June is a very interesting time for very boring people. Namely, those who are obsessed with the Supreme Court. Most of the opinions of the Court for a session begin to trickle out in June.

Anyway, we have two relatively new justices, Kavanaugh and Gorsuch, and seven old friends. Let’s see what they decided this year! I tried to work in some snark into what is a really dry topic, but there’s only so much snark you can work into some devastatingly boring subject matter.


Here lies RBG, 1318-2018

Weyerhaeuser Company v. United States Fish and Wildlife Service  – 8-0

The court clarified that the standard for judicial review of a USFWS designation of a “critical habitat” is if that determination was “arbitrary, capricious, or an abuse of discretion.”

Mount Lemmon Fire District v. Guido – 8-0

The court clarified that public employers are not exempt from age discrimination law even if below the 20 employee limit set for private employers.

Madison v. Alabama – 5-3 (Kagan wrote the opinion, with Roberts, Ginsburg, Breyer, and Sotomayor joining)(Alito wrote a dissent with Gorsuch and Thomas joining)

In this case, Madison is on death row for killing a cop. He has late-stage dementia due to multiple strokes and can’t remember his crime. The majority emphasizes that the criminal only need to understand why they are being killed. They don’t have to actually remember their criminal act. The dissent was mostly procedural. Essentially, Alito was pissed that the petitioner pulled a bait and switch on the court with their arguments and wanted the court to boot the case without ruling.

New Prime Inc. v. Oliveira – 8-0

The court ruled in favor of interpreting “contracts of employment” to include independent contractors in a case where there was an arbitration provision in the contract but federal law bars such a provision.

The court ruled in favor of considering burglary of a mobile home or RV as a violent crime.

Stokeling v. United States – 5-4 (Thomas wrote the opinion, with Alito, Kavanaugh, Gorsuch, and Breyer joining)(Sotomayor wrote the dissent, with Roberts, Kagan, and Ginsburg joining)

Stokeling was picked up on a felon in possession of a firearm charge. His sentencing fell into a 15 year mandatory minimum because he had a prior “violent crime” conviction. This supposed violent crime was a robbery in Florida, where one of the required elements of the crime is “overcoming a victim’s resistance.” Thomas said that was enough to be considered a violent crime. Sotomayor called it “at most, a half-notch above garden-variety pickpocketing or shoplifting.”

There’s a provision requiring INS to arrest and hold certain noncitizens without bond after they are released from jail after committing certain crimes. The statute says INS must do so “when [they are] released”. The 9th circus interpreted that as immediately after they are released, and if the person evades capture for a period of time (e.g. a day), this mandatory arrest is no longer applicable, and once arrested the person should be offered bond. Alito said that the 9th circus was wrong and that it doesn’t mean immediately after. Breyer was concerned about the interpretation meaning that INS could pick up a  criminal alien decades after the fact under Alito’s interpretation.

Air and Liquid Systems Corp. v. Devries – 6-3 (Kavanaugh wrote the opinion, with Kagan, Roberts, Sotomayor, Breyer, and Ginsburg joining) (Gorsuch wrote the dissent with Thomas and Alito joining)

Two Navy sailors died due to asbestos exposure. Their widows sued a product manufacturer of the product they were working on, but that product didn’t have any asbestos. However, the product required asbestos in order to function. Kavanaugh said that under maritime law, the product manufacturer has a duty to warn about hazards that may come from third-party components necessarily integrated into the product. Gorsuch criticizes this duty to warn because it doesn’t go much beyond requiring warning when a dangerous action is “foreseeable”.

  • To me, this is Kavanaugh’s first disappointment. This is a plain attempt at going after big pockets, and it increases the scope creep of products liability.

Lamps Plus Inc. v. Varela – 5-4 (Roberts wrote the opinion, with Alito, Kavanaugh, and Gorsuch joining. Thomas wrote a concurrence)(There were a bunch of individual dissents)

Employees brought a class action because Lamps Plus gave their personal info to a hacker through a phishing scam. The issue at hand is whether the class consented to class arbitration. The contract was ambiguous. Roberts says you can’t construe consent out of ambiguity. The dissents had more of a policy-based power imbalance theme to them because class arbitration benefits the employees.

Henry Schein Inc. v. Archer and White Sales Inc. – 9-0

Contract between two companies had an arbitration clause and specified that an arbitrator would decide whether an issue was arbitrable. The court affirmed that there isn’t some policy-based exception to the plain language of the contract for “wholly groundless” claims of arbitrability to be dismissed by a court.

Cougar Den is a fuel wholesaler owned by an Indian tribe. The state of Washington sent them a bill for fuel tax for the fuel they transported on Washington highways and for import fees. Cougar Den claimed this violated the treaty between the US and the Yakama tribe that, among other things, gives them “the right, in common with citizens of the United States, to travel upon all public highways.” Breyer says that the treaty covers commercial activities on the highway, and thus the tribe cannot be taxed for their fuel importation. Roberts distinguishes the fuel tax, which is for possession of the fuel, from a right to travel, which is not infringed by the tax. Kavanaugh adds to Roberts’ dissent by saying that “in common with” means subject to the same non-discriminatory regulations of, including the fuel tax.

Garza was charged with aggravated assault and possession with intent to distribute. He pled out and got a 10 year sentence instead of a possible life in prison sentence if it went to trial. Part of the plea agreements was a waiver of his right to appeal the cases. Later, Garza instructed his attorney to appeal the cases. This case is about whether the attorney was ineffective because he didn’t file the appeal. Sotomayor says yes, because appeal waivers aren’t universal, and there are often opportunities to appeal consistent with the waiver. Thomas says no, because the requested appeal was challenging the sentence which was negotiated in the plea agreement along with the appeal waiver.

  • You can start to see the teams forming in the court when it comes to accused criminal rights. The liberal justices vote as a fairly unified block for anything that improves an accused criminal’s standing. Roberts is a bit less predictable but still pretty pro-accused criminal. Kavanaugh is the swing vote, and Thomas, Alito, and Gorsuch are pretty strongly in the L&O camp. I’m personally on the majority side on this one. I’ve seen how plea deals can be used quite coercively, and anything that balances the power between DA and defendant is good.

Class action was filed against Google for selling users’ search terms to third party sites in violation of a federal law. The class action was settled with a cy pres payment of $5.3M. Cy pres means donate the money to charity. Turns out the charities included the alma mater of the counsel representing the class and other charities that Google already had a relationship with. The question was whether this arrangement was “fair, reasonable, and adequate” compensation to the class. Additional issues of standing popped up regarding those who objected to the settlement. Specifically, the objectors weren’t part of the original lawsuit. The majority punted back to the lower courts to deal with the standing issue. Thomas didn’t think the standing issue was a problem and would’ve reversed the 9th circus’s decision to certify the class and proceed with the settlement.

International Finance Corp is an international organization like the IMF, WHO, World Bank, etc. They funded a utility project in India that polluted the environment and killed a bunch of fish. IFC is granted sovereign immunity “same as” what foreign sovereigns receive. The question was whether IFC is granted sovereign immunity over commercial activities. If IFC’s immunity is “same as” current day foreign government sovereign immunity, the answer is that it isn’t necessarily immune. If IFC’s immunity is “same as” foreign government immunity in the 1940s when the law in question was passed, then IFC has blanket immunity. Roberts says it is same as current day foreign government immunity, and booted it to the circuit court for further consideration. Breyer says it’s the same immunity as foreign governments had at the time the law was passed.

Dude got caught on a hovercraft in a national park. But wait! Turns out the river isn’t actually federal property. It’s within the park, but owned by the state. Hovercraft 1 – Smokey the Bear 0.

Dude worked on the railroad. He fell and hurt himself one day. He successfully won a negligence case against the railroad for, among other things, lost wages. The question is whether payroll taxes should be deducted from the lost wages. Ginsburg says yes, these are wages being paid to an employee. Gorsuch says no, this is compensation for an injury, not payment for hours never worked.

  • I’m trying not to read too far into this, but it seems that the majority is pushing the all-too-pernicious concept that anything ever given to an employee by an employer is a taxable wage.

"I just came from a looovely party at Hillary's"

Death row inmate has a condition that he claims will cause him to choke on his blood when given lethal injection. Justices ignore the questions at hand and have an up or down vote on the death penalty disguised as an 8th Amendment debate.

Families of those who were killed on the USS Cole sued Sudan for sponsoring that attack. They served notice of the suit on the Sudanese embassy in the US. Sudan said they had to serve notice to the foreign minister in Sudan. Alito says that routing it through the embassy was improper. Thomas says this is one of the basic purposes of embassies.

Attorney represented people trying to get past due SS benefits. He represented them directly against the SS agency and also against the SS in court. There’s a 25% cap on attorneys fees for this. The court ruled that the cap only applies to fees relating to the court case, and the agency representation is separate.

Pepper sued on behalf of Apple users for anti-trust violations relating to the App Store. Kavanaugh wrote that customers who buy apps from the App Store are direct customers and thus have standing to sue over monopolistic practices. Gorsuch’s dissent points out that if anybody has standing, it’s the app developers who are being directly charged by Apple.

  • This is the second time Kavanaugh has disappointed. He is consistently voting in favor of companies having responsibility for downstream effects of their products, whether it be holding the metal component manufacturer liable for the asbestos they don’t sell, or holding Apple liable to the customers for pricing that passes through app developers.

Dude turned in his homework (petition for appeal) late. 9th circus let him turn it in for full credit. SCOTUS gave him no credit.

Timbs was arrested for dealing drugs. He had his $42k Land Rover confiscated by the state in criminal asset forfeiture, despite being sentenced to 1 year in prison and paying a $1000 fine. The court universally ruled that the 8th Amendment is incorporated to the states via the 14th Amendment, and thus excessive fines are illegal. The court didn’t rule on the broader legality/illegality of criminal and civil asset forfeiture.

  • The court came to the right conclusion in this case. The entirety of the bill of rights should be incorporated by the 14th Amendment. The idea that the United States recognizes a fundamental right, but a state doesn’t have to is the evil mirror version of laboratories of democracy.

Lorenzo sent an email including false information intending to defraud investors. There are three elements to be satisfied for one of these fraud claims. 1) Materially false information; 2) The person charged “made” (has ultimate authority over) the statements; and 3) the person intended to deceive with the statements. Elements 1 and 3 are undisputedly true. Element 2 is undisputedly false. Breyer says that the fraud claim can be repackaged as a “fraudulent scheme” claim if Element 2 isn’t met. Thomas says that doing so would render Element 2 moot.

  • Again I don’t want to read too much into the case, but I think you see a divide between policy-based voting by the majority (this was a clear conspiracy, and they shouldn’t get off on a technicality) versus the textual-based voting by the dissenters. I’m mildly surprised that Alito was in the majority.

State gov’t retirement benefits weren’t taxed by the state, but fed gov’t retirement benefits were. Court says this is illegal under intergovernmental tax immunity principles.

Guy applied for SS disability. Court approved it after a certain date, but pointed to expert testimony that he had “other work” available prior to that date. Guy asked expert to enter data into record supporting his testimony, which never happened. Kagan wrote that the expert testimony is sufficient to deny disability. Dissents point out that the expert testimony relied on data that was never produced when requested, making it insufficient.

Confidential sales are sales nonetheless for the purposes of the “on sale” bar from receiving a patent. This was one of those corner cases I remember learning about in patent law class where the prof said that there’s technically no case law on this specific issue, but it’s pretty obvious how it would go. Well, now there’s case law on this issue.

Merck was stuck between a rock and a FDA place. They got sued for failure-to-warn about a side effect of a drug. Why? Because the FDA didn’t approve their warning. This is a procedural case where the question is whether the reasoning for the FDA rejection should be handled by the judge or the jury. The court sent it back to the judge.

Guy has his house foreclosed on. Bank hires a firm to do a non-judicial foreclosure. The question is whether a firm that only does non-judicial foreclosures is a “debt collector” as defined in the Fair Debt Collection Practices Act. Court says they’re not.

Some Indians were hunting elk on their reservation. They crossed into Bighorn National Forest before shooting the elk. They were charged with hunting without a license. The Crow tribe has a treaty with the US that gives them the right to hunt on “unoccupied lands of the US.” Sotomayor says that Wyoming’s intervening statehood had no impact on this treaty and that designating the national forest didn’t make that land become “occupied.” Alito says that the same provision was interpreted in another case in the 1860s, and that the statehood invalidated the hunting portion of the treaty.

  • I’ll admit that I have no clue what the conservative bloc is attempting here. This seems to be some sort of dual sovereignty argument where Wyoming retains rights that the federal government has given to the Crow tribe. IMO, it screams of the sort of double dealing that the US had with Indians throughout the 18th and 19th centuries.

Copyrights are “registered” when the Copyright Office registers them. No sooner.

Guy was audited by the FTB of Cali. He sued the FTB in Nevada, which didn’t grant immunity to other states’ governments. Thomas wrote that they were overturning the precedent which conditioned sovereign immunity on whether the host state grants immunity to other states. Instead, sovereign immunity is inherent, even across state lines. Breyer had tinges of federalism in his dissent.

  • On one hand, the dissent has emotional appeal. I like the idea that a governmental entity can be hauled into court and be held accountable for their actions. I just don’t know that another State’s courts are the right venue for that sort of litigation. I’d much rather it be accomplished through the reduction of sovereign immunity.

Yes, the TVA is still around. They were putting up power lines and ended up electrocuting a dude and seriously injuring another one. The question was whether the commercial activity of putting up power lines was a part of the “discretionary-function” exception to sovereign immunity. It was.

She Dead


Rimini street illegally downloaded software from Oracle’s website and sold it. The question was about damages associated with copyright infringement. Yawn.

Tempnology licensed out one of its trademarks. It subsequently went into Chapter 11 bankruptcy. During the bankruptcy, Tempnology “rejected” the license contract, which is essentially a breach of contract. The question is whether Mission can still use the trademark or not. Kagan says yes. Gorsuch says the case shouldn’t have been decided because it wasn’t ripe yet.

Munitions cleanup company for Iraq was scamming the US. Hunt went to jail for it, but is suing his former company under the False Claims Act. It’s a statute of limitations question as to whether it started running when Hunt knew about the scam or when the US government knew about it. Court said it was the latter.

Guy was arrested for harassment and other crimes. He claimed it was a retaliatory arrest. The question was whether probable cause defeats a retaliatory arrest claim as a matter of law.  Roberts says yes, probable cause kills a retaliatory arrest claim. Gorsuch would rather probable cause be a factor to consider instead of dispositive.

Home Depot U.S.A. Inc. v. Jackson – 5-4 (Thomas wrote the opinion with Ginsburg, Breyer, Sotomayor, and Kagan joining)(Alito wrote the dissent with Roberts, Gorsuch, and Kavanaugh joining)

Guy gets sued by the bank in North Carolina state court for not paying his Home Depot credit card bill. He countersues and also files a third-party class action against Home Depot for deceptive sales practices. Home Depot tries to remove the case from state court and send it to federal court. Essentially the question is whether Home Depot, as a third party defendant, can initiate removal proceedings for a class-action counterclaim against the defendant of a case. Thomas says that only defendants can remove, and a defendant on a counterclaim is technically a plaintiff. Alito says that Thomas was picking nits, and that a third-party defendant on a counterclaim is a defendant.

Smith v. Berryhill – 9-0

Guy mailed in his disability renewal late. SS denied him benefits. He claims that the decision is judicially reviewable as a “final decision” from a regulatory body. Court agreed.

Azar v. Allina Health Services – 7-1 (Gorsuch wrote the opinion)(Breyer wrote the dissent)(Kavanaugh recused)

HHS adjusted a payment rate for Medicare-covered hospital services in low income areas. A number of hospitals challenged the change because it wasn’t put through the normal notice and comment period that regulatory changes are required to go through. Gorsuch wrote that this change didn’t meet any exception to the notice and comment period requirement. Breyer was worried that forcing rate changes to go through a multi year notice and comment process would cripple Medicare.

  • This is yet another example of how Breyer is the worst justice on the court. His dissent was policy-based garbage.

Fort Bend County, Texas v. Davis – 9-0

Under Title VII of the CRA, there’s an administrative process to be followed when alleging discrimination. Davis filed a religious discrimination claim, but bypassed parts of the administrative process to go straight to federal court. The question is whether the administrative process is a pre-requisite to taking it to court. There was a circuit split on this issue. The court says it is not a pre-requisite, but merely claim-processing guidance.

Mont v. United States – 5-4 (Thomas wrote the opinion with Roberts, Ginsburg, Alito and Kavanaugh joining)(Sotomayor wrote the dissent with Kagan, Breyer, and Gorsuch joining)

Guy was convicted of federal drug crimes. Served a federal sentence and had a 5 year supervised release. During the supervised release, he was charged in state court for additional drug crimes. The question is whether the time he spent in state prison prior to trial counted toward his supervised release. Thomas says that because the state court credited that time, and because supervised release doesn’t count time imprisoned, the supervised release is paused during that pre-trial incarceration. Sotomayor says that the statute refers to imprisonment “in connection with a conviction”, which doesn’t apply to pre-trial incarceration.

Taggart v. Lorenzen – 9-0

Guy gets sued for shady real estate transactions. He goes into bankruptcy. After he is discharge from bankruptcy, the people suing him try to get attorneys fees for the work done after he was discharged from bankruptcy. The bankruptcy court holds them in contempt for violating the bankruptcy dicharge. Supreme court holds that the standard for holding contempt is more than just their subjective good faith belief that they aren’t violating the discharge. If it is objectively unreasonable to believe that they weren’t violating the discharge, then they can still be held in contempt.

Quarles v. United States – 9-0

Guy gets busted carrying a firearm as a felon… while burglarizing a house. The question is about sentencing, where if he was committing “generic burglary” it amplifies the sentence. Generic burglary requires intent to commit a crime. The question was whether the intent had to exist when entering the building or whether the intent could be formed while he remained in the building. The court says it doesn’t matter exactly when the intent was formed.

The USPS challenged a patent held by Return Mail in an Covered Business Method Review (CBM) proceeding. The relevant statute says that CBM petitions can be brought by “persons.” We know from Citizens United that corporations are people, but is the government people? There is a long-standing rule of judicial interpretation that says sans-explicit instructions otherwise, the sovereign is not a person. Sotomayor said that there was nothing to indicate that this specific instance of “person” should be interpreted otherwise, so USPS is ineligible to challenge the patent. Breyer shows, yet again, why he’s my least favorite justice, making a not-very-convincing efficiency argument.

An oil rig worker off the coast of CA sued his employer under CA law for not providing lunch breaks. The employer moved the case to federal court, and the federal court dismissed the case because federal wage and overtime laws pre-empted the CA laws for offshore workers under the Outer Continental Shelf Lands Act. The 9th court overturned this ruling and said that the OCSLA incorporates the the adjacent state law (CA law) no matter what the relevant federal law says. The Supreme Court unanimously upheld pre-emption as a concept. CA law can be used to fill in the gaps of federal law, but when state and federal law are at odds, federal wins.

A public access cable network fired a couple of guys for harassing other employees. The guys sued for suppression of their First Amendment rights. First Amendment only applies to state actors. “Congress shall make no law”… Is a public access cable network a state actor? Kavanaugh says no. Just because they are granted certain privileges by the government (bandwidth, funding, etc.) doesn’t mean that they’re beholden to governmental restrictions on operation like the First Amendment.  Sotomayor says that the public access network is essentially acting as a proxy for the government, and is thus a state actor beholden to the First Amendment.

  • This case is a microcosm of the economics of the two wings of the court. The conservative wing sees companies, even in highly regulated areas (see also, Internet/social media, healthcare, etc.) as independent entities. The progressive wing envisions a proto-fascism here where a little bit of state inteference snowballs into a whole lot more. I think this case would have been similar to Griswold v. Connecticut as a stepping stone to something much more earthshattering (Roe v. Wade, in the case of Griswold) if Hillary had been elected. Social media giants could be brought to heel (not that they need it), healthcare companies could be gutted, and many other industries would be vulnerable if the vote went the other way.

Virginia bans uranium mining. Virginia Uranium found a deposit and wants to mine it. The federal Atomic Energy Act regulates most of the uranium fuel cycle from mining safety practices to transportation to disposal, but doesn’t directly regulate the mining itself. The question is whether the AEA pre-empts the Virginia law, even though the AEA doesn’t speak on the regulation of mining.  Gorsuch says no. If the AEA doesn’t cover that area, it doesn’t pre-empt Virginia’s ban. Roberts says that while techincally the AEA doesn’t cover that area, the Virginia law (based on the legislative history) is being used as an end around to override safety rules in the AEA.

Gamble v. United States – 7-2 (Alito wrote the opinion with Thomas, Breyer, Kagan, Sotomayor, Roberts, and Kavanaugh joining)(Gorsuch and Ginsburg wrote dissents)

Gamble was convicted in both Alabama court and Federal court of possession of a firearm by a felon. He challenged the dual convictions as double jeopardy. The long-standing interpretation is that there are dual sovereigns (state and fedgov), and each get s a bite at the apple. Alito wrote that they are staying with precedent, which is that each sovereign gets a bite at the apple. Ginsburg’s dissent is a bit troubling as it has a very “modern” view of federalism. She wrote, “The notion that the Federal Government and the States are separate sovereigns overlooks a basic tenet of our federal system.” Gorsuch hits a home run on this one, and has vaulted over Thomas as my favorite justice with this dissent alone. He wrote, “This ‘separate sovereigns exception’ to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy. I would enforce that guarantee.”

  • I’m disappointed with the entire court except for Gorsuch, but I think that my disappointment is strongest with Thomas. He wrote a special concurrence getting into his pet issue of his dislike for the reverence placed on often erroneous precedent. However, he didn’t follow that through to the correct outcome. I think I would’ve pursued an incorporation theory for how double jeopardy applies to two theoretically separate sovereigns, but Gorsuch was raining holy fire down in this dissent. Here’s another quote:

Nor has only the law changed; the world has too. And when “far-reaching systemic and structural changes” make an “earlier error all the more egregious and harmful,” stare decisis can lose its force. In the era when the separate sovereigns exception first emerged, the federal criminal code was new, thin, modest, and restrained. Today, it can make none of those of boasts. Some suggest that “the federal government has [now] duplicated virtually every major state crime.” Others estimate that the U. S. Code contains more than 4,500 criminal statutes, not even counting the hundreds of thousands of federal regulations that can trigger criminal penalties. Still others suggest that “‘[t]here is no one in the United States over the age of 18 who cannot be indicted for some federal crime.’” If long ago the Court could have thought “the benignant spirit” of prosecutors rather than unwavering enforcement of the Constitution sufficient protection against the threat of double prosecutions, it’s unclear how we still might.


This person is definitely alive. Certainly not taxidermied and puppeteered by Elena Kagan

Virginia House of Delegates v. Bethune-Hill – 5-4 (Ginsburg wrote the opinion with Gorsuch, Thomas, Sotomayor and Kagan joining) (Alito wrote the dissent with Roberts, Kavanaugh, and Breyer joining)

The Virginia House of Delegates was redistricting voting districts for the state. Their plan ended up in court for racial disparities under the Voting Rights Act. The legislature sued because the remedial plan created by a special master (literally a poli sci prof in the University of California system… no bias there) was a biased mess. Ginsberg wrote that the legislature didn’t have standing and that the State (attorney general) would have to bring the suit. Alito believes that the legislature itself suffers an injury when the plan is rejected.

  • If you want to see some brazen electoral hijinks, this is a case worth reading about.

Gundy got busted for sexual assault and drug charges. Once he was paroled out of a PA federal prison, he voluntarily transferred to a halfway house in NY. However, when he crossed state lines, he triggered the sex offender registry act (SORNA) requirement to register, which he didn’t do. He was convicted prior to the passing of SORNA, and SORNA itself basically punted to the Attorney General on how to handle registering those convicted prior to SORNA passing. How this isn’t an ex-post facto law, I have no clue.

Anyway, this implicates another issue that I mentioned last December. the non-delegation doctrine. Basically, prior to FDR STEVE SMITHING the SCOTUS, the court held that Congress did the legislating, the Executive did the executing, and the Judiciary did the judging. Congress couldn’t delegate rulemaking to the Executive, among other things. Well, this was really inconvenient for the proggy planners of the day, so they just ignored it.

Anyway, this was a situation where the progs on the court were predictably pro-government overreach, Gorsuch wrote a kickass dissent that called Alito out for self-castrating and handing his nuts over to Kagan, and a beautiful opportunity was missed because Kavanaugh wasn’t ready yet when this case was argued. Alito basically said “I don’t want my name on a worthless dissent that defends a sex offender, even though I agree with the dissent.” Fuck him.

McDonough (Election Commissioner, D-NY) was charged with forging a bunch of ballots during the 2009 primary. Dickbag prosecutor may have faked some evidence during McDonough’s criminal trial, resulting in a mistrial and an eventual acquittal. Typical NY politics so far. There’s a statute that lets a criminal defendant sue a prosecutor who fakes evidence. The statute of limitations is 3 years. The question is whether the 3 years starts when the defendant is acquitted or when the defendant becomes aware of the tainted evidence. The court says it’s the former, when the defendant is acquitted.

As always, expect Ginsburg to write any opinion/dissent against a religious party. Not saying she’s wrong, just that she’s predictable. This issue is of an old WWI monument on public land. The monument is a cross, but doesn’t really have particularly theological meaning. It’s more of a war memorial. The question is whether the continued presence and upkeep is a violation of the religious Establishment Clause. Majority says no. There are a bevy of concurrences that I didn’t list, but I think Gorsuch’s is the best. He argues that the AHA doesn’t have standing, because taxpayer standing isn’t sufficient standing to challenge an expenditure. This case is one of those where I’m not sure there’s a good answer except to sell the thing to a private owner.

PDR send spam faxes to C&H. C&H sued under the Hobbs Act, which prohibits fax spam. The question is whether certain language of the Hobbs Act requires the court to defer to the FCC’s interpretation of some terms. Court says no, Chevron deference applies. Some concurrences say that this is the kind of mess caused by Chevron deference in the first place.

Flowers was eventually convicted and sentenced to death for killing 4 people. It took 6 trials before he was actually convicted. There was an issue of the prosecutor striking black jurors from the pool that caused problems. The prosecutor was slapped on the wrist for two of the trials. Anyway, in the 6th trial, he struck 5 of the 6 black jurors in the pool, and one specifically was “similarly situated” to white jurors who were empaneled, according to Kav. Question was whether this violated a law against racial bias in selecting jurors. Majority said yes. Thomas wrote this in his dissent:

The only clear errors in this case are committed by today’s majority. Confirming that we never should have taken this case, the Court almost entirely ignores—and certainly does not refute—the race-neutral reasons given by the State for striking Wright and four other black prospective jurors. …
Today’s decision distorts the record of this case, eviscerates our standard of review, and vacates four murder convictions because the State struck a juror who would have been stricken by any competent attorney. I dissent.

A trust was created for an heir who lived in NC. The trustee lived in CT. The trustee, for years, paid NC taxes on the income accrued by the trust, but no money was distributed to the beneficiary in NC. The question was whether NC needed to pay that money back because there was no taxable event in NC. Court said NC owed the money back to the trust.

Rehaif overstayed his visa and was here illegally. He decided, while being here illegally, to go to the gun range. He got busted for unlawful possession of a firearm. One element of the crime is “knowingly” possessing the firearm. However, it’s ambiguous whether the defendant must only knowingly possess the firearm or whether they must also knowingly be doing so illegally (specifically, he must know that he is here illegally). Majority says that the defendant must both knowingly possess the firearm AND know that they are of a status (illegal immigrant) that is not allowed to. Dissent says the plain text of the statute clearly means “knowingly” only applies to the possession element.

Knick was challenging an ordinance passed by the township as a takings claim. Previous SCOTUS precedent require a takings plaintiff to “exhaust” all state paths for remedy before taking the case to the federal court. The majority overturned this precedent and allows takings claims to come up to federal court prior to exhausting all state remedies.

Davis was convicted of possessing a firearm during a “crime of violence.” The question is whether the phrase “crime of violence” is unconstitutionally vague. Gorsuch’s opinion is that the text and context of the statute don’t provide enough of a framework to define a “crime of violence.” Kavanaugh’s dissent is not great. It’s mainly policy based and has a whiff of “know it when you see it.”

  • Yet another strike against Kavanaugh and for Gorsuch. I think the conservative bench whiffed on this one, letting their policy preferences get in the way of their rationality. Honestly, I was a bit surprised Roberts didn’t end up on the majority side of this one.

The USDA had collected some private financial information about FMI. Argus filed a FOIA to try to get that financial information about FMI. The question is whether the information fell into an exception of FOIA. Majority says yes. Breyer basically said that the majority missed the invisible “no blood, no foul” exception to the exception. I didn’t read his whole dissent, because it’s typical Breyer garbage.

Brunetti tried to register the trademark “Fuct”. The Lanham Act (trademarks) prohibits registration of immoral or scandalous trademarks. Issue is whether the Lanham Act violates the First Amendment. Kagan’s opinion said that “immoral or scandalous” is overbroad and thus violates the First Amendement. She leaves the door open for the language to be tightened up in the Lanham Act, maybe to prohibit “obscenities”. Alito, complete with freshly polished testicles, went further in his concurrence and said that this is a violation of the First Amendment because it’s viewpoint discrimination. “Obscenities” probably doesn’t make it over Alito’s hurdle. The dissents were mostly policy based.

Batterton got battered by a faulty hatch on a ship he was repairing. The question is whether, under maritime law, an injury caused by a problem that makes a ship unseaworthy can result in punitive damages being awarded to the injured party. This is a traditional “circuit split” case. Majority says no punitive damages.

Child predator was out on supervised release. During a surprise search of his belongings, it was found that he had violated his release terms (he had porn on the computer and some other issues). The statute required him be imprisoned for 5 years for this violation. The question is whether this violates his due process rights. Specifically, whether this supervised release program feels more like a parole program or like an unconstitutional “go directly to jail without passing a jury” program. Gorsuch strongly believes the latter. Breyer was playing the game well, because he basically wrote a dissent but did a switcharoo at the last second and turned it into a concurrence. Alito’s dissent is serviceable.

I’ve talked about Chevron deference here (see the link above in  PDR Networks) in the past, but I haven’t particularly address Auer deference. Chevron is about the court deferring to an agency’s interpretation of a law. Auer is about deferring to an agency’s interpretation of a regulation. This case was a trial balloon for overturning Auer deference. They didn’t have enough votes. Courts still have to defer to reasonable agency interpretations of a regulation.

Tennessee Wine & Spirits Retailers Association v. Byrd – 7-2 (Alito wrote the opinion, with Roberts, Kavanaugh, Breyer, Ginsburg, Sotomayor, and Kagan joining)(Gorsuch wrote the dissent, with Thomas joining)

A couple of out of state retailers applied for liquor licenses. Tennessee’s ABC didn’t issue those licenses. The question posed to the court was whether the 21st amendment in combination with the dormant commerce clause allows the state to discriminate against out of state liquor license applicants. Alito says that it it unconstitutional because it favors residents over out of state applicants. Gorsuch has some weird appeal to history that falls flat. This is a rare misfire from Gorsuch and Thomas.

Mitchell v. Wisconsin – 5-4 (Alito wrote the opinion, with Roberts, Breyer, and Kavanaugh joining; Thomas wrote a concurrence) (Sotomayor wrote a dissent joined by Kagan and Ginsburg; Gorsuch also wrote a dissent)

Drunk driver was arrested. On the way to jail he passed out and was clearly having medical issues. Cop took him to the emergency room where, in the ER, he read him a form about the state’s implied blood draw consent and asked him whether he withdrew his consent. Being that the drunk driver was unconscious, he didn’t withdraw consent. Subsequently a blood draw was taken, and he was eventually found guilty of drunk driving.  The question is whether a warrant was required. Alito relies on the “exigent circumstances” doctrine for not needing a warrant. If it doesn’t sound familiar, the exigent circumstances doctrine is found in article F section Y paragraph T line W. This is probably the single most disappointing opinion I’ve come across for the conservative bloc. Good on Gorsuch for dissenting. However, Sotomayor stole the show with this paragraph in her dissent:

The plurality’s decision rests on the false premise that today’s holding is necessary to spare law enforcement from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws. Not so. To be sure, drunk driving poses significant dangers that Wisconsin and other States must be able to curb. But the question here is narrow: What must police do before ordering a blood draw of a person suspected of drunk driving who has become unconscious? Under the Fourth Amendment, the answer is clear: If there is time, get a warrant.

Rucho v. Common Cause  & Lamone v. Benisek- 5-4 (Roberts wrote the opinions with Alito, Gorsuch, Kavanaugh, and Thomas joining)(Kagan wrote a dissent with Breyer, Sotomayor, and Ginsburg joining)

These are gerrymandering cases challenging districting being done by Republican state legislatures. Roberts asserts that this is not justiciable because the Constitution assigns districting to the legislature. They boot the cases on political question doctrine grounds. The dissenters don’t really believe in the political question doctrine and would love to get their grubby hands on the districting levers of power.

Department of Commerce v. New York – 5-4 (Roberts wrote the opinion with Breyer, Kagan, Sotomayor, and Ginsburg joining)(A mess of partial concurrences and partial dissents from Breyer, Alito, Gorsuch, Kavanaugh, and Thomas)

Hoo boy, here’s the next round of FYTW. This was the case about the citizenship question on the census. Essentially, when it comes to an administrative procedure like what goes on the census, the test as to whether something is discriminatory is the “arbitrary or capricious” standard. Roberts decided the citizenship question reasonably had a legitimate reason to be on the census. Great! We’ll see the question on the 2020 census!

NOT SO FAST, MY FRIENDS! Enter the FYTW clause. Roberts decided that the case presented, despite being reasonable, was in bad faith. Thus no citizenship question! The Cocktail Circuit Chief Justice struck again!

Well, that was the Fall 2018 session of SCOTUS. Overall, a mixed bag. Join me next year for another one of these.