China Agritech is a holding company incorporated in Delaware, with a principal place of business in Beijing. The company represented that it manufactured and sold organic compound fertilizers and other agricultural products to farmers in over two dozen provinces throughout China. It listed its shares on NASDAQ in 2005, and in 2009 reported to the SEC a net revenue of triple the amount it had reported four years earlier. In 2011, company shareholders alleged fraudulent business practices by China Agritech. The company denied the allegations and announced that it would conduct an internal investigation, and subsequently dismissed its independent auditor. Later that year, NASDAQ halted trading in and initiated delisting proceedings against China Agritech’s stock, and in 2012 the SEC revoked the stock’s registration.
Shareholders sued China Agritech in two successive putative class actions in 2011 and 2012, alleging various securities law violations against the company and several individual defendants. Class certification was denied in both cases.
Shareholder Michael Resh brought a third putative class action against the company and individual defendants in 2014, alleging securities law violations arising from the same facts and circumstances as the first two cases. China Agritech moved to dismiss the complaint on the basis that it had been filed after the two year limitations period applicable under the Securities Exchange Act of 1934. Resh and the additional plaintiffs argued that under the American Pipe & Construction v. Utah line of cases, the limitations period had been tolled on their claims during the pendency of the two prior class actions. The district court rejected this contention, finding that under American Pipe and its progeny, the limitations period was tolled as to individual class members, but that the Supreme Court had not decided whether an entirely new class action based on a substantially identical class was subject to the same rule. It ruled that the limitations period was therefore tolled as to the individual claims of the named plaintiffs in the instant case, but not as to the putative class.
The Ninth Circuit reversed, with a three-judge panel finding that the plaintiffs’ class action would not be time-barred where: (1) the named plaintiffs had been unnamed in the two prior suits, which were against many of the same defendants and involved the same underlying events; (2) the two prior cases were timely; (3) class certification was denied in the earlier actions; and (4) pursuant to the American Pipe line of cases, the named plaintiffs’ individual claims were tolled during the pendency of the two prior class actions. The panel explained that permitting such claims to go forward was consistent with the policy goals of tolling in general. The panel further stated that in light of FRCP 23’s requirements, as well as principles of comity and preclusion, the existing legal system contains sufficient safeguards to prevent litigants from filing repetitious actions in light of this ruling.

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In a unanimous opinion authored by Justice Ginsburg, the Court reversed and remanded, holding that upon denial of class certification, a putative class member may not, in lieu of promptly joining an existing suit or promptly filing a individual action, commence a class action anew beyond the time allowed by the applicable statute of limitations.
The Court explained that American Pipe and Crown, Cork & Seal Co. v. Parker addressed only putative class members wishing to file individual suits after a class certification denial. The Court reasoned that the “efficiency and economy of litigation” that support tolling of individual claims under American Pipe do not support the commencement of untimely successive class claims, stating that any additional class claims should be filed early in relation to the first lawsuit seeking class certification. The economy of litigation does however favor delaying individual claims until class certification has been denied.
The Court explained that this interpretation is supported by FRCP 23, as well as the securities litigation statute governing the case, which evince a preference for resolving class certification questions and grouping class filings at the outset of the litigation. The Court stated that there is little reason to allow plaintiffs who passed up opportunities to take part in pending class claims to become involved several years later. The Court further explained that plaintiffs who commence class actions after the expiration of the limitation period are not likely to qualify as diligent in asserting claims and seeking relief, which is typically a requirement for equitable tolling. Further, the Respondents’ proposed interpretation would allow the statute of limitations to be extended over and over again for a new lead plaintiff after each class certification denial, a result not envisioned by American Pipe.
Justice Sotomayor filed an opinion concurring in the judgment.


Timothy D. Koons and four other defendants were convicted of methamphetamine conspiracy offenses. During the sentencing phase of each defendant’s trial, the government moved to reduce the defendant’s sentence under 18 U.S.C. § 3553(e) for providing substantial assistance to the prosecution in the prosecution or investigation of another person. The district court in each case granted the government’s motion and reduced the defendant’s sentence to a term below the statutory mandatory minimum. All five defendants subsequently moved for further sentence reductions under 18 U.S.C. § 3582(c)(2), which allows a district court to reduce the sentence of “a defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission . . . if such a reduction is consistent with applicable policy statements issued by the Sentencing Commission.”
The Eighth Circuit declined to follow the Fourth Circuit panel majority in holding that defendants are eligible for discretionary § 3582(c)(2) reductions. Rather, the Eighth Circuit interpreted the plain language of the statute to require the sentence be based on a range subsequently lowered by the Commission, and that in these five cases the sentence was based instead on the mandatory minimum and their substantial assistance. Accordingly, the Eighth Circuit affirmed the district court’s denial of sentencing reductions, but for reasons different from those used by the district court.

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In a unanimous opinion authored by Justice Alito, the Court held that the petitioners were not eligible for sentence reductions under 18 U.S.C. § 3582(c)(2) because their sentences were not “based on” their lowered Federal Sentencing Guidelines ranges, but rather were “based on” the mandatory minimum sentences for their offenses and their substantial assistance to the government. The Court explained that for a sentence to be “based on” a lowered Guidelines range, the range needed to have played at least a relevant part in a defendant’s sentencing. In this case the district court did not consider the Guidelines ranges in its ultimate sentencing decisions, but instead relied on the applicable mandatory minimums.


In 2011, the State of Maryland engaged in a process of redistricting, which in that state entails two parallel procedures: a public-facing procedure led by the Governor’s Redistricting Advisory Committee and an internal procedure involving Maryland’s congressional delegation and a consulting firm called NCEC Services, Inc. NCEC developed sample maps using voter demographic data, a computer program, and a proprietary metric that predicts the likelihood of Democratic candidate success. In comparison to sample maps submitted by third parties, the NCEC-developed maps were assessed to be more likely to see Democratic candidate success. There is no evidence that the final map that was enacted to law was one of the ones developed by NCEC; rather, former Governor Martin O’Malley testified that the legislative director and staff from the Maryland Department of Planning likely created the final document. After the 2011 plan was implemented, the “Cook Partisan Voting Index” rated the Sixth District as a “likely” Democratic seat, whereas before the 2011 plan, the Sixth District was a “safe” Republican seat. In the 2012 congressional election, Democrat John Delaney defeated incumbent Republican congressman Roscoe Bartlett by a 20.9% margin. Subsequent elections saw other Democratic candidates succeeding over Republican candidates.
The plaintiffs sought a preliminary injunction barring the State from enforcing the 2011 redistricting plan and requiring the State to implement a new map in advance of the 2018 midterm elections. A majority of the district court panel denied the motion and stayed the case pending the outcome of Gill v. Whitford, another gerrymandering case before the US Supreme Court.

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Without resolving the substantive questions, the Court held, in an unsigned per curiam opinion, that the district court did not abuse its discretion in denying the Republican voters' motion for a preliminary injunction. To succeed on a motion for preliminary injunction, the party seeking the injunction must show likelihood of success on the merits, that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public's interest. Even assuming, contrary to the district court's findings, that the plaintiffs were likely to succeed on the merits, the Court found that they had unreasonably delayed seeking a preliminary injunction and that the public interest was not served in granting the injunction. Thus, it was not an abuse of discretion for the district court to deny the motion for preliminary injunction.


Individual voters in Texas, along with organizations representing Latinos and African Americans, filed a number of lawsuits in 2011, challenging the Texas legislature’s congressional and state house redistricting plans. The actions were consolidated and proceed in the U.S. District Court for the Western District of Texas (“Texas District Court”). The plaintiffs alleged racial gerrymandering in violation of § 2 of the Voting Rights Act (VRA) as well as the 14th and 15th Amendments to the United States Constitution. At that time Texas was bound by the preclearance requirements under § 5 of the VRA, and therefore the State simultaneously filed an action in the U.S. District Court for the District of Columbia (“D.C. District Court”) seeking preclearance of the redistricting plans.
While trial proceedings were pending in both district courts, the 2012 primary elections were approaching. As a result, the Texas District Court assumed the task of implementing interim redistricting plans, which it did on an expedited basis, without access to all relevant facts, and with the understanding that most parties to the litigation alleged that those plans contained many of the same statutory and constitutional infirmities as the challenged plans. The U.S. Supreme Court vacated the first iteration of the interim maps on the grounds that the court had not been sufficiently deferential to the legislature; the Texas District Court issued more deferential plans in February 2012.
The D.C. District Court subsequently denied preclearance to the proposed redistricting plans on the basis that they were enacted with discriminatory intent and had the effect of abridging minority voting rights. Texas appealed this decision to the U.S. Supreme Court.
After the Texas District Court’s interim maps were used for the 2012 elections, the Texas legislature failed to take any action on redistricting in the 2013 regular session. However, it convened a special session during which it adopted, among others, the Texas District Court’s congressional interim map (“Plan C235”) without any changes. The governor subsequently signed the legislation adopting this plan.
In June 2013, the U.S. Supreme Court decided Shelby County v. Holder, which removed the § 5 preclearance requirements from the VRA. Texas was therefore no longer automatically subject to preclearance requirements, and the U.S. Supreme Court later vacated and remanded for further proceedings the D.C. District Court’s preclearance decision, which the lower court then dismissed as moot.
The defendants subsequently sought to dismiss the plaintiffs’ claims in the Texas District Court for lack of subject matter jurisdiction on the basis that the case had become moot. In response, the plaintiffs expressed their desire to amend their complaints regarding the 2011 plans and to challenge the 2013 plans. The court granted them leave to amend, and denied the State’s motions to dismiss. The court explained that the plaintiffs’ claims regarding the 2011 plans were not moot because, inter alia, the plaintiffs continued to be harmed by them. The court also ordered that the 2013 plans, which included Plan C235, be used for the 2014 elections. The plaintiffs then filed their amended complaints, including claims related to both the 2011 and 2013 plans. Most plaintiffs included claims that Plan C235 violated § 2 of the VRA and the 14th and 15th Amendments.
The Texas District Court held trials on the 2011 plans in 2014, and found that they violated certain aspects of § 2 of the VRA and the 14th Amendment. In the ongoing litigation, the plaintiffs contended that the 2013 plans, including Plan C235, included some of the same elements that the court determined were the result of discriminatory intent or statutory or constitutional violations as in the 2011 plans.
In August 2017, the Texas District Court issued an interlocutory order regarding the plaintiffs’ C235 claims. It found that the racially discriminatory intent and effects identified in the 2011 plans carried through to the 2013 plans where the redistricting lines remained the same. It explained that the legislature had adopted the court’s interim plans (which included C235) as part of a litigation strategy that was designed to insulate the plans from any further challenge. The legislature had not engaged in any deliberative process to remove the discriminatory elements from the plans before adopting them, but instead intentionally furthered and continued the discrimination in the existing plans.
The court also concluded that the configurations of CD 27 and CD 35 under Plan C235 violated § 2 of the VRA and the 14th Amendment. As to CD 27, though the court had found in 2012 that this district did not reflect a racially discriminatory purpose because it was not possible to create an additional Latino opportunity district in the region, the Texas legislature had still engaged in vote dilution. Regarding CD 35, the court stated that while C235 was enacted in 2013, the challenged district boundaries that it reflected were drawn in 2011 and found to violate § 2 of the VRA and the 14th Amendment. The court explained that the Texas legislature did not engage in any meaningful effort to cleanse the discriminatory elements from the 2013 plan before it was adopted, and in fact intended to maintain that discrimination in enacting the plan in substantially the same form.
The court additionally found that the plaintiffs had proven a § 2 “results” violation as to CD 27, HD 32, and HD 34, and a racial gerrymandering claim as to HD 90.
The court’s order directed the Texas Attorney General to issue a written advisory within three days as to whether the legislature would convene a special session to address the issue of redistricting. If the legislature did not plan to hold a special session, the parties were ordered to appear before the court to prepare remedial redistricting plans.
In January 2018, the U.S. Supreme Court agreed to hear the defendants’ appeal on the merits, at which time the Court would also consider the question of jurisdiction.

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The Court reversed and remanded in a 5-4 vote, holding that the Texas District Court erred in disregarding the presumption of good faith on the part of the Texas Legislature and improperly reversed the burden of proof in requiring the state to show a lack of discriminatory intent in adopting new districting plans; the Court also held that one of the state house districts at issue was an impermissible racial gerrymander.
In an opinion authored by Justice Alito, the Court began by explaining that it had jurisdiction to review the orders in this case under 28 U.S.C. § 1253, because they qualified as interlocutory injunction orders.
With regard to the redistricting plans, the Court began its discussion by stating that in redistricting cases, legislatures are entitled to a presumption of good faith, and that the challengers had the burden of proof when alleging that a state law was enacted with discriminatory intent. It also stated that a finding of past discrimination was not sufficient to undermine the good faith presumption.
The Court found that in this case, the 2011 plans were repealed and not enacted by the 2013 legislature, which instead enacted the Texas District Court’s interim plans with minimal changes, and without carrying forward the effects of the 2011 legislature’s discriminatory intent. The Texas District Court had violated the applicable burden of proof principles in referencing the need to “cure” the “taint” of the earlier legislature’s process, and faulting that legislature for its lack of deliberation on this issue. The Court further concluded that evidence of the 2011 legislature’s intent and the Texas District Court’s interim plans, when viewed with other evidence in the record, was insufficient to prove bad faith and intentional discrimination on the part of the 2013 legislature.
After discussing its reversal of the Texas District Court’s intent finding, the Court addressed the four remaining districts that were invalidated on alternative grounds. It reversed the Texas District Court’s holding with regard to the three districts regarding which it relied on § 2’s “effects” test, but affirmed the holding that one district was an impermissible racial gerrymander.
With regard to the district findings it reversed, the Court explained that to support a § 2 “effects” claim, under Thornburg v. Gingles, 478 U.S. 30 (1986), a plaintiff must establish three factors: (1) a geographically compact minority population sufficient to constitute a majority in a single-member district, (2) political cohesion among the members of the minority group, and (3) bloc voting by the majority to defeat the minority’s preferred candidate. After making that showing, the plaintiff must then prove that the minority group’s votes are diluted by the district lines under the totality of the circumstances.
Regarding the Texas District Court’s finding that CD 27 violated § 2 by diluting the votes of Latino voters in Nueces County, who the district court ruled should have been included in a Latino opportunity district, the Court found that the plaintiffs were unable to show that an additional Latino opportunity district could be formed in that region of Texas. The Court also held that the Texas District Court erred in ruling that HD 32 and HD 34 did not comply with § 2, stating the the court’s findings showed that those two districts did not in fact violate § 2.
Finally, the Court affirmed the ruling that HD 90 was an impermissible racial gerrymander. That district was not derived from the Texas District Court’s interim plan, but was instead modified substantially by the 2013 legislature. The state argued that its use of race as a primary factor in shaping HD 90 was proper and even necessary to comply with § 2’s requirements, but the Court found that it failed to make the requisite showing of narrow tailoring.
Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined.
Justice Sotomayor filed a dissenting opinion, and was joined by Justices Breyer, Ginsburg, and Kagan. Sotomayor rejected the Majority’s assertion that the Court had jurisdiction to hear the case, disagreeing with its conclusion that the lower court’s orders constituted an injunction. She also disagreed with the Majority’s conclusion that the Texas District Court had erred with regard to the legal test for discriminatory intent. Sotomayor contended that the lower court had engaged in a careful consideration of the legislature’s intent rather than presuming invidious intent, and correctly found that the legislature intended to discriminate.


WesternGeco LLC v. ION Geophysical Corp.

The US Supreme Court issued a 2016 order granting certiorari in this patent infringement case, vacating a 2015 ruling by the US Court of Appeals for the Federal Circuit and remanding the matter for further consideration in light of , 579 U.S. __ (2016). On remand, the appellate court vacated the district court’s judgment for enhanced damages for willful infringement under 35 U.S.C. § 284, but reinstated its 2015 opinion in all other respects.
The underlying dispute in the case related to patent-practicing devices sold by ION Geophysical Corporation (“ION”) which were combined and used in non-infringing streamer systems at sea, but that would infringe on patents belonging to WesternGeco LLC (“WesternGeco”) if used in that manner in the US. The jury found infringement by ION, found no invalidity as to any asserted claims, and awarded WesternGeco, among other amounts, $93.4 million in lost profits.
In a subsequent appeal to the Federal Circuit, ION asked, among other things, that the lost profits award be reversed. In its 2015 opinion, the Federal Circuit agreed and reversed that award on the grounds that under 35 U.S.C. § 271(f), WesternGeco was not entitled to lost profits arising from foreign uses of its patented invention. As stated above, the court then reinstated this portion of that opinion in 2016.

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Ruling 7-2, the Court reversed and remanded, holding that WesternGeco’s award for lost profits was a permissible domestic application of § 284 of the Patent Act.
In an opinion authored by Justice Thomas, the Court explained that there was a presumption against the extraterritorial application of federal statutes, but that a two-step framework applied when deciding extraterritoriality questions. The first step asks whether that presumption may be rebutted. If not, the second step inquires as to whether the the case implicates the domestic application of the statute. Factors relevant to the second determination include identifying the statute’s focus, and asking whether the conduct pertinent to that focus occurred domestically. If the answer is yes, then it is a permissible domestic application of the statute.
The Court went on to state that though it is generally preferable to begin this inquiry with step one, courts have discretion to begin with step two, and the Court chose to do that in this case. In ascertaining the statute’s focus, the Court explained that the § 284 general damages provision was geared toward “infringement.” As such, in determining the focus of § 284 in a particular case, the type of infringement that occurred needed to be identified. In the instant case, WesternGeco’s infringement and lost profits claim was based on § 271(f)(2), the provision that regulates the domestic act of “suppl[ying] in or from the United States.” The Court explained that it had previously acknowledged that this section applied to domestic interests. The conduct in this case that was relevant to the statutory focus, and which consisted of exporting components from the U.S., took place in the U.S. As such, WesternGeco’s award was a permissible domestic application of § 284.
Justice Gorsuch filed a dissenting opinion, which was joined by Justice Breyer.


R. Scott Appling hired the law firm of Lamar, Archer & Cofrin, LLP (“Lamar”) to represent him in legal proceedings against the former owners of his business. Appling incurred significant legal fees, and verbally told Lamar that he would be able to pay them after he received a sizeable tax refund that he was expecting. In reliance upon this statement, the firm continued to represent him through the conclusion of the litigation. Appling received a tax refund, though it was smaller than what he had told Lamar he was anticipating, and he put it into his business rather than paying the debt he owed to Lamar. Lamar obtained a judgment against Appling, and Appling subsequently filed for bankruptcy. Lamar initiated an adversary proceeding to collect the debt, and the bankruptcy court ruled that the amount was not dischargeable pursuant to 11 U.S.C. § 523(a)(2)(A) because Lamar had justifiably relied upon Appling’s fraudulent statements. The district court affirmed.
The 11th Circuit reversed and remanded. Noting a circuit split on how to construe the statute at issue, the court explained that because Appling’s fraudulent statements about his tax refund were not in writing and qualified as statements “respecting [his] . . . financial condition” under § 523(a)(2)(B), the debt could be discharged.

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The Court held that a statement regarding a specific asset can be a “statement respecting the debtor’s . . . financial condition” under section 523(a)(2)(B) of the Bankruptcy Code. Interpreting the statutory provision at issue, the Court explained that the use of the word “respecting” in the legal context generally has a broadening effect. The Court also stated that the statute’s legislative history supported its reading.
Justices Thomas, Alito, and Gorsuch joined the opinion of the Court as to all but Part III-B.


Sergio Fernando Lagos pled guilty in federal district court to conspiracy to commit wire fraud, and multiple counts of wire fraud. He admitted that for a period of two years, he and his co-conspirators misled General Electric Capital Corporation (GECC) regarding the value of their assets in order to increase their revolving loan amount and secure under-collateralized funds.
Following his guilty plea, Lagos appealed the district court’s order of restitution to the 5th Circuit. He argued that the Mandatory Victims Restitution Act (MVRA) did not allow restitution for the legal, expert, or consulting fees incurred by GECC in the course of investigating Lagos’ suspected fraud and the bankruptcy proceedings that followed.
The 5th Circuit affirmed the district court’s order in light of its own precedent interpreting 18 U.S.C. § 3663A(b)(4) under the MVRA to permit restitution for investigative and legal costs, even under circumstances where these costs were incurred outside of the government’s investigation. The appeals court noted that the D.C. Circuit has adopted a narrower reading of the statute in question, though multiple other circuits have not.

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In a unanimous opinion, the Court reversed and remanded, holding that the words “investigation” and “proceedings” in 18 U.S.C. § 3663A(b)(4) are limited to government investigations and criminal proceedings, and do not include private investigations and civil or bankruptcy proceedings. The Court also held that the fact that the victim shared the findings of its investigation with the government did not make the costs of the private investigation “necessary . . . other expenses incurred during participation in the investigation . . . of the offense” within the meaning of subsection (b)(4).


Lucia v. Securities and Exchange Commission

The Securities and Exchange Commission (“Commission”) commenced an administrative enforcement action against Raymond J. Lucia and Raymond J. Lucia Companies, Inc. (collectively “Petitioners”) for alleged anti-fraud violations of the Investment Advisers Act arising from the way they presented their retirement wealth management strategy to prospective clients. An administrative law judge (“ALJ”) found liability and imposed sanctions including a lifetime industry bar against Petitioners. The Commission granted the parties’ petitions for review, and found that Petitioners had committed anti-fraud violations and imposed the same sanctions as the ALJ. The Commission also rejected the argument that the administrative proceedings had been unconstitutional because the ALJ who handed down the initial decision was a constitutional Officer who had not been appointed pursuant to the Appointments Clause under Article II, Section 2, Clause 2 of the Constitution.
Petitioners asked the D.C. Circuit to vacate the Commission’s decision and order under review on the grounds that the ALJ who made the administrative ruling was a constitutional Officer who had not been appointed in accordance with the Appointments Clause. The appeals court rejected this argument, explaining that Commission ALJs were not constitutional Officers within the meaning of the Appointments Clause, primarily because of their lack of authority to issue final decisions on behalf of the Commission pursuant to the agency’s regulatory scheme.

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In a 7-2 opinion, the Court reversed and remanded, holding that administrative law judges of the Securities and Exchange Commission are “officers of the United States” subject to the Constitution’s Appointments Clause.
In an opinion authored by Justice Kagan, the Court began by stating that under its precedent, as established in United States v. Germaine, 99 U.S. 508 (1879), and Buckley v. Valeo, 424 U.S. 1 (1976), to be classified as an officer rather than an employee, a person needs to have a “continuing” position established by law, and must “exercis[e] significant authority pursuant to the laws of the United States.” It went on to explain that the factors in Freytag v. Commissioner, 501 U.S. 868 (1991), the case directly governing the instant matter, matched up almost exactly to the elements in Lucia’s case.
In Freytag, the Court ruled that U.S. Tax Court “special trial judges” (STJs) were officers because they met the elements required under Germaine and Buckley, and because they had significant discretion in addition to considerable responsibilities in presiding over administrative proceedings. These responsibilities included “tak[ing] testimony, conduct[ing] trials, rul[ing] on the admissibility of evidence, and hav[ing] the power to enforce compliance with discovery orders.” The Court reasoned that the SEC’s ALJs, like the STJs in Freytag, held a continuing office established by law, and exercised the same degree of discretion when carrying out the same functions as the STJs. But in contrast with the Tax Court STJs, whose decisions were always required to be reviewed by a regular Tax Court judge, the SEC ALJs’ decisions were not always subject to review; if the SEC decided against review then the ALJ’s decision would become final and be “deemed the action of the Commission.” As such, the SEC ALJs were officers of the United States subject to the Appointments Clause.
In light of this conclusion, because Lucia had made a timely challenge in his case to the constitutional validity of the ALJ’s appointment, he was entitled to a new hearing before a properly appointed official.
Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined.
Justice Breyer filed an opinion concurring in the judgment in part and dissenting in part, and was joined by Justices Ginsburg and Sotomayor as to Part III.
Justice Sotomayor filed a dissenting opinion, in which Justice Ginsburg joined.


In 1854 and 1855, the federal Indian tribes in what is currently the state of Washington entered into a series of treaties, collectively known as the “Stevens Treaties,” which provided that the Tribes would relinquish significant portions of their land to make up the state of Washington, and in exchange, they would be guaranteed the right to off-reservation fishing. This so-called “fishing clause” guaranteed the Tribes “the right of taking fish, at all usual and accustomed grounds and stations . . . in common with all citizens of the Territory.”
Since those treaties, there have been recurring and ongoing disputes between the Tribes and (originally) the white settlers there and (today) the state government itself. The present case arises from the Tribes’ contention that the government was building and maintaining culverts (channels carrying water under roads or sidewalks) that diminished the size of salmon runs in traditional fishing areas for the Tribes. The 20+ Tribes represented in the suit allege that this diminishment amounts to violation of the fishing clause of the treaties.
Washington contends that it constructed the culverts in a particular way according to federal law and that the federal requirement caused it to violate the treaties.
The district court found for the Tribes and issued an injunction ordering Washington to correct its offending culverts. The Ninth Circuit affirmed.

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In a per curiam opinion, an equally divided Court affirmed the lower court's decision. Justice Anthony Kennedy took no part in the consideration or decision of the case.


Wescley Fonseca Pereira entered the United States in June 2000 as a non-immigrant visitor authorized to stay until December 21, 2000. Pereira overstayed his visa, and in May 2006, the Department of Homeland Security (DHS) personally served him with a notice to appear for a removal hearing. The notice did not specify the date and time of his initial removal hearing, but instead ordered him to appear before an immigration judge “on a date to be set at a time to be set.” When the immigration court set a date and time, it mailed Pereira a notice with such information. However, the notice was sent to Pereira’s street address on Martha’s Vineyard rather than his post office box, so Pereira never received it. When Pereira did not appear for his removal hearing, an immigration judge ordered him removed in absentia.
Pereira was not removed and instead remained in the country. In March 2013, he was arrested for a motor vehicle violation and detained by DHS. Through his attorney, Pereira filed a motion to reopen his removal proceedings, claiming he had never received the hearing notice with the time and place. Although Pereira conceded that he could be removed, he sought relief in the form of cancellation of removal under 8 U.S.C. § 1229b(b)(1), a provision that gives the attorney general discretion to cancel the removal of a non-permanent resident alien if the alien meets certain criteria, including ten years of continuous physical presence in the United States. This continuous period ends “when the alien is served a notice to appear under section 1229(a)” of the Immigration and Nationality Act (INA). Pereira contends that because he did not receive notice of the time and place of his removal hearing, his presence in the country was continuous and over ten years under the statute.
The Board of Immigration Appeals (BIA) has held that a notice to appear that does not contain the date and time of the hearing is nonetheless effective to end the period of continuous physical presence. However, Pereira challenges this reading of the statute. The First Circuit determined that the relevant provisions of the INA are ambiguous as to whether notice must include the date and time of the hearing to be effective, but the court found that the BIA’s interpretation of the statute was reasonable and thus subject to Chevron deference.

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A notice to appear for a removal hearing that does not specify the time and place of the hearing does not trigger the stop-time rule. In an 8-1 decision authored by Justice Sonia Sotomayor, the Court reasoned that a "notice to appear" that does not include with specificity both "when" and "where" cannot reasonably be expected to result in a person appearing at their hearing. The Court looked to the text of the statute, which provides that the continuous period in question ends "when the alien is served with notice to appear," and "notice to appear" is defined throughout the section as "a written notice . . . specifying . . . "the time and place at which the proceedings will be held." The text of the statute is thus unambiguous, so Chevron deference to the interpretation by the Board of Immigration Appeals (BIA) is unnecessary. This requirement of a "notice to appear" is also consistent with congressional intent.
Justice Anthony Kennedy filed a concurring opinion to note his concern over the way courts apply Chevron deference.
Justice Samuel Alito filed a dissenting opinion, in which he finds that the language of the statute is ambiguous and thus that the BIA's interpretation is entitled to Chevron deference.


The so-called Dormant Commerce Clause of the US Constitution prohibits states from imposing excessive burdens on interstate commerce without congressional approval. Consistent with this doctrine, the US Supreme Court held, in 1967, that a state cannot require an out-of-state seller with no physical presence within that state to collect and remit taxes for goods sold or shipped into the state. The Court affirmed this holding in 1992. In 2015, the Court heard another case with similar facts and while it declined to change its jurisprudence, Justice Kennedy wrote a separate concurrence questioning whether the Court should continue following the earlier cases in light of additional dormant Commerce Clause cases as well as the significant technological and social changes that affect interstate commerce.
In an apparent appeal to the doubt expressed by Justice Kennedy in that concurring opinion, the South Dakota Legislature passed a law requiring sellers of “tangible personal property” in that state who do not have a physical presence in the state to remit sales tax according to the same procedures as sellers who do have a physical presence. The act limited the obligation to sellers with gross revenue from sales in South Dakota of over $100,000, or 200 or more separate transactions, within one year. The legislature passed the law in defiance of Supreme Court jurisprudence, citing its inability to maintain state revenue in the face of increasing internet sales and their effect on sales tax collections.
The State commenced a declaratory judgment action in state court seeking a declaration that certain internet sellers subject to the law must comply with it. The sellers moved for summary judgment based on the binding Supreme Court cases. The court granted the motion for summary judgment and enjoined the State from enforcing the law. The State appealed to the state supreme court, and likewise bound by Supreme Court precedent, that court affirmed.

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The physical-presence rule of Quill Corp. v. North Dakota and National Bellas Hess, Inc. v. Department of Revenue of Illinois is unsound and incorrect, so both of those cases are overruled. In a 5-4 decision authored by Justice Anthony Kennedy, the Court held that sellers who engage in a significant quantity of business within a state may be required to collect and remit taxes, despite not having a physical presence in the state. First, the Court reasoned that the physical presence rule of Quill is not a necessary interpretation of the requirement that a state tax must be "applied to an activity with a substantial nexus with the taxing state." Physical presence is an outdated proxy for "substantial nexus," and the Court's due process doctrine provides other methods of establishing whether a seller has a substantial nexus to the state. Then, it found the rule in Quill creates, rather than resolves, market distortions. It puts businesses with physical presence at a competitive disadvantage relative to remote sellers. Finally, the Court explained by example how the rule in Quill as imposes "the sort of arbitrary, formalistic distinction that the Court's modern Commerce Clause precedents disavow."
Justice Clarence Thomas filed a concurring opinion clarifying that he "should have joined" Justice White's dissenting opinion in Quill and to criticize the Court's "entire negative Commerce Clause jurisprudence."
Justice Neil Gorsuch filed a concurring opinion to criticize the dormant Commerce Clause, as well.
Chief Justice John Roberts filed a dissenting opinion, in which Justices Breyer, Sotomayor, and Kagan joined. The dissent would find that "the internet's prevalence and power have changed the dynamics of the national economy" is a rationale not for discarding the physical-presence rule, but for upholding it. In the dissent's view, "any alteration to those rules with the potential to disrupt such a critical segment of the economy should be undertaken by Congress."


Several subsidiaries of the Canadian National Railway Company (“the railway”) began in 1996 paying its employees in stock options as part of their compensation. Under the Railroad Retirement Tax Act, 26 U.S.C. § 3231(e)(1), any form of “money remuneration” paid to railway employees is subject to an excise tax “equal to a specified percentage of its employees’ wages....” (Railroad retirement tax rates are much higher than social security tax rates.)
When employees exercise their stock options when the market price exceeds the price at which the employee has a right to buy the stock, the employee can benefit from a windfall. The Internal Revenue Service argues that this windfall is taxable, just as employees’ wages are taxable.
The district court found for the government, and the Ninth Circuit affirmed. The appeals court reasoned that while the government’s argument that “anything that has a market value is a form of money remuneration” was too broad, it was still correct in its assertion that stock is equivalent to cash. Moreover, as a policy concern, the government’s position avoids creating a tax incentive that could distort the ways in which employers structure compensation packages.

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The Court reversed and remanded, holding that employee stock options are not taxable “compensation” under the Railroad Retirement Tax Act because they are not “money remuneration.”
In a 5-4 opinion authored by Justice Gorsuch, the Court explained that as a matter of textual interpretation, stock options did not fall within the definition of “money” as it was understood at the time the Act was adopted. Stock options could be bought or sold for money, but did not constitute a medium of exchange themselves. And while adding the term “remuneration” indicated that Congress wanted to tax monetary compensation, which could take many forms, it did not indicate that it wanted to tax things that were not money at all, like stock.
The Court also stated that the broader statutory context of the time supported its reading. A provision of the 1939 Internal Revenue Code treated “money” and “stock” as two different things, and a companion statute to the Act taxed “all remuneration” instead of just “money remuneration,” reflecting a difference in meaning between the two.
The IRS itself also issued a regulation in 1938, explaining that the Act taxes “all remuneration in money, or in something which may be used in lieu of money,” which included things like salaries, commissions, and bonuses. But the regulation did not suggest that stock was taxable.
Justice Breyer authored a dissenting opinion, which was joined by Justices Ginsburg, Kagan, and Sotomayor.


In 2013, Adaucto Chavez-Meza pleaded guilty to conspiracy and possession with intent to distribute methamphetamine. At the time of his sentencing, the Sentencing Guidelines range was 135–168 months. The government recommended the minimum 135-month sentence, and the sentencing court accepted that recommendation. In 2014, the Sentencing Commission amended the Guidelines to reduce the relevant offense levels. Chavez-Meza subsequently sought and was granted a sentence reduction under 18 U.S.C. § 3582(c)(2). He requested that the court reduce his sentence to 108 months, the new minimum, but the court reduced his sentence to 114 months. In issuing the new sentence, the court issued a standard form stating it had “tak[en] into account the policy statement set forth at USSG § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a).” Chavez-Meza appealed the reduced sentence, claiming that the district court did not adequately explain how it applied the § 3553(a) factors in deciding on the 114-month sentence. The Tenth Circuit affirmed.
There is a circuit split as to whether a district court must explain how it applies the § 3553(a) factors. The Sixth, Eighth, Ninth, and Eleventh Circuits have held that the district court must provide some explanation for its decision when the reasons are not otherwise apparent from the record. The Fourth, Fifth, and Tenth Circuits have held that the form language is sufficient.

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The Court affirmed, holding that because the record in this case as a whole demonstrated that the judge had a reasoned basis for his decision, the judge’s explanation for reducing Chavez-Meza’s sentence under 18 U.S.C. § 3582(c)(2) to the middle instead of the bottom of the amended Federal Guidelines range was adequate.
In a 5-3 opinion authored by Justice Breyer, the Court stated that even if a judge reducing a prisoner’s sentence were subject to the same requirements as the original sentencing judge, the district court’s explanation was appropriate in this case. The Court pointed out that the judge making the sentence modification, who was in fact the same judge who imposed the original sentence, had access to all of the factors considered at the original sentencing. He also certified that he had considered the relevant factors under § 3553(a), and then lowered Chavez-Meza’s sentence to a point somewhat higher than the bottom of the new sentencing range. The Court found this unsurprising in light of the judge’s conclusion that the original sentence of 135 months was sufficiently high. The Court stated that there may be cases in which a disproportionate sentence reduction may require a more detailed explanation. But here, given the simplicity of the case, as well as the judge’s familiarity with the case history and the relevant sentencing factors, his explanation fell within the scope of discretion available to him under the law as a sentencing judge.
Justice Kennedy authored a dissenting opinion, in which Justices Sotomayor and Kagan joined.
Justice Gorsuch took no part in the consideration or decision of this case.


On January 27, 2017, President Donald Trump signed Executive Order No. 13,769 (EO-1), which, among other things, suspended entry for 90 days of foreign nationals from seven countries identified by Congress or the Executive as presenting heightened terrorism-related risks. EO-1 was immediately challenged in federal district court, and the judge entered a nationwide temporary restraining order enjoining enforcement of several of its provisions. A panel of the Ninth Circuit denied the government's emergency motion to stay the order pending appeal. Rather than continuing to litigate the matter, the government announced that it would revoke that order and issue a new one.
On March 6, 2017, President Trump issued Executive Order No. 13,780 (EO-2). Section 2(c) of EO-2 directed that entry of nationals from six of the seven countries designated in EO-1 be suspended for 90 days from the effective date of the order, citing a need for time to establish adequate standards to prevent infiltration by foreign terrorists. Section 6(a) directed that applications for refugee status and travel of refugees into the United States under the United States Refugee Admissions Program (USRAP) be suspended for 120 days from the effective date "to review the adequacy of USRAP application and adjudication procedures." Section 6(b) suspended the entry of any individual under USRAP once 50,000 refugees have entered the United States in fiscal year 2017. The effective date of the order was March 16, 2017. EO-2 was subject to swift litigation as well.
On June 14, just before Section 2(c) of EO-2 was by its terms set to expire, President Trump issued a memorandum to Executive Branch officials declaring the effective date of each enjoined provision of EO–2 to be the date on which the injunctions in these cases “are lifted or stayed with respect to that provision." The government sought review in both cases, making arguments both on the merits of the cases and on procedural issues.
In a per curiam opinion issued simultaneously with an order granting certiorari, the Court granted the government's applications for a stay of the preliminary injunction with respect to Sections 6(a) and (b) of Executive Order 13,780 (EO-2), thereby allowing enforcement of those provisions. Under the Court's ruling, the government may enforce Section 6(a) except as to any "individual seeking admission as a refugee who can credibly claim a bona fide relationship with a person or entity in the United States," nor may such an individual be excluded under Section 6(b).
On September 24, 2017—the same day EO-2 was expiring—President Donald Trump issued a Proclamation restricting travel to the United States by citizens from eight countries. That Proclamation too was challenged in federal court as attempting to exercise power that neither Congress nor the Constitution vested in the president. The Ninth Circuit struck down the Proclamation, and the Supreme Court granted review.

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The Court assumed without deciding that the plaintiffs' claims are justiciable and held that the Proclamation does not violate the president's statutory authority or the Establishment Clause. The Court did not resolve the question whether the district court's global injunction is impermissibly overbroad. Chief Justice John Roberts authored the opinion for the 5–4 majority. The majority first considered Hawaii's argument that the September 2017 order exceeds the president’s authority under federal immigration laws. Under Section 1182(f) of the Immigration and Nationality Act (INA), the president has "broad discretion" to suspend the entry of non-citizens into the United States. The Proclamation was the result of a “worldwide, multi-agency review” that determined that entry by certain non-citizens would be detrimental to the interests of the United States. Thus, the Proclamation does not exceed any statutory power of the president.
Nor does the Proclamation violate another statute, Section 1152(a)(1)(A), which bars discrimination based on nationality in the issuance of visas. While that section prohibits discrimination, it does not limit the president's authority to block the entry of nationals of some countries, just as several other presidents have done before President Trump.
Finally, the majority considered the plaintiffs' Establishment Clause claim. On its face, the majority found the Proclamation did not favor or disfavor any particular religion. But even looking behind the face of the Proclamation, the majority found that the facts that many majority-Muslim countries were not subject to restrictions and that some non-majority-Muslim countries were subject to the restrictions supported the government's contention that the Proclamation was not based on anti-Muslim animus and was instead based on "a sufficient national security justification."
Justice Anthony Kennedy joined the majority and authored a separate concurring opinion emphasizing that any subsequent proceedings must afford deference to the executive, as the majority opinion states, and also urging government officials to act and speak in accordance with the Constitution even when their actions and speech are not subject to judicial review or intervention.
Justice Clarence Thomas also joined the majority and authored a separate concurring opinion largely to express concern over the trend of federal district courts to issue "global" or "nationwide" injunctions and to call upon the Court to address that trend, which Justice Thomas believes oversteps the authority of those courts absent legislation granting them such authority.
Justice Stephen Breyer filed a dissenting opinion, which Justice Kagan joined, in which he questioned whether the government is actually applying the exemption and waiver programs as it purports to do, citing evidence that it may not be doing so. In light of this evidence, Justice Breyer would remand the case to the district court and would keep the order on hold until that issue is resolved.
Justice Sonia Sotomayor filed a dissenting opinion, in which Justice Ruth Bader Ginsburg joined. Justice Sotomayor criticized the majority for "ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens." Focusing on the plaintiffs' Establishment Clause claims, Justice Sotomayor opined that the Court incorrectly chose to apply the rational basis standard of scrutiny, despite prior cases indicating a higher level of scrutiny was required in such cases, and she would find that even under the rational basis test, the Proclamation should fail because in the president's own terms it was originally and continues to be "total and complete shutdown of Muslims entering the United States."


Weyerhaeuser Company v. United States Fish and Wildlife Service

In 2010, the U.S. Fish and Wildlife Service (FWS) included a privately owned parcel of land (“Unit 1”) in Louisiana in an expanded designation of critical habitat for the dusky gopher frog. Though these endangered frogs had not inhabited Unit 1 for decades, the land contained historic breeding sites. Other necessary features would need to be restored however. The landowners, Weyerhaeuser Company and two other entities (collectively, the “Landowners”), intended to use the land for residential and commercial development, as well as timber operations. They brought suit against the FWS in federal district court, challenging Unit 1’s designation as critical habitat and seeking injunctive and declaratory relief. All parties filed cross motions for summary judgment, and the district court ruled in favor of the agency on the merits.
A divided 5th Circuit affirmed the district court’s ruling, upholding Unit 1’s designation as critical habitat. The court rejected the Landowners’ argument that the FWS had acted arbitrarily and capriciously in making this designation on the theory that Unit 1 was not presently habitable nor essential to species conservation. Explaining that land need not be habitable to be considered “essential” under 16 U.S.C. § 1532(5)(A)(ii) of the Endangered Species Act (ESA), the court deferred to the agency’s interpretation of that term. The majority also held that the FWS had not acted unreasonably in interpreting the ESA to not contain a requirement that land be “currently” habitable by a species to be designated as critical habitat.
The 5th Circuit also held that the FWS had not made an arbitrary and capricious decision under 16 U.S.C. § 1533(b)(2) in not excluding Unit 1 from the critical habitat based on economic impacts, and that this determination was not reviewable in federal court.

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In a unanimous (8–0) opinion authored by Chief Justice John Roberts, the Court held as to the first question presented that to be designated a "critical habitat" under the Endangered Species Act, the land must also be habitat for the species. The Court found unpersuasive FWS's argument that habitat can include areas that, like Unit 1, would require modification to support a given species but which do not currently serve as habitat for the species. The statute provides that when the Secretary lists a species as endangered he must also "designate any habitat of such species which is then considered to be critical habitat." That language on its face requires that only "habitat" of an endangered species is eligible for designation as "critical habitat." Thus, even if if an area otherwise meets the statutory definition of "unoccupied critical habitat," Section 4(a)(3)(A)(i) does not authorize the agency to designate the area as critical habitat unless it is also habitat for the species.
As to the second question, the Court held that the agency's determination is subject to judicial review. The Administrative Procedure Act creates a presumption that agency determinations are subject to judicial review that may be rebutted only if the relevant statute precludes review or the action is specifically granted by law to the agency's discretion. Here, the Court found neither. Although the second sentence of Section 4(b)(2) states the Secretary "may" exclude an area from critical habitat, that section requires the Secretary to consider economic impact and relative benefits before deciding whether to exclude an area from critical habitat or to proceed with designation. Because the statute articulates a meaningful standard against which to judge the Secretary's exercise of discretion, the agency's determination is not beyond judicial review.
Justice Brett Kavanaugh took no part in the consideration or decision of the case.


Knick v. Township of Scott, Pennsylvania

In 2012, the Township of Scott, Pennsylvania, passed an ordinance affecting private properties determined to be or contain cemeteries. In relevant part, the ordinance required that “all cemeteries within the Township ... be kept open and accessible to the general public during daylight hours” and that no owner could unreasonably restrict nor charge any fee to access the cemetery (the “public-access provision”). Additionally, the ordinance permitted a Township officer to enter any property within the Township to determine whether there is a cemetery on the property, in order to enforce the public-access provision.
Rose Mary Knick owns property in the Township of Scott, and in April 2013, a Township officer entered her property without an administrative warrant and identified certain stones as grave markers. The officer cited Knick as violating the ordinance. Knick disputes that a cemetery exists on her property and filed a lawsuit to challenge.
Knick challenged the ordinance on several grounds, two of which are most salient. First, she alleges that the ordinance authorizes unrestrained searches of private property in violation of the Fourth Amendment of the US Constitution. Second, she argues that the ordinance takes private property without just compensation, in violation of the Fifth Amendment. Notably, Knick did not initiate an “inverse-condemnation proceeding” against the Township, which is the local administrative process for challenging a taking by the government.
The district court dismissed all but two of Knick’s claims with prejudice, and dismissed two of them (described above) without prejudice pending exhaustion of state-law remedies. Knick appealed the dismissal of her claims to the Third Circuit. The Third Circuit affirmed the dismissal, finding that although the ordinance was constitutionally suspect, she lacks Article III standing because she failed to demonstrate an injury-in-fact and redressability as to her Fourth Amendment claim, and that her Fifth Amendment claims are not ripe until she has sought and been denied just compensation using state inverse-condemnation procedures as required in the US Supreme Court’s 1985 decision in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City.

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A government violates the Takings Clause when it takes property without compensation, and a property owner may bring a Fifth Amendment claim under 42 U.S.C. § 1983 at that time; the state-litigation requirement set forth in Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985), is overruled.
Chief Justice John Roberts delivered the 5-4 majority opinion for the Court. The Court found that the state-litigation requirement in Williamson County “imposes an unjustifiable burden on takings plaintiffs” and “conflicts with the rest of our takings jurisprudence.” Looking to the text of the Takings Clause, the Court found that the most natural reading of that provision is that the right of compensation arises at the time of the taking. Under Williamson County, the government did not need to compensate in advance or simultaneously with the taking, but only provide a “reasonable, certain, and adequate” mechanism for recovering such compensation after the fact. By forcing plaintiffs to seek compensation after the taking in state court before allowing them to proceed in federal court, Williamson County imposes an “unjustifiable burden” on these plaintiffs. Additionally, the Court expressed concern over the likelihood that a plaintiff would bring a state-court claim, lose, and therefore be precluded from bringing a claim in federal court at all.
Justice Clarence Thomas wrote a separate concurrence underscoring his opposition to the position advocated by the township, the United States (as amicus curiae), and the dissent, that there is no constitutional violation as long as there is a mechanism for receiving compensation later.
Justice Elena Kagan dissented, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Sonia Sotomayor. Justice Kagan argued that the Takings Clause is at its core (and in its text) different from other constitutional provisions in its qualifying phrase “without just compensation.” Justice Kagan argued that the Clause does not forbid all takings, only those without just compensation, and the majority disregards the text of the Clause in its interpretation requiring compensation at the time of taking. Justice Kagan also dismissed the majority’s concern over the preclusive effect of state-court litigation, arguing that Congress bears the burden of correcting errors that become evident from application of laws. Most importantly, the dissent noted, the majority departs from lost-established precedent and disregards the doctrine of stare decisis.


Herman Avery Gundy was convicted of committing sexual assault in Maryland while on supervised release for a prior federal offense. After serving his sentence for the Maryland sex offense, Gundy was to be transferred to federal custody to serve his sentence for violating his supervised release. As a part of this transfer, Gundy received permission to travel unsupervised by bus from Pennsylvania to New York. Gundy made the trip, but did not register as a sex offender in either Maryland or New York as required by state law.
In January 2013, Gundy was indicted under 18 U.S.C. § 2250, the Sex Offender Notification and Registration Act (SORNA), for traveling from Pennsylvania to New York and then staying in New York without registering as a sex offender. He was convicted and sentenced to time served, along with five years of supervised release.
The 2nd Circuit affirmed this judgment on appeal. Gundy then asked the U.S. Supreme Court to review his case, which it agreed to do only as to the question of whether SORNA unlawfully delegates authority to the U.S. Attorney General under 42 U.S.C. § 16913 to impose the law’s registration requirements upon offenders who were convicted before the statute was enacted.

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The Sex Offender Registration and Notification Act (SORNA)’s delegation of authority to the U.S. Attorney General to issue regulations under 42 U.S.C. § 16913 does not violate the nondelegation doctrine. Justice Elena Kagan authored an opinion for the four-justice plurality.
The plurality first noted that the Court had previously interpreted this provision of SORNA in Reynolds v. United States, 565 U.S. 432 (2012), to require the attorney general to apply SORNA to all pre-Act offenders as soon as feasible. In light of this prior interpretation and the context of the provision and the statutory purpose, the plurality found unpersuasive Gundy’s argument that the provision gives the attorney general discretion to do whatever he wants as to pre-Act offenders. The nondelegation doctrine holds that Congress may not transfer to another branch “powers which are strictly and exclusively legislative” but may delegate on executive agencies discretion to implement and enforce laws, so long as Congress has provided an “intelligible principle” to which the agency must conform. The Court’s decision in Reynolds makes clear that § 16913(d) contains an “intelligible principle”—namely, that the attorney general apply SORNA to all pre-Act offenders as soon as possible—and thus the provision does not violate the nondelegation doctrine. The plurality also noted that no attorney general has used the provision in a more expansive way.
Justice Samuel Alito concurred in the judgment, expressing that he would like to revisit the Court’s approach to nondelegation. However, under the Court’s present jurisprudence, he finds no reason to invalidate SORNA’s delegation of authority in this provision.
Justice Neil Gorsuch filed a dissenting opinion in which Chief Justice John Roberts and Justice Clarence Thomas joined. Unlike Justice Alito, the dissent would use this case to change its approach to the nondelegation doctrine. The dissent expresses concern that SORNA gives the attorney general “the power to write his own criminal code governing the lives of a half-million citizens.”
Justice Brett Kavanaugh took no part in the consideration or decision of this case.


Three lawful permanent residents filed a class action for habeas relief in the US District Court for the Northern District of California when immigration authorities took them into custody and detained them without bond hearings years after they had been released from serving criminal sentences for offenses that could lead to removal. The plaintiffs’ position was that they were not detained “when . . . released” from criminal custody, and thus were not subject to mandatory detention under 8 U.S.C. § 1226(c).
The district court certified the class, which included “[i]ndividuals in the state of California who are or will be subjected to mandatory detention under 8 U.S.C. section 1226(c) and who were not or will not have been taken into custody by the government immediately upon their release from criminal custody for a Section 1226(c)(1) offense.” The court also issued a preliminary injunction directing the government to provide all class members with a bond hearing pursuant to § 1226(a).
The Ninth Circuit affirmed, agreeing with the First Circuit and rejecting reasoning followed in four other circuits, holding that the immigration detention at issue under § 1226(c) must take place promptly upon the noncitizen’s release from criminal custody. The appellate court explained that the statute’s plain language reflected an immediacy with regard to when the immigration detention must take place in relation to the release from custody, and rejected arguments by the government that would allow for detentions to occur following significant delays.

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A noncitizen does not become exempt from mandatory detention under 8 U.S.C. § 1226(c) through the failure of the Department of Homeland Security to take him into immigration custody immediately upon release from criminal custody. Justice Samuel Alito delivered the opinion of the 5–4 majority with respect to Parts I, III-A, III-B-1, and IV (joined by Chief Justice John Roberts and Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh), and an opinion with respect to Parts II and III-B-2 (joined by Chief Justice Roberts and Justice Kavanaugh).
In Part I, Justice Alito recited the facts and procedural history of the case for the 5–4 majority. In Part II, Justice Alito wrote for a minority addressing four questions regarding the court’s jurisdiction. In Part III-A, the majority looked to the plain text of § 1226(c) and found that the grammar of the provision and the meaning of the term “described” within the provision require reading the statute as meaning that the scope of “the alien” is fixed by the offenses described in subparagraphs (A)–(D), even if they were not arrested “immediately” when they were released from criminal custody.
In Part III-B-1, the majority concluded from “textual cues” that even if an alien is not arrested under authority bestowed by subsection (c)(1), he may face mandatory detention under subsection (c)(2). In Part III-B-2, the minority applied a principle for interpreting time limits on statutory mandates to conclude that a statutory rule that officials “shall act within a specified time” does not preclude action later.
In Part IV, the majority addressed (and rejected) the respondents’ arguments that the majority’s reading of the statute would (1) render key language superfluous, (2) lead to anomalies, and (3) violate the canon of constitutional avoidance.
Justice Kavanaugh filed a concurring opinion to emphasize the narrowness of the issue before the Court. Justice Kavanaugh pointed out that the case “is not about whether a noncitizen may be removed from the United States on the basis of criminal offenses” nor is it about “whether” or “how long” a noncitizen may be detained” during removal proceedings or before removal. Finally, it is not about whether Congress may mandate that the Executive Branch detain noncitizens during removal proceedings or before removal, as opposed to merely giving it discretion to detain.
Justice Thomas filed an opinion concurring in part and concurring in the judgment, in which Justice Gorsuch joined. Justice Thomas argued that courts lack jurisdiction to decide questions concerning the detention of noncitizens before final orders of removal have been entered. However, notwithstanding his opinion on jurisdiction, given that the Court exercised jurisdiction, Justice Thomas would largely agree with the majority as to the resolution of the merits.
Justice Stephen Breyer filed a dissenting opinion, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined. Justice Breyer argued that the majority’s reading runs counter to the ordinary meaning of the statute’s language, the statute’s structure, and relevant canons of interpretation. Under the majority’s broad interpretation, the statute would forbid bail hearings even for noncitizens whom the Secretary detained many years after their release from prison.


In 2016, Denard Stokeling pleaded guilty to charges that he was a felon in possession of a firearm and ammunition. He had two previous convictions for robbery in Florida, where an element of that offense was “overcoming victim resistance.” Some state courts have interpreted this offense as requiring only slight force to overcome victim resistance. Stokeling therefore contended that both of his robbery convictions should not qualify as “violent felonies” in the context of enhanced sentencing under the Armed Career Criminal Act, 18 U.S.C. § 924(e), because those convictions did not require a violent use of force. The district court agreed with Stokeling as to one of his convictions. The United States appealed to the 11th Circuit, which vacated Stokeling’s sentence and remanded the case for sentencing as an Armed Career Criminal.

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A state robbery offense that has as an element the use of force sufficient to overcome a victim’s resistance is categorically a “violent felony” under the Armed Career Criminal Act (ACCA) because it necessitates the use of “physical force.” Justice Clarence Thomas authored the opinion for a 5–4 majority. The ACCA’s elements clause covers any offense that has as an element “the use, attempted use, or threatened use of physical force.” A majority of states define non-aggravated robbery as requiring a degree of force sufficient only to overcome a victim’s resistance; indeed, even the “slightest offensive touching” constitutes “physical force” in a majority of states. Stokeling’s proposed definition of physical force as force “reasonably expected to cause pain or injury” is inconsistent with the degree of force needed to commit robbery at common law and therefore cannot be adopted. Under the broader interpretation of “physical force,” robbery under Florida law qualifies as an ACCA-predicate offense under the elements clause, so the decision of the Eleventh Circuit below is affirmed.
Justice Sonia Sotomayor filed a dissenting opinion, in which Chief Justice John Roberts and Justices Elena Kagan and Ruth Bader Ginsburg joined. The dissent opines that in light of the Court’s decision in Johnson v. United States, 559 U.S. 133 (2010), which held that the words “physical force” in the ACCA mean “a heightened degree of force, rather than minimal contact,” a Florida robbery, which can be committed through use of only slight force, should not be a “violent crime” under the ACCA.


In 2011, Victor Stitt tried to shove a loaded handgun into his girlfriend’s mouth and threatened to kill her. A neighbor called the police, and Stitt fled but later surrendered to police. A jury found Stitt guilty of possession of a firearm as a convicted felon. In light of Stitt’s nine prior “violent felony” convictions, the court designated Stitt as an armed career criminal under the Armed Career Criminal Act (ACCA) and sentenced him accordingly. The ACCA applies to those felons guilty of possessing a firearm who also have at least three prior convictions for a violent felony or serious drug offense. Stitt appealed the conviction, arguing that none of his nine prior convictions constituted “violent felonies.” The US Supreme Court’s 2015 decision in Johnson v. United States invalidated the violent-felony status of three of his prior convictions, leaving only six aggravated-burglary convictions. The Sixth Circuit has held that Tennessee aggravated burglary is a violent felony under the ACCA, so a panel of that court affirmed the sentence. Sitting en banc, the Sixth Circuit overturned its precedent and held that a conviction for Tennessee aggravated burglary does not qualify as an ACCA violent felony.
In a separate case, Jason Sims pleaded guilty to being a felon in possession of a firearm and received an enhanced sentence under the ACCA, based in part on two prior Arkansas residential burglary convictions. Sims appealed his conviction and the Eighth Circuit vacated his sentence and remanded his case for rehearing.
The US Supreme Court granted certiorari in both cases and consolidated them for the purpose of oral argument. At issue in both cases is whether the elements of the state crimes of which the defendants were convicted are “the same as, or narrower than, those of the general offense.” If they are broader than those of the general offense, then they cannot serve as ACCA predicate offenses.

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In a unanimous opinion authored by Justice Stephen Breyer, the Court held that “burglary” under the Armed Career Criminal Act of 1984 (ACCA) encompasses not just “dwellings” but also any “vehicle that has been adapted or is customarily used for overnight accommodation.” The general definition of burglary is “an unlawful or unprivileged entry into, or remaining in, a building or other structure, with intent to commit a crime.” The Court previously recognized that when the ACCA was adopted in 1986, it was intended to reflect the definition of burglary used by most states. Because the statutory word “structure” is broad enough to encompass vehicles, and a majority of states in 1986 included in the definition of burglary vehicles adapted for or customarily used for lodging, the defendants’ state court convictions were for violent crimes within the meaning of the ACCA. The Court reversed the Sixth Circuit in United States v. Stitt, No. 17-765, and vacated the Eighth Circuit’s decision in United States v. Sims, No. 17-766, remanding the case for the lower court to resolve novel state law arguments.


In a group of consolidated class actions, three plaintiffs sued Google on behalf of internet users who claimed that their privacy was violated under the Stored Communications Act, 18 U.S.C. § 2701, et. seq., and California law by the company’s disclosure of their internet search terms to third party websites. The case went to mediation, and the parties reached a settlement which they submitted to the district court for approval in July 2013.
Among the terms of the settlement were that Google would pay $5.3 million of the $8.3 million total to six cy pres recipients, provided that they agreed to dedicate the funds to promoting education and initiatives relating to internet privacy. The district court certified the class for settlement purposes, and preliminarily approved the settlement. Notice was sent out to the class in 2014, with 13 class members opting out and 5, including Thomas Frank, filing objections (“the Objectors”).
The district court approved the parties’ settlement in 2015, and with regard to the objections, found that: (1) the cy pres award was appropriate because the award was non-distributable, (2) Rule 23(b)(3)’s superiority requirement was not affected by whether the award was cy pres, (3) there was a substantial nexus between the cy pres recipients and the interests of the class members, and there was no evidence that the parties’ preexisting relationships with the recipients influenced the selection process, and (4) the amount of attorney fees was commensurate with the benefit to the class.
The Ninth Circuit approved the district court’s ruling approving the settlement, holding that the district court had not abused its discretion with regard to any of the four findings described above.

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Rather than answer the question presented, the Court issued a per curiam (unsigned) opinion vacating the judgment of the Ninth Circuit and remanding the case for further proceedings. The Court noted that there remain "substantial questions" about whether any of the named plaintiffs has standing to sue, in light of its decision in Spokeo, Inc. v. Robins, 578 U.S. __ (2016).


Frank Varela filed a class action complaint against his employer, Lamps Plus, under theories including negligence, invasion of privacy, and breach of contract after the company released employee personal identifying information in response to a phishing scam. Varela had signed an arbitration agreement as a condition of his employment. After he filed suit, Lamps Plus relied on this agreement as a basis for a motion to compel bilateral arbitration.
The district court found the agreement to be a contract of adhesion and ambiguous as to whether it permitted class arbitration. It construed the ambiguity against the drafter, Lamps Plus, and allowed the arbitration to proceed on a class-wide basis. Lamps Plus appealed, arguing that it had not agreed to class arbitration, but the Ninth Circuit affirmed and ruled that class arbitration could move forward.
The appeals court explained that because the agreement was capable of two reasonable interpretations, the district court was correct in finding ambiguity. Under California law it was also proper to construe the ambiguity against the drafter, particularly since it was a contract of adhesion. Further, it was a reasonable interpretation of the agreement to conclude that it covered legal disputes including class-wide claims, not just individual ones. By accepting this interpretation, the district court had found the requisite “contractual basis” for agreement to class arbitration under Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010).

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Under the Federal Arbitration Act (FAA), an arbitration agreement that is ambiguous as to the availability of class arbitration does not manifest sufficient consent by the parties to submit to class arbitration. In a 5-4 opinion authored by Chief Justice John Roberts, the Court held that the arbitration agreement between Varela and his employer, Lamps Plus, which contained only general language commonly used in arbitration agreements, did not provide the necessary contractual basis for compelling class arbitration.
The Court first determined that it had jurisdiction to review the lower court’s decision because an order that both compels arbitration and dismisses the underlying claims is a “fundamental” change in the rights of a party and thus qualifies as “a final decision with respect to an arbitration” within the meaning of the statute.
On the merits, the Court first noted that the availability of class arbitration is a matter of consent—that is, all parties must consent to class arbitration for it to be available. Because there are crucial differences between class arbitration and sole arbitration, the Court found utmost importance in giving effect to the intent of the parties. In Stolt-Nielsen S.A. v. AnimalFeeds Int’l Corp., 559 U.S. 662 (2010), the Court held that a contract’s silence toward class arbitration precluded its availability, and the same holds true for ambiguity.
The Court rejected the California law that an ambiguous provision of a contract be construed against the drafter, finding that rule preempted by the FAA despite arguments by Varela and the dissenting justices that the law is nondiscriminatory.
Justice Clarence Thomas joined the majority but wrote a separate concurrence expressing that he would not reach consideration of the California law of interpretation.
Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which Justices Stephen Breyer and Sonia Sotomayor joined, to emphasize that the Court’s decision strays even further from the principle that “arbitration is a matter of consent, not coercion.” Justice Ginsburg notes the irony that in contracts between parties with vastly unequal bargaining power, as between employers and employees, an inference that an ambiguous contract requires solo arbitration vests the employer with even greater power of coercion.
Justice Breyer wrote a dissenting opinion expressing his individual view that both the court of appeals, below, and the Court itself lacked jurisdiction to review the case.
Justice Sotomayor wrote a dissenting opinion to point out that the majority reaches its holding without actually first agreeing that the contract is ambiguous, thereby unnecessarily invading California law by invoking preemption.
Justice Elena Kagan wrote a dissenting opinion, in which Justices Ginsburg and Breyer join, and in which Justice Sotomayor joins as to Part II. Justice Kagan pointed out that the FAA, while requiring courts to enforce arbitration agreements according to their terms, does not federalize contract law. Thus, even under the FAA, state law governs the interpretation of arbitration agreements as long as it treats other types of contracts the same way. In Justice Kagan’s view, this principle should resolve the matter in this case.


Russell Bucklew was convicted by a state court jury of murder, kidnapping, and rape, and was sentenced to death. After exhausting the state appeals process, Bucklew was scheduled to be executed on May 21, 2014. He then filed an action in federal district court alleging that execution by Missouri’s lethal injection protocol would constitute cruel and unusual punishment in violation of the Eighth Amendment as applied to him because of a unique congenital medical condition from which he suffers. According to Bucklew, lethal injection would likely cause him to hemorrhage during the execution, potentially choking on his own blood.” As an alternative method, Bucklew proposed execution by nitrogen hypoxia. He also requested discovery of the qualifications of two members of the lethal injection team, alleging that they might not be qualified for the positions for which they are hired.
The district court granted summary judgment to the state, finding that Bucklew failed to show that the state’s execution method “presents a risk that is sure or very likely to cause serious illness and needless suffering, and give rise to sufficiently imminent dangers,” and failed to propose “an alternative that is feasible, readily implemented, and in fact significantly reduces a substantial risk of severe pain,” both of which steps are required by US Supreme Court precedent. Additionally, the district court denied Bucklew’s request for discovery, finding that it was inappropriate to “assume that Missouri employs personnel who are incompetent or unqualified to perform their assigned duties.” Reviewing the district court’s findings de novo, the US Court of Appeals for the Eighth Circuit affirmed the lower court.

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A death-row inmate alleging that the state’s method of execution constitutes cruel and unusual punishment in violation of the Eighth Amendment, either on its face or as applied to that inmate, must show (1) a feasible and readily implemented alternative method that would significantly reduce a substantial risk of severe pain and (2) that the state refused to adopt the method without a legitimate penological reason. In a 5–4 opinion authored by Justice Neil Gorsuch, the Court held that Bucklew did not meet his burden.
The Court first considered the proper test for challenges to lethal injection protocols as applied to a particular inmate. In Baze v. Rees, 553 U.S. 35 (2008), a plurality of the Court held that a state’s refusal to alter its lethal injection protocol could violate the Eighth Amendment only if an inmate first identified a “feasible, readily implemented” alternative procedure that would “significantly reduce a substantial risk of severe pain.” Subsequently, in Glossip v. Gross, 576 U.S. __ (2015), a majority of the Court clarified that the plurality opinion in Baze was controlling. The Eighth Amendment does not guarantee a painless death—only punishments that “intensif[y] the sentence of death” with a “superaddition of terror, pain, or disgrace.” Anyone bringing an Eighth Amendment challenge must therefore satisfy the Baze-Glossip test. The Court rejected Bucklew’s argument that methods posing a substantial risk of suffering when applied to a particular inmate should be considered “categorically” cruel. Bucklew failed to show that Missouri’s lethal injection protocol would “superadd” to his death sentence.
The Court then considered whether Bucklew satisfied the test, finding he had not. The majority identified two reasons Bucklew failed to show his proposed alternative—nitrogen hypoxia—was viable. First, he did not produce adequate evidence that nitrogen hypoxia could be “readily implemented,” and second, he failed to show that the state lacked a legitimate reason for declining to switch from its current method of execution to one that is “untried and untested.” Finally, the Court found that even if Bucklew had satisfied his burden of showing a viable alternative, he failed to show that the alternative would significantly reduce a substantial risk of severe pain.
Justice Clarence Thomas joined the majority opinion in full but authored a concurring opinion reiterating the position he expressed in his concurring opinion in Baze that “a method of execution violates the Eighth Amendment only if it is deliberately designed to inflict pain.”
Justice Brett Kavanaugh wrote a separate concurrence joining the majority in full but also underscoring the Court’s additional holding that the alternative method of execution need not be authorized under current state law.
Justice Stephen Breyer authored a dissenting opinion, in which Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined as to all but Part III. First, Justice Breyer argued that Bucklew had provided sufficient evidence by which a fact finder could conclude execution by lethal injection would subject him to impermissible suffering. Because a genuine issue exists as to this material fact, summary judgment for the state was inappropriate. Second, even accepting that the Glossip majority opinion governs, Justice Breyer argued that the substantially different circumstances of the present case rendered the reasoning in Glossip inapplicable and that the majority’s holding unconstitutionally places a high burden on the prisoner to describe in detail an alternative method of execution. Finally, Justice Breyer expresses general concern that an expedient death penalty may be mutually exclusive of a reliable and fair death penalty.
Justice Sotomayor filed a separate dissenting opinion, as well, to criticize and clarify as “troubling dicta” the majority’s “lament[ation]” of “late-arising death penalty litigation.”


Dominic Oliveira completed an apprenticeship program offered by New Prime Inc. (Prime), an interstate trucking company. After Oliveira graduated from the program, Prime representatives advised Oliveira to set up a limited liability company and work for Prime as an independent contractor, as manifested by an independent contractor operating agreement signed by Oliveira on behalf of his new LLC. Oliveira alleges that Prime exercised significant control over his work, inconsistent with his status as an independent contractor. Oliveira terminated his contractor relationship with Prime and began working as an employee of Prime, where his job responsibilities were “substantially identical” to those he had as an independent contractor.
Oliveira then brought a class-action lawsuit against Prime, alleging violations of the Fair Labor Standards Act (FLSA), a state minimum-wage statute, among other claims. Prime filed a motion to compel arbitration under the Federal Arbitration Act (FAA), which Oliveira opposed on the grounds that the contract is exempted under Section 1 of the FAA and that anyway, the question of applicability of the Section 1 exemption was one for the court to decide.
The district court concluded that the question of applicability of Section 1 of the FAA was for the court to decide, and it then held that “contracts of employment of transportation workers” does not extend to independent contractors. Having reached this conclusion, the district court ordered additional discovery on the issue of whether Oliveira was an employee or an independent contractor in order to be able to decide whether the contract was a contract of employment under Section 1. The district court thus denied Prime’s motion to compel arbitration.
The US Court of Appeals for the First Circuit affirmed the district court’s order denying the motion to compel arbitration, finding that the applicability of the FAA is a threshold question for the court to determine. The appellate court then held that Section 1 does apply to agreements that purport to establish an independent-contractor relationship.

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In a unanimous (8–0) opinion authored by Justice Neil Gorsuch, the Court held that a court should determine whether the FAA applies and that “contracts of employment” include those that purport to establish an independent-contractor relationship. Looking to the language and structure of the FAA, the Court reasoned that courts may compel arbitration only in arbitration agreements involving commerce or maritime transactions. Thus, a court must make the threshold determination whether the FAA applies to the contract at issue, notwithstanding any delegation clause.
As to the meaning of “contracts of employment,” the Court looked to the original meaning and evolution of the phrase, finding that it was not a term of art that referred only to contracts that created an employer-employee relationship, but instead broadly meant “work agreements.” Using this definition of “contracts of employment,” the Court held that Oliveira’s agreement with New Prime falls within Section 1’s exception.
Justice Brett Kavanaugh took no part in the consideration or decision of the case.
Justice Ruth Bader Ginsburg filed a concurring opinion to clarify that while she would reach the same outcome, the meanings of terms or phrases can and do sometimes evolve, and courts must interpret them flexibly.


In 2000, John Guido and Dennis Rankin were hired by the Mount Lemmon Fire District, a political subdivision of the State of Arizona. They were full-time firefighter captains, and at ages 46 and 54, respectively, were the two oldest full-time employees at the Fire District when they were terminated in 2009. Guido and Rankin filed age discrimination charges with the Equal Employment Opportunity Commission (EEOC), which found reasonable cause to believe that the Fire District had violated the Age Discrimination in Employment Act (ADEA), 29 U.S.C. §§ 621-34. Guido and Rankin subsequently filed suit against the Fire District.
The Fire District sought summary judgment on the basis that it was not an “employer” within the meaning of the ADEA, and the district court agreed. A three-judge panel of the Ninth Circuit reversed. Ruling counter to what other circuits have concluded, the appellate court stated that a political subdivision of a state does not need to have 20 or more employees, as private sector employers do, in order to be covered by the ADEA.

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In a unanimous (8–0) opinion authored by Justice Ruth Bader Ginsburg, the Court held that the ADEA applies to all state political subdivisions, regardless of the number of employees. The Court first looked to the plain language of the statute, finding the two-sentence delineation in the definitional provision § 630(b), coupled with the expression “also means” at the start of §630(b)’s second sentence, establish two separate categories: persons engaged in an industry affecting commerce with 20 or more employees; and states or political subdivisions. The latter category has no numerosity limitation. For this reason, the Court found that Mount Lemmon Fire District was subject to the ADEA despite the number of full-time employees there.
Justice Brett Kavanaugh took no part in the consideration or decision of this case.


Vernon Madison has been on death row in Alabama for over 30 years and has had several serious strokes, rendering him unable to remember committing the crime for which he is to be executed. He also exhibits other symptoms of brain damage, including slurred speech, blindness, inability to walk independently, and urinary incontinence. Madison was originally scheduled to be executed in May 2016, and he challenged his competency in state court. The court denied his claim, and Madison then sought habeas corpus relief in federal court. The US Court of Appeals for the Eleventh Circuit found that he was incompetent to be executed.
In November 2017, the US Supreme Court reversed the grant of habeas corpus relief in Dunn v. Madison, finding that the state court’s determinations of law and fact were “not so lacking in justification” as to give rise to error “beyond any possibility for fairminded disagreement” as required under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA).
Madison was rescheduled for execution for January 2018, and he again petitioned state court for relief, this time with new evidence that the court-appointed expert upon whose testimony the prior courts relied had been suspended from the practice of psychology. The court again denied his petition, finding Madison competent to be executed. Madison then sought asked the US Supreme Court to consider the constitutional issues underlying his claim, rather than the AEDPA ones it ruled on earlier.

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The Eighth Amendment does not prohibit a state from executing a prisoner who cannot remember committing his crime, but it does prohibit executing a prisoner who cannot rationally understand the reasons for his execution, whether that inability is due to psychosis or dementia.
In a 5-3 opinion authored by Justice Elena Kagan, the Court reviewed its precedents on the scope of the Eighth Amendment as applied to mentally incompetent death row prisoners. In 1986, the Court held in Ford v. Wainwright, 477 U.S. 399, that the Eighth Amendment prohibits execution of a prisoner who has “lost his sanity” after sentencing, relying on a “moral intuition” that “killing one who has no capacity” to understand his crime or punishment “simply offends humanity.” In Ford, the Court also pointed out that there is no “retributive value” in executing a person who has no comprehension of the sentence. In 2007, the Court in Panetti v. Quarterman, 551 U.S. 930, provided more specific criteria for how to identify prisoners ineligible for execution, identifying the “critical question” as whether a “‘prisoner’s mental state is so distorted by a mental illness’ that he lacks a ‘rational understanding’ of ‘the State’s rationale for [his] execution.’”
Although the parties disputed in the lower courts whether the lack of memory of commiting the crime, alone, disqualified a prisoner from execution, Madison accepted Alabama’s position that it does not, under Panetti. Likewise, the parties disputed in the lower courts whether Panetti applies only to prisoners suffering from psychosis, and categorically excludes those suffering from dementia, and Alabama accepted Madison’s position that it does not. The remaining issue, then, is whether the prisoner is unable to rationally understand the reasons for his sentence; if so, the Eighth Amendment forbids his execution. This is a question for the lower court on remand.
Justice Samuel Alito filed a dissenting opinion in which Justices Clarence Thomas and Neil Gorsuch joined. The dissent would not have reached the second question, opining that Madison presented only the first question in its petition and that Madison’s counsel raised the other question only after concluding that the first argument was unlikely to prevail.
Justice Brett Kavanaugh took no part in the consideration or decision of the case.