[The American Legion v. American Humanist Association (2019) — Roberts Court (2018-2020) — Facts]
In Bladensburg, Maryland, as part of a memorial park honoring veterans is a 40-foot tall cross, which is the subject of this litigation. Construction on the cross began in 1918, and it was widely described using Christian terms and celebrated in Christian services. In 1961, Maryland-National Capital Park and Planning Commission acquired the cross and the land, as well as the responsibility to maintain, repair, and otherwise care for the cross. The Commission has spent approximately $117,000 to maintain and repair the cross, and in 2008, it set aside an additional $100,000 for renovations.
Several non-Christian residents of Prince George’s County, Maryland, expressed offense at the cross, which allegedly amounts to governmental affiliation with Christianity. American Humanist Association is a nonprofit organization advocating for separation of church and state. Together, AHA and the individual residents sued the Commission under 42 U.S.C. § 1983, alleging that the Commission’s display and maintenance of the cross violates the Establishment Clause. Applying the test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), the district court found that the Commission did not violate the Establishment Clause because (1) the cross has a secular purpose, (2) it neither advances nor inhibits religion, and (3) it does not have a primary effect of endorsing religion. The Fourth Circuit reversed and remanded.


[The American Legion v. American Humanist Association (2019) — Roberts Court (2018-2020) — Conclusion]
The Bladensburg Cross does not violate the Establishment Clause.
Justice Samuel Alito authored the opinion of the Court, joined by Chief Justice John Roberts and Justices Stephen Breyer and Brett Kavanaugh. Justice Elena Kagan joined the majority opinion in part.
The Court explained that although the cross originated as a Christian symbol, it has also taken on a secular meaning. In particular, the cross became a symbol of World War I as evidenced by its use in the present controversy. The Lemon test, which the Court first articulated in 1971 as a way to discern Establishment Clause violations, does not serve its intended purpose, particularly as applied to religious symbols or monuments. Thus, when the question arises whether to keep a religious monument in place (as opposed to a question whether to put up a new one), there should be a presumption that the monument is constitutional.
Applying this presumption rather than the Lemon test, the Court found the Bladensburg Cross does not violate the Establishment Clause because it has historical importance beyond its admittedly Christian symbolism.
Justice Breyer joined Justice Alito’s opinion in full but wrote a separate concurrence joined by Justice Kagan to highlight his belief that there is no single test for Establishment Clause violations. Rather, a court asked to resolve such questions must consider “the basic purposes that the Religion Clauses were meant to serve: assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its separate sphere.”
Justice Kavanaugh also joined Justice Alito’s opinion in full and also wrote his own concurring opinion. He even more harshly criticized the Lemon test, arguing that “the Court’s decisions over the span of several decades demonstrate that the Lemon test is not good law and does not apply to Establishment Clause cases in any of” five categories, which he enumerated.
Justice Kagan joined most of Justice Alito’s opinion but wrote a separate concurrence to note that, although “rigid application of the Lemon test does not solve every Establishment Clause problem,” courts should still focus on the purpose and effect of government action in deciding whether it violates the Constitution.
Justice Clarence Thomas wrote a separate opinion concurring in the judgment, but based on entirely different reasoning. Justice Thomas does not believe the Establishment Clause applies to state and local governments, and even if it did, it applies only to prevent coercive action by the government. Justice Thomas would overrule the Lemon test in all contexts.
Justice Neil Gorsuch wrote a separate opinion concurring in the judgment, in which Justice Thomas joined. Justice Gorsuch would dismiss the lawsuit for lack of standing, arguing that simply being offended by the cross’s presence is insufficient to meet the injury requirement of Article III standing.
Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justice Sonia Sotomayor joined. Justice Ginsburg argued that the cross “is the foremost symbol of the Christian faith,” and using it as a war memorial doesn’t change that. Maryland’s decision to maintain that Christian symbol on public land “elevates Christianity over other faiths, and religion over nonreligion.” Justice Ginsburg additionally pointed out that an appropriate remedy for an Establishment Clause violation is not necessarily to destroy the memorial, as the majority suggests, but to transfer title to the land on which it sits to a private entity—in fact, a private entity owned the land when the cross was first erected.


[Mont v. United States (2019) — Roberts Court (2018-2020) — Facts]
Petitioner Jason Mont was convicted for federal drug-related offenses in 2005 and sentenced to 120 months’ imprisonment followed by five years of supervised release. He was released on March 6, 2012, so by his sentence he was subject to supervised release until March 6, 2017.
While on supervised release, Mont allegedly engaged in and was indicted for state-law offenses. In October 2016, Mont pleaded guilty to some of the state-court charges in exchange for a predetermined six-year sentence. Due to administrative delays and a series of continuances, Mont was sentenced on March 21, 2017. The sentencing judge credited as time served the roughly ten months Mont had spent incarcerated pending a disposition. On March 30, 2017, Mont’s probation officer informed the federal district court of Mont’s state-court convictions and sentences, and the court exercised jurisdiction to adjudicate whether he violated the terms of his supervised release. The district court then sentenced Mont to 42 months’ imprisonment, to be served consecutively with his imprisonment for state-court convictions.
Mont challenged the district court’s exercise of jurisdiction, but the US Court of Appeals held that under binding precedent, a term of supervised release is paused by imprisonment in connection with a new state conviction. As such, the federal district court properly exercised jurisdiction.


[Mont v. United States (2019) — Roberts Court (2018-2020) — Conclusion]
Pretrial detention later credited as time served for a new conviction tolls (pauses) a supervised-release term under 18 U.S.C. § 3624(e), even if the court must make the tolling calculation retrospectively, after learning whether the time will be credited. Justice Clarence Thomas authored the 5-4 majority opinion affirming the lower court.
Section 3624(e) provides that a “term of supervised release does not run during any period in which the person is imprisoned in connection with a conviction for a Federal, State, or local crime unless the imprisonment is for a period of less than 30 consecutive days.” In interpreting this provision, the Court looked first to the dictionary definition of “imprisoned,” finding that definition to include pretrial detention. Then the Court noted the expansive phrase “in connection with,” giving rise to a sufficient nexus between the pretrial detention and the conviction because the pretrial detention is credited toward the sentence for that same conviction. Although under this interpretation, Section 3624(e) would require courts to retrospectively assess whether a period of pretrial detention tolls a term of supervised release, the Court determined that this retroactive crediting would not cause undue uncertainty for defendants like Mont. Finally, the Court found that “statutory context” supported this interpretation as well, given that supervised release is intended to facilitate a prisoner’s transition back into the community and a period in prison does not serve this purpose.
Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Stephen Breyer, Elena Kagan, and Neil Gorsuch joined. The dissent argued that the plain text of the statute cannot authorize tolling when the defendant is in pretrial detention and a conviction is merely a possible future event. The present tense used in the statute precludes the majority’s interpretation. Moreover, the purpose of pretrial confinement is to ensure the defendant shows up for trial, not to punish the defendant for a crime.


[Flowers v. Mississippi (2019) — Roberts Court (2018-2020) — Facts]
In 1996, four employees of Tardy Furniture Store in Winona, Mississippi, were killed during an armed robbery. Curtis Giovanni Flowers was tried for the murder of one of the employees and was convicted and sentenced to death. The Mississippi Supreme Court reversed and remanded for a new trial on the ground that Flowers’s right to a fair trial had been violated by admission of evidence of the other three murder victims. Flowers was tried and convicted for the murder of a second victim of the same incident, and the Mississippi Supreme Court reversed and remanded on the same grounds. In a third trial, Flowers was tried for all four murders, and a jury found him guilty and sentenced him to death. Finding that prosecutor Doug Evans had engaged in racial discrimination during jury selection, the Mississippi Supreme Court again reversed and remanded. The fourth and fifth trials were on all four counts of capital murder, and both resulted in mistrials when the jury was unable to reach a unanimous verdict during the guilt phase.
In the sixth trial, Flowers was tried again and convicted for all four murders.
Flowers appealed his conviction on several grounds, one of which was that the State violated his Sixth and Fourteenth Amendment rights during the jury selection process by exercising its peremptory strikes in a racially discriminatory way. The prosecution had struck five African American prospective jurors. The Mississippi Supreme Court rejected Flowers’s arguments as to the jury selection, but the US Supreme Court ordered the court to reconsider in light of its ruling in Foster v. Chatman, 578 U.S. ___ (2016), where it held that the defendant in a capital case had shown intentional discrimination in the selection of jurors. On remand to the state supreme court, the court again upheld the ruling for the state. Flowers again sought review by the US Supreme Court, and the Court granted certiorari as to the question whether the Mississippi Supreme Court erred in how it applied Batson v. Kentucky, 476 US 79 (1986).


[Flowers v. Mississippi (2019) — Roberts Court (2018-2020) — Conclusion]
The trial court at Flowers’s sixth murder trial committed clear error in concluding that the State’s peremptory strike of a particular black prospective juror was not motivated in substantial part by discriminatory intent. Justice Brett Kavanaugh authored the 7-2 majority opinion.
Under Batson v. Kentucky, once the defendant has made a prima facie case of discrimination, the State must provide race-neutral reasons for its peremptory strikes. The trial court judge must then determine whether the provided reasons actually motivated the peremptory strikes or instead were simply pretext for unlawful race discrimination. The Court found four categories of evidence present in Flowers’s sixth trial that the State’s peremptory strike of one juror in particular—Carolyn Wright—was based on racial discrimination.
First, the Court found that the State’s history of peremptory strikes in Flowers’s first four trials strongly supported the conclusion that the State’s use of peremptory strikes in his sixth trial was motivated in substantial part by discriminatory intent. The State appeared “relentless” in trying to strike all black jurors to have an all-white jury try Flowers. Second, the Court noted that the State’s use of peremptory strikes in the sixth trial followed the same pattern as in the first four trials. Third, the Court observed that the State spent far more time questioning the black prospective jurors than the accepted white jurors—an indicator (though not dispositive) of discriminatory intent. Fourth and finally, the Court found significant differences between the jurors who were struck and not struck. The State asked extensive questions of Carolyn Wright, a black juror who was struck, about her knowledge of the facts, witnesses, and Flowers’s family, but did not ask three white prospective jurors about their comparable connections to witnesses. The Court found these four factors, plus the overall context to support the determination that the trial court had committed clear error in concluding the State’s peremptory strike was not motivated in substantial part by discriminatory intent.
Justice Samuel Alito joined the majority opinion in full but filed a concurring opinion to note how extraordinary the circumstances in this case are and that although he agrees with the Court’s judgment here, he would be disinclined to do so in the majority of cases that are “less unusual” in their facts.
Justice Clarence Thomas authored a dissent in which Justice Neil Gorsuch joined in part, criticizing the majority for ignoring the race-neutral reasons the State gave for striking Carolyn Wright. Both Justice Thomas and Justice Gorsuch argued that the Court should not have even granted the case, but having done so, it decided wrongly on the merits. Justice Thomas (alone) criticized Batson, arguing that it “requires that a duly convicted criminal go free because a juror was arguably deprived of his right to serve on the jury.”


[Kisor v. Wilkie (2019) — Roberts Court (2018-2020) — Facts]
Petitioner James L. Kisor is a veteran of the US Marine Corps who served in the Vietnam War. In 1982, Kisor filed a claim for disability benefits with the Department of Veterans Affairs (VA) asserting that he suffered from post-traumatic stress disorder (PTSD) as a result of his service in Vietnam. Ultimately, the VA denied his claim in May 1983. In June 2006, Kisor sought review of his previously denied claim, and the VA granted him relief under 38 C.F.R. § 3.156(a), which allows a petitioner to “reopen” a denial by “submitting new and material evidence.” In his 2006 petition, Kisor identified materials supporting his claim that existed in 1983 but which were not associated with his file.
Notably, the VA did not grant Kisor relief under Section 3.156(c), which authorizes the agency to “reconsider” a previously denied claim in the event that it “receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim.” This provision is more favorable to veterans because it provides for a retroactive effective date for any benefits awarded, whereas benefits granted under Section 3.156(a) are effective only on the date the application to reopen was filed.
The VA’s decision (technically made by the Board of Veterans Appeals) relied on the meaning of the term “relevant” as used in 38 C.F.R. § 3.156(c)(1). The VA found that the additional documents (Kisor’s Form 214 and the Combat History document) did not qualify as “relevant” for purposes of this section because it did not “suggest or better yet establish that [petitioner] has PTSD as a current disability.” In the VA’s view, records are not “relevant” when they are not “outcome determinative.”
Court of Appeals for Veterans Claims affirmed the Board’s decision, and the Federal Circuit affirmed as well.


[Kisor v. Wilkie (2019) — Roberts Court (2018-2020) — Conclusion]
Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945)—which direct courts to give deference to an agency’s reasonable reading of its own genuinely ambiguous regulations—are not overruled.
Justice Elena Kagan announced the judgment and delivered an opinion in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined. Chief Justice Roberts joined in part, forming a majority of the Court for those parts.
Justice Kagan, writing for the 5-4 majority, first described the history of the case before it arrived before the Court.
Then, writing for a four-justice plurality, she described other examples of ambiguous regulations and explained the history of the doctrine of Auer deference. She explained that Auer deference is “rooted in a presumption that Congress would generally want the agency to play the primary role in resolving regulatory ambiguities” because agencies are best equipped to interpret the often-technical regulations at issue.
Writing again for the majority, Kagan continued to outline the requirements that must be met for Auer deference to apply: First, a court should not afford an agency Auer deference unless the regulation is genuinely ambiguous, a determination the court can make only after it has exhausted all the traditional tools of construction. Second, the agency’s reading must be reasonable, under the text, structure, and history of the regulation. Notwithstanding some courts’ interpretation to the contrary, the language “plainly erroneous” from Seminole Rock does not mean that agency constructions of rules are entitled to greater deference than agency constructions of statutes. Third, the regulatory interpretation must be one actually made by the agency; that is, it must be the agency’s authoritative or official position, not merely an ad hoc statement. Fourth, the interpretation must in some way implicate the agency’s substantive expertise, and fifth, it must reflect “fair and considered judgment.”
On behalf of the plurality, Kagan went on to address Kisor’s arguments. She explained that Auer is not inconsistent with the judicial review provision of the APA, nor does it circumvent the APA’s rulemaking requirements. Contrary to Kisor’s arguments, Kagan cited empirical evidence to support her position that Auer does not encourage agencies to issue vague and open-ended interpretations of those rules they prefer. Finally, she quickly dispensed of Kisor’s argument that it violates separation-of-powers principles.
On behalf of the majority, Kagan wrote that the doctrine of stare decisis cuts strongly against Kisor’s position. There is no “special justification” to reverse Auer, and even if the Court were wrong about its presumption of what Congress would want, Congress can correct it.
Applying the principles outlined in the opinion, a redo is necessary for two reasons: The Federal Circuit “jumped the gun” in declaring the regulation ambiguous, and it also “assumed too fast” that Auer deference should apply in the event of genuine ambiguity.
Chief Justice Roberts wrote a separate concurrence in part to reiterate Justice Kagan’s assertion that overturning Auer and Seminole Rock was not warranted. He also noted that the cases in which Auer deference is appropriate largely overlap with cases in which it would be unreasonable for a court to be persuaded by an agency's interpretation of its own regulation. He pointed out that the gulf between the majority’s position and Justice Gorsuch’s dissent is not so great as it may initially appear.


[Kisor v. Wilkie (2019) — Roberts Court (2018-2020) — Conclusion]
toreiterateJusticeKagan’sassertionthatoverturningAuerandSeminoleRockwasnotwarranted.HealsonotedthatthecasesinwhichAuerdeferenceisappropriatelargelyoverlapwithcasesinwhichitwouldbeunreasonableforacourttobepersuadedbyanagency'sinterpretationofitsownregulation.Hepointedoutthatthegulfbetweenthemajority’spositionandJusticeGorsuch’sdissentisnotsogreatasitmayinitiallyappear.
Justice Neil Gorsuch penned a separate opinion, in which Justices Clarence Thomas and Brett Kavanaugh joined and Justice Samuel Alito joined in part, concurring in the judgment but highly critical of Justice Kagan’s opinion. On behalf of himself and three other justices, Justice Gorsuch wrote a history of Auer deference, describing the decision and resulting doctrine “an accident.” He went on to explain that Auer is inconsistent with the Administrative Procedure Act and the separation of powers principle. On behalf of himself and Justices Thomas and Kavanaugh, Justice Gorsuch responded to Justice Kagan’s public policy considerations and argued that while the majority gave lip service to stare decisis, it effectively changed the test set forth in precedents—which effectively overrules it in all but name.
Justice Kavanaugh wrote a separate opinion concurring in the judgment, in which Justice Alito joined. In his opinion, Justice Kavanaugh emphasizes two points: first, he reiterates the Chief Justice’s point that “the distance between” the two main opinions in this case “is not as great as it may initially appear,” and second, he expresses agreement with the Chief Justice that the decision in this case addresses only judicial deference to agency interpretations of their own regulations, and not at all judicial deference to agency interpretations of statutes.


[Iancu v. Brunetti (2019) — Roberts Court (2018-2020) — Facts]
Erik Brunetti owns the clothing brand “fuct,” founded in 1990. In 2011, two individuals filed an intent-to-use application for the mark FUCT, and the original applicants assigned the application to Brunetti. The examining attorney refused to register the mark under Section 2(a) of the Lanham Act, finding it comprised immoral or scandalous matter (the pronunciation of “fuct” sounds like a vulgar word) in violation of that section. Brunetti requested reconsideration and appealed to the Trademark Trial and Appeal Board, which affirmed the examining attorney’s refusal to register the mark. The US Court of Appeals for the Federal Circuit found that while the Board did not err in concluding the mark should be excluded under Section 2(a) of the Lanham Act, that section’s bar on registering immoral or scandalous marks is an unconstitutional restriction of free speech.


[Iancu v. Brunetti (2019) — Roberts Court (2018-2020) — Conclusion]
The Lanham Act prohibition on the registration of “immoral” or “scandalous” trademarks infringes the First Amendment. Justice Elena Kagan delivered the opinion of the Court.
In Matal v. Tam, 582 U.S. __ (2017), the Court held that a prohibition on registration of marks based on their viewpoint violates the First Amendment, and that a provision of the Lanham Act prohibiting registration of “disparaging” marks was viewpoint based. A prohibition on the registration of marks that are “immoral” or “scandalous”—at issue in this case—is similarly viewpoint based and therefore violates the First Amendment. The prohibition distinguishes between ideas aligned with conventional moral standards and those hostile to them, which is the epitome of viewpoint-based discrimination.
The Court rejected the government’s proposal that the statute is susceptible to a limiting construction that would remove its viewpoint bias. The language of the statute does not support such a reading and to interpret it as such would be to “fashion a new one.”
Justice Samuel Alito joined the majority opinion in full and wrote a separate concurrence to highlight the importance of the Court continuing to affirm the principle that the First Amendment does not tolerate viewpoint discrimination. Justice Alito noted that Congress can adopt “a more carefully focused statute” that would prohibit the registration of “vulgar” marks without violating the First Amendment.
Chief Justice John Roberts filed an opinion concurring in part and dissenting in part. The Chief Justice argued that while he agreed with the majority that the “immoral” portion of the statute was not susceptible to a narrowing construction but agreed with Justice Sonia Sotomayor’s argument in favor of such a construction with respect to the “scandalous” portion.
Justice Stephen Breyer filed an opinion concurring in part and dissenting in part in which he agreed with the majority as to “immoral” but disagreed as to “scandalous.” Justice Breyer advocated against the categorical approach to First Amendment speech issues and for an approach that considers “whether the regulation at issue works speech-related harm that is out of proportion to its justifications.”
Justice Sonia Sotomayor filed an opinion concurring in part and dissenting in part, in which Justice Breyer joined. While Justice Sotomayor conceded that the majority’s construction of the statute is a reasonable one, it is not the only reasonable one and erroneously treats “immoral and scandalous” as a “unified standard.” She argued for a narrowing construction of the prohibition on “scandalous” marks to address only “obscenity, vulgarity, and profanity.” Such a construction would save the provision and avoid the “rush to register [vulgar, profine, and obscene] trademarks” that the Court’s decision makes probable.


[Emulex Corp. v. Varjabedian (2019) — Roberts Court (2018-2020) — Facts]
Emulex Corp., a Delaware company that sold computer components, and Avago Technologies Wireless Manufacturing, Inc., announced in February 2015 that they had entered into a merger agreement, with Avago offering to pay $8.00 for every share of outstanding Emulex stock, which was 26.4% higher than the value of Emulex stock the day before the merger was announced. Pursuant to the terms of the merger agreement, Emerald Merger Sub, Inc., initiated a tender offer for Emulex’s outstanding stock in April 2015. (A tender offer is a type of takeover bid in which the offeror publicly offers to purchase a specified amount of the target company’s stock, usually at a price higher than market value.)
It is customary for the target company to issue a statement to shareholders recommending that they either accept or reject the tender offer. Before issuing such a statement, Emulex hired Goldman Sachs to determine whether the proposed merger agreement would be fair to shareholders. Goldman Sachs determined that it would be fair, despite a below-average merger premium, and Emulex issued a statement consistent with that determination. Some of the shareholders were unhappy with the merger’s terms and brought a class action lawsuit against Emulex, Avago, Merger Sub, and the Emulex Board of Directors, alleging violations of federal securities laws.
The district court dismissed the complaint with prejudice, finding that the lead plaintiff’s claim under Section 14(e) did not plead the requisite mental culpability for claims under that section, the separate claim under Section 14(d) failed because that section does not establish a private right of action for shareholders confronted with a tender offer, and its Section 20(a) claim because its first two claims were insufficient.
Reviewing de novo the district court’s grant of the defendants’ motion to dismiss, the Ninth Circuit reversed the decision as to the Section 14(e) claim (but affirmed as to the Section 14(d) claim). Citing the US Supreme Court’s intervening decisions in Ernst & Ernst v. Hochfelder, 425 U.S. 185 (1976), and Aaron v. SEC, 446 U.S. 680 (1980), the Ninth Circuit disagreed with the five other circuits that have interpreted Section 14(e). Under the Ninth Circuit’s view, claims under Section 14(e) of the Securities Exchange Act of 1934, 15 U.S.C. § 78n(e) require a showing of negligence, not scienter (intent or knowledge of wrongdoing).


[Emulex Corp. v. Varjabedian (2019) — Roberts Court (2018-2020) — Conclusion]
The writ was dismissed as improvidently granted.


[Taggart v. Lorenzen (2019) — Roberts Court (2018-2020) — Facts]
In the words of the Ninth Circuit decision below, “[t]his case arises out of a complex set of bankruptcy proceedings.”
Petitioner Bradley Taggart is a real estate developer who owned 25% interest in Sherwood Park Business Center (“SPBC”). Respondents Terry Emmert and Keith Jehnke also each owned a 25% interest in SPBC. In 2007, Taggart purported to transfer his share of SPBC to his attorney, John Berman.
Emmert and Jehnke sued Taggart and Berman in Oregon state court, alleging that the transfer violated SPBC’s operating agreement by not allowing Emmert and Jehnke the right of first refusal. Emmert and Jehnke also sought attorneys’ fees. Taggart moved to dismiss the claim and filed a counterclaim for attorneys’ fees.
In November 2009, shortly before the case went to trial, Taggart filed a voluntary Chapter 7 bankruptcy petition. The state-court action was stayed pending the resolution of the bankruptcy petition, and in February 2010, Taggart received his discharge in the bankruptcy proceedings.
After the discharge, Emmert and Jehnke, represented by attorney Stuart Brown, continued the state-court action. Taggart was largely absent from subsequent proceedings, although Berman renewed his motion to dismiss on Taggart’s behalf at the close of evidence. After a trial, the state court ruled in favor of Emmert and Jehnke and unwound the transfer of Taggart’s share of SPBC to Berman and expelled Taggart from the company. The state court entered a judgment that allowed any party to petition for attorneys’ fees, which led to yet more complicated litigation in state and federal courts.
Brown, the attorney for Emmert and Jehnke, filed a petition for attorneys’ fees in state court on behalf of SPBC, Emmert, and Jehnke, against both Berman and Taggart, but limiting fees against Taggart to those incurred after the date of Taggart’s bankruptcy discharge. The petition notified the court of Taggart’s bankruptcy discharge but argued he could still be liable for attorneys’ fees on the theory that Taggart had “returned to the fray.”
While the attorneys’ fee petition was pending in state court, Taggart sought to reopen his bankruptcy proceeding in bankruptcy court. Once reopened, Taggart asked the court to hold Brown, Jehnke, Emmert, and SPBC (collectively the “Creditors”) in contempt for violating the bankruptcy discharge by seeking an award of attorneys’ fees against him in the state court action.
The state court ruled that Taggart had “returned to the fray” as a matter of law, so he could be held liable for attorneys’ fees incurred after his bankruptcy. Taggart timely appealed the state-court determination.
Subsequently, the bankruptcy court denied Taggart’s motion for contempt, agreeing with the state court that Taggart had “returned to the fray.” On appeal, the district court reversed, finding that Taggart’s actions did not constitute a “return to the fray” and thus the discharge injunction barred the claim against him for attorneys’ fees. The district court remanded for a determination whether the Creditors had “knowingly violated the discharge injunction in seeking attorneys’ fees.” On remand, the bankruptcy court found they had knowingly violated the discharge injunction and thus held them in contempt. On appeal, the Bankruptcy Appellate Panel (“BAP”) reversed the bankruptcy court’s finding of contempt, finding they had a good faith belief that the discharge injunction did not apply to their attorneys’ fee claim.


[Taggart v. Lorenzen (2019) — Roberts Court (2018-2020) — Facts]
foradeterminationwhethertheCreditorshad“knowinglyviolatedthedischargeinjunctioninseekingattorneys’fees.”Onremand,thebankruptcycourtfoundtheyhadknowinglyviolatedthedischargeinjunctionandthusheldthemincontempt.Onappeal,theBankruptcyAppellatePanel(“BAP”)reversedthebankruptcycourt’sfindingofcontempt,findingtheyhadagoodfaithbeliefthatthedischargeinjunctiondidnotapplytotheirattorneys’feeclaim.
Back in state court, the state appellate court found that Taggart’s actions did not constitute a “return to the fray” and thus reversed the state trial court as to its ruling on attorneys’ fees. As a result, the federal district court and the state appellate court both agreed that the Creditors could not pursue attorneys’ fees against Taggart, and the BAP’s ruling freed them from being held in contempt for knowingly violating the discharge injunction.
The Ninth Circuit affirmed the BAP’s opinion, holding that the Creditors did not knowingly violate the discharge injunction and thus could not be held in contempt because they had a subjective good-faith belief that the discharge injunction did not apply to their state-court claim for attorneys’ fees.


[Taggart v. Lorenzen (2019) — Roberts Court (2018-2020) — Conclusion]
The bankruptcy code allows a court to hold a creditor in civil contempt for violating a discharge order if there is no fair ground of doubt as to whether the order barred the creditor’s conduct. Justice Stephen Breyer authored the unanimous opinion of the Court.
The bankruptcy code states that a discharge order “operates as an injunction” and that a court may issue any “order” or “judgment” that is “necessary or appropriate” to “carry out” other bankruptcy provisions. In other, non-bankruptcy contexts, the Court has held that civil contempt is inappropriate where there is “a fair ground of doubt as to the wrongfulness of the defendant’s conduct.” The Court found no reason that this principle should not apply equally in a bankruptcy context. Thus, civil contempt is appropriate only if the creditor violates a discharge order based on an objectively unreasonable understanding of the discharge order. Because the Ninth Circuit below applied a different standard in determining whether civil contempt was appropriate, the Court vacated the Ninth Circuit’s decision and remanded for further proceedings.


[United States v. Davis (2019) — Roberts Court (2018-2020) — Facts]
On November 19, 2015, a jury found defendant Maurice Lamont Davis guilty on six counts, including the illegal use or carrying of a firearm in relation to a crime of violence (a “Hobbs Act robbery”) and the illegal use or carrying of a firearm to aid and abet conspiracy to commit a crime of violence. Also on November 19, 2015, a jury found defendant Andre Levon Glover guilty on seven counts, including the two counts described above.
On appeal, the US Court of Appeals for the Fifth Circuit issued an opinion on January 31, 2017, denying both defendants’ challenges and affirming the district court’s judgment below. The defendants petitioned the US Supreme Court for certiorari, and following the Court’s decision in Sessions v. Dimaya, 584 U.S. __ (2018), the Court remanded their case back to the Fifth Circuit for further consideration in light of that decision. After requesting supplemental briefing from the parties on the effect of Dimaya, the Fifth Circuit affirmed in part and vacated in part.
18 U.S.C. § 924(c) contains both an “elements clause” and a “residual clause.” The elements clause defines an offense as a crime of violence if it “has as an element the use, attempted use, or threatened use of physical force against the person or property of another,” and the residual clause defines an offense as a crime of violence if it, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In Dimaya, the Court addressed (and invalidated) a residual clause identical to the residual clause in § 924(c) but did not address the elements clause. Thus, the Fifth Circuit held the residual clause in 924(c) unconstitutionally vague under Dimaya but did not invalidate the elements clause in that section. As a result of this holding, the Fifth Circuit affirmed its prior judgment as to the Hobbs Act robbery count but vacated as to the aiding and abetting conspiracy count, because the former relies on the elements clause while the latter relies on the residual clause.


[United States v. Davis (2019) — Roberts Court (2018-2020) — Conclusion]
Title 18 U.S.C. § 924(c)(3)(B), which provides enhanced penalties for using a firearm during a “crime of violence,” is unconstitutionally vague. Justice Neil Gorsuch delivered the 5-4 majority opinion of the Court.
The Court recently decided two cases in which it was asked to interpret so-called residual clauses. In Johnson v. United States, 576 U.S. __ (2015), the Court held that the residual clause in the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(ii), was unconstitutionally vague. In Sessions v. Dimaya, 584 U.S. __ (2018), the Court held that the residual clause in 18 U.S.C. § 16 was also unconstitutionally vague. In both of those cases, the Court interpreted the statute to require courts to use a “categorical approach” to determine “whether an offense qualified as a violent felony or crime of violence.” This categorical approach prevented judges from considering how the defendant actually committed the offense and weigh instead only the crime’s “ordinary case.” The residual clause at issue here is nearly identical to the one held to require a categorical approach in Dimaya, and the Court found no good reason to interpret it differently.
The phrase “by its nature” compels the categorical approach, and to understand the nearly identical language of 18 U.S.C. § 16 differently would “make a hash of the federal criminal code.” The history of the statute, too, supports this interpretation of the clause, and the Court has never invoked the canon of constitutional avoidance, as the government advocated, to expand the reach of a criminal statute to save it.
Justice Brett Kavanaugh filed a dissenting opinion in which Justices Clarence Thomas and Samuel Alito joined, and in which Chief Justice John Roberts joined in part. The dissenters argued that the residual clause in this case is fundamentally different from those struck down in Johnson and Dimaya because those cases involved sentencing based on prior convictions, whereas this one focuses only on current conduct during the presently charged crime. Justices Kavanaugh and Alito (without the Chief Justice) also warned of the dire consequences of the Court’s decision.


[Cochise Consultancy Inc. v. United States, ex rel. Hunt (2019) — Roberts Court (2018-2020) — Facts]
The US Department of Defense awarded petitioner The Parsons Corporation a $60 million contract to perform munitions cleanup in Iraq. One component of the contract was that Parsons must provide adequate security to its employees who would be performing the cleanup. After seeking bids for a subcontract, a Parsons committee awarded it to ArmorGroup. Although petitioner Cochise Consultancy had submitted a bid, it did not win the subcontract. However, an Army Corps of Engineers contracting officer, Wayne Shaw, whom Cochise had allegedly bribed undertook elaborate efforts—including forgery, deception, and threats—to induce Parsons to award the subcontract to Cochise rather than to ArmorGroup. One employee in particular refused to award the subcontract to Cochise, believing that the award was made in violation of government regulations. That employee was replaced, and his replacement allowed the award of the subcontract to Cochise to move forward.
From February to September 2006, Cochise provided security services under the subcontract. Each month, the US government paid Cochise at least $1 million more than it would have paid ArmorGroup had ArmorGroup been awarded the subcontract, plus other expenses related to Cochise not being adequately equipped to perform the services required. In 2006, Shaw, who had orchestrated the fraudulent award of the subcontract to Cochise, rotated out of Iraq, and Parsons immediately reopened the subcontract for bidding and awarded it to ArmorGroup.
Several years later, in 2010, FBI agents interviewed Parsons employee Billy Joe Hunt about his role in a separate kickback scheme, and during that interview Hunt informed the agents about the contractors’ fraudulent scheme involving the subcontract for security services. Hunt was charged with federal crimes related to the kickback scheme and served ten months in federal prison.
After he was released, in 2013, Hunt filed a qui tam action under seal alleging that Parsons and Cochise had violated the False Claims Act (FCA), 31 U.S.C. §§ 3729–33, by submitting to the United States false or fraudulent claims for payment. The United States declined to intervene in the action, and Hunt’s complaint was unsealed. The contractors moved to dismiss, arguing that Hunt’s claim was barred by the statute of limitations in 31 U.S.C. § 3731(b)(1), which requires a civil action alleging an FCA violation to be brought within the later of (1) “6 years after the date on which the violation ... is committed” or (2) “3 years after the date when facts material to the right of action are known or reasonably should have been known by the official of the United States charged with responsibility to act in the circumstances....” The district court granted the contractors’ motion to dismiss, finding that under either provision, Hunt’s claim would be time-barred. Reviewing the district court’s dismissal de novo, the US Court of Appeals for the Eleventh Circuit reversed and remanded. The Eleventh Circuit held that when Hunt (the relator) learned of the fraud is immaterial for statute of limitation purposes, and thus the period began to run when government officials learned of the facts giving rise to the claim.


[Cochise Consultancy Inc. v. United States, ex rel. Hunt (2019) — Roberts Court (2018-2020) — Conclusion]
A relator in a False Claims Act qui tam action may rely on the statute of limitations in 31 U.S.C. § 3731(b)(2) in a suit in which the United States has declined to intervene, but the relator does not constitute an “official of the United States” for purposes of that section. Justice Clarence Thomas delivered the opinion for a unanimous Court.
Section 3731(b) establishes two limitations periods that apply to “civil action[s] under section 3730,” and both government-initiated suits and relator-initiated suits are “civil action[s] under section 3730.” Thus, the plain text of the statute imposes both limitations periods on both types of actions. To interpret the statute otherwise would violate the principle that “a single use of a statutory phrase must have a fixed meaning.”
Having resolved the first question, the Court then turned to whether the relator constitutes an “official of the United States” in this circumstance, finding that he does not. The relator is a private party, neither appointed as an officer nor employed by the United States, and nothing in the statute suggests an expansive interpretation of “the official” that would include such a private party.


[Quarles v. United States (2019) — Roberts Court (2018-2020) — Facts]
Jamar Quarles was charged with being a felon in possession of a firearm, in violation of 18 U.S.C § 922(g). At his original sentencing, the district court held that Quarles’s conviction for third-degree home invasion was a violent felony under the residual clause of the Armed Career Criminal Act (“ACCA”) but declined to rule whether the offense constituted generic burglary. Finding the felon-in-possession conviction to be a third offense under the ACCA, the court sentenced Quarles to 204 months in prison. In light of the US Supreme Court’s decision in Johnson v. United States, 576 U.S. __ (2015), in which it held unconstitutionally vague the residual clause of the ACCA, the US Court of Appeals for the Sixth Circuit remanded the case for resentencing. The district court found that Michigan’s crime of third-degree home invasion constituted a “violent felony” under the ACCA and resentenced Quarles to 204 months’ incarceration.
Under federal law, a generic burglary is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” Michigan law defines the crime of third-degree home invasion as breaking and entering a dwelling with intent to commit a misdemeanor in the dwelling, entering the dwelling without permission with intent to commit a misdemeanor in the dwelling, or breaking and entering a dwelling and while entering or present in the dwelling, committing a misdemeanor. This third option of intent is the subject of the present dispute. Both the district court and the Sixth Circuit found unpersuasive Quarles’s argument that the Michigan crime lacks the intent-upon-entry element that is required under generic burglary. Under binding Sixth Circuit precedent, generic burglary does not require intent at entry, so the Michigan crime of third-degree home invasion is not broader than the crime of generic burglary.


[Quarles v. United States (2019) — Roberts Court (2018-2020) — Conclusion]
The generic definition of burglary in 18 U.S.C. § 924(e) includes, if state law permits it, any unlawful “remaining in” presence in a building or structure “when the defendant forms the intent to commit a crime at any time.” Justice Brett Kavanaugh authored the opinion for a unanimous Court.
The Court first looked to the ordinary usage of the phrase “remaining in,” finding that it refers to a continuous activity. Additionally, a majority of state burglary statutes encompassed the “remaining in” concept at the time the Armed Career Criminal Act (“ACCA”) was passed, and all five of the state appellate courts that had addressed the question of timing had embraced the “at any time” position. Finally, the Court considered the purpose of the ACCA—to require enhanced imprisonment terms for repeat “armed career criminals”—would be frustrated if the Court adopted the narrower interpretation requiring intent to be present at the time of the unlawful entry.
Justice Clarence Thomas joined the majority opinion in full but wrote a separate concurrence to reiterate his view that the Court should revisit its “categorical approach” to the enumerated-offenses clause of the ACCA.


[Rehaif v. United States (2019) — Roberts Court (2018-2020) — Facts]
Hamid Mohamed Ahmed Ali Rehaif was present in the United States on an F-1 nonimmigrant student visa to study at Florida Institute of Technology. He was academically dismissed in December 2014, and his immigration status was terminated in February 2015. Rather than departing the country, Rehaif remained, and in December 2015 went to a shooting range, purchased a box of ammunition, and rented a firearm for an hour. Six days later, an employee at the hotel where Rehaif was staying reported to the police that Rehaif had been acting strangely. Following up on the tip, an FBI agent spoke with Rehaif, who admitted firing firearms at the shooting range and knowing that his student visa was out of status because he was no longer a student. Rehaif consented to a search of his hotel room, where agents found the remainder of the ammunition he purchased.
A federal grand jury charged Rehaif with two counts of violating 18 U.S.C. § 922(g)(5)(A), which prohibits a person who “is illegally or unlawfully in the United States” from possessing “any firearm or ammunition.” The penalty for violating that statute, described in 18 U.S.C. § 924(a)(2), is a fine, imprisonment for up to 10 years, or both.
At trial, the government requested a jury instruction that “[t]he United States is not required to prove that the defendant knew that he was illegally or unlawfully in the United States.” Rehaif objected to this instruction, arguing that the government had to prove both that he had knowingly possessed a firearm and that he had known that he was illegally or unlawfully in the United States when he possessed the firearm.” The government also requested the instruction that “[t]he alien’s status becomes unlawful upon the date of the status violation”; Rehaif requested instead the instruction that “[a] person admitted to the United States on a student visa does not become unlawfully present until an Immigration Officer or an Immigration judge determines that [he] ha[s] violated [his] student status.” The district court instructed the jury as requested by the government and overruled Rehaif’s objection. The Eleventh Circuit affirmed the convictions, citing binding circuit precedent holding that the government does not need to prove that the defendant knew of his prohibited status, as well as precedents from other circuits and lack of action by Congress to alter the law (suggesting the common judicial construction of the law was what Congress intended).


[Rehaif v. United States (2019) — Roberts Court (2018-2020) — Conclusion]
The “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, under which it is a criminal offense for a person who “is illegally or unlawfully in the United States” to possess “any firearm or ammunition.” That is, to convict a defendant of this crime, the government must show that the defendant knew he possessed a firearm and also that he knew he belonged to the relevant class of persons when he possessed it.
Justice Stephen Breyer authored the 7-2 majority opinion of the Court. There is a longstanding presumption that “Congress intends to require a defendant to possess a culpable mental state regarding each of the statutory elements that criminalize otherwise innocent conduct.” Courts apply this presumption of mental state, or “scienter,” even in the absence of any scienter in the statute. The text of § 924(a)(2) provides that “whoever knowingly violates” certain subsections “shall be” subject to certain penalties. Thus, using “ordinary English grammar,” the Court read the statutory term “knowingly” as applying to all the subsequently listed elements of the crime. The Court found further support for its interpretation in the basic principle of criminal law that criminal intent separates wrongful from innocent acts.
Justice Samuel Alito filed a dissenting opinion in which Justice Clarence Thomas joined. Justice Alito criticized the majority for manipulating the statutory text in an unnatural manner to apply the scienter requirement—“knowingly”—to the status element of the crime. Justice Alito argued that the Court has never inferred that Congress intended to impose a mental culpability requirement on an element that concerns the defendant’s own status and should not do so in this case.


[Parker Drilling Management Services, Ltd. v. Newton (2019) — Roberts Court (2018-2020) — Facts]
Respondent Brian Newton worked for Parker Drilling Management Services on a drilling platform fixed on the outer Continental Shelf, off the coast of Santa Barbara, California. His shifts lasted fourteen days, and he regularly worked twelve hours per day. He alleges that he usually took fifteen to thirty minutes during his shifts to eat without clocking out and that Parker did not provide 30-minute meal periods for each five hours worked, as required under California law. After Parker terminated him, Newton sued in state court for wage and hour violations under California law. Parker removed the case to federal court and filed a motion for judgment on the pleadings. The district court granted the motion, finding that under the Outer Continental Shelf Lands Act, the federal Fair Labor Standards Act (FLSA) is a comprehensive statutory scheme that leaves no room for state law to address wage and hour grievances arising on the Outer Continental Shelf. The district court recognized that the FLSA contains a clause that expressly allows for more protective state wage and overtime laws but held nonetheless that California’s laws offered Newton no protections.
A panel of the Ninth Circuit vacated the district court’s dismissal on the pleadings, finding that the Outer Continental Shelf Lands Act allows the laws of adjacent states to apply to drilling platforms as long as state law is “applicable” and “not inconsistent” with federal law. California’s wage and hour laws are not inconsistent with the FLSA, so the district court erred in dismissing the claims.


[Parker Drilling Management Services, Ltd. v. Newton (2019) — Roberts Court (2018-2020) — Conclusion]
The Outer Continental Shelf Lands Act (OCSLA) permits the application of state law only when there is a gap in the coverage of federal law; if federal law addresses the issue, state law is inapplicable. Justice Clarence Thomas authored the unanimous opinion of the Court.
The OCSLA extends “the Constitution and laws and civil and political jurisdiction of the United States” to the Outer Continental Shelf (OCS) “to the same extent as if” the OCS were “an area of exclusive Federal jurisdiction located within a State.” Further, the OCSLA commands that state laws be adopted as federal law on the OCS “to the extent that they are applicable and not inconsistent with” other federal law. Newton argued, and the Ninth Circuit agreed, that state law is “applicable” whenever it pertains to the subject matter at issue, and it is “inconsistent” only if it is incompatible with the federal scheme—that is, only if it would be preempted under the Court’s ordinary preemption principles.
The Court found this argument unpersuasive, favoring instead Parker’s argument that state law is “applicable” only if there is a gap in federal law that needs to be filled and that state law may be “inconsistent” with federal law even if it is possible for a party to satisfy both sets of laws. For example, although the Fair Labor Standards Act (FLSA) generally gives way to more protective state wage-and-hour laws, such state laws are inconsistent with the FLSA when adopting them as surrogate federal law would produce two different standards. The Court found this approach to preemption more persuasive because the two terms “applicable” and “not inconsistent” must be read together and interpreted “in light of the entire statute.”
Under this standard, some of Newton’s claims fail for relying on California law rather than federal law. The Court remanded the remaining claims for further consideration in light of this standard.


[North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust (2019) — Roberts Court (2018-2020) — Facts]
In 1992, Joseph Lee Rice III established in New York an inter vivos trust with William B. Matteson as trustee and Rice’s descendants as the primary beneficiaries (none of whom lived in North Carolina at the time of creation). In 2002, the original trust was divided into three separate trusts, one for each of Rice’s children. One of these trusts was the Kimberley Rice Kaestner 1992 Family Trust (“the Trust”), benefitting his daughter Kimberley Rice Kaestner, who, at the time of the division, was a resident and domiciliary of North Carolina.
In 2005, Matteson resigned as trustee for the three trusts, and Rice appointed a successor trustee, who resided in Connecticut. From 2005 to 2008, the Trust paid state income taxes on income accumulated during those years, despite that no funds were distributed. In 2009, representatives of the Trust filed a claim for a refund of taxes paid to the North Carolina Department of Revenue, which the Department denied. The representatives brought suit in state court, asking the court to require the Department to refund all taxes paid and declare unconstitutional the state statute enabling the Department to collect taxes from the foreign trust. The judge granted the Department’s motion to dismiss the claim for injunctive relief but denied the motion as to the constitutional claims. Both parties then filed motions for summary judgment as to the constitutional claims. Finding the state statute unconstitutional as applied, the state court granted the Trust’s motion for summary judgment. The Department appealed.
The The Due Process Clause of the Fourteenth Amendment requires “minimum contacts” connecting a state and the property it seeks to tax. The state appellate court found that the mere fact that a non-contingent beneficiary of the trust is domiciled in North Carolina, alone, where the trust location, its assets, and its trustee, are all outside the state, does not establish sufficient contacts with North Carolina to permit taxing the trust in that state. The state supreme court affirmed.


[North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust (2019) — Roberts Court (2018-2020) — Conclusion]
The Due Process Clause prohibits a state from taxing trust income based solely on its beneficiaries' in-state residency. If the income has not been distributed to the beneficiaries and the beneficiaries have no right to demand that income and are uncertain to receive it, the state has no power to tax the trust income.
Justice Sonia Sotomayor authored the unanimous opinion of the Court. The Due Process Clause permits a state to collect taxes only if there is “some definite link, or some minimum connection” between the state and the person, property, or transaction it seeks to tax. The crux of this question is whether the government’s taxation action is reasonable. In the context of a trust beneficiary, the answer turns on the extent to which the beneficiary controls or possesses the property to be taxed and the relationship of that property to the state. The trust income income at issue in this case does not meet the minimum connection necessary to support the state tax because the beneficiaries did not actually receive any income from the trust during the years in question, nor could they exercise control over it.
Justice Samuel Alito filed a concurring opinion in which Chief Justice John Roberts and Justice Neil Gorsuch joined. Justice Alito emphasized that the opinion in this case merely applies existing precedent and leaves unchanged the governing standard and the reasoning applied in earlier cases.


[Food Marketing Institute v. Argus Leader Media (2019) — Roberts Court (2018-2020) — Facts]
The Food Stamp Act of 1964 started one of the largest and fastest-growing welfare programs in the country. Formerly known as the Food Stamp Program, the Supplemental Nutrition Assistance Program (SNAP) spent over $78 billion on over 46 million people in fiscal year 2012, as compared to the $75 million spent during its first year. Respondent Argus Leader Media, who runs a newspaper in South Dakota, invoked the Freedom of Information Act (FOIA) to seek information from the US Department of Agriculture (USDA) on how much money individual retailers received from taxpayers each year. The USDA refused to provide the information, citing numerous exemptions to FOIA.
Argus filed a lawsuit against the USDA in federal district court, which found that the USDA properly withheld the information under FOIA Exemption 3, which applies to information prohibited from disclosure by another federal law. On appeal, the Eighth Circuit reversed, finding that Exemption 3 did not apply to the contested data, and remanded the case back to the district court. On remand, the issue before the court was whether Exemption 4—which covers “trade secrets and commercial or financial information obtained from a person and privileged or confidential”—applied to the information sought.
For the purpose of applying Exemption 4, the circuit courts have adopted a definition of “confidential” different from the term’s ordinary meaning. Courts have held the term to mean that Exemption 4 applies only if disclosure is likely to cause substantial harm to the competitive position of the source of the information. There is a circuit split as to what “substantial competitive harm” means. The district court in this case adopted the definition from the DC Circuit, which has held that “competitive harm may be established if there is evidence of ‘actual competition and the likelihood of substantial competitive injury.’” Appling that definition to the facts at hand, the court found speculative the USDA’s claims of competitive injury and entered judgment for Argus. The USDA decided not to appeal the judgment, so petitioner Food Marketing Institute (FMI) intervened and filed the appeal. On appeal, the Eighth Circuit affirmed the judgment of the district court.


[Food Marketing Institute v. Argus Leader Media (2019) — Roberts Court (2018-2020) — Conclusion]
Where commercial or financial information is both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy, the information is “confidential” within the meaning of Exemption 4 of the Freedom of Information Act, 5 U.S.C. § 552(b)(4). Justice Neil Gorsuch delivered the 6-3 majority opinion of the Court.
The Court first looked to whether the Food Marketing Institute had standing to appeal. The Institute would suffer financial injury as a result of disclosure, such injury would be the direct consequence of a judgment ordering disclosure, and a favorable ruling by the Supreme Court in this case would redress that injury. As such, the Court concluded the Institute has standing.
At the time FOIA was enacted, the term “confidential” meant “private” or “secret.” For information that is communicated from one party to another, that means that (1) the information is customarily kept private, and (2) the party receiving it has provided some assurance that it will remain private. In this case, it is uncontested that retailers customarily keep private the type of information at issue. Thus, under the plain meaning of the term, the information is “confidential.”
In giving the word “confidential” a different meaning in National Parks & Conservation Assn. v. Morton, 498 F.2d 765 (D.C. Cir. 1974), the DC Circuit inappropriately relied on legislative history rather than first going to the statute’s text and structure. The concept of “substantial competitive harm” that the DC Circuit developed is based not on statutory language but on testimony of witnesses in congressional hearings on a different bill that was never enacted. Additionally, while true that courts should “narrowly construe” FOIA exemptions, courts cannot arbitrarily constrict Exemption 4 by adding limitations found nowhere in its text.
Justice Stephen Breyer filed an opinion concurring in part and dissenting in part, in which Justices Ruth Bader Ginsburg and Sonia Sotomayor joined. Justice Breyer articulated a third condition for finding confidentiality in addition to the two described by the majority: “release of such information must cause genuine harm to the owner’s economic or business interests.” While Justice Breyer agreed with the majority that the “substantial competitive harm” rule from the DC Circuit is unworkable, he argued that the majority incorrectly interpreted Exemption 4 as having no harm requirement whatsoever. According to Justice Breyer, “the language permits, and the purpose, precedent, and context all suggest, an interpretation that insists upon some showing of harm.”


[McDonough v. Smith (2019) — Roberts Court (2018-2020) — Facts]
During the 2009 Working Families Party primary election in Troy, New York, several individuals forged signatures and provided false information on absentee ballot applications in an attempt to affect the outcome of the primary. The individuals submitted the forged applications to the commissioner of the Rensselaer County elections board, Edward G. McDonough. McDonough approved the applications but later claimed that he did not know they had been forged.
After the plot was uncovered, the state court appointed Youel Smith as a special district attorney to lead the investigation and prosecution of those involved. McDonough claimed that Smith engaged in an elaborate scheme to frame McDonough for the crimes. According to McDonough, Smith knew that McDonough was innocent and fabricated evidence in the form of forged affidavits, false testimony, and faulty DNA methods. After the first trial ended in a mistrial, the second trial ended in McDonough’s acquittal on December 21, 2012.
On December 18, 2015, McDonough filed a lawsuit under 42 U.S.C. § 1983 claiming that Smith and the other defendants violated his due process rights by fabricating evidence and using it against him before a grand jury and in two trials. The defendants filed a motion to dismiss, claiming, among other things, that McDonough’s claim was barred by the three-year statute of limitations because the allegedly fabricated evidence had been disclosed to McDonough over three years before he filed his Section 1983 claim.
The district court granted the motions to dismiss as to McDonough’s due process claims, citing the statute of limitations. The US Court of Appeals for the Second Circuit affirmed, finding that the precedent in that circuit established that the statute of limitations begins to run on a fabrication of evidence claim when the plaintiff has “reason to know of the injury which is the basis of his action.” The Second Circuit acknowledged that Third, Ninth, and Tenth Circuits have held otherwise but expressly disagreed with those decisions.


[McDonough v. Smith (2019) — Roberts Court (2018-2020) — Conclusion]
Contrary to the holding of the Second Circuit, below, the statute of limitations for McDonough’s § 1983 fabricated evidence claim began to run when the criminal proceedings against him terminated in his favor—that is, when he was acquitted at the end of his second trial. Justice Sonia Sotomayor delivered the 6-3 majority opinion of the Court.
The question of when a claim begins to accrue is presumptively when the plaintiff has a complete and present cause of action. The claimed right here is a constitutional due process right not to be deprived of liberty as a result of a government official’s fabrication of evidence. To determine when accrual begins, the Court considered the analogous tort of malicious prosecution. Under common law, malicious prosecution accrues only once the underlying criminal proceedings have resolved in the plaintiff’s favor, largely because (1) this policy for accrual avoids parallel criminal and civil litigation over the same subject matter (and the resulting possibility of conflicting judgments), and (2) it also avoids collateral civil attacks on criminal judgments. Both of these rationales hold true for McDonough’s fabricated-evidence claim and thus support applying the same accrual rule.
Justice Clarence Thomas authored a dissenting opinion, in which Justices Elena Kagan and Neil Gorsuch joined. Justice Thomas argued that because McDonough did not identify the specific constitutional right that was violated, the Court should have dismissed the case as improvidently granted.


[Fort Bend County, Texas v. Davis (2019) — Roberts Court (2018-2020) — Facts]
Lois Davis was an information technology (IT) supervisor for Fort Bend County, Texas. She filed a complaint with the county human resources department alleging that the IT director had sexually harassed and assaulted her, and following an investigation by the county, the director resigned. Davis alleges that after the director’s resignation, her supervisor—who was a personal friend of the director—retaliated against her for making the complaint.
Davis filed a charge with the Texas Workforce Commission alleging sexual harassment and retaliation. While the charge was pending, Davis allegedly informed her supervisor of a specific Sunday she could not work due to a “previous religious commitment,” and the supervisor did not approve the absence. Davis attended the event and did not report to work, and Fort Bend terminated her employment.
Davis submitted to the Commission an “intake questionnaire” in which she wrote in the word “religion” next to a checklist labeled “Employment Harms or Actions” but did not amend her charge of discrimination or explain the note. The Commission informed Davis that it had made a preliminary decision to dismiss her charge and issued a right-to-sue letter. Davis filed her lawsuit in federal district court alleging both retaliation and religious discrimination under Title VII. The district court granted summary judgment in favor of the county on all claims.
The Fifth Circuit affirmed the lower court as to the retaliation claim but reversed and remanded as to her religious discrimination claim, finding genuine disputes of material fact that warranted a trial. On remand, Fort Bend argued for the first time that Davis had failed to exhaust her administrative remedies on the religious discrimination claim, as required by Title VII. The district court agreed, finding that administrative exhaustion is a jurisdictional prerequisite in Title VII cases. Because subject matter jurisdiction cannot be waived by failure to challenge it, the district court dismissed Davis’s religious discrimination claim with prejudice.
Title VII requires plaintiffs to exhaust their administrative remedies by filing formal charges with the EEOC. There is no consensus within the Fifth Circuit whether this requirement is a jurisdictional requirement (which may be raised at any point and cannot be waived) or merely a prerequisite to suit (and thus subject to waiver). Relying on the Supreme Court’s decision in Arbaugh v. Y & H Corp., 546 U.S. 500 (2006), in which the Court held that the Title VII’s statutory limitation of covered employers to those with 15 or more employees was not jurisdictional, the Fifth Circuit held that the administrative exhaustion requirement was also not jurisdictional. This holding is consistent with holdings in the First, Second, Third, Sixth, Seventh, Tenth, and DC Circuits, but inconsistent with holdings by the Fourth, Ninth, and Eleventh Circuits.


[Fort Bend County, Texas v. Davis (2019) — Roberts Court (2018-2020) — Conclusion]
Title VII’s administrative-exhaustion requirement is a waivable claim-processing rule, not a jurisdictional prerequisite to suit. Justice Ruth Bader Ginsburg authored the opinion for a unanimous Court.
Jurisdictional requirements are generally quite narrow and refer either to the classes of cases a court may hear (as in subject matter jurisdiction) or the persons over whom a court may exercise its authority (personal jurisdiction). Claim-processing rules, in contrast, broadly require parties to take certain steps in or prior to litigation.
The requirement in Title VII that the complainant exhaust all administrative remedies appears in provisions separate and distinct from the parts of that statute that confer jurisdiction on federal courts to hear such claims. The administrative-exhaustion requirement is more similar to other types of rules that the Court has held nonjurisdictional, such as the directions to raise objections in an agency rulemaking procedure before asserting them in court or to follow copyright registration procedures before suing for infringement.


[PDR Network, LLC v. Carlton & Harris Chiropractic Inc. (2019) — Roberts Court (2018-2020) — Facts]
Petitioner PDR Network is a company that “delivers health knowledge products and services” to healthcare providers and is perhaps most known for publishing the Physicians’ Desk Reference, a popular reference book with information on various prescription drugs. In December 2013, PDR Network sent by fax to Carlton & Harris, a chiropractic office in West Virginia, an advertisement for a free eBook version of the 2014 Physicians’ Desk Reference. The material advised that the recipient had received the offer “because you are a member of the PDR Network.”
On behalf of itself and a class of similarly situated recipients of faxes from PDR Network, Carlton & Harris sued PDR Network in federal court under the Telephone Consumer Protection Act (“TCPA”), as amended by the Junk Fax Prevention Act of 2005, which generally prohibits the use of a fax machine to send “unsolicited advertisement[s].” Under that statute, the recipient of an unsolicited fax advertisement can sue the sender for damages and recover actual monetary loss or $500 in statutory damages for each violation. If a court finds the sender “willfully or knowingly violated” the TCPA, the recipient is entitled to triple damages.
As a preliminary matter, the court found that the Hobbs Act does not require the court to defer to the FCC’s interpretation of an unambiguous term. Substituting its own definition of “unsolicited advertisement” for the FCC’s definition of the term, which was promulgated by rule in 2006 (“2006 FCC Rule”), the court found that PDR Network’s fax was not an unsolicited advertisement because it lacked a “commercial aim.” Moreover, the court found that even under the 2006 FCC Rule, the fax would not be an “unsolicited advertisement.” For this reason, the district court granted PDR Network’s motion to dismiss.
Carlton & Harris appealed, and the US Court of Appeals for the Fourth Circuit vacated the lower court’s decision, finding that the Hobbs Act disallows district courts from considering the validity of orders like the 2006 FCC Rule, and that the district court’s interpretation of the rule is at odds with the plain meaning of its text.


[PDR Network, LLC v. Carlton & Harris Chiropractic Inc. (2019) — Roberts Court (2018-2020) — Conclusion]
The extent to which a 2006 order by the Federal Communications Commission (FCC) is binding on a district court turns on two preliminary questions: (1) whether the order is the equivalent of a “legislative rule” with the “force and effect of law”; and (2) whether the subject of the rule (in this case, PDR Network) had a prior and adequate opportunity to seek judicial review of the order.
Justice Stephen Breyer delivered the opinion of the Court that was unanimous in its judgment. Whether an agency’s order is binding on courts depends on two preliminary considerations. First, the order must be equivalent to a “legislative rule” with the “force and effect of law,” as opposed to an “interpretive rule,” which merely “advises the public of the agency’s construction of the statutes and rules which it administers.” Second, the Administrative Procedure Act requires that an agency action be subject to judicial review except “to the extent that a prior, adequate, and exclusive opportunity for judicial review is provided by law.” The Hobbs Act requires certain challenges to FCC final orders to be brought in a court of appeals, so a court should determine whether this provision afforded PDR Network a prior and adequate opportunity for judicial review. The Court declined to resolve these questions, instead vacating the judgment of the Fourth Circuit and remanding for consideration of these preliminary questions.
Justice Clarence Thomas concurred in the judgment, joined by Justice Neil Gorsuch. Justice Thomas’s concurrence highlights, in his view, the Court’s mistaken understanding of the relationship between federal statutes and the agency orders interpreting them. Justice Thomas argues that federal courts cannot disregard the text of the governing statute when considering whether or not to treat agency orders as controlling law.
Justice Brett Kavanaugh concurred in the judgment, joined by Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch. Justice Kavanaugh criticizes the majority for answering a question other than the one presented in this case. Rather than resolving a different question, Justice Kavanaugh would conclude that the Hobbs Act does not bar a defendant in an enforcement action from arguing that the agency’s interpretation of the statute is wrong. He suggests that the Fourth Circuit on remand (and other courts, when the issue arises) can employ the analysis set forth in his separate concurrence.


[The Dutra Group v. Batterton (2019) — Roberts Court (2018-2020) — Facts]
Respondent Christopher Batterton was a deckhand on a vessel owned and operated by the the petitioner, Dutra Group. While Batterton was working on the vessel, a hatch cover blew open and crushed his hand. The hatch cover blew open because the vessel lacked a particular exhaust mechanism, the lack of which made the vessel unseaworthy as a matter of law.
The district court denied Dutra Group’s motion to strike the claim for punitive damages, and the US Court of Appeals for the Ninth Circuit affirmed.
In Evich v. Morris, 819 F.2d 256 (9th Cir. 1987), the Ninth Circuit held that “punitive damages are available under general maritime law for claims of unseaworthiness,” as distinguished from Jones Act claims, where punitive damages are unavailable. Dutra Group argues that Evich is implicitly overruled by the US Supreme Court’s decision in Miles v. Apex Marine Corp., 498 U.S. 19 (1990), which holds that loss of society damages are unavailable in a general maritime action for wrongful death and lost future earnings are unavailable in a general maritime survival action.
The Ninth Circuit found unpersuasive Dutra Group’s argument, finding that the Court in Miles considered only damages for loss of society and of future earnings, not punitive damages. While Miles does limit recovery for “pecuniary loss,” punitive damages are not “pecuniary loss,” which means simply loss of money. Thus, Miles left undisturbed the Ninth Circuit’s opinion in Evich.


[The Dutra Group v. Batterton (2019) — Roberts Court (2018-2020) — Conclusion]
A plaintiff may not recover punitive damages on a maritime claim of unseaworthiness. Justice Samuel Alito authored the 6-3 majority opinion of the Court.
The Court first needed to reconcile two seemingly conflicting precedents. In Miles v. Apex Marine Corp., the Court held that non-economic damages were unavailable in a general maritime-law wrongful death action because such relief was unavailable under the Jones Act. But in Atlantic Sounding Co. v. Townsend, 557 U.S. 404 (2009), the Court held under maritime law that a plaintiff may seek punitive damages for an employer’s willful and wanton disregard of its obligation to pay maintenance and cure. The Court distinguished Atlantic Sounding based on the finding in that case that there was significant “historical evidence” that punitive damages had been available in maintenance-and-cure cases. In contrast, punitive damages were unavailable under the Jones Act, and there was “overwhelming historical evidence” that punitive damages were unavailable in general maritime-law unseaworthiness actions for personal injuries. The Court found “practically dispositive” the absence of recovery of punitive damages in maritime cases.
Justice Ruth Bader Ginsburg filed a dissenting opinion, joined by Justice Stephen Breyer and Sonia Sotomayor. Justice Ginsburg argued that by default, punitive damages are available in maritime cases, and Miles exemplified the exception rather than the rule. Moreover, the Jones Act had expanded the remedies available to seamen and did not bar punitive damages in unseaworthiness actions.


[Mitchell v. Wisconsin (2019) — Roberts Court (2018-2020) — Facts]
In May 2013, Gerald P. Mitchell was arrested for operating a vehicle while intoxicated. He became lethargic on the way to the police station, so the arresting officers took him to a hospital instead. An officer read him a statutorily mandated form regarding the state implied consent law, but Mitchell was too incapacitated to indicate his understanding or consent and then fell unconscious. Without a warrant, at the request of the police, hospital workers drew Mitchell’s blood, which revealed his blood alcohol concentration to be .222.
Mitchell was charged with operating while intoxicated and with a prohibited alcohol concentration. He moved to suppress the results of the blood test on the ground that his blood was taken without a warrant and in the absence of any exceptions to the warrant requirement. The state argued that under the implied-consent statute, police did not need a warrant to draw his blood. Many states, including Wisconsin, have implied consent laws, which provide that by driving a vehicle, motorists consent to submit to chemical tests of breath, blood, or urine to determine alcohol or drug content. The trial court sided with the state and allowed the results of the blood test into evidence. Mitchell was convicted on both counts.
Mitchell appealed his conviction, and the court of appeals certified the case to the Supreme Court of Wisconsin with respect to the issue “whether the warrantless blood draw of an unconscious motorist pursuant to Wisconsin’s implied consent law...violates the Fourth Amendment.” The Supreme Court of Wisconsin accepted the certification and upheld the search 5–2, but without any majority for the rationale for upholding it.


[Mitchell v. Wisconsin (2019) — Roberts Court (2018-2020) — Conclusion]
A four-justice plurality of the Court concluded that when a driver is unconscious and cannot be given a breath test, the exigent-circumstances doctrine generally permits a blood test without a warrant. Justice Samuel Alito announced the judgment of the Court and delivered a plurality opinion.
Writing for himself, Chief Justice John Roberts, and Justices Stephen Breyer and Brett Kavanaugh, Justice Alito noted that blood alcohol concentration (BAC) tests are searches subject to the Fourth Amendment. As such, a warrant is generally required before police may conduct a BAC test, unless an exception applies. The “exigent circumstances” exception allows the government to conduct a search without a warrant “to prevent the imminent destruction of evidence.” The Court has previously held that the fleeting nature of blood-alcohol evidence alone does not automatically qualify BAC tests for the exigent circumstances exception, but additional factors may bring it within the exception. For example, in Schmerber v. California, 384 U.S. 757 (1966), the Court held that “the dissipation of BAC did justify a blood test of a drunk driver whose accident gave police other pressing duties, for then the further delay caused by a warrant application would indeed have threatened the destruction of evidence.” Similarly, a situation involving an unconscious driver gives rise to exigency because officials cannot conduct a breath test and must instead perform a blood test to determine BAC.
Under the exigent circumstances exception, a warrantless search is allowed when “there is compelling need for official action and no time to secure a warrant.” The plurality pointed to three reasons such a “compelling need” exists: highway safety is a “vital public interest,” legal limits on BAC serve that interest, and enforcement of BAC limits requires a test accurate enough to stand up in court.
The plurality suggested that on remand, Mitchell can attempt to show that his was an unusual case that fell outside the exigent circumstances exception (perhaps because police conceded that they had time to get a warrant to draw his blood).
Justice Clarence Thomas concurred in the judgment but would have applied a per se rule under which “the natural metabolization of alcohol in the blood stream creates an exigency once police have probable cause to believe the driver is drunk, regardless of whether the driver is conscious.”
Justice Sonia Sotomayor filed a dissenting opinion, in which Justices Ruth Bader Ginsburg and Elena Kagan joined. The dissent argued that the plurality “needlessly casts aside the established protections of the warrant requirement in favor of a brand new presumption of exigent circumstances.” Established precedent should determine the outcome in this case: unless there is too little time to do so, police officers must get a warrant before ordering a blood draw. The dissent also argued that the state statute “cannot create actual and informed consent that the Fourth Amendment requires.”


[New York State Rifle & Pistol Association Inc. v. City of New York (2020) — Roberts Court (2018-2020) — Facts]
The State of New York law prohibits the possession of firearms without a license. To obtain a handgun license, an individual must apply with a local licensing officer—which, in New York City, is the police commissioner—and the application process involves an investigation into the applicant’s mental health history, criminal history, and moral character. There are two primary types of handgun licenses: “carry” licenses and “premises” licenses. This case involves the latter, which permits the licensee to “have and possess in his dwelling” a pistol or revolver. The premises license is specific to a particular address, and the handguns permitted by the license may not be removed from that address except in limited circumstances prescribed by law. One such circumstance is to “transport his/her handgun(s) directly to and from an authorized small arms range/shooting club, unloaded, and in a locked container, the ammunition to be carried separately.” All small arms ranges/shooting clubs authorized under the rule are located in New York City.
Three individuals with premises licenses sought to transport their handguns to shooting ranges and competitions outside New York City—which is prohibited by the rule. One of the individuals sought to transport his handgun between the premises in New York City for which it was licensed and his second home in Hancock, New York—which the rule also prohibits. The three individuals and petitioner New York State Rifle & Pistol Association filed a lawsuit in federal district court, asking the court to declare the city’s restrictions unconstitutional and to enjoin the city from enforcing them.
The district court found the rule “merely regulates rather than restricts the right to possess a firearm in the home and is a minimal, or at most, modest burden on the right” and thus did not violate plaintiffs’ Second Amendment rights. The district court also held that the rule did not violate the dormant Commerce Clause, the First Amendment right of expressive association, or the fundamental right to travel. Reviewing the district court’s decision de novo, the US Court of Appeals for the Second Circuit affirmed.


[New York State Rifle & Pistol Association Inc. v. City of New York (2020) — Roberts Court (2018-2020) — Conclusion]
In a per curiam (unsigned) opinion, the Court held that the petitioners’ claim for declaratory and injunctive relief with respect to the City’s rule is moot because after the Court granted certiorari, the City amended the rule, permitting the petitioners to transport firearms to a second home or shooting range outside the city.
Justice Brett Kavanaugh authored a concurring opinion to express agreement with the determination that the claim in this case is moot but also to agree with the dissenting justices in their interpretation of the leading Second Amendment cases, District of Columbia v. Heller, 554 U.S. 570 (2008) and McDonald v. Chicago, 561 U.S. 742 (2010).
Justice Samuel Alito authored a dissenting opinion, in which Justice Neil Gorsuch joined in full and Justice Clarence Thomas joined in part. Justice Alito argued that the Court incorrectly dismissed the case as moot and that the Court should have decided the case on the merits to correct lower courts' misapplication of Heller and McDonald.


[Virginia House of Delegates v. Bethune-Hill (2019) — Roberts Court (2018-2020) — Facts]
This civil action first arose in 2014, when 12 Virginia voters alleged racial gerrymandering in violation of the Equal Protection Clause of the Fourteenth Amendment. That case ultimately went before the US Supreme Court, and in 2017, the Court held that a lower court had applied the wrong legal standard in evaluating the challengers’ claims of racial gerrymandering. The Court upheld one of the districts and remanded the case for the lower court to reconsider the districting in the remaining 11 districts.
In June 2018, the lower court struck down the 11 districts as unconstitutional, finding that race was the main factor used to determine the boundaries for the districts. The court found that the legislature failed to prove that the districts as drawn, which attempted to put the exact same percentage of African American adults in each district, were necessary to comply with federal voting-rights laws.
The Virginia House of Delegates appealed the district court’s decision to the Supreme Court, and the Court agreed to review the case, as well as the preliminary question whether the House of Delegates has judicial standing to appeal.


[Virginia House of Delegates v. Bethune-Hill (2019) — Roberts Court (2018-2020) — Conclusion]
The Virginia House of Delegates lacks standing to file this appeal, either representing the state’s interests or in its own right. Justice Ruth Bader Ginsburg authored the opinion for a 5-4 majority.
To bring a suit (or appeal) in federal court, the litigant must have judicial standing. That is, the litigant must show (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. To appeal a decision that the primary party does not challenge, as here, an intervenor must independently demonstrate standing. Here, the primary party, Virginia, does not appeal the decision of the district court, but an intervenor, the House of Delegates, does. As such, the House of Delegates must demonstrate standing, which it does not.
First, the Court considered whether the House of Delegates had standing to represent the state’s interests. Under Virginia law, the authority for representing the state’s interests in civil litigation lies exclusively with the state attorney general. Thus, the House of Delegates cannot and does not displace this authority.
Then, the Court considered whether the House of Delegates had standing in its own right, concluding again that it does not. The Court has never recognized that a judicial decision invalidating a state law inflicts a cognizable injury on the parts of the state government that were involved in the law’s passage, and it declined to do so here. Given that the state manifests an intent to end the litigation—as evidenced by its decision not to appeal the district court’s decision—the House of Delegates alone cannot carry on the litigation against the will of the state.
Justice Samuel Alito filed a dissenting opinion in which Chief Justice Roberts and Justices Stephen Breyer and Brett Kavanaugh joined. The dissent would find that the House of Delegates does have standing because the new redistricting plan would inflict harm on the House by changing each representative’s constituents.


[Rucho v. Common Cause (2019) — Roberts Court (2018-2020) — Facts]
A three-judge district court struck down North Carolina’s 2016 congressional map, ruling that the plaintiffs had standing to challenge the map and that the map was the product of partisan gerrymandering. The district court then enjoined the state from using the map after November 2018. North Carolina Republicans, led by Robert Rucho, head of the senate redistricting committee, appealed the decision to the Supreme Court.


[Rucho v. Common Cause (2019) — Roberts Court (2018-2020) — Conclusion]
Partisan gerrymandering claims are not justiciable because they present a political question beyond the reach of the federal courts.
Chief Justice John Roberts delivered the 5-4 majority opinion. Federal courts are charged with resolving cases and controversies of a judicial nature. In contrast, questions of a political nature are “nonjusticiable,” and the courts cannot resolve such questions. Partisan gerrymandering has existed since prior to the independence of the United States, and, aware of this occurrence, the Framers chose to empower state legislatures, “expressly checked and balanced by the Federal Congress” to handle these matters. While federal courts can resolve “a variety of questions surrounding districting,” including racial gerrymandering, it is beyond their power to decide the central question: when has political gerrymandering gone too far. In the absence of any “limited and precise standard” for evaluating partisan gerrymandering, federal courts cannot resolve such issues.
Justice Elena Kagan filed a dissenting opinion, in which Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor joined. Justice Kagan criticized the Court for sidestepping a critical question involving the violation of “the most fundamental of . . . constitutional rights: the rights to participate equally in the political process, to join with others to advance political beliefs, and to choose their political representatives.” Justice Kagan argued that by not intervening in the political gerrymanders, the Court effectively “encourage[s] a politics of polarization and dysfunction” that “may irreparably damage our system of government.” She argued that the standards adopted in lower courts across the country do meet the contours of the “limited and precise standard” the majority demanded yet purported not to find.
This case was consolidated with Lamone v. Benisek, No. 18-726, and the Court released a single opinion resolving both cases.


[Department of Commerce v. New York (2019) — Roberts Court (2018-2020) — Facts]
Secretary of Commerce Wilbur L. Ross issued a decision to reinstate a citizenship question on the 2020 Census questionnaire. The decision was challenged in federal court by a coalition of states, cities, and counties, with the challengers alleging that the question could cause a significant undercount because some households with individuals who are unlawfully present in the country would be deterred from responding. The challengers claim the Secretary’s decision was arbitrary and capricious and that it violates various regulatory, statutory, and constitutional provisions.
As part of its challenge, the challengers sought—and the US District Court for the Southern District of New York, the venue for their action, authorized—depositions of high-ranking Executive Branch officials to determine Secretary Ross’s subjective motivations in making the decision at issue.
On October 5, 2018, Justice Ginsburg denied the government’s previous stay application without prejudice, “provided that the Court of Appeals will afford sufficient time for either party to seek relief in this Court before the depositions in question are taken.” The court of appeals denied mandamus relief to quash the deposition of Secretary Ross and the deposition of other high-ranking officials, so the government renewed its application for a stay. The Court then blocked the deposition of Secretary Ross but allowed others to proceed.
The government filed a petition for mandamus asking the Court to direct the trial court to exclude fact-finding beyond the official records, or, in the alternative, review the appellate court decision itself. Treating the petition for mandamus as a petition for certiorari, the Court granted the petition to review the decision of the court below.
Before the Court could rule, however, the district court issued its decision enjoining the Secretary from reinstating the question at issue. That action rendered the original case moot but presented an additional question whether the district court properly issued the injunction.


[Department of Commerce v. New York (2019) — Roberts Court (2018-2020) — Conclusion]
The Secretary of Commerce did not violate the Enumeration Clause or the Census Act in deciding to reinstate a citizenship question on the 2020 census questionnaire, but the District Court was warranted in remanding the case to the agency where the evidence tells a story that does not match the Secretary’s explanation for his decision. Chief Justice John Roberts delivered the opinion of the divided Court.
As to the question of standing, Chief Justice Roberts, writing for a unanimous Court, held that the district court’s finding that reinstating a citizenship question on the census would likely result in noncitizen households responding to the census at lower rates, causing them to be undercounted and subsequently to lose federal funds, constituted a concrete and imminent injury.
Writing for himself and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh, the Chief Justice held that the Enumeration Clause permits Congress, and by extension the Secretary of Commerce, to inquire about citizenship on the census questionnaire. In reaching this conclusion, the Chief Justice noted the “long and consistent historical practice” of Congress to exercise “broad authority” over the census.
Then, the Chief Justice, writing for a 6-3 majority (Roberts, Thomas, Ginsburg, Breyer, Sotomayor, Kagan), held that the Secretary’s decision is reviewable under the Administrative Procedure Act (APA). While The Census Act gives “broad authority” to the Secretary to administer the census, his discretion is not without limits. The APA exempts from judicial review agency actions that are discretionary, but “the taking of the census is not one of those areas.” Because the Census Act provides general requirements for agency decisionmaking, the Secretary’s decision is subject to judicial review.
Writing for himself and Justices Thomas, Alito, Gorsuch, and Kavanaugh, the Chief Justice held that the Secretary did not abuse his discretion in deciding to reinstate the citizenship question. The Chief Justice noted that the Secretary conducted an analysis weighing the value of obtaining more complete and accurate citizenship data against the uncertain risk that reinstating a citizenship question would result in a lower response rate. Because his decision to reinstate the question was reasonable and reasonably explained, it was not “arbitrary and capricious.”
Again writing for himself and Justices Thomas, Alito, Gorsuch, and Kavanaugh, the Chief Justice held that the Secretary did not violate the Census Act, reversing the district court’s ruling to the contrary. Section 6 of the Census Act authorizes the Secretary to acquire administrative records from other federal agencies and state and local governments and requires him to use that data rather than conducting direct inquiries, to the extent possible. Assuming that § 6 applied, the Chief Justice found that the Secretary complied with it for the same reasons he found the Secretary’s decision not “arbitrary and capricious”—that is, administrative records were insufficient to provide the requested citizenship data. Even if he had not complied with it, his decision would constitute harmless error because “he fully informed Congress of, and explained, his decision.”