Annual Supreme Court Term in Review June 26, 2020 Annual Supreme Court Term in Review June 26, 2020 Our Panel
Ian Heath Gershengorn Lindsay C. Harrison Former Acting Solicitor General Partner Chair of the Appellate and Supreme Washington, DC | 202 639-6865 Court Practice Washington, DC | 202 639-6869
Jessica Ring Amunson Matthew S. Hellman
Partner, Co-Chair of the Appellate and Partner, Co-Chair of the Appellate and Supreme Court Practice Supreme Court Practice Washington, DC | 202 639-6023 Washington, DC | 202 639-6861
Ishan K. Bhabha Adam G. Unikowsky Partner Partner Washington, DC | 202 637-6327 Washington, DC | 202 639-6041 Our Appellate and Supreme Court Practice
. 20 oral arguments in the past five US Supreme Court Terms
. Argued three cases this Term (including one telephonically)
. Routinely appear in Federal and State appellate and trial courts and provide counseling on commercial and regulatory issues
. More than a dozen members of the firm have argued before the US Supreme Court
4 Court During the Pandemic Pandemic
. “In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session. . . . The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.” Polling Question #1
. Do you think the Supreme Court should allow cameras in the courtroom?
1) Yes
2) No Polling Question #2
. Did you listen to any of the Supreme Court’s telephonic arguments?
1) Yes
2) No Polling Question #3
. Do you think Justice Thomas will retire at the end of this Term?
1) Yes
2) No Pandemic Decisions
. Republican National Committee v. Democratic National Committee . Ballots must be received by election officials by Monday April 13. Question presented is whether absentee ballots must be mailed and postmarked by election day, Tuesday, April 7, as state law would ordinarily require, or whether instead they may be mailed and postmarked after election day, so long as they are received by Monday, April 13, as the district court ordered to accommodate the coronavirus . Court holds 5-4 that district court order was unlawful Polling Question #4
. Do you think the Court will have to decide a case arising out of the presidential election this fall?
1) Yes
2) No Pandemic Decisions
. South Bay United Pentecostal Church v. Newsom . California shutdown order that limited attendance at religious worship services to 25% of building capacity or 100 attendees, whichever is lower . Court holds 5-4 order is constitutional Backdrop to the 2019 Term Justice Kennedy Retires – What’s at Stake?
. Past four terms, Justice Kennedy joined Justices Ginsberg, Breyer, Sotomayor, and Kagan in 14 cases . Not business cases . Social issues
. Abortion (Whole Women’s Health)
. Affirmative Action (Fisher)
. Racial Discrimination (Inclusive Communities, Peña-Rodriguez)
. Capital Cases (Moore, Williams, McWilliams, Brumfield)
. Same-sex Marriage (Obergefell)
. Voting (Arizona Legislatures, Alabama Black Caucus)
14 An Independent Supreme Court
. Confirmation votes have become increasingly partisan:
– Justice Scalia: 98-0 – Chief Justice Roberts: 78-22 – Justice Kennedy: 97-0 – Justice Alito: 58-42 – Justice Souter: 90-9 – Justice Sotomayor: 68-31 – Justice Thomas: 52-48 – Justice Kagan: 63-37 – Justice Ginsburg: 96-3 – Justice Gorsuch: 54-45 – Justice Breyer: 87-9 – Justice Kavanaugh: 50-48
“My hope is that one fine day, Congress will return to the bipartisan spirit that prevailed for my nomination.”
– Justice Ginsburg
15 An Independent Supreme Court
Core to the Court and the Justices’ identity is the belief that they are non-partisan and independent of the President or party that appointed and confirmed them
“It’s my job to call balls and strikes and not to pitch or bat.”
– Chief Justice Roberts
“There’s no such thing as a Republican judge or a Democratic judge. We just have judges.”
– Justice Gorsuch
16 An Independent Supreme Court
. “This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,….revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups”
. Senate Testimony (9-26-2018) . “A good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy….Judges make decisions because the law and the Constitution compel the result….I do not decide cases based on personal or policy preferences”
. Wall Street Journal Op-Ed (10-4-2018)
17 An Independent Supreme Court
“It’s been extremely important for the court that in the last 40 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center, where people couldn’t predict in that sort of way. That’s enabled the Court to look as though it was not owned by one side or another and so it was indeed impartial and neutral and fair. And it’s not so clear that I think going forward that sort of middle position — it's not so clear whether we’ll have it.”
– Justice Kagan
“All of us need to realize how precious the Court’s legitimacy is. It's an incredibly important thing for the Court to guard this reputation of being impartial.”
– Justice Kagan
18 An Independent Supreme Court
“This was an Obama judge and I'll tell you what, it's not going to happen like this anymore.”
– President Trump
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”
– Chief Justice Roberts
“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country…”
– President Trump 19 An Independent Supreme Court
. Things are getting more heated, rather than less
“[In the last 13 years,] this Court issued 78 5-4 (or 5-3) opinions in which justices appointed by Republican presidents provided all five votes in the majority. In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party. And in each of these 73 cases, those partisan interests prevailed.”
“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics. Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”
– Brief of Sen. Sheldon Whitehouse (Democrat) in Supreme Court
20 An Independent Supreme Court
. Things are getting more heated, rather than less
“Judicial independence is under assault. Democrats in Congress, and on the presidential campaign trail, have peddled plans to pack this Court with more justices in order to further their radical legislative agenda…These plans are a direct, immediate threat to the independence of the judiciary and the rights of all Americans.”
“For our part, we promise this: While we remain Members of this body, the Democrats’ threat to restructure the Court is an empty one. We share Justice Ginsburg’s view that “nine seems to be a good number.” And it will remain that way as long as we are here.”
– Letter of Senator Mitch McConnell (Republican) in Response
21 An Independent Supreme Court
. Court dismisses New York Gun case as moot
. Justice Alito, dissenting (along with Justices Thomas and Gorsuch) . Five United States Senators, four of whom are members of the bar of this Court, filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal.
“…motivated mainly by politics, rather than by adherence to the law,”
– Justice Alito, dissenting (along with Justices Thomas and Gorsuch)
22 An Independent Supreme Court
. The Court has been all too quick to grant the Government’s “reflexiv[e]” requests.
. Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions…to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances…I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect. (Justice Sotomayor)
“Sotomayor accuses GOP appointed Justices of being biased in favor of Trump. . . . This is a terrible thing to say. Trying to ‘shame’ some into voting her way? She never criticized Justice Ginsberg when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related, matters!”
– President Trump
23 The Post-Kennedy Court – Year 1
. 21 5-4 decisions (30% of the docket)
. Only 7 were the “traditional” 5-4
. 10 involved the “more liberal bloc” plus one more conservative Justice . Justice Gorsuch – 4 cases . Chief Justice Roberts – 3 cases . Justices Thomas/Alito/Kavanaugh – 1 case each
24 The Post-Kennedy Court – Year 1
. Major decisions
. “Liberal” wins . Census . Apple . Separation of Powers . Death Penalty . Ad Law
. “Conservative” wins . Takings . Gerrymandering . Arbitration . Death Penalty
25 The 2019 Term DACA at the Supreme Court DACA: What it does
. Eligibility for work authorization
. Eligibility for social security number
. Protection from removal
. Eligibility for advance parole
Since 2012, nearly 800,000 young people have received deferred action.
28 DACA: Timeline
June 2012: Secretary Napolitano issues the DACA Memo
Sept 2017: Secretary Duke issues DACA Rescission Memo
Jan 2018: Injunction blocks DACA Rescission as to existing DACA recipients
April 2018: Judge Bates issues order vacating the DACA Rescission Memo
June 2018: Secretary Nielsen issues memo reaffirming DACA Rescission
Nov 2018: Trump Administration petitions for certiorari in Supreme Court
June 2019: Supreme Court grants certiorari
Nov 2019: Supreme Court hears oral argument
June 2020: Supreme Court announces decision
29 DACA: Three Consolidated Lawsuits
Plaintiffs
. 13 Individual DACA Recipients
. Universities (Princeton University, University of California)
. Corporations (Microsoft Corporation)
. States (California, Maine, Maryland, Minnesota, New York, Massachusetts, Washington, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Colorado)
. Cities and Counties (San Jose, Santa Clara)
. Unions (SEIU Local 521, American Federation of Teachers, AFL-CIO, United Food & Commercial Workers Int’l Union, AFL-CIO, CLC)
. Non-Profit Organizations (NAACP, Make the Road New York)
30 DACA: Questions Presented
1. Whether the Trump Administration’s decision to rescind DACA is judicially reviewable.
2. Whether the Trump Administration’s decision to rescind DACA is lawful.
31 DACA: 5-4 Decision for Respondents
. Majority: Chief Justice Roberts, Justices Breyer, Ginsburg, Kagan, and Sotomayor . Rescission of DACA is reviewable: getting rid of a major government program is reviewable . Nielsen Memo is a post-hoc rationalization: can’t make up new reasons after the fact (Chenery) . Rescission is unlawful:
. Failure to disaggregate forbearance from removal and various ancillary benefits, such as work authorization
. Failure to consider reliance interests
32 DACA: Bottom Line
33 DACA: Equal Protection
. Chief Justice Roberts with everyone except Justice Sotomayor: . No claim that rescission was motivated by animus against immigrants of color
. Justice Sotomayor dissents on this issue: . Quotes from President Trump calling Mexican immigrants “the bad ones,” and “criminals, drug dealers, [and] rapists” and comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13” . Redux of Trump v. Hawaii travel ban . Would allow claim to proceed to discovery
34 DACA: Dissents
. Justice Thomas, joined by Justices Alito and Gorsuch . DACA was and is unlawful . Reliance interests irrelevant when policy itself is unlawful . Criticism of majority as wanting “to avoid a politically controversial but legally correct decision”
. Justice Alito, solo . 2 paragraphs: DACA was unlawful, and unreviewable as exercise of prosecutorial discretion
. Justice Kavanaugh, solo . Nielsen Memo should be considered and explanation is sufficient . Congress should act
35 Bostock v. Clayton County
36 Bostock v. Clayton County
. Title VII makes it unlawful to “discriminate against any individual … because of such individual’s…sex.”
. Gerald Bostock and Donald Zarda were allegedly fired from their jobs because they were gay.
. Aimee Stephens was allegedly filed from her job because she was a transgender woman.
. The question: Did the employers discriminate against those individuals “because of such individual’s…sex”?
37 Bostock v. Clayton County
. Held: An employer who fires an individual for being gay or transgender violates Title VII. . “[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”
. Majority opinion by Justice Gorsuch, joined by Chief Justice Roberts and four Democratic appointees.
. Dissent by Justice Alito, joined by Justice Thomas; Justice Kavanaugh also dissented separately.
38 Bostock v. Clayton County
. Court holds that on a literal interpretation of Title VII, discrimination against a person for being gay or transgender is sex discrimination. . “Consider, for example, an employer with two employees, both of whom are attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires a male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.” . “Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”
39 Bostock v. Clayton County
. Court holds that it is adopting a textualist interpretation of Title VII: . “These cases involve no more than the straightforward application of legal terms with plain and settled meanings.”
. It is irrelevant that legislators in 1964 did not predict this result: . “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”
40 Bostock v. Clayton County
. Justice Alito, joined by Justice Thomas, dissented: . “The Court tries to convince readers that it is merely enforcing the terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’”
. Justice Kavanaugh dissented: . “To fire one employee because she is a woman and another employee because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.”
41 Bostock v. Clayton County
. Mystery: Why was the opinion assigned to Justice Gorsuch? . Typical practice: each Justice writes one opinion each month. . Justice Gorsuch had already written another significant October opinion (Ramos v. Louisiana), Chief Justice did not write in October, hence assumption was that Chief Justice would write. . Yet Justice Gorsuch wrote a second October opinion, while Chief Justice had no opinions that month. . Possible switch in outcome during long deliberation period?
42 Harris Oral Argument
. Question from Justice Gorsuch
43 Polling Question #5
. Who has the better of the textual arguments (not the policy arguments)?
1) The majority (Justice Gorsuch)
2) The dissents (Justice Alito, Justice Kavanaugh) Bostock v. Clayton County: Reactions
. Justice Scalia would be disappointed that his successor has bungled textualism so badly today, for the sake of appealing to college campuses and editorial boards. This was not judging, this was legislating—a brute force attack on our constitutional system. (Carrie Severino, President – Judicial Crisis Network)
. If we've been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven't been fighting for very much. (Sen. Josh Hawley)
. Everybody knows…that the laws in this country today [are] made almost entirely by unelected bureaucrats and courts. They're not made by this body…Why not? Because this body doesn't want to make law…Because in order to make law, you have to take a vote. In order to vote, you have to be on the record. And to be on the record is to be held accountable. That's what this body fears above all else. (Sen. Josh Hawley)
. The Courts were never going to save us. Our project as conservatives is to curb their worst excesses, get them out of our way, and when that fails, seek the ultimate vindication of our convictions by defying them in the name of constitutional order. (Saurabh Sharma, columnist Daily Caller)
45 Mazars, Deutsche Bank, and more
. “I could stand in the middle of Fifth Avenue and shoot somebody.”
. President Trump
. “[This case] appears to us highly unlikely to occupy any substantial amount of [the President’s] time.”
. Clinton v. Jones
. “Neither … separation of powers nor the need for confidentiality … can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”
. United States v. Nixon
47 Mazars, Deutsche Bank, and more
. Many Disputes
. Congressional subpoenas to private parties for President’s personal documents
. State and local criminal investigations of the President’s personal actions
. Congressional subpoenas to the Executive Branch for official documents
. Subpoenas for impeachment testimony from former advisors . Long History
. Washington
. Nixon
. Clinton
48 Mazars, Deutsche Bank, and more
. Q: “Do you concede any power in the House to subpoena personal papers of the President?”
A: “I think it is very hard to imagine that the House is ever going to have [that ] power.”
. The Chief Justice and the President’s counsel in Mazars . Q: “Could you give me a plausible example of a subject you think is beyond any legislation Congress could write?”
A: “…No, Congress’s legislative authority is extremely broad.”
. The Chief Justice and the House’s counsel in Mazars . “We’re mindful that as a state actor our office … cannot prosecute a president while in office. But, here, we’re talking about a subpoena sent to a third-party concerning private conduct.”
. New York City’s counsel in Vance. 49 June Medical Services v. Russo
50 June Medical Services v. Russo
“I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."
– Senator Charles Schumer (Democrat)
“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter."
– Chief Justice Roberts
51 June Medical Services v. Russo: Background
. Louisiana’s Act 620 requires a physician to hold “active admitting privileges” at a hospital within 30 miles of the facility where an abortion is provided.
. Materially identical to the Texas law ruled unconstitutional in Whole Women’s Health in 2016.
. Only one doctor in Louisiana satisfied this requirement, per challengers.
52 June Medical Services v. Russo: SCOTUS
. Key legal questions in the case
. Do the abortion providers have standing to challenge the law?
. Does the law put an undue burden on women’s right to have an abortion? . Key actual questions in the case
. Will the Supreme Court use this case to restrict Roe or even overrule it?
. Will the Court faithfully apply stare decisis and affirm Whole Women’s Health from just 4 years ago?
. How will Gorsuch and Kavanaugh rule in their first major abortion case?
53 Seila Law v. CFPB: The Facts
. CFPB created in 2010 as part of Dodd-Frank Act . The CFPB has substantial powers
. Prescribes rules and regulations
. Defines “unfair or deceptive or abusive” practices
. Substantial enforcement powers
. Not dependent on Congress for funding (Federal Reserve instead) . Led by a single director, 5 term, removable only for “inefficiency, neglect of duty or malfeasance in office,” i.e., not removal “at will” . Selia Law investigated for telemarketing, refuses to supply documents and instead responds by challenging CFPB’s structure . SG’s office refuses to defend CFPB, Paul Clement appointed
54 Seila Law v. CFPB: Legal Issues
. Basic concern is about a vast “headless fourth branch of government” that is not democratically accountable and violates the President’s power under Article II . Does the appointment a director for 5 years impinge President’s authority to “take care that the laws be faithfully executed”? . DC Circuit rejected a similar challenge (with then-Judge Kavanaugh dissenting) and Ninth Circuit followed suit . In 1935, Humphrey’s Executor rejected a challenge to the FTC on similar grounds. Although difference between 5 and 1 members, FTC “acts in part quasi-legislatively and in part quasi-judicially” . In 1988, Morrison v. Olson rejected a challenge to the Office of the Independent Counsel
55 Seila Law v. CFPB: Arguments, Predictions, and Remedies
. Argument set at 70 minutes, 3/4 lawyers arguing were Scalia clerks, House of Representatives had its own lawyer . Case has an “academic” quality to it—investigative request was ratified by the acting director who does not challenge the President’s ability to remove her at will . Government argued that there was no limiting principle to Humphrey’s Executor, whereas House argued that Congress has never tried to place limits on President’s ability to control Cabinet . Initially Chief seemed willing to entertain a reading of flexible reading of “inefficiency” but seems more likely there are 5 votes for finding appointment of director is unconstitutional . That said, unlikely to get rid of CFPB, severability more likely . High stakes with other agencies and CFPB itself
56 Religion – Espinoza v. Montana Dep’t of Revenue
. Montana enacted taxpayer-funded school voucher program; over 90% of funds went to religious schools
. Montana Supreme Court invalidated program in its entirety under state constitutional providing stating that government aid will not go to religious schools
. Petitioners (parents seeking vouchers): application of no-aid clause violated Free Exercise Clause
57 Religion – Espinoza v. Montana Dep’t of Revenue
. Likely 5-4 decision by Chief Justice Roberts . Chief Justice Roberts: Why – why does that explain why the race analogy is inapt? I mean, the legislature may say they built parks and pools, and they say funding those, but if a higher percentage of African Americans come and use the pools, then we're going to shut down the whole program. And you wouldn't defend that on saying they could have a judgment that it decreases tensions among the different races to keep them -- no, you would just look at the facial discrimination, right, and conclude the fact that -- that wouldn't be good under your view, would it? … How is that different than religion, which is also protected under -- under the First Amendment?
58 Religion – Our Lady of Guadalupe School v. Morrisey-Berru
. Agnes Morrisey-Berru and Kristin Biel were fifth-grade teachers at two different Catholic schools
. Taught secular subjects such as English, math, and science
. Also taught daily religion classes
. Accompanied students to Mass
. Not required to be Catholic . Both teachers were fired from their jobs . Morrisey-Berru sued, alleging age discrimination; Biel sued, alleging disability discrimination . Question: Were Morrisey-Berru and Biel “ministers,” thus barring them from bringing employment discrimination claims?
59 Religion – Our Lady of Guadalupe School v. Morrisey-Berru . Likely 5-4 decision . Justice Kagan’s hypotheticals: . Math teacher who is told to teach Judaism 10 minutes a week (No) . Math teacher who leads every class with the Shema (No) . Math teacher who is told to infuse instruction with Jewish values (Maybe) . Nurse at Catholic hospital who prays with patients (Yes) . Communications staffer who writes press releases for church (Yes) . Counselor at church-affiliated rehab clinic (Yes) . Soup kitchen employee who leads grace before meals (No) . Church organist (Yes) . Cook who prepares Kosher-compliant meals (No) . Justice Gorsuch: “We don’t second-guess .. sincerely held religious beliefs. Why would we … second-guess who they deem a minister?”
60 Religion – Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
. Third Supreme Court case on contraception mandate
. Hobby Lobby: Lawfulness of contraceptive mandate
. Zubik: Lawfulness of “accommodation” that used opt-out as trigger for contraceptive coverage . Round Three: Trump administration narrowed contraceptive coverage mandate. Third Circuit held that HHS lacked statutory authority to do so and violated APA. Case presents question of whether narrowed mandate is mandatory, or at least permitted. . Case also presents question on propriety of nationwide injunction
61 Religion – Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania
. Likely 5-4 decision . Chief Justice Roberts: “Well, the problem is that neither side in this debate wants the accommodation to work. The one side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want it to work because they want to impose the mandate. Is it really the case that there is no way to resolve those differences?” . Justice Alito: “Hobby Lobby held that if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity. That's precisely the situation here. Reading the Third Circuit's discussion of the substantial burden question, I wondered whether they had read that part of the Hobby Lobby decision.”
62 The “Faithless Electors” Cases
. Chiafalo v. Washington; Colorado v. Baca . History of electors . Since 1796, 150 voters have not voted consistent with the democratic majority in their state . In 2016, there were 10 faithless electors . Clinton lost 5, Trump lost 2, and 3 were invalidated by their states . Can states punish or remove a faithless elector? . Washington imposes a fine on a faithless elector . Colorado prohibits an elector from voting in conflict with state law . Square conflict among the courts on the issue . The Washington Supreme Court held that the state was permitted to punish a faithless elector because the elector possessed no First Amendment or discretionary right to vote independent of state law . The US Court of Appeals for the 10th Circuit invalidated the Colorado law, holding that Article II and the Twelfth Amendment give electors the discretion to vote for whomever the wish 63 The “Faithless Electors” Cases: Key Issues
. Standing . Have the electors suffered an “injury in fact” when their votes are cancelled by their states? . As with a number of standing issues, this really goes to the core of the right itself. . Article II and the Twelfth Amendment (10th Circuit reasoning) . Article II states: “[e]ach State shall appoint, in such Manner as the Legislature thereof may direct, a Number of Electors.” . The Twelfth Amendment states that electors “vote by [distinct] ballot for president and vice president,” and that the candidates receiving votes for president or vice president constituting a majority of the electors appointed are elected to those respective offices. . The 10th Circuit found that these provisions all demonstrate the right to make an individual choice as to whom an elector casts his or her ballot for. . First Amendment (Washington Supreme Court reasoning) . “The First Amendment is not implicated when an elector casts a vote on behalf of the State in the Electoral College … The power of electors to vote comes from the State, and the elector has no personal right to that role.” . “The people of the state do not vote for presidential electors. Rather, they vote for presidential candidates.” 64 A Look Ahead to the 2020 Term A look ahead to the 2020 term
. Qualified immunity
. Fulton v. Philadelphia
. ACA
. Google v. Oracle America
67 Qualified Immunity
. Qualified immunity shields officials, including police officers, from civil liability – predominately in Section 1983 cases, but also in Bivens and other constitutional cases – so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” . The court has described the doctrine as balancing “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223 (2009). . To determine whether immunity is warranted is a two-step question: . The court must determine whether the facts the plaintiffs alleged (at the motion to dismiss stage) or shown (at summary judgment) make out a violation of a constitutional right. . The court must decide whether the right at issue was “clearly established” at the time of the defendant’s alleged misconduct. . Order of operations matters.
68 Qualified Immunity
. The doctrine was questioned from both sides of the ideological spectrum.
. Justice Thomas’s concurring opinion in Ziglar v. Abbasi: “[O]ur analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act,” and “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.”
. Justice Sotomayor’s dissenting opinion in Kisela v. Hughes: “This Court routinely displays an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity’ but ‘rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases’” and that “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers.” . The Court scheduled 13 separate petitions to be heard together at its conference on May 15. It then relisted them multiple times before finally denying all of them on June 15.
. “Most diverse group of amici ever assembled”
69 Qualified Immunity
. The Court ultimately ended up denying the petitions against the backdrop of the nationwide protests following the killing of George Floyd, Ahmaud Arbery, and Breonna Taylor. . Many of the petitions included truly egregious fact patterns of abuse by law enforcement officials. . Ultimately, only Justice Thomas dissented from the denial of certiorari. Justice Sotomayor did not pen a separate dissent. Justice Gorsuch did not join Justice Thomas’s dissent. . Lots of speculation about what happened.
70 Fulton v. City of Philadelphia: Facts
. Philadelphia contracts with private foster-care agencies to place endangered children in safe families. . For the last 50 years, Catholic Social Services had contracted with the city to evaluate families for foster-care services, but it refuses to certify same- sex couples as appropriate. . CSS sued, claiming that the city’s refusal to place foster children through CSS violated the First Amendment Free Exercise Clause. . Under Employment Division v. Smith, a law that burdens religious exercise is not discriminatory provided it is neutral and generally applicable and a group is not being targeted explicitly for religious reasons. . CSS loses below.
71 Fulton v. City of Philadelphia
. Issues before the Court . Smith (1990) is a foundational First Amendment case – allows government to promulgate and enforce laws that undoubtedly have an effect on religious groups so long as the laws are neutral and generally applicable and do not explicitly target religion . CSS asks that Smith be overruled: . Text focuses on “prohibiting free exercise;” . RFRA, RLUIPA show no descent into “anarchy;” . Growing danger from administrative state and attacks on religion . Replace with strict scrutiny . SG says that city’s action fails under Smith: . City has not applied its rule in a neutral manner—many exceptions . Singled out CSS with hostility . Respondent’s brief due August 13
72 The Return of The Affordable Care Act
. California v. Texas . Litigants challenge constitutionality of mandate to purchase insurance after Congress sets penalty to $0 . District court finds mandate unconstitutional – and concludes that the entire ACA must be invalidated as well . Fifth Circuit affirms but asks district court to explain its severability ruling better . United States – A House Divided . Recurring motif – DOJ does not defend law; House supports . DOJ position on severability changes . Just the exchanges? . Or the entire ACA? . Red states only? . Presents the fourth major ACA case for the Court
73 Google v. Oracle America: Background
. Copyright case of the century. . Facts:
. Google designed Android
. Google wanted app developers to use Java to write apps. . App developer use “calls” to invoke Java “methods.” Calls don’t work unless developers use correct “declarations.”
. E.g., java.lang.Math.max (5,10) determines whether 5 or 10 is the larger number. . Google wrote the implementing code from scratch, but copied the “declarations.”
74 Google v. Oracle America: Background
. Declaring Code and Implementing Code
. Line 1: public static int max (int x, int y) {
. Line 2: if (x > y) return x;
. Line 3: else return y;
. Line 4: } . Extent of copying
. Big in absolute terms – 11,500 lines of code
. Small in relative terms – 0.5% of 2.86 million lines of code . Uses
. Oracle used principally in desktops
. Google applied to smartphones
75 Google v. Oracle America
. Round One:
. District Court held that declarations were un-copyrightable under merger doctrine: declarations are the only way to write an operating system that is compatible with Java.
. Federal Circuit reversed, reasoning that Google could have used different declarations. . Round Two:
. Jury found that Google’s reusing of the declarations was “fair use.”
. Federal Circuit reversed again, finding that Google’s use of the declarations in a commercial product was not “fair use.”
76 Google v. Oracle America
. First question: Are the declarations copyrightable?
. Google: No, because “no other option would recognize the calls used by Java developers.”
. Holding declarations copyrightable “would produce the result that the merger doctrine prohibits: It would forbid Google from reusing the declarations and would give Oracle an exclusive right to their function.”
. Oracle: Yes, because Google could have written its own declarations.
. “Google’s argument is not about necessity at all, but expedience: the desire to save time and make Android familiar to app developers for a commercial advantage.”
77 Google v. Oracle America
. Second question: Did Google engage in “fair use”?
. Google: Yes, because “Google’s reuse of the declarations was consistent with the overarching purpose of the fair-use doctrine: avoiding the rigid application of copyright that would stifle creativity.”
. Oracle: No, because Google used the declarations in a commercial product that competed with Java. . Supreme Court unexpectedly requested supplemental briefing on “the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard.”
78 Questions & Answers Our Supreme Court Term in Review Panel Ian Heath Gershengorn Partner | Washington, DC | 202 639-6869 | [email protected]
Mr. Gershengorn is chair of the firm’s Appellate and Supreme Court Practice and is one of the Nation’s premier Supreme Court and appellate advocates. He has argued 16 cases before the Supreme Court, including one of the telephonic arguments in May 2020. Before re-joining the firm in 2017, he served in the Office of the Solicitor General at the US Department of Justice, first as Principal Deputy Solicitor General and then as Acting Solicitor General of the United States, a position he held from June 2016 until the end of the Obama administration in January 2017. Mr. Gershengorn’s practice focuses on advising clients on a range of complex litigation and strategy problems, with particular emphasis on commercial disputes and challenges involving government, regulatory, and other public policy issues.
Since returning to the firm in the Fall of 2017, Mr. Gershengorn has appeared regularly in the state and federal appellate courts, arguing on behalf of clients such as McKesson Corporation, FanDuel, the Recording Industry Association of America, FirstTrust Bank, General Dynamics, and Charter Communications.
Prior to rejoining Jenner & Block, Mr. Gershengorn served in the Solicitor General’s Office. While there, Mr. Gershengorn argued thirteen cases at the US Supreme Court. He also supervised the government’s briefing in a range of high-profile cases, including those involving the Affordable Care Act, Dodd-Frank, election law and redistricting, immigration reform, the Fair Housing Act, Title VII, the Religious Freedom Restoration Act, and same-sex marriage. Jessica Ring Amunson Partner | Washington, DC | 202 639-6023 | [email protected]
Jessica Ring Amunson is co-chair of the firm’s Appellate and Supreme Court Practice and chair of the firm’s Election Law and Redistricting Practice. In 2018, she was named an “Appellate MVP” by Law360, which recognizes the five attorneys in the country “who had extraordinary wins and contributed most to their practice area in the past year.” An experienced litigator, Ms. Amunson has argued before the US Supreme Court and multiple federal and state courts of appeals and has authored hundreds of briefs. She has successfully represented clients in matters involving federal constitutional claims, statutory interpretation questions, administrative law issues, and large commercial disputes. Ms. Amunson also regularly counsels clients on appellate and Supreme Court strategy.
As chair of the firm’s Election Law and Redistricting Practice, Ms. Amunson represents clients, including elected officials, in matters involving redistricting, voting rights, and campaign finance in the US Supreme Court, before the Federal Elections Commission, and in courts around the country. She has litigated election law and redistricting matters in a number of states, including litigation involving disputed elections. She regularly represents clients on the merits and as amici in direct appeals to the US Supreme Court in redistricting and voting rights cases. Ms. Amunson has been repeatedly recognized for her extensive knowledge of election law and regularly speaks on panels regarding issues in redistricting and voting rights. She serves on the Advisory Committee to the Voting Rights Institute and is a member of the Litigation Strategy Council for the Campaign Legal Center. Ishan K. Bhabha Partner | Washington, DC | 202 637-6327 | [email protected]
Ishan K. Bhabha is a partner in the litigation department and a member of the Appellate and Supreme Court Practice. Since joining the firm in 2012, his practice has focused on complex issues of regulatory, constitutional, international, and commercial law.
Mr. Bhabha's practice has spanned a wide variety of substantive areas of law including energy, aviation and aerospace, education, media, communications, copyright, criminal and banking. Mr. Bhabha has extensive experience in helping companies navigate complex regulatory structures, both through internal counseling and in representation before administrative agencies. He has tried cases both in federal court and arbitration and has represented clients in all stages of litigation from the filing of an initial complaint through the appeal of a verdict. In addition, Mr. Bhabha has significant experience in the United States Supreme Court including presenting oral argument on behalf of the petitioner in Biestek v. Berryhill and serving as merits and amicus counsel in multiple other cases.
Mr. Bhabha also has an active pro bono practice in both criminal and immigration law. He has presented oral argument on behalf of criminal defendants three times in the US Court of Appeals for the Seventh Circuit and once in both the US Court of Appeals for the District of Columbia Circuit and the District of Columbia Superior Court. He has also represented clients in immigration law matters in the US Courts of Appeals for the Second and Tenth Circuit, as well as in various district courts. Mr. Bhabha was recently interviewed by C-SPAN concerning the retirement of Justice Kennedy. Lindsay C. Harrison Partner | Washington, DC | 202 639-6865 | [email protected]
Lindsay Harrison is a litigator and Partner in the Firm’s Appellate & Supreme Court Practice. She is also a member of the leadership team for the Firm’s Complex Commercial Litigation group. Ms. Harrison’s practice spans a diverse range of matters and clients. Many of her matters involve high-stakes legal challenges under the Administrative Procedure Act. On behalf of Princeton University and Microsoft Corporation, Ms. Harrison recently won a legal challenge to the President’s rescission of the Deferred Action for Childhood Arrivals (DACA) program in the United States District Court for the District of Columbia. On behalf of the Union of Concerned Scientists (UCS), she is leading a legal challenge to an Environmental Protection Agency directive that limits the participation of scientists from academia and nonpartisan nonprofit organizations on federal science advisory committees.
In addition, Ms. Harrison regularly participates in appellate litigation matters before the federal appellate courts and the Supreme Court in a wide variety of subject matters, including Supreme Court victories in Welch v. United States, Kucana v. Holder, and Nken v. Holder. Corporations and individuals also turn to Ms. Harrison for help with litigation in federal and state trial courts, as well as in domestic and international arbitration.
The National Law Journal has selected her as a DC Rising Star—one of 40 “game- changing lawyers age 40 and under” who are “leaders in the law” in the nation’s capital. In 2014, Law360 named Ms. Harrison a "Rising Star" in the hospitality practice area, one of only four young attorneys chosen nationwide for this recognition. Matthew S. Hellman Partner | Washington, DC | 202 639-6861 | [email protected]
Matthew S. Hellman is co-chair of the firm’s Appellate and Supreme Court Practice. He has presented arguments in the US Supreme Court and in federal and state appellate courts around the country. Clients such as Marriott, GE, Nomura and General Dynamics have sought his counsel on a variety of banking, hospitality, government contracts, copyright and business torts matters. He has successfully defended on appeal more than $1 billion in commercial claims. He has prevailed in significant Supreme Court matters in bankruptcy, copyright, First Amendment and administrative law cases.
In addition, he maintains a substantial pro bono practice, including matters with significant commercial implications, such as his win in the US Supreme Court in Law v. Siegel, a decision involving a key question of bankruptcy law. He serves as co-director of the firm's Supreme Court and Appellate Clinic at The University of Chicago Law School and is a former Supreme Court clerk for Justice David Souter. Adam G. Unikowsky Partner | Washington, DC | 202 639-6041 | [email protected]
Adam G. Unikowsky is a partner in the Litigation Department and a member of the Appellate and Supreme Court, Communications, and Technology Litigation Practices.. He also handles high-stakes appellate and district court litigation in numerous areas of law, including patent law, telecommunications law and securities law. In 2017, he was recognized as a Law360 “MVP of the Year.”
Mr. Unikowsky litigates cases in the US Supreme Court, appellate courts, trial courts, and administrative agencies. At the US Supreme Court, Mr. Unikowsky has won eight cases as lead counsel since 2016, while losing none. In six of those cases, Mr. Unikowsky represented the petitioner and filed a successful petition for certiorari. Mr. Unikowsky has been recognized by “Empirical SCOTUS” as the attorney in the United States with the highest statistical rate of success in Supreme Court merits cases; he has also separately been recognized by “Empirical SCOTUS” as the attorney in the United States with the highest statistical rate of success at obtaining grants of certiorari. In 2017, he argued three cases within a 28-day span, leading to unanimous victories in all three. Among those cases were Kokesh v. SEC, a case limiting the SEC’s power to obtain disgorgement, which led to Law360 recognizing him as a Securities Law “MVP of the Year.” THANK YOU!