Gorsuch Makes His Mark: Weekly Brief for June 15

Oyez, oyez, oyez!“That is the Marshal’s call, signaling to all that the Supreme Court is in session. Even though the Court is not meeting in person, the Oyezs this week rang loud and clear. The Court handed down two of the term’s biggest decisions. On Monday, Justice Neil Gorsuch held for a six-Justice majority that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation and gender identity. And on Thursday, Chief Justice Roberts held for a five-Justice majority that the Trump administration violated the Administrative Procedure Act when it sought to rescind Deferred Action for Childhood Arrivals, or “DACA.” Beyond these firecrackers, the Court also set off some streamers in its Monday orders list, denying a host of high-profile petitions concerning gun rights, qualified immunity, and “sanctuary” laws. In an ordinary week, the Supreme Court’s presence is not felt around the country. But this was no ordinary week. The Court made its mark—starting with Justice Gorsuch.

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Dream On, DACA! DHS v. University of California

Yesterday, Chief Justice Roberts concluded that the Trump administration violated the Administrative Procedure Act when it attempted to rescind Deferred Action for Childhood Arrivals, or DACA. Roberts’ opinion is momentous—both in what it says and in what it does not say. For example, Roberts is coy on whether DACA itself is legal. He concludes only that the manner in which the Trump administration sought to cancel it did not follow the proper administrative procedure. On the other hand, three Justices—Clarence Thomas, Samuel Alito, and Neil Gorsuch—were not shy in saying the opposite, bluntly declaring that DACA is illegal and that there’s no other justification required to terminate it. For now, Roberts’ opinion keeps DACA on the books and its recipients in the country. Their dream remains alive, albeit temporarily. Read more for an in-depth analysis of the Court’s decision in Department of Homeland Security v. Regents of the University of California.

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Suing Sudan: Weekly Brief for May 18

Pop quiz: Can U.S. citizens sue other countries in U.S. courts? Answer: Yes. There are a few exceptions to the Foreign Sovereign Immunities Act, which otherwise shields foreign countries from suits in state or federal court. Next question: Which of these exceptions did Congress create in 1996? Answer: The terrorism exception. U.S. citizens who are victims of terrorist attacks can sue a foreign state that (1) participated in or assisted the perpetrators of the attack and (2) has been designated a state-sponsor of terrorism by the U.S. State Department. Third question: Can a plaintiff suing under the terrorism exception seek punitive damages against the foreign country? Answer: Yes. Congress in 2008 listed punitive damages as a possible award for such plaintiffs. Final question: Can plaintiffs who brought a terrorism suit before 2008 still seek punitive damages? In other words, did Congress intend the punitive-damages provision to apply retroactively? Well, this was the very question the Supreme Court answered this week in Opati v. Republic of Sudan. Read on to find out.

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Traffic Fails and Flushing Tales: Weekly Brief for May 4

The Supreme Court generated a bevy of headlines this week, all for very different reasons. The Court issued two unanimous decisions: In Kelly v. United States, it vacated the fraud convictions of two state officials in the 2013 Bridgegate scandal who caused a traffic fubar by shutting down two lanes of the George Washington Bridge for a few days. And in United States v. Sineneng-Smith, the Court rebuked the Ninth Circuit for abusing its judicial discretion after it wrested control of a criminal case from the parties involved. Meanwhile, the Court heard its first-ever telephonic oral arguments this week. Surprisingly, the project went down quite swimmingly—save for a few mic snafus and the distinctive sound of a toilet flush. Here’s your brief for the week of May 4.

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Unanimous Juries (and So Much More): Ramos v. Louisiana

In Ramos v. Louisiana, the Supreme Court held that the Sixth Amendment requires a jury that convicts a defendant to do so unanimously—and that this requirement applies to the states. In the process, the Court struck down non-unanimous jury statutes in Louisiana and Oregon, and overruled Apodaca v. Oregon (1972). But Ramos was not your typical incorporation-doctrine case. References to Jim Crow and racial segregation were sprinkled throughout the case’s opinions; Justice Clarence Thomas wrote extensively on his incorporation philosophy; and, most interestingly, Justice Brett Kavanaugh penned a long, solo concurrence in which he laid out his opinion on stare decisis and when to overrule precedent. Here’s my analysis of Ramos v. Louisiana.

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This Week’s Brief: April 6

Editor’s Note: In light of the COVID-19 pandemic, the Supreme Court remains closed to the public. The building is open for official business only. March and April oral arguments have been postponed, and filing deadlines for petitions have been extended. The Justices are conducting their private conferences remotely. Orders and opinions continue to be issued as scheduled, but the Justices will not take the bench.

This week, the Justices released opinions in two argued cases. One was a win for older federal employees who allege age discrimination in the workplace. The other was a narrow win for police officers in a Fourth Amendment case. But what really made headlines this week was the Court’s wading into the furor surrounding the Wisconsin state primary election. The five conservative Justices voted to overturn a lower court judge’s order to extend the deadline for mailing absentee ballots. This decision may raise some eyebrows—or perhaps even the stomach contents—of some readers. But I would advise you to read before delivering judgment; don’t be so quick to blame the Court.

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This Week’s Brief: March 30

Editor’s Note: In light of the COVID-19 pandemic, the Supreme Court remains closed to the public. The building is open for official business only. March and April oral arguments have been postponed, and filing deadlines for petitions have been extended. The Justices are conducting their private conferences remotely. Orders and opinions continue to be issued as scheduled, but the Justices will not take the bench.

This week saw a lighter load for the Justices. They issued one opinion (from Justice Sotomayor) in a case that blends maritime and contract law and released an orders list in which they added one case to next term’s docket. Oral arguments that had been scheduled for this week did not take place, postponed out of caution for the health and safety of the Court’s employees. The Court also announced further changes in light of COVID-19: Oral arguments scheduled for the April sitting have been postponed too. The Court stated it will consider rescheduling some cases from the March and April sittings toward the end of June, but only “if circumstances permit in light of public health and safety guidance at that time.” Otherwise, it will be looking at a stunted oral argument calendar and a lengthy layover until O.T. 2020. Here’s your brief for the week of March 30.

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Congress Walks the Plank: Allen v. Cooper

This past Monday, the Supreme Court in Allen v. Cooper struck down a 1990 Congressional statute that had allowed citizens to sue a state in federal court for copyright infringement. The case arose after a marine salvage company discovered the wreck of the Queen Anne’s Revenge, Blackbeard’s famous pirate ship, off the coast of North Carolina and recorded documentary footage of the discovery. When North Carolina published some of the footage in various media, the company sued the state for copyright infringement. The question before the Court was whether the Constitution gives Congress the power to rescind the states’ sovereign immunity from copyright infringement claims. Justice Kagan answered “no” with a 7:2 majority, leaving the company marooned. (For lovers of wordplay and maritime puns, this piece is for you.)

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This Week’s Brief: February 24

With the February sitting now underway after an extended recess, Court-watchers got the busiest week of the term thus far. The Court released seven decisions in argued cases involving all of the following: immigration law, tax law, capital sentencing in Arizona, international treaty law, criminal procedure, ERISA, and the ACCA. We saw a per curiam decision in an Establishment Clause case out of Puerto Rico, and four individual opinions relating to Monday’s orders list. Finally, the Justices heard oral argument in four cases and granted a case for next term. Block off some time for this one; here’s your extensive recap of the action at the Supreme Court this week.

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This Week’s Brief: December 9

Another busy, routine week for the Nine. The Justices decided two, admittedly-soporific cases. One concerned the statute of limitations in the Fair Debt Collection Practices Act, and the other required interpreting the attorney’s fees provision in the federal Patent Act. The Court concluded its December sitting by hearing oral argument in six cases, including a momentous Affordable Care Act case with nearly $12 billion at stake. The Justices also granted all three of President Trump’s tax returns cases, and Justice Sotomayor penned two opinions relating to denials of cert. Here’s your recap for the week of December 9.

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