The Roberts Court 2019-20: Distancing from the Kennedy Era, the Roberts Era Has Begun John M. Barkett Shook, Hardy & Bacon L.L.P. Miami, Florida Table of Contents INTRODUCTION ............................................................................................................................................... 8 VOTE COUNTS .................................................................................................................................................. 9 VOTE COUNT TRENDS ................................................................................................................................... 9 PER CURIAM DECISIONS ............................................................................................................................. 10 AUTHORSHIP COUNT .................................................................................................................................. 11 JUSTICE KAVANAUGH ................................................................................................................................ 12 DECISIONS WITH FIVE-VOTE MAJORITIES OR A PLURALITY OF THE COURT....................... 13 Chief Justice Roberts .................................................................................................................................... 13 Georgia v. Public Resource Org., Inc.: The annotations in the Official Code of Georgia Annotated are not copyrightable under the government edicts doctrine because they are authored by an arm of the Georgia legislature in the course of official duties. ........................................... 13 Department of Homeland Security v. Regents of Univ. of Calif.: The decision of the Secretary of the Department of Homeland Security to rescind DACA is reviewable and because of the Secretary’s failure to consider forbearance from enforcement and reliance interests of Dreamers, was arbitrary and capricious in violation of the Administrative Procedure Act .......................... 16 Espinosa v. Montana Dept. of Revenue: The Montana Supreme Court’s decision to invalidate a state scholarship program because it provided aid to sectarian schools barred by the Montana Constitution’s no-aid-to-sectarian-schools provision violated the Free Exercise Clause of the First Amendment because it discriminated solely on the basis of the religious character of a school. ........................................................................................................................................... 22 Seila Law LLC v. Consumer Financial Protection Bureau: The single-Director structure of the Consumer Finance Protection Board created by Congress in 2010, which limited the ability of the President to remove the Director, violates the Constitution’s separation of powers, but the removal protection granted the Director was severable from the remainder of the implementing statute. ........................................................................................................................................... 27 Justice Breyer ................................................................................................................................................ 33 1" = "1" "4837-7375-5330 v1" "" 4837-7375-5330 v1 1 Copyright John M. Barkett 2020 June Medical Services L.L.C. v Russo: Louisiana’s Act 620, requiring any doctor who performs abortions to hold “active admitting privileges” at a hospital located “not further than thirty miles from the location at which the abortion is performed or induced and that provides obstetrical or gynecological health care services,” is unconstitutional, but limiting the reach of Whole Women’s Health v. Hellerstedt .......................................................................................... 33 Justice Kavanaugh ........................................................................................................................................ 39 Barton v. Barr: A permanent resident ordered removed from the United States because of the commission of certain offenses for which he was later convicted is not eligible for “cancellation of removal” even though the offenses that triggered the removal action are not the same as those considered in rejecting his application for cancellation of removal ............................................. 39 Thole v. U.S. Bank, N.A.: In a suit against pension plan fiduciaries of a defined contribution plan where they would receive the same pension for life irrespective of investment decisions made by the fiduciaries, Plaintiffs lacked Article III standing to pursue alleged breaches of ERISA’s duties of loyalty and prudence by poorly investing the assets of the plan ...................... 41 McKinney v. Arizona: After a successful habeas petition to establish that mitigating circumstances were not considered when he was sentenced to death for multiple murders, McKinney’s plea to have those circumstances weighed by a jury instead of the Arizona Supreme Court, as allowed by Clemons v. Mississippi, 494 U. S. 738 (1990), was rejected ...................... 43 Agency for Int’l Development v. Alliance for Open Society: The First Amendment is not applicable to the foreign, legally distinct affiliates of American organizations that had sought to extend a 2013 decision providing First Amendment protection to their objection to a policy requirement that prohibited distribution of Congressionally-appropriated funds to fight HIV/AIDS to organizations that did not accept the policy requirement ....................................... 44 Barr v. American Assn. of Political Consultants, Inc.: A 2015 amendment to the Telephone Consumer Protection Act allowing robocalls to cell phones by government-debt collectors is content-based speech that discriminates against political speech, thereby violating the First Amendment, but the provision is severable from the remainder of the TCPA, thereby eliminating the discrimination and restoring the TCPA to its pre-2015-amendment status of prohibiting all robocalls to cell phones ................................................................................................................ 45 Justice Alito ................................................................................................................................................... 50 Hernandez v. Mesa: Petitioners’ request to extend the federal-common-law tort remedy created in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971) to a claim for the wrongful death of their son who was shot by a U. S. border patrol agent was rejected, primarily based on a separation-of-powers analysis. ................................................................................... 50 Kansas v. Garcia: The Immigration Reform and Control Act of 1986 does not expressly or impliedly preempt Kansas statutes under which respondents were convicted when they engaged in identity theft in completing tax withholding forms when they obtained employment. ............... 52 Justice Gorsuch ............................................................................................................................................. 54 McGirt v. Oklahoma: Land on which McGirt committed certain crimes was a part of the Creek Indian reservation and thus his conviction in state court was overturned since federal courts have exclusive jurisdiction to try individuals for crimes committed on tribal lands ..................... 54 PER CURIAM DECISIONS WITH A FIVE-VOTE MAJORITY .............................................................. 59 Republican National Committee v. Democratic National Committee: The district court erred when, in response to the COVID-19 pandemic and to give election officials time to respond to all 1" = "1" "4837-7375-5330 v1" "" 4837-7375-5330 v1 2 Copyright John M. Barkett 2020 of the requests for absentee ballots, it issued an order allowing ballots in Wisconsin’s April 7, 2020 primary election to be postmarked after April 7, and still be counted (if received by April 13) because it violated Court precedents that ordinarily district courts should not alter election rules on the eve of an election ....................................................................................................... 59 Barr v Lee: The federal government’s planned use of pentobarbital in the execution of four death-row inmates did not constitute cruel and unusual punishment under the Eighth Amendment ....................................................................................................................................................... 61 MAJOR DECISIONS WITH MORE THAN A FIVE-VOTE MAJORITY ............................................... 62 Trump v. Vance: The President of the United States does not have absolute immunity from a state court grand jury subpoena and is not entitled to a heightened standard of review before having to comply with such subpoenas ......................................................................................... 62 Trump v. Mazar USA, LLP: Remanding, the Court established guideposts for the lowers courts to consider in deciding whether to enforce three Congressional subpoenas issued to a bank and an accounting firm in possession of records and tax returns of President Trump ........................ 68 Bostock v. Clayton County: Title VII’s prohibition on discrimination “because of” “sex” includes employment decisions based on sexual orientation or sexual identity ............................ 71 Our Lady of Guadalupe