continued, the justices should also rule on whether the case should be sent back to the lower courts for another look after the Supreme Court’s decision last year in June Medical Services v. Russo, in which the justices struck down a Louisiana law requiring doctors who perform abortions to have the right to admit patients at a nearby hospital – but which, Cameron wrote, “undercuts” the 6th Circuit’s decision to invalidate the Kentucky law.
In a brief order on [March 29], the justices granted Cameron’s request to decide whether he should be allowed to join the case, but they turned down his request to weigh in on whether the case should go back to the 6th Circuit for reconsideration in light of June Medical.
- Amy Howe, Justices to decide whether Kentucky attorney general can defend abortion law, SCOTUSblog (Mar. 29, 2021)
The second case today, Hemphill v. New York, is factually complex and involves exceptions to the confrontation clause in a trial that resulted in a murder conviction. In general, the US Constitution’s confrontation clause requires that evidence against a defendant be introduced by a person who can be subjected to cross-examination. In this case, however, the defense counsel mentioned a prior proceeding against another individual in an attempt to suggest that someone else was the shooter. The trial judge ruled that this “opened the door” for the prosecution to introduce details of those proceedings that would otherwise be inadmissible (except through testimony of someone subject to cross-examination). See the NY Court of Appeals decision – and be sure to read the dissent – as well as this summary.
Wednesday, October 13
A big one today — the Boston Marathon bomber death penalty appeal, U.S. v. Tsarnaev. The Court’s cert. questions are clear enough:
Issue(s): (1) Whether the U.S. Court of Appeals for the 1st Circuit erred in concluding that Dzhokhar Tsarnaev’s capital sentences must be vacated on the ground that the district court, during its 21-day voir dire, did not ask each prospective juror for a specific accounting of the pretrial media coverage that he or she had read, heard or seen about Tsarnaev’s case; and (2) whether the district court committed reversible error at the penalty phase of Tsarnaev’s trial by excluding evidence that Tsarnaev’s older brother was allegedly involved in different crimes two years before the offenses for which Tsarnaev was convicted.
There will be a lot of attention on this case, and a lot of emotion. It’s worth reading the 1st Circuit opinion, which found that there were reversible errors in the death penalty proceedings and ordered a new trial on those counts only, noting “Because we are affirming the convictions (excluding the three § 924(c) convictions) and the many life sentences imposed on those remaining counts (which Dzhokhar has not challenged), Dzhokhar will remain confined to prison for the rest of his life, with the only question remaining being whether the government will end his life by executing him.”
The last October argument is a complex question about Social Security benefit calculations, with an administrative deference kicker. I.e., it won’t be an easy one to follow for the casual observer…. Briefly, it has to do with workers who have some earnings that are “covered” (taxed and calculated in determining retirement benefits) and “uncovered.” The formula is set up so lower-income workers get a higher “return” on their SSA taxes when benefits are calculated. So someone with uncovered earnings as well might be treated as a low-wage worker even if they are not. The response is the “windfall elimination provision,” which in turn has various exceptions and complications. And this case asks “whether a civil service pension received for federal civilian employment as a ‘military technician (dual status)’ is ‘a payment based wholly on service as a member of a uniformed service’ for the purposes of the Social Security Act’s windfall elimination provision.” See the 6th Cir. opinion for details.
With oral arguments concluded for the term, we can expect announcements of cases the Court will hear next term and decisions on the cases argued earlier this term. Orders granting or denying cert. are less predictable, but decisions will be announced beginning at 10am on Mondays (except cases that would be ready on Memorial Day will instead be announced on Tuesday) until the end of June. Edit: The Court has now designated Thursdays as decision days, in addition to Monday releases.
Before the pandemic, the Justices would take the bench on decision days. The author of the majority opinion would announce the holding, and sometimes a dissenting Justice would make a statement as well. Sadly, that is not happening this summer; there is no conference call with an accessible live-stream of decision announcements like there was for arguments.
Instead, watch the Court’s website beginning at 10am Mondays and Thursdays (and Tuesday, June 1). Decisions get posted on the front page, but if you’re actively watching for decisions, then it’s better to monitor this page. The decisions get posted 10 minutes apart and we don’t know in advance how many there will be. But when the “R number” column gets filled in on that page, you know they’re done for the day. (See the scotusblog blurb on R numbers for the details on why this works as an unofficial sign.)
There is no way to predict which cases will be released on any given decision day. Predictably, almost all cases heard in March or later are still unresolved as of this post (May 21), while we have decisions on nearly all the cases argued early in the term.
So it’s worth noting the outliers — a few important cases that were argued back in 2020 but have not been resolved yet. We might expect to see some of these decisions announced fairly soon. But on the other hand, sometimes the most high-profile cases don’t get released until the very last day of the term, perhaps because Justices are taking extra time to craft opinions and dissents. Still:
- Fulton v. City of Philadelphia, involving faith-based adoption agencies that discriminate on the basis of sexual orientation, was argued on November 4, 2020.
- The Affordable Care Act cases were argued on November 10.
- Nestlé v. Doe, involving claims of child slavery and forced labor in the cocoa industry, was argued on December 1.
- Cases involving the constitutionality of the Federal Housing Finance Agency (FHFA), which was created to oversee Fannie Mae and Freddie Mac following the 2008 financial crisis, were argued on December 9.
Of course, many significant and highly watched cases were not argued until the past few months, and some of those could well be decided before the above cases. I’m especially interested in Mahanoy Area School District v. B.L., involving student First Amendment rights, but it wasn’t argued until April 28. And the decision on the Voting Rights Act cases, argued March 2, could be extraordinarily significant. Lots of reasons to watch!
When all decisions are in, the Court will be in summer recess until the first Monday in October. I may make one more post next month, but this blog will largely go on break until it’s time for a post about the October 2021 calendar.
Several important SCOTUS cases in the next block — beginning Monday with a case about Native Alaskan Corporations and the CARES Act and closing the following week with big questions about student free speech.
Monday, April 19
First up are cases questioning whether Alaskan Native Corporations are “tribal governments” eligible for CARES Act funding. There’s a complicated history concerning Alaskan Native Americans. Briefly, the 1971 Alaska Native Claims Settlement Act extinguished all land claims, eliminated all but one reservation, and established “corporations” that were eligible to receive federal and state funds and land. The DC Circuit observed that this was “an experimental model initially calculated to speed assimilation of Alaska Natives into corporate America.” Jumping ahead, the Coronavirus Aid, Relief, and Economic Security Act (CARES Act) set aside $8 billion “for making payments to Tribal governments.” 42 U.S.C. § 801(a)(2)(B). When Treasury began a process that would allow Alaskan Native Corporations to receive those funds, tribes in Alaska and the lower 48 sued to block disbursements. The DC Circuit agreed with the tribes, and that opinion is a good starting point to understand the details. Also see the various amici briefs from the Corporations, various tribes and tribal associations, Alaska, Sen. Murkowski, and a group of historians – all collected here. There are two cases, Yellen v. Confederated Tribes of the Chehalis Reservation and Alaska Native Village Corporation Association v. Confederated Tribes of the Chehalis Reservation, consolidated for one hour of argument total.
Next up is Sanchez v. Mayorkas, an immigration case involving the relationship between Temporary Protective Status (TPS) and Lawful Permanent Residency (LPR) (sometimes called a “green card”). A prerequisite to LPR status is that the applicant was “inspected and admitted” into the U.S. 8 U.S.C. § 1255(a). The applicants here entered undocumented but a few years later obtained TPS after a series of earthquakes in El Salvador, and now argue that being granted TPS constitutes being “inspected and admitted.” The Third Circuit disagreed, which created a split with other circuits that had considered this question.
Tuesday, April 20
Two criminal procedure cases today, both involving the federal “felon in possession of a firearm” law (but not consolidated; separate arguments). In both U.S. v. Gary and Greer v. U.S., the plaintiffs pled guilty. When accepting a plea, the judge is required to explain what the prosecution would have to prove (the “elements” of the crime). The judge listed knowing possession of the firearm and previous conviction for a felony. But two years later, the Supreme Court in Rehaif v. United States clarified that conviction under this law requires knowledge that they were a felon. The cases raise issues concerning whether Rehaif announced a rule that is so fundamental as to require reversal of prior convictions as “plain error” and whether the court can look to evidence beyond the trial record in making those determinations.
[Wednesday’s cases involve technical patent law and appellate costs and are not recommended for the casual observer]
Monday, April 26
Important cases today bringing First Amendment challenges to laws that require charities to disclose their major donors on tax filings: Thomas More Law Center v. Rodriquez and Americans for Prosperity v. Rodriquez. See the Public Citizen summary and then the 9th Circuit decision.
Guam v. U.S. involves a fascinating factual context but will largely revolve around technical legal issues. In the 1940s, the U.S. Navy operated the Ordot Dump in Guam, and allegedly disposed of Agent Orange, DDT, and munitions there. In 1950, the Guam Organic Act formally transferred power from the United States to Guam’s newly formed civilian government. In the 1980s, the EPA focused on the Ordot Dump, initially involving the Navy but ultimately ordering Guam to clean it up. There was eventually a court settlement and, several years later, a lawsuit by Guam against the Navy under CERCLA, the Comprehensive Environmental Response, Compensation, and Liability Act, which creates the ability to sue for “cost-recovery” and “contribution.” The statute of limitations for “cost-recovery” and “contribution” are different, and which one Guam must rely on determines whether its case can proceed or is time-barred. The DC Circuit decision is probably the best place to start.
Tuesday, April 27
The second case today involves immigration law and procedural issues, which are nicely summed up by the opening of the 9th Circuit decision:
Refugio Palomar-Santiago is a Mexican national who was granted permanent resident status in the United States in 1990. In 1991, he was convicted of a felony DUI in California. In 1998, he received an Notice to Appear from the Immigration and Naturalization Service informing him that he was subject to removal because the DUI offense was classified as a crime of violence under 18 U.S.C. § 16 and thus considered an aggravated felony for purposes of 8 U.S.C. § 1101(a)(43). After a hearing before an IJ, Palomar-Santiago was deported on that basis. Three years later, the Ninth Circuit determined that the crime Palomar-Santiago was convicted of was not a crime of violence. United States v. Trinidad-Aquino, 259 F.3d 1140, 1146-47 (9th Cir. 2001). This determination applied retroactively. United States v. Aguilera-Rios, 769 F.3d 626, 633 (9th Cir. 2013).
By 2017, Palomar-Santiago was again living in the United States, this time without authorization. That year, a grand jury indicted him for illegal reentry after deportation under 8 U.S.C. § 1326. Palomar-Santiago moved to dismiss the indictment under 8 U.S.C. § 1326(d). Under § 1326(d), a district court must dismiss a § 1326 indictment if the defendant proves (1) he exhausted any administrative remedies that may have been available to seek relief against the order; (2) he was deprived of the opportunity for judicial review at the deportation hearing; and (3) that the deportation order was fundamentally unfair. 8 U.S.C. § 1326(d). However, a defendant need not prove the first two elements if he can show the crime underlying the original removal was improperly characterized as an aggravated felony and need not show the third element if he can show the removal should not have occurred.
Wednesday, April 28
An interesting and critically important case about student First Amendment rights is first, Mahanoy Area School District v. B.L. After making the JV instead of the varsity cheerleading team, a student posted a snapchat picture of herself captioned “Fuck school fuck softball fuck cheer fuck everything.” She was suspended from the team, and sued. The Third Circuit noted that schools traditionally have had significant disciplinary discretion for on-campus activities only, with greater constitutional limits on control over off-campus activity; “[t]he digital revolution, however, has complicated that distinction.” That decision offers a useful survey of student speech cases, from Tinker through Morse (the “bong hits for Jesus” case). I’d also recommend the Student Press Law Center’s amicus brief. Really important questions about just what, if anything, is beyond the reach of school disciplinary policies.
[The last case this month is about FERC’s authority and not recommended to the casual observer.]
With the Court removing from the calendar the “remain in Mexico” case (which had been scheduled for argument on March 1) in light of changed positions under the new Administration, the main focus of attention will be on the Voting Rights Act cases on March 2. But there are also cases involving immigration appeals, the “hot pursuit” doctrine, and the appointments clause. A quick reminder that C-SPAN seems to offer the most reliable stream to listen in live (at 10am; no second round of arguments on the days listed below), or see this page for ways to take in the arguments a bit later.
[Feb 22‘s sole case will have rather narrow appeal: Florida v. Georgia, “Whether Florida is entitled to equitable apportionment of the waters of the Apalachicola-Chattahoochee-Flint River Basin and appropriate injunctive relief against Georgia to sustain an adequate flow of fresh water into the Apalachicola Region”]
Tuesday, February 23
The two cases today (consolidated for 1 hour of argument total) involve presumptions and procedures in immigration cases. In Rosen v. Dai, Dai sought asylum and testified that he would face torture if returned to China. The immigration judge and the Board of Immigration Appeals ruled against him, but never explicitly held that his testimony lacked credibility. On appeal, the 9th Circuit held that in the absence of such a finding, Dai was entitled to a presumption that his testimony was credible. Somewhat similarly, in Rosen v. Alcaraz-Enriquez the BIA relied on a probation report to find that Alcaraz-Enriquez was a danger to the community and therefore not entitled to withholding of removal, but did not explicitly find that his testimony (which contradicted the probation report) was not credible. In both cases, the Court has accepted cert. on “Whether a court of appeals can presume that an immigrant’s testimony is credible if an immigration judge or the Board of Immigration Appeals did not specifically find that he was not credible.”
Wednesday, February 24
Lange v. California is an interesting case about the limits of the “exigent circumstances” and “hot pursuit” exceptions to the warrant requirement. A California Highway Patrol officer stopped Lange’s garage door from closing and entered his garage without a warrant, which would ordinarily be required under the 4th Amendment. However, the officer had followed him there after Lange refused to stop after the officer turned on the patrol car lights. The prosecutor argued that Lange’s “failure to yield” constituted exigent circumstances. But this all began simply because Lange was playing his car stereo loudly and honked his horn a few times. The Court has accepted cert. on “Whether the pursuit of a person whom a police officer has probable cause to believe has committed a misdemeanor categorically qualifies as an exigent circumstance sufficient to allow the officer to enter a home without a warrant.” In addition to the first link (a helpful overview of the case), see the decision below.
Monday, March 1
Three consolidated cases (one hour total) today involving the Patent Office and the “appointments clause.” The Constitution (Art. II § 2) requires that “Officers of the United States” be appointed by the President and confirmed by the Senate. The Court has interpreted this to mean “principal officers” who exercise considerable authority, not every federal employee. In late 2019, the Federal Circuit held that Administrative Patent Judges are principal officers and therefore the existing system of their being appointed by the Secretary of Commerce was unconstitutional — which raises all sorts of issues about the validity of prior rulings and how to proceed going forward, which the Federal Circuit has tried to narrow and navigate around. So now the Supreme Court is reviewing both whether the circuit was right about the problem (lack of proper appointment and confirmation of judges) and has identified appropriate responses to that problem. Specifically: “(1) Whether, for purposes of the Constitution’s appointments clause, administrative patent judges of the U.S. Patent and Trademark Office are principal officers who must be appointed by the president with the Senate’s advice and consent, or “inferior Officers” whose appointment Congress has permissibly vested in a department head; and (2) whether, if administrative patent judges are principal officers, the court of appeals properly cured any appointments clause defect in the current statutory scheme prospectively by severing the application of 5 U.S.C. § 7513(a) to those judges.”
Tuesday, March 2 — Voting Rights Act
A pair of cases (consolidated for 1 hour total, but expect it to run long) out of Arizona being argued today are among the most important of the term: Brnovich v. Democratic National Committee and Arizona Republican Party v. Democratic National Committee. The cases have received considerable public attention and SCOTUSBlog has a very useful overview as well as a symposium reflecting a range of perspectives. So I’ll add just a brief note to provide some context before following those links.
The Voting Rights Act, among other things, prohibits voting procedures that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color, or in contravention of the guarantees” of other VRA protections. 52 U.S.C. § 10301(a). And it further specifies this violation can be established if the “political processes” are not “equally open to participation by members of a class of citizens.” § 10301(b). These provisions are typically referred to as “Section 2.”
These cases involve Arizona’s “out of precinct” policy (if you show up to vote and aren’t on the list, you can cast a provisional ballot; but if it’s later found that you weren’t on the list because you went to the wrong precinct, then the whole ballot is thrown out) and anti-“ballot harvesting” policy (which prohibits collecting and returning someone else’s ballot unless you are the voter’s family member or caregiver, or a mail carrier or election official). The 9th Circuit found that both these policies violated the VRA because they had a disproportionate impact on minority voters and this effect was linked to social and historical conditions that created inequality of opportunity to participate in the election process.
Beyond the legality of these policies, advocates are hoping the Supreme Court will clarify the standards to be used in VRA § 2 cases. The ARP v. DNC case’s questions presented highlight this: “(1) Whether Section 2 of the Voting Rights Act compels states to authorize any voting practice that would be used disproportionately by racial minorities, even if existing voting procedures are race-neutral and offer all voters an equal opportunity to vote; and (2) whether the U.S. Court of Appeals for the 9th Circuit correctly held that Arizona’s ballot-harvesting prohibition was tainted by discriminatory intent even though the legislators were admittedly driven by partisan interests and by supposedly ‘unfounded’ concerns about voter fraud.”
Wednesday, March 3
The cases today (Carr v. Saul and Davis v. Saul, consolidated for 1 hour total) also involve the “appointments clause” that was at issue in the March 1 Patent Judges cases, but this time the argument is about a procedural issue that is preliminary to the constitutional question: “Whether a claimant seeking disability benefits under the Social Security Act forfeits an appointments-clause challenge to the appointment of an administrative law judge by failing to present that challenge during administrative proceedings.”
The Court returns from the holidays on January 11 with arguments on 4 days (closing for MLK Day and Inauguration Day). It will hear cases involving release on bond while an asylum petition is pending, nominal damages in First Amendment cases, FTC and FCC powers, and an important opening salvo in a major climate change lawsuit.
Monday, January 11
The only case today is Chavez v. Hott, an immigration law issue: who is entitled to a bond hearing? It is largely being treated as a statutory interpretation issue. One statute provides that people facing deportation are entitled to a hearing to determine if they should be released on bond “pending a decision on whether the alien is to be removed,” 8 U.S.C. § 1226, but another statute provides that detention is mandatory once “an alien is ordered removed,” 8 US.C. § 1231. You might envision these provisions working together in the ordinary timeline of a case, but in the cases being heard today, the people were ordered removed, left the US, then faced persecution in their home countries and returned to the US to seek asylum, which an asylum officer found to well founded. They were thus subject to a “reinstated removal order” — once someone is ordered removed, that order remains in place and cannot be challenged — but the actual removal is subject to “withholding” under asylum law, if a judge agrees with the asylum officer’s initial finding and grants asylum status. The government’s position is that the decision on whether they are “ordered removed” has already been made (even if whether to actually execute that order is still being considered) so the mandatory detention statute applies. The immigrants argue, and the 4th Circuit held, that even a “withholding-only proceeding” brings the case within the statute that allows for release on bond. I started this discussion by saying it is “largely” a statutory interpretation issue because Human Rights First has submitted an interesting amicus brief arguing that the statutes should be interpreted to best effect our international law obligations in support of refugee rights.
Tuesday, January 12
Another one-argument day, in an interesting free speech context but focused on more technical pleading and mootness questions. In Uzuegbunam v. Preczewski, the plaintiffs were students at Georgia Gwinnett College who first were stopped from distributing literature because the campus required them to reserve and remain in one of two “speech zones,” and later were stopped by campus police while in one of those zones because their reservation was only to distribute literature but they were also engaging in conversation. After being sued, the college changed its policies. The court then held that the case was moot and dismissed it. The Complaint only sought “nominal damages” and a declaratory judgment and injunction; the lower court held, and the 11th Circuit agreed, that they were not entitled to an injunction because the college had “unambiguously terminated the Prior Policies and there is no reasonable basis to expect that it will return to them,” and that the demand for nominal damages (instead of greater compensatory damages, as one would often seek) was not enough to overcome dismissal as moot. The Court has accepted cert. on the narrow question of “whether a constitutional challenge to a school policy that seeks nominal damages rendered moot if the unconstitutional policy is revised during litigation.” Take a look at the factual overview on Oyez and the 11th Circuit opinion.
Wednesday, January 13
The case today involves the powers of the Federal Trade Commission and, more specifically, what a court may order when the FTC brings an action against a company. AMG Capital Management, LLC v. Federal Trade Commission involves an online “payday loan” company, which had “originated more than 5 million payday loans, each generally disbursing between $150 and $800 at a triple-digit interest rate.” The terms were disclosed in seven different online documents, but the site was designed to allow the consumer to “simply ignore the document, electronically sign their names, and click a big green button that said: ‘I AGREE Send Me My Cash!'” (These factual descriptions are from the 9th Circuit opinion.) The FTC brought suit for unfair and deceptive trade practices, alleging that in addition to the above, “the terms disclosed in the Loan Note did not reflect the terms that Tucker actually enforced.” The FTC won on the merits, but the issue the Court will address today is the order to pay approximately $1.27 billion in equitable monetary relief to the Commission. The complication is that 15 U.S.C. § 53(b) only authorizes the court to issue an “injunction” in cases brought by the FTC, but prior precedent is that courts may use their broader equitable powers to order restitution as well. See this interesting brief by former FTC officials.
Tuesday, January 19
First up are two consolidated cases, Federal Communications Commission v. Prometheus Radio Project and National Association of Broadcasters v. Prometheus Radio Project, involving the FCC’s relaxation of media ownership rules. The rules concern how much broadcast media in any local area may be owned by a single company, approval of corporate conglomerates, and other “competition, diversity, and localism,” issues. There has been a complicated back-and-forth among the FCC, courts, corporations, and advocacy groups over many years, helpfully summarized here and most recently involving questions of whether the FCC’s determinations were sufficiently supported by factual evidence. The Court has accepted cert. on “whether the FCC may repeal or modify media ownership rules that it determines are no longer ‘necessary in the public interest as the result of competition’ without statistical evidence about the prospective effect of its rule changes on minority and female ownership.”
The last argument this month, in BP P.L.C. v. Mayor and City Council of Baltimore, is a technical civil procedure issue in the context of an extremely important climate change lawsuit. Baltimore is suing 26 major oil and gas companies, alleging involvement in activities that caused climate change that harmed the city when it resulted in rising sea levels at the port, flood, heatwaves, etc. With echoes of the tobacco litigation from twenty years ago, the suit alleges (as described on Ballotpedia) that “that the companies engaged in an organized, multi-faceted effort to hide the direct link between fossil fuel use and global warming, to discredit publicly available scientific evidence, and actively attempted to undermine public support for regulation of the companies’ business practices, while promoting unrestricted and expanded use of the companies’ fossil fuel products.”
For now, the issue is whether this case will be heard in federal or state court. Baltimore was careful to bring suit under state law, but the companies nevertheless sought to “remove” the case to federal court. Baltimore challenged that removal, and both the federal district court and the 4th Circuit remanded the case back to state court. And right now, the issue is whether that decision (to reject the defendants’ removal and remand it to state court) is appealable. A statute provides that only removal based on federal officers or federal civil rights may be reviewed on appeal; other bases for removal, if rejected by the district court, are not appealable. 28 U.S.C. § 1447(d). The defendants here asserted 8 possible grounds for removal, all rejected, and they now want appellate review of all the grounds instead of just the two appealable grounds because it was all encompassed in one court order. The 4th Circuit order covers the issue well.
[No arguments on Dr. King Day or Inauguration Day; the next set of arguments begin Feb 22.]
The Court returns after Thanksgiving week with a number of major cases, some of which are getting a great deal of attention and others are deserving of more attention. [This blog took a brief hiatus for the early November cases, for personal reasons and because the ACA and other cases were getting plenty of coverage. But I’m back now.]
Monday, November 30 – Trump v. NY
Trump v. New York is partially about the census but most importantly about representation in the House of Representatives. Scotusblog pithily sets the context:
Under the federal laws regulating the census, the secretary of commerce is required to provide the president with a state-by-state breakdown of the total population of the United States, which is then used to allocate seats in the House. The dispute now before the court centers on a July 2020 memorandum by President Donald Trump that directs Wilbur Ross, the secretary of commerce, to include information in the state-by-state breakdown that would enable Trump to exclude people who are in the country illegally from the apportionment calculation. Within a few days after the memorandum was issued, New York and other state and local governments, along with several immigrants’ rights groups, filed a lawsuit in federal court to challenge the memorandum.Amy Howe, Court fast-tracks census appeal, SCOTUSblog (Oct. 16, 2020, 7:13 PM), https://www.scotusblog.com/2020/10/court-fast-tracks-census-appeal/
In 2016, the Court considered a related but distinct issue in a case brought by voters who wanted to require their state to draw voting districts such that each would include a roughly equal number of eligible voters (rather than roughly equal total population). The Court rejected that claim in Evenwel v. Abbott, but held only that basing districts on total population was a permissible system that did not violate the principle of one person, one vote. The Court did not consider whether a state had to choose such a system (“we need not and do not resolve whether, as Texas now argues, States may draw districts to equalize voter-eligible population rather than total population”).
Beyond the issues in Evenwel, this case raises additional important issues regarding the role of the federal government and the census specifically. I recommend perusing at least a few amici briefs in addition to the Scotusblog overview linked above. The briefs collected here notably include NAACP LDEF, Former Directors of the US Census Bureau, and Common Cause.
The second case today involves the Computer Fraud and Abuse Act — a broad law that makes for strange ideological alignments and opposition. In Van Buren v. United States, a police officer is accused of taking money in order to look up license plate information on a system he had legal access to for work purposes. The Electronic Privacy Information Center supports the prosecution, while Electronic Frontier Foundation opposes this reading of the statute.
Tuesday, December 1
First up is an argument that should be getting more public attention:
Nestlé USA and Cargill are alleged to have contributed to a system of child slavery and forced labor in the Ivory Coast for decades. Plaintiffs are six people who were trafficked from Mali and formerly enslaved as children on cocoa plantations in the Ivory Coast as part of this system.https://ccrjustice.org/home/what-we-do/our-cases/doe-et-al-v-nestl-usa-inccargill-inc-amicus
The case is brought under the Alien Tort Claims Act — a law passed by the first Congress, creating a right for non-citizens to sue for violations of international law that occurred abroad. There has been much controversy in recent decades over the intent and scope of the law. Arguments based in the history of the law run the gamut from a claim that this was really about piracy on the high seas and nothing more, to claims that this was a desire to make the US a place where victims of human rights abuse could come for refuge and to seek justice, to something of a mid-point that we at least did not want the US to be a place where bad international actors could have refuge from accountability. Some human rights advocates have used the ATCA, but the Court has been severely limiting its scope over the past several years. Take a look at this interesting amicus brief by professors of legal history, and at this one by smaller cocoa producers (“Amici are at a competitive disadvantage to companies that source cocoa produced with forced and trafficked child labor”).
The two cases, Nestlé USA, Inc. v. Doe and Cargill, Inc. v. Doe, are consolidated for one hour of argument.
[The second case today, CIC Services LLC v. IRS, involves the Anti-Injunction Act and challenges to tax regulations, and is not one I would recommend for the casual observer.]
Wednesday, December 2
The first argument today is a major case involving House committee access to grand jury materials from the Mueller investigation: Dept. of Justice v. House Committee on the Judiciary. I needn’t say more here; see the Scotusblog overview (or probably a huge amount of news coverage to come closer to the arguments).
The second argument today will likely be overshadowed but is an important and interesting criminal law case. It was only in 2020 that the Court held that criminal convictions require a unanimous verdict. Ramos v. Louisiana. In today’s case, Edwards v. Vannoy, the Court will decided whether that decision “applies retroactively to cases on federal collateral review.”
Monday, December 7
On this anniversary of Pearl Harbor Day, the Court will hear two cases involving property taken during World War II. The legal issues in both cases involve whether the Foreign Sovereign Immunities Act bars lawsuits against Hungary and Germany under these circumstances. The factual contexts in the two cases are summarized by Oyez:
Republic of Hungary v. Simon
Rosalie Simon and other respondents in this case are Jewish survivors of the Holocaust in Hungary. They sued the Republic of Hungary and other defendants in federal court in the United States seeking class certification and class-wide damages for property taken from them during World War II. Importantly, they did not first file a lawsuit in Hungary. Rather, they invoked the expropriation exemption of the Foreign Sovereign Immunities Act in claiming the federal court had jurisdiction, though their substantive claims arose from federal and D.C. common law.https://www.oyez.org/cases/2020/18-1447
The Court has accepted cert. on “Whether a district court may abstain from exercising jurisdiction under the Foreign Sovereign Immunities Act for reasons of international comity, in a matter in which former Hungarian nationals have sued the nation of Hungary to recover the value of property lost in Hungary during World War II but the plaintiffs made no attempt to exhaust local Hungarian remedies.”
Republic of Germany v. Phillip
In 1929, just weeks before the October 1929 global stock market crash, several Jewish art dealers in Germany purchased a collection of medieval reliquaries. During the ensuing global depression, the dealers sold about half the pieces and stored the remainder in the Netherlands. Nazi leaders negotiated with the dealers to buy the remaining pieces; the parties dispute whether this negotiation was made under coercive circumstances. After World War II, the collection was transferred to Stiftung Preussischer Kulturbesitz (“SPK”), a German governmental institution that holds the cultural artifacts of former Prussia, and has been on display in a German museum nearly continuously since then.
In 2014, heirs of the Jewish art dealers—respondents in this case—participated in a non-binding mediation process before the Advisory Commission for the Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property (the “Advisory Commission”). In what the heirs describe as a “predetermined conclusion, and against the evidence,” the Advisory Commission recommended against restitution of the collection.https://www.oyez.org/cases/2020/19-351
For this case, the Court has accepted cert. on:
(1) Whether the “expropriation exception” of the Foreign Sovereign Immunities Act, which abrogates foreign sovereign immunity when “rights in property taken in violation of international law are in issue,” provides jurisdiction over claims that a foreign sovereign has violated international human-rights law when taking property from its own national within its own borders, even though such claims do not implicate the established international law governing states’ responsibility for takings of property; and (2) whether the doctrine of international comity is unavailable in cases against foreign sovereigns, even in cases of considerable historical and political significance to the foreign sovereign, and even when the foreign nation has a domestic framework for addressing the claims.
Both cases have been consolidated for a total of 90 minutes of oral argument.
Tuesday, December 8
The first case today, Facebook v. Duguid, involves whether Facebook violated federal law by sending automated text messages. Facebook users can enter a cell phone number to be alerted of authorized access attempts. Duguid never signed up for Facebook but started receiving such text messages and could not make them stop. He sued under the 1991 Telephone Consumer Protection Act (TCPA), which prohibits using an autodialer (or automatic telephone dialing system (ATDS)).
TCPA defines an autodialer as “equipment which has the capacity—(A) to store or produce telephone numbers to be called, using a random or sequential number generator; and (B) to dial such numbers.” The case today is essentially a grammatical issue — whether it’s a fair reading to define an autodialer as something that can “store . . . numbers to be called” or only one that can “store . . . numbers to be called, using a random or sequential number generator.” The 9th Circuit held that Facebook’s automated system fit that definition. On the contrary, “Facebook asserts that a system lacking the capacity to randomly or sequentially generate numbers cannot be an ATDS, even if it can store and automatically dial them.” See this useful overview of the legal and commercial issues.
Next up is arbitration agreements — a subject of many Supreme Court decisions in recent years, including in earlier stages of this same dispute, Henry Schein, Inc. v. Archer and White Sales, Inc. In general, the Supreme Court has been interpreting the Federal Arbitration Act to require courts to send many disputes to arbitration if the parties had agreed to arbitrate such disputes. But an open question is who decides if the parties have agreed to arbitration, especially if the contract contains a provision that otherwise appears to grant the arbitrator authority to interpret the meaning of the contract. This dispute in particular involves agreements that incorporate the rules of the American Arbitration Association, which some courts have held is sufficient to constitute agreement to have the arbitrator decide “questions of arbitrability,” but which the Fifth Circuit held was not controlling in this case. This is an important case because of the sheer number of contracts (including online terms of service for which people reflexively hit “agree”) that include arbitration clauses, but the arguments may be a little difficult to follow. The amicus brief by a group of arbitrators and arbitration scholars may help.
Wednesday, December 9
The last set of December cases involves the Federal Housing Finance Agency (FHFA), which was created to oversee Fannie Mae and Freddie Mac following the 2008 financial crisis. The legal issues start with the structure: a single agency head who could be removed by the President “for cause,” raising separation of powers issues. Then there is the question of severability; can other agency powers survive if the appointment provisions are unconstitutional? And then there are various factual details surrounding exactly what the FHFA did and how it impacted the Fannie Mae shareholders. (And don’t get excited about all the mention of the “Third Amendment” — it’s not about quartering soldiers, but renegotiated terms between FHFA and Treasury!) In short, an important set of cases but it could be difficult to follow. Oyez has a useful start, then see the Fifth Cir. opinion.
Last Wednesday, the Supreme Court confirmed that the October arguments (cases are previewed here) will be conducted by telephone, following the same method used last spring. I have a separate page with information about online access (live and later), but if you’re just looking for a good way to listen live, then I recommend https://www.c-span.org/supremeCourt/. Arguments begin at 10am Eastern.
When the 2020-21 session opens in October with those telephonic arguments, it will be the first time in 27 years that Justice Ruth Bader Ginsburg (who was confirmed in 1993, about two months before the session opened) will not be a member of the Court. I have no words that can contribute to understanding this loss of such an extraordinary jurist. I am appreciative of the survey of her life’s work that Linda Greenhouse has offered us, and of the thoughtful statements and renewals of commitment from advocacy groups like the Center for Constitutional Rights.
“Ruth Bader Ginsburg Seed Art Minnesota State Fair 2019 RBG” by Mpls55408 is licensed under CC BY-NC 2.0
The Supreme Court term traditionally begins on the “First Monday” of October, and the Court has announced (earlier than usual) a full schedule for that month. (“Full schedule” means Monday through Wednesday for two weeks out of the month.) Exactly what that will look like, of course, is still unknown. The Court held unprecedented telephone arguments last May, but the virus will decide if we can return to in-person arguments and the Court will decide what adjustments to make if not.
I will make a post about how to watch or listen when we know how the arguments will be conducted. Meanwhile, some highlights of cases below, including a First Amendment case involving political affiliations of judges, a RFRA challenge to the no-fly list, intellectual property, rape under the UCMJ, and other issues. Each of these cases had been scheduled for argument last year but were held over when arguments were canceled due to the pandemic.
First Monday, October 5
The session opens with an unusual First Amendment case, Carney v. Adams, involving a Delaware law concerning political affiliation of judges. “Whether the First Amendment invalidates a longstanding state constitutional provision that limits judges affiliated with any one political party to no more than a ‘bare majority’ on the state’s three highest courts, with the other seats reserved for judges affiliated with the ‘other major political party.’” The Brennan Center is heavily involved and has an amicus brief that should provide a good foundation for understanding the facts and legal issues in this case.
The second argument today, in Texas v. New Mexico, involves a highly technical water issue: “Whether the River Master correctly allocated evaporation losses under the Pecos River Compact.” This will be hard to follow and not have much public interest. However, it does have the allure of being the extremely rare case that begins in the Supreme Court under its original jurisdiction — and this case has been on the Court’s docket, with various disputes, since 1960. If that’s enough to grab your attention, take a look at this article to get a sense of the current issues and then peruse the extensive docket just to see how actively this dispute has been litigated over the years.
Tuesday, October 6
The first case today is not one I would recommend for a casual observer. Although the context is important (pharmaceutical drug reimbursement rates), the Court will consider quite technical issues of federal preemption under the Employee Retirement Income Security Act (ERISA). Rutledge v. Pharmaceutical Care Management Association.
The second case, however, is a politically important and legally interesting case: a challenge to the “no fly list” brought in part under the Religious Freedom Restoration Act. Tanzin v. Tanvir. RFRA has been embraced by conservative advocates and jurists in “culture wars” contexts, so its invocation by Muslims in a national security context should, at the very least, make for interesting arguments. Oyez offers a useful overview:
The plaintiffs, Muslim men born outside of the U.S. but living lawfully inside the country, allege that the Federal Bureau of Investigation (FBI) placed their names on the national “No Fly List,” despite posing no threat to aviation, in retaliation for their refusal to become FBI informants reporting on fellow Muslims. They sued the agents in their official and individual capacities in U.S. federal court under the First Amendment, the Fifth Amendment, the Administrative Procedure Act, and the RFRA. They claim that the listing of their names substantially burdened their exercise of religion, in violation of the Religious Freedom Restoration Act (“RFRA”), because their refusal was compelled by Muslim tenets.
Wednesday, October 7
Google LLC v. Oracle America Inc. is an extremely important intellectual property case. A great deal of software relies on existing Application Programming Interfaces (APIs), which had been assumed to be open-source because the statue states that copyright protection does not “extend to any idea, procedure, process, system, method of operation, concept, principle, or discovery.” But the Federal Circuit held that APIs are copyrightable and that Google’s use of Java APIs were not fair use. See the amicus brief from the Electronic Frontier Foundation.
Next up is a pair of cases, Ford Motor Company v. Bandemer and Ford v. Montana Eighth Judicial Court, that involve technical civil procedure issues but are extremely important for product liability litigation. When people allege they were harmed by products that are marketed and sold nationwide, plaintiffs’ lawyers have to decide where to file the lawsuit, and where a violation occurred is not always the jurisdiction with courts that are most friendly to such plaintiffs. Last year, the Supreme Court in Bristol-Myers Squibb Co. v. Superior Court of San Francisco County put severe limits on “forum shopping” by clarifying the standards of “personal jurisdiction” (the requirement that there be significant connection between the defendant and the jurisdiction of the court where the lawsuit is filed), but some courts have continued to find personal jurisdiction in product liability cases even where the alleged injuries or misconduct did not occur in that state. There’s a useful overview of the legal issues here.
[The Court observes Columbus Day on Monday, October 12]
Tuesday, October 13
First up is argument in two consolidated cases (US v. Briggs and US v. Collins) involving the statute of limitations for rape under the Uniform Code of Military Justice. There’s an interesting amicus brief from a bipartisan group of Members of Congress that provides a useful history of the UCMJ and prior precedents.
The second case today is not one I would recommend to the casual observer. Chicago v. Fulton involves a technical bankruptcy issue.
Wednesday, October 14
Torres v. Madrid, addresses an important and unresolved legal issue related to what constitutes a seizure under the Fourth Amendment. It is unresolved in that lower courts have come to different conclusions where an officer used force to detain a suspect but was unsuccessful; this is known as a “circuit split” and is one thing that makes it very likely the Court will agree to hear a case. The official “question presented” makes this clear: “Whether an unsuccessful attempt to detain a suspect by use of physical force is a ‘seizure’ within the meaning of the Fourth Amendment, as the U.S. Courts of Appeals for the 8th, 9th and 11th Circuits and the New Mexico Supreme Court hold, or whether physical force must be successful in detaining a suspect to constitute a ‘seizure,’ as the U.S. Court of Appeals for the 10th Circuit and the District of Columbia Court of Appeals hold.” See the brief from the NAACP LDEF.
The last October argument is in Pereida v. Barr, an immigration law case. Federal immigration law permits non-citizens to challenge their deportation on certain bases, but not if the individual has been convicted of a “crime involving moral turpitude” (CIMT) under state or federal law. But state statutes are often complex and plea agreements are not always clear, so it is not always obvious whether a CIMT is involved. In this case, Pereida was charged with attempting to use a false Social Security Number and pled no-contest to violating a statute, some but not all subsections of which could be read to constitute a CIMT. The issue is “Whether a criminal conviction bars a noncitizen from applying for relief from removal when the record of conviction is merely ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act.” See this interesting brief from a group of former immigration judges.
Yesterday’s Supreme Court decision that Title VII of the Civil Rights Act of 1964 prohibits firing an employee simply because of sexual orientation or gender identity is truly momentous and will mean improved employment security for countless people throughout the country, notably those who live in the majority of jurisdictions with no state- or local-level prohibition on such discrimination. Beyond that wonderful take-away, there is a lot to digest. Much of the mainstream coverage matches my thoughts when I was reading the opinion, but I have a few additional thoughts I’d like to set out regarding Justice Gorsuch’s role and the similarities and differences between this decision and the sexual orientation cases of recent years.
That an opinion prohibiting LGBT discrimination would come from Justice Gorsuch is certainly a major surprise, but Reagan-appointee Justice Kennedy was no obvious ally when he wrote Lawrence v. Texas (striking down sodomy laws) in 2003 or US v. Windsor (striking down the federal Defense of Marriage Act) ten years later, and we were still on the edge of our seats in 2015 before he released the majority opinion in Obergefell v. Hodges (holding that the 14th Amendment requires the state to recognize same-sex marriage). (As an aside, all those decisions were issued on June 26. Yesterday was a break from what some people thought was a tradition, even if based on a very small sample size.)
Still, there is a notable difference in style and tone. The opening paragraph in Lawrence declares that “[t]he instant case involves liberty of the person both in its spatial and more transcendent dimensions.” Obergefell begins “[t]he Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,” and Kennedy gets more poetic and philosophical from there.
In contrast, Bostock begins “[s]ometimes small gestures can have unexpected consequences. Major initiatives practically guarantee them.” It then adds that “[i]n our time, few pieces of federal legislation rank in significance with the Civil Rights Act of 1964,” but that’s as close as we get to recognition of the importance of the rights at issue in these cases. The emphasis — the chosen framework — is on the meaning of the words in the statute; an academic exercise rather than an examination of the principles of rights.
That difference is legally appropriate and, to some extent, required because Kennedy was interpreting constitutional provisions that required him to expound the meaning of “liberty” while Gorsuch was charged with interpreting the meaning of the word “sex” in a Congressional statute. Moreover, other cases had already made clear that “sex” includes sex stereotyping and sexual harassment, and that the statute prohibits other kinds of discrimination that might be given a label that is not one that actually appears in the text of the statue. It is very hard to see an intellectually satisfying way to say LGBT discrimination is not sex discrimination if we’ve already accepted that it is unlawful to discriminate against a woman for being a “tomboy” (to say nothing of the fact that we also (almost) universally accept that it is discrimination on the basis of race even if the person has no bias against any individual’s race but only interracial marriage).
So the Gorsuch opinion is rather bland as judged by its analysis and certainly by its rhetoric. His approach is methodical: there’s a statute that uses specific words, we have established analytical frameworks for how we decide what those words mean as well as significant relevant precedent, and so Gorsuch went through a routine analytical process and came to a logical conclusion.
What is remarkable is that he did not shy away from his own conclusion. It is reassuring that he would rule in a way that almost certainly is against his personal political views and it is deeply troubling that it’s remarkable to us that a Supreme Court Justice appointed by Trump actually cares about analytical consistency and intellectual honesty.
This most certainly does not mean that he is likely to side with what remains of the liberal wing of the Court as a general matter. It doesn’t even mean that he has moderated his views or shifted to an understanding of the law that is closer to those who believe in a “living constitution” or employ other analytical frameworks that more often lead to progressive conclusions. It only means that he might not engage in the kind of tortured logic on display in the dissenting opinions in order to avoid a particular outcome when his own legal analysis happens to bring him to a conclusion that is also one a progressive (or even someone like Posner) might arrive at through different means. (My initial reaction to Obergefell five years ago also noted that Kennedy got there through a narrow framework that was less valuable for other LGBT rights issues.)
We’ll have to see if this lasts, and it will only be relevant in rare instances. The way Gorsuch approaches other legal issues (such as the free exercise clause and how it applies the the ministerial exception, to mention just one case that should be decided later this month) almost certainly won’t wind up pulling him to conclusions that conflict with his ideology. Regardless, it’s nice to be surprised in this way. Scalia used to occasionally rule in ways that contrasted with how people thought of him, Roberts has repeatedly done so now, and it looks like there’s another Justice who just might surprise us from time to time.