This Week’s Brief: May 27

Ladies and gentlemen, welcome to the Court’s sprint to the finish—a month-long, action-packed stretch during which the Court clears away its docket before the start of its summer recess at the end of June. This means the Court begins releasing multiple opinions each week, including its sweeping, hot-button cases which it often saves for last.  This week kicked that sprint off; even those ambivalent to the Court probably saw news headlines about the Court’s decision in the case regarding an Indiana abortion law, which came in addition to three more decisions in argued cases. And, after a reflective, patriotic Memorial Day, it’s only fitting to survey the proceedings of one of the branches of our federal government. All in all, here is your brief for the week of May 27.


Opinions: 4 (1 per curiam)
Cert. Grants: 1


The Court was adjourned on Monday due to the federal holiday.


First up, the Court granted review in Hernandez v. Mesa, a case arising from a situation in which a U.S. Border Patrol Agent fired across the U.S.–Mexico border and killed a Mexican teenager. The teenager’s parents sued, claiming the Border Patrol Agent violated their son’s Fourth and Fifth Amendment rights. After some percolation in the lower courts, the question before the Court is if the Border Patrol Agent “plausibly” violated the teenager’s Fourth and Fifth Amendment rights, whether the parents can sue for damages under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics (1971). (Bivens held that an individual has a cause of action and may sue for damages when a federal agent violates his/her Fourth Amendment protection against unreasonable searches and seizures.)

Also of note, the Court denied review in Doe v. Boyertown School District. At issue was a Boyertown, Pennsylvania School District policy that permitted transgender students to use the bathroom of the gender with which they identified. A group of students challenged the policy, but the U.S. Court of Appeals for the Third Circuit upheld it. On Tuesday, the Supreme Court denied the appeal, leaving the Third Circuit’s ruling in place.


Box v. Planned Parenthood of Indiana & Kentucky, Inc.
Let’s begin with the headline-grabbing decision of the week (which was in fact issued along with the orders list)—the unsigned Box v. Planned Parenthood. At issue were two provisions of an Indiana abortion law, which was passed in 2016 and signed by then-Governor Mike Pence. The two provisions are (1) fetal remains must be disposed of in the same manner as that of other human remains (i.e., via burial or cremation), and (2) women may not seek an abortion solely because of the “race, color, national origin, ancestry, sex, or . . . disability” of the fetus (the “non-discrimination” provision).

The U.S. Court of Appeals for the Seventh Circuit struck down both provisions as unconstitutional. It adjudged the first requirement under “rational basis” scrutiny—the lowest-level test of judicial review—under which a law is constitutional if it is “rationally related to legitimate government interests” (Washington v. Glucksberg, 521 U.S. 702, 728 (1997)). The Seventh Circuit held that Indiana’s stated interest in “the ‘humane and dignified disposal of human remains'” was “not . . . legitimate,” and that, even if it were, there is no rational nexus between that interest and the actual text of the burial-of-remains requirement. As to the second provision, the Seventh Circuit stressed that women have a constitutionally-grounded right to terminate a pregnancy prior to the fetus’ viability. But since Indiana’s non-discrimination provision prohibits sex-, race-, or disability-based abortions at all times (including prior to the fetus’ viability), it is unconstitutional. Indiana appealed to the Supreme Court.

On Monday, six of the nine Justices struck a compromise. In a per curiam opinion (an opinion written collectively, rather than by one Justice for the majority), the Court reversed the Seventh Circuit’s striking down of the burial-of-remains provision but upheld it’s striking down of the non-discrimination provision.

Respondents here in Box did not argue that the burial-of-remains requirement placed an “undue burden” on a woman seeking an abortion, as prohibited in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 874 (1992) (plurality op.). Instead, they argued Indiana’s burial-of-remains provision did not survive even rational basis review (discussed supra). Employing the rational basis test, the Supreme Court stressed that, contra the Seventh Circuit, states do in fact have a “legitimate interest in proper disposal of fetal remains,” quoting its decision in Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), at 452, n. 45. Furthermore, the burial-of-remains provision is “rationally related” to that state interest, the Court held, “even if it is not perfectly tailored to that end.” Thus, the Court upheld as constitutional Indiana’s burial-of-remains requirement, reversing the Seventh Circuit’s decision.

On the other hand, the Supreme Court “expresse[d] no view”—and left in place—the Seventh Circuit’s decision to declare unconstitutional Indiana’s ban on abortions based exclusively on race, sex, disability, etc. Currently, this type of non-discrimination abortion law has been addressed only by the Seventh Circuit. The Court also has a common practice of denying cases that have yet to be decided in other Courts of Appeals. For these reasons, the Court “follow[ed] [its] ordinary practice of denying” these kinds of petitions. Thus, it denied review for the non-discrimination provision, leaving in place the Seventh Circuit’s nullification thereof in the process.

The six Justices who collectively wrote the opinion were Chief Justice Roberts and Justices Breyer, Alito, Kagan, Gorsuch, and Kavanaugh.

Justice Clarence Thomas wrote a lengthy concurrence—twenty pages to the majority’s three—in which he linked sex-, race-, and disability-based abortions to modern-day eugenics. Thomas gave a history of the eugenics movement and canvassed its intersection with Margaret Sanger’s creation of Planned Parenthood centers. These concerns, to Thomas, signal that the Court “cannot avoid” such non-discrimination abortion provisions “forever.” But, since only the Seventh Circuit has adjudged this kind of a law, Thomas joins in the Court’s per curiam opinion.

Finally, Justice Ruth Bader Ginsburg wrote a two-page opinion in which she concurred with the Court’s per curiam opinion in part but also dissented from it in part. She agreed that the Court should leave the Seventh Circuit’s ruling in place with respect to the non-discrimination provision. However, Ginsburg disagreed with the Court’s reversal of the burial-of-remains provision. That provision, the majority declared, must withstand rational basis scrutiny (which it did). But to Ginsburg, that is not the correct level of review with which it should be adjudged. Instead, it should survive a “heightened” standard of review. Since Respondents did not attempt to litigate on this point, Ginsburg would deny review entirely (which would leave both provisions unconstitutional, per the Seventh Circuit). Justice Sonia Sotoyamor also would have denied the petition completely, but she did not join in Ginsburg’s dissent.

Smith v. Berryhill
The second decision—and the first from argued cases—on Monday came from a unanimous Court in a civil procedure case. Berryhill discussed the 1935 Social Security Act, which allows Courts to review “any final decision . . . after a hearing” by the Social Security Administration (SSA). The question here was whether a “final decision” includes a ruling of the SSA’s Appeals Council to dismiss as untimely an appeal from a claim for disability benefits in supplemental security income. (This is known as the “fourth step” in the SSA’s four-step review process for such claims.)

Justice Sotomayor, for all nine Justices, held that it was. To begin, the first clause (“any final decision”) of the statute itself “clearly denotes some kind of terminal event, and Congress’ use of the word ‘any’ suggests an intent to use that term expansively” (internal citation and quotation marks omitted). Here in Berryhill, the Appeals Council’s dismissal of a claim fits the first clause perfectly—it counts as “any decision,” and it is final according to the SSA’s own regulations. What about the second clause: “made after a hearing”? No problem. Before Petitioner here in Berryhill had his appeal dismissed, an administrative law judge (ALJ) held a hearing and dismissed his claim (a process for which the Social Security Act provides).

Next, the “statutory context” favors a “final decision” too, Sotomayor wrote. Appeals like the one here “are, by their nature, appeals from the action of a federal agency.” Under the Administrative Procedure Act of 1946, such an action (read: “decision”) is final if it both serves as the conclusion of a federal agency’s decisionmaking procedure, and is a decision by which “rights or obligations have been determined” or from which “legal consequences will flow.” To Sotoyamor, the “fourth step” in the SSA’s review process meets both conditions. It is the end of the process, and it is a step in which an appeal for a disability-benefits-claim is dismissed, which naturally brings “legal consequences.”

Third, “Congress intends judicial review of administrative action” (Bowen v. Michigan Academy of Family Physicians, 476 U.S. 667, 670 (1986)). This principle, Sotomayor stated, aligns with a disability claimant’s “entitlement to judicial review” after having his claim and appeal dismissed under SSA administrative proceedings. Plus, Respondent here in Berryhill did not meet his “heavy burden” to prove otherwise.

For these reasons, the Court unanimously held that “where the SSA’s Appeals Council has dismissed a request for review as untimely after a claimant has obtained a hearing from an ALJ on the merits, that dismissal qualifies as a ‘final decision . . . made after a hearing’ within the meaning of” the Social Security Act.

Home Depot U.S.A., Inc. v. Jackson
The Court’s third decision of the week was not so unanimous. In fact, in Home Depot U.S.A., Inc. v. Jackson, Justice Clarence Thomas joined his more-liberal colleagues in a 5:4 opinion holding that two separate statutes bar a third-party counterclaim defendant from removing a class-action claim from state to federal court.

In this case, Citibank sought to collect outstanding debts from Respondent (Jackson) and filed a debt-collection action against him in state court. In response, Jackson filed class-action claims against two third-party corporations (Home Depot being one of them). Home Depot then sought to litigate the case not in the state court but in federal court—the act of “removing” a case to federal court jurisdiction. The question here in Jackson was whether Home Depot, a third-party who was brought into the lawsuit after Jackson filed his counterclaim against it (the “third-party counterclaim defendant”), can remove the case from state to federal court. Home Depot looked to two statutes: 28 U.S.C. § 1441(a) and 28 U.S.C. § 1453(b).

Justice Thomas held that neither statute permits Home Depot to remove the case because both statutes permit only the original defendant (Jackson) to do so, not a third-party counterclaim defendant.

First, § 1441(a) states, as relevant, that “any civil action brought in a State court[,] of which the [federal] district courts . . . have original jurisdiction, may be removed by the defendant” to the federal court. Home Depot argued it was a “defendant” to a “claim.” But § 1441(a) speaks to defendants in “civil action[s],” Thomas wrote, not in counterclaims as in Jackson here. Thus, § 1441(a) “does not permit removal based on counterclaims at all, as a counterclaim is irrelevant to whether the district court had ‘original jurisdiction’ over the civil action.”

Second, § 1453(b) states, as relevant, that a “class action may be removed to a [federal] district court . . . by any defendant without the consent of all defendants.” Based on this wording, Home Depot contended that it could remove the case involving Jackson and Citibank to federal court even if it could not under § 1441(a). But Thomas (and the majority of the Court) disagreed again. § 1453(b)’s use of “defendant” must be read in the same way as § 1441(a), for “interpreting ‘defendant’ to have different meanings in different sections would render the removal provisions incoherent.” Thus, “defendant” in § 1453(b) does not encompass a third-party counterclaim defendant. From this, § 1453(b)’s use of “any defendant” (emphasis added) simply clarifies that any of the defendants named in the original claim may remove the case to federal court “without the consent of all [the other] defendants.” To Thomas, it merely “amends the rule” seen elsewhere that “all defendants who have been properly joined and served must join in or consent to the removal of the action” (§ 1446(b)(2)(A)).

For these reasons, the Court held that “neither § 1441(a) nor § 1453(b) permits removal by a third-party counterclaim defendant” like Home Depot here in Jackson.

Justice Samuel Alito (joined by Chief Justice Roberts and Justices Gorsuch and Kavanaugh) filed a dissent. Often, original defendants like Jackson will seek to limit the ability of third-party counterclaim defendants to remove cases to federal court, sometimes via the two statutes implicated here. This “tactic,” Alito argued, was validated by the Court’s majority here in Jackson. Alito would read § 1441(a) and § 1453(b) as including in their definitions of “defendants” third-party counterclaim defendants due to the spirit of the Class Action Fairness Act of 2005 (of which § 1453(b) is part).

Nieves v. Bartlett
The final decision of the week came in the (arguably) overlooked Nieves v. Bartlett, a First Amendment case involving the intersection of free speech and probable-cause arrests.

Russell Bartlett attended “Arctic Man,” an Alaskan winter sports festival known—as Chief Justice Roberts put it in his opinion for a majority of the Court—”for both extreme sports and extreme alcohol consumption.” While there, Russell, appearing to be intoxicated, shouted not to talk to the police at another group of people who were conversing with Sergeant Luis Nieves. When Nieves attempted to approach Russell, Russell responded by yelling for Nieves to leave (which he did, for fear of escalating the situation). A short while later, Bartlett spotted Trooper Bryce Weight, who was questioning a minor. Bartlett forced himself between Weight and the minor and yelled belligerently at Weight that he should not question the minor. Bartlett then approached Weight closely and in a “combative way”, so Weight pushed him back. Nieves saw the confrontation, walked over, and arrested Bartlett for disorderly conduct.

The State ended up dismissing the charges against Bartlett. But Bartlett also sued the two police officers for violating his First Amendment right to free speech by arresting him in retaliation for what he was saying during the two interactions. (This is known as a retaliatory arrest claim.) The district court granted summary judgment for the officers, holding that the arrest was lawful because the officers had probable cause to detain Bartlett and that probable cause weighed more heavily in the balance than Bartlett’s retaliatory arrest claim. However, the Ninth Circuit Court of Appeals reversed, holding that a plaintiff can prevail on a retaliatory arrest claim even when police officers have probable cause for arrest, and that Bartlett had sufficiently proven he ought to prevail here. The police officers appealed, asking the Supreme Court to decide whether a showing of probable cause for an arrest defeats a First Amendment retaliatory arrest claim.

Chief Justice Roberts, writing for a 6:3 majority, sided with the police officers and held that it does as a matter of law. First, for a plaintiff to succeed on a retaliatory arrest claim, he must demonstrate a “‘causal connection’ between the government defendant’s ‘retaliatory animus’ and the plaintiff’s ‘subsequent injury'” (quoting Hartman v. Moore, 547 U.S. 250, 259 (2006)). Thus, Bartlett must show that Nieves’ arrest caused him injury (“injury” in the abstract sense, not necessarily physical harm). To do so, under Hartman, the plaintiff must prove the “absence of probable cause for the underlying criminal charge”—that is, that the government defendant (i.e., police officer)’s “decision to press charges was objectively unreasonable.”

Unfortunately, Bartlett did not meet this heavy burden of proving Weight and Nieves’ arrest lacked probable cause. Therefore, Bartlett’s retaliatory arrest claim does not size up against the officers’ probable-cause arrest.

Justices Breyer, Alito, Kagan, Kavanaugh, and Thomas (except as to one particular part) joined Roberts in the majority.

Justice Thomas filed a brief opinion concurring in part and concurring in the judgment. He agreed fully with the majority that “plaintiffs bringing a First Amendment retaliatory-arrest claim . . . should have to plead and prove a lack of probable cause.” He disagreed with the majority, however, when it carved out a possible exception in circumstances in which a police officer has probable cause to make an arrest but exercises his discretion not to do so. That “qualification,” Thomas contended, “has no basis in either the common law or our First Amendment precedents.”

Justice Gorsuch filed a nine-page opinion concurring in part and dissenting in part. In short, Gorsuch saw a distinction between invoking probable cause to defeat claims of unlawful arrest, and invoking probable cause to defeat claims of First Amendment retaliatory arrest. For example, the entire “point of the common law tort of false arrest or false imprisonment was to remedy arrests and imprisonments effected without lawful authority” (emphasis omitted). Thus, probable cause “should be enough today to defeat claims for false arrest or false imprisonment.” But using probable cause to win a case against a retaliatory-arrest claim grounded in the First Amendment is a different story. The objective of this latter kind of claim, Gorsuch argued, “isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason” (emphasis in original). With these things in mind, Gorsuch would hold, “as the majority does, that the absence of probable cause is not an absolute requirement” of a First Amendment retaliatory-arrest claim and “its presence is not an absolute defense.” However, Gorsuch would rather decide “when and how probable cause plays a role in First Amendment claims” when such a question is “properly presented to this Court . . . [with] full adversarial testing.”

Justice Ginsburg also filed her own opinion concurring in the judgment and dissenting in part. Ginsburg argues that it is possible for police to “justify an arrest as based on probable cause [even] when the arrest was in fact prompted by a retaliatory motive.” Thus, only “entirely baseless arrests will be checked” under the majority opinion’s holding that a failure to demonstrate a lack of probable cause renders a retaliatory-arrest claim null. Specifically here in Bartlett, Ginsburg agrees that the “record is bereft of evidence of retaliation on [Trooper] Weight’s part,” and thus the Ninth Circuit’s disposition ought to be reversed. But otherwise, Ginsburg is wary of laying down a bright-line rule in this case—one, in her view, that “will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech.”

Finally, Justice Sotomayor was the lone full dissenter. A brief summary of her opinion is best displayed by her closing paragraph:

The power to constrain a person’s liberty is delegated to law enforcement officers by the public in a sacred trust. The First Amendment stands as a bulwark of that trust, erected by people who knew from personal experience the dangers of abuse that follow from investing anyone with such awesome power. . . . Because the majority shortchanges that hard-earned wisdom in the name of marginal convenience, I respectfully dissent. (Internal citation omitted.)

For more on her dissent, consult Howard M. Wasserman’s intricate summary for SCOTUS Blog.


The Court held no proceedings on Wednesday.


Lately, Thursdays have consisted only of the Justices’ weekly private conference. But this Thursday included an additional noteworthy item: a denial (and a dissent therefrom) of a stay of execution.

A few weeks ago, Christopher Lee Price—an Alabama death row inmate—petitioned the high court to stay his execution so as to allow him to pursue an alternative method of execution (nitrogen hypoxia to Alabama’s standard lethal injection protocol). The Court declined, over a spirited dissent from Justice Breyer, who was joined by Justices Ginsburg, Sotomayor, and Kagan. (I discussed this in my Brief for the week of May 13.) Luckily for Price, however, Alabama’s death warrant expired prior to the Court’s order, giving Price a temporary reprieve despite the Court’s order to the contrary. Alabama re-set Price’s execution date for Thursday, May 30.

By a 5:4, ideological-line vote, the Court denied Price’s petition for another delay of his execution. Justice Breyer again penned a dissent, arguing first that Price had met the requirement of proving the alternative method of execution was readily-available and easily-implemented. Because of this, Breyer felt that a trial is necessary to determine whether Alabama’s original method of execution would cause Price unnecessary pain and suffering in violation of the Eighth Amendment. Finally, in his last paragraph, Breyer called for the Court to “reconsider the constitutionality of the death penalty in an appropriate case.”

It is worth noting that Breyer, thus far, has been the only Supreme Court Justice to advocate for the abolition of the death penalty openly. Indeed, Justices Sotoyamor and Kagan joined Breyer’s dissent here except as to his last paragraph, the one in which he advocated for reconsidering the constitutionality of capital punishment. But interestingly enough, Justice Ginsburg joined his dissent in full, including the last paragraph. Thus, perhaps there is a second Justice on the fence about openly calling for the abolition of the death penalty.

More on the Court’s order is available from Amy Howe at SCOTUS Blog.

In addition, the Court met for its weekly private conference, at which it routinely reviews the petitions on its docket and decides whether to grant certiorari for any of them. We can expect news from this conference in the Court’s Orders list on Tuesday, May 28. Some high profile petitions awaiting action on Court’s docket include:


The Court held no proceedings on Friday.

The Week Ahead

On Monday, the Court at 9:30am EDT will release orders from this past Thursday’s private conference. There is a possibility of opinions at 10:00am EDT. The Court will meet for its next weekly private conference next Thursday, June 6.

Further Reading

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