This Week’s Brief: June 10

Last week, I noted that the Court hardly grabbed a headline (despite four decisions in argued cases and three certiorari grants), since its proceedings concerned less-contentious and more-technical matters. Was this week any different? Well, no. Again, Court nuts like myself may enjoy this week’s brief, which covers three more decisions and five cert. grants, a smidgen more than the lay reader. But on the bright side, with twenty-four cases in O.T. 2018 still yet to be decided, the Court is teeing up an action-packed, blow-the-doors-off finale to end its term here in the next fourteen days. At any rate, here is your brief for the week of June 10.


This Week:
Opinions: 3
Opinions Relating to Orders: 1
Cert. Grants: 5

O.T. 2018:
Cases Decided: 45
Cases Remaining: 24
Weeks Left in Term: 2



First on Monday morning, the Court released orders from its June 6 private conference. Much like last week, the orders list generated virtual radio silence in media outlets. The Court granted five petitions:

  • First, Atlantic Richfield Co. v. Christian comes on appeal from the Montana Supreme Court and concerns a dispute between Montana landowners and California-based oil company Atlantic Richfield, who allegedly charged the landowners more for pollution cleanup than what was statutorily permissible. The Court will decide whether federal law under EPA pollution-cleanup guidelines preempts the landowners’ state law claims.
  • Second, in McKinney v. Arizona, the Court will hear the case of James McKinney, an Arizona resident convicted of two counts of first-degree murder in 1991. McKinney needs to be resentenced. One of the questions the Court will answer is: When the state court resentences McKinney, must it apply current state law or 1991 state law as it weighs the aggravating and mitigating circumstances of his case? The other question concerns whether the Arizona Supreme Court should have sent the case back to the trial court for resentencing.
  • Third, the Court in Intel Corp. Investment v. Sulyma will construe the limitations provision in the Employee Retirement Income Security Act.
  • Fourth, in Monasky v. Taglieri, the Court will resolve a circuit split regarding the determination of a baby’s “habitual residence” under international law; specifically, under the 1980 Hague Convention on the Civil Aspects of International Child Abduction. The Hague Convention states that an abducted child must be returned to the country of his/her “habitual residence.” The Court in Monasky will consider two questions. First, in cases disputing in which country a child has his/her habitual residence, should the federal appeals court consider the question de novo (“anew”), or should it be more deferential to the district court’s determination? Second, if the child is an infant who does not have the wherewithal to understand where his/her habitual residence is located, must the child’s habitual residence be established by an agreement between the child’s parents?
  • Finally, in Comcast Corp. v. Nat’l Ass’n. of African American-Owned Media, the Court will take up a racial discrimination suit filed by Entertainment Studios Network—owned by Byron Allen, an African-American—against telecommunications giant Comcast Corporation. After the Ninth Circuit Court of Appeals ruled against Comcast and allowed the billion-dollar suit to go forward, Comcast appealed to the High Court. The question presented is whether a claim of contractual race discrimination fails in the absence of but-for causation.

Of the more than a hundred denials of petitioned cases, one stood out, even prompting an opinion from Justice Breyer respecting the denial of cert. That petition would be Al-Alwi v. Trump, the case of Moath Hamza Ahmed al-Alwi, a Yemeni National detained as an “enemy combatant” at the U.S. Naval Base in Guantánamo Bay, Cuba, since 2001. In Hamdi v. Rumsfeld (2004), a plurality of the Supreme Court construed the 2001 Authorization for the Use of Military Force (AUMF) as permitting the President to detain enemy combatants for the duration of the related armed conflict. But what happens when the conflict has no end in sight? Does the President have the authority pursuant to the AUMF to hold an enemy combatant of that conflict (like al-Alwi) in perpetual detention? That was the question presented by al-Alwi, and it was a noted concern of Justice Sandra Day O’Connor in her plurality opinion in Hamdi (see 542 U.S. 507, 519-521).

Breyer in his opinion argues it is “past time to confront [that] difficult question left open by Hamdi,” but he acknowledges that al-Alwi’s case was not the most suitable case by which to do so. However, given an “appropriate” case, the Court ought to “grant certiorari to address whether, in light of the duration and other aspects of the relevant conflict, Congress has authorized and the Constitution permits continued detention,” Breyer writes.

More on Monday’s orders can be found in Amy Howe’s post on SCOTUS Blog.


Quarles v. United States
The first decision of the week comes from Justice Kavanaugh for a unanimous Court. Quarles v. United States concerns the definition of “remaining-in burglary” in the context of the 1984 Armed Career Criminal Act (ACCA) (see 18 U.S.C. §924(e)). If highly technical, precisely semantic cases about the exact wording of statutes (and interpretations thereof) are for you, Quarles is a must-read. Otherwise… well, let’s just say Quarles is not exactly one of the term’s more “blockbuster-esque” cases.

The ACCA provides for an enhanced criminal sentence (fifteen years at a minimum, to be exact) for felons who (1) unlawfully possess a firearm and (2) have three prior convictions for either a “serious drug offense” or a “violent felony.” The ACCA includes burglary in its definition of “violent felony.” In Taylor v. United States, the Court construed the ACCA’s burglary provision as “unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime” (emphasis added). The question presented before the Court in Quarles involves the point in time at which a burglar actually commits remaining-in burglary. Suppose an individual enters and remains in a home unlawfully. To commit remaining-in burglary, must he intend to burgle at the exact point at which he remains in the home unlawfully? Or, can he commit remaining-in burglary if he forms the intent to burgle sometime after he remains in the home? (See what I mean about “highly technical and precisely semantic”?)

Justice Kavanaugh (and the entire Court) holds with the latter: “[R]emaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully remaining in a building or structure” (emphasis in original), and he does so for a couple reasons. First, the everyday meaning of the phrase “remaining in” denotes a “continuous activity.” The Court has used this “continuous activity” principle in a number of related statutory interpretation contexts, such as: (1) An alien crewman remaining in the United States for too long is an individual with a “continuing presence” in the United States; and (2) a criminal who unlawfully remains on private property is an individual who commits a “continuing trespass.” Thus, “remaining-in burglary” refers to a crime in which the actor forms the intent to burgle “at any time during the continuous event of unlawfully remaining in a building or structure” (emphasis in original).

Second, when Congress enacted the ACCA in 1986, five state appellate courts had addressed the issue of when the intent to burgle must take place to qualify as “remaining-in burglary.” All five determined the actor commits remaining-in burglary when he forms the intent to burgle at any time. As of today, eighteen state appellate courts have addressed the issue, and fifteen of the eighteen agree. Kavanaugh also consults Congress’ “recognition of the dangers of burglary” when it enacted the ACCA and its objective of enacting the law, both of which come down on the side of Kavanaugh’s opinion.

Justice Clarence Thomas filed a lone concurring opinion to illustrate his reservations regarding the Court’s “categorical approach” to the ACCA’s list-of-offenses clauses. The categorical approach says that when the Court interprets and applies the wording of an offense clause in the ACCA (as with the “remaining-in burglary” clause here), it must determine whether the state law’s interpretation of the clause is broader or narrower than the Court’s interpretation. If the state law is narrower, its language is necessarily included in the Court’s definition of the clause. If it is broader, its language is excluded, for, as Thomas writes, “other conduct might be swept in at the margins.” This type of an approach, to Thomas, can be “difficult to apply and can yield dramatically different sentences depending on where a burglary occurred.” However, its application to Quarles’ case yields no problem; Quarles was convicted of burglary in Michigan, and Michigan’s state law definition of remaining-in burglary is narrower than the Court’s. Thus, Thomas concurs.

Return Mail, Inc. v. United States Postal Service
Return Mail, Inc. v. United States Postal Service is the second decision of the week. The case concerns a spat between Return Mail, Inc., a private company who owns a patent for a method of processing undeliverable mail, and the U.S. Postal Service (USPS). After the USPS introduced a similar method, Return Mail sued for patent infringement. In response, the USPS invoked the 2011 Leahy-Smith America Invents Act (AIA), which allows a “person” to challenge the validity of a patent after it has been issued. After losing in the district court and the U.S. Court of Appeals for the Federal Circuit, Return Mail petitioned the Supreme Court, asking the Justices to decide whether the federal government (via the USPS) is in fact a “person” under the AIA.

Writing for a 6:3 majority, Justice Sotomayor answers that the government is not a “person” under the AIA, and therefore the U.S. Postal Service cannot look to the AIA to challenge the validity of Return Mail’s patent.

The AIA allows “a person who is not the owner of a patent” to file “a petition to institute an inter partes review of the patent” (35 U.S.C. §311(a)). However, nowhere in the AIA is “person” defined. Thus, Sotomayor looks elsewhere for an appropriate definition. For starters, this is not the first time the Court has addressed a statute that uses the term “person” but does not define it. In Vermont Agency of Natural Resources v. United States ex rel. Stevens, the Court gave a nod to the “longstanding interpretive presumption that ‘person’ does not include the sovereign”—that is, does not include the federal government or any of its numerous agencies. The Court came to similar conclusions in United States v. Mine Workers (1947), United States v. Cooper Corp. (1941), and United States v. Fox (1877).

Second, the 1947 Dictionary Act, 1 U.S.C. §1 et seq., includes “corporations, companies, associations, firms, partnerships, societies, [] joint stock companies, [and] individuals” in its definition of “person[s].” But “[n]otably absent” from that list, Sotomayor writes, “is the Federal Government.”

Third, Sotomayor does not find convincing any of the USPS’ opposing interpretations. The Court here in Return Mail cannot use the principle that “when Congress uses a word to mean one thing in one part of the statute, it will mean the same thing elsewhere in the statute.” This is because in the eighteen times it appears in the AIA, “person” is used in varying, even contradictory contexts: “Sometimes it plainly includes the Government, sometimes it plainly excludes the Government, and sometimes—as here—it might be read either way,” Sotomayor says (footnotes omitted). In addition, just because the federal government has a “longstanding history with the patent system” and “has the ability to obtain a patent” does not mean it may “participate as a third-party challenger in AIA review proceedings.” Plus, Sotomayor notes, there is no “longstanding practice” of the federal government participating in AIA review proceedings, since the AIA was enacted only eight years ago.

For these reasons, Sotomayor holds that neither the USPS, any other federal agency, nor the federal government itself is a “person” under the AIA. Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh joined her in the majority.

Justice Breyer, joined by Justices Ginsburg and Kagan, dissented. Breyer gives more weight to the instances in which “person” both is used in the AIA and includes the federal government. He also attacks the majority when it looks at AIA provisions in which “person” does not include the government, noting that “[t]hese provisions . . . concern details of administration that, almost by definition, could not involve an entity such as the Government.”

Parker Drilling Management Services, Ltd. v. Newton
The final case of the week involves the Outer Continental Shelf Lands Act (OCSLA) (43 U.S.C. §1331 et seq.). Brian Newton, Respondent, worked for Parker Drilling, Petitioner, on drilling platforms on the Outer Continental Shelf (OCS) off the California coast. Parker Drilling paid Newton for his time on duty but not for his time on standby, even though he could not leave the rig. Newton sued Parker Drilling under state law, arguing that California’s wage laws required Parker Drilling to compensate Newton for his standby time. The OCSLA, however, mandates that the OCS be under federal law, not state law; that states can have no jurisdiction over the OCS; and that state laws may be applicable only “[t]o the extent that they are . . . not inconsistent with” federal laws. So, Parker Drilling countered that federal wage laws preempted California’s wage laws, hence the state wage laws need not be applied, and hence Newton cannot sue under California’s wage laws. The district court agreed, but the Ninth Circuit Court of Appeals reversed, holding that state laws under the OCSLA can be applied whenever they pertain to the matter at hand, even if federal law seems to settle the issue. This created a circuit split with the Fifth Circuit, and the Supreme Court granted certiorari to resolve the split. The question before the High Court was, in essence, which Appeals Circuit got it right?

Justice Thomas, for a unanimous Court, adopted the Fifth Circuit’s reading: If federal law “addresses the relevant issue” completely and is seemingly preemptive, state law need not be “adopted as surrogate federal law on the OCS.” Parker Drilling hinges entirely on how to interpret “applicable” and “not inconsistent” within §1333(a)(2)(A) (state laws may be applicable only “[t]o the extent that they are applicable and not inconsistent with” federal laws (emphasis added)). They cannot be defined separately, for specific words or phrases in statutes such as this “must be read in their context and with a view to their place in the overall statutory scheme.”

Looking then at the overall objective of the OCSLA, the statute ensures that “the only law on the OCS is federal law.” As for supplementary state laws, they may be “adopted as federal law only ‘[t]o the extent that they are applicable and not inconsistent with’ federal law.” “Taken together,” Thomas writes, “these provisions convince us that state laws can be ‘applicable and not inconsistent with’ federal law under [the OCSLA] only if federal law does not address the relevant issue.” In addition, reading the OCSLA as merely an extension of state law insofar as state law does not conflict with federal law makes no sense; in fact, it’s backward in this context. The OCS “is not, and never was, part of a State, so state law has never applied of its own force.”

In sum, Thomas holds that if federal law sufficiently addresses the issue at hand, any state law addressing the same issue would be preempted. Or, “[p]ut another way, to the extent federal law applies to a particular issue, state law is inapplicable.”


The Court held no proceedings Tuesday.


While the Court held no official proceedings on Wednesday, perhaps the biggest headlines this week came from a new, June 12 filing in Dep’t. of Commerce v. New York, the case regarding Commerce Secretary Wilbur Ross’ push to add a citizenship question to the 2020 census.

The Court is set to issue its decision in the case within the next two weeks. But in the filing, immigrant-rights groups, including the American Civil Liberties Union (ACLU), on behalf of New York urged the Justices to remand the case back to the district court to allow for more discovery.

The most recent filing stems from allegations made over the past few weeks that the Commerce Department’s stated reason for the question’s addition was blatantly untrue and concocted after the fact. The Commerce Department has said its objective in adding the question is to provide for better enforcement of the 1965 Voting Rights Act. But in a May 30 filing, the ACLU claimed new evidence had come to light undermining that assertion. Specifically, the ACLU alleged that Dr. Thomas Hofeller, a late GOP strategist, “played a significant role in orchestrating the addition of the citizenship question to the 2020 Decennial Census,” and did so to create a “structural electoral advantage for . . . ‘Republicans and Non-Hispanic Whites.'”

On June 3, the Commerce Department responded to the ACLU’s May 30 filing. It dismissed the allegations as “frivolous” and called the filing “an attempt to reopen the evidence in this already-closed case and to drag this Court into Plaintiffs’ eleventh-hour campaign to improperly derail the Supreme Court’s resolution of the government’s appeal.”

It is not clear what the Justices will do with these recent filings. Were the Court to heed the recommendations of the ACLU and remand the case, the Court could delay the census itself, as the Commerce Department has testified it must begin printing the 100 million census forms by July 1. But given that (1) the Court ordered expedited briefing and oral argument in the case to ensure it was herd this term; and (2) we are only two weeks from the term’s scheduled end, so it is likely the Justices are putting the final touches on their opinions, I would be thoroughly surprised if the Court does not proceed as scheduled and rule on the merits of the case shortly.

Amy Howe has more on the developments for SCOTUS Blog, as do Robert Barnes for the Washington Post and Jess Bravin for the Wall Street Journal.


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 Monday, June 17. 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 next Thursday, June 20, for its final scheduled weekly private conference of O.T. 2018.

In addition, as we near the end of the term with a good many cases still outstanding, the Court likely will release decisions on more days during the week, in addition to Mondays. This usually begins with Thursdays, before adding Wednesdays, Tuesdays, and Fridays. Thus, it is ever more likely we will see multiple decision-days (and two, three times as many decisions) in the next three weeks.

Further Reading
  • For Quarles v. United States, Rory Little has more on the Court’s decision for SCOTUS Blog; Jordan S. Rubin for Bloomberg Law; and Tim Zubizarreta for Jurist.
  • For Return Mail, Inc. v. United States Postal Service, Ronald Mann for SCOTUS Blog; Scott Graham for the National Law Journal; and Malathi Nayak for Bloomberg Law.
  • For Parker Drilling Mgmt. Services, Ltd. v. Newton: Andrew Siegel for SCOTUS Blog; Jessica Gresko for the Associated Press; and Erin Mulvaney for Bloomberg Law.
  • For the New York Times, Charlie Savage and Carol Rosenberg report on Justice Breyer’s opinion respecting the denial of certiorari in Al-Alwi v. Trump. They read Breyer as “warn[ing] that the American legal system is on autopilot toward permitting life imprisonment without trial,” and they write that his opinion “put[s] a spotlight on a legal and moral dilemma” concerning the detainment of enemy combatants at Guantánamo, a practice in place since the Bush administration’s War on Terror.
  • For The Atlantic, Annika Neklason surveys the historical reverberations of McCleskey v. Kemp, a 1987 Supreme Court decision in which Justice Lewis F. Powell, Jr., for a 5:4 majority, held that survey data, which showed that black defendants in Georgia who kill white victims are more likely to be put to death, does not by itself violate a capital offender’s Eighth and Fourteenth Amendment rights. Neklason ties McCleskey‘s ramifications to a case before the Court this term: Flowers v. Mississippi, which concerns the potential racial bias of a Mississippi prosecutor when he struck veniremembers in a capital case with a black defendant.
  • And in an op-ed for the New York Times, Cristian Farias takes a look at last term’s Carpenter v. United States, in which the Court held 5:4 that the seizure of one’s cell phone records, including the cell phone’s location and tracking data, without a warrant violates one’s Fourth Amendment right against unreasonable search and seizure. But while the Supreme Court sided with Mr. Carpenter in the case, the Appeals Court on remand still found against him and upheld his prison sentence. Farias writes that “[t]hose who score big victories for civil liberties of every American sometimes lose their own freedom.”

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