This Week’s Brief: June 24

And thus ends the Supreme Court’s October Term of 2018. As I suspected last week, the finale came with a bang. This week, the Court issued decisions in some of its most high-profile cases all term—decisions in cases concerning the 2020 census; partisan gerrymandering; the First, Fourth, Fifth, Sixth, and Twenty-First Amendments; federal criminal law; and Auer deference under administrative law. It also released two sets of orders, in which it added a whopping 21 cases to its docket for next term. So as the curtain falls on O.T. 2018, we anxiously await the first Monday in October and the beginning of O.T. 2019. Here is your brief for the week of June 24.


This Week:
Opinions: 10 (4 on Monday, 3 on Wednesday, 3 on Thursday)
Opinions Relating to Orders: 2
Cert. Grants: 21
CVSG’s: 3

O.T. 2018:
Cases Decided: 69
Cases Remaining: ZERO*
Weeks Left in Term: ZERO

*The Court did not decide Carpenter v. Murphy and instead re-added it to O.T. 2019.



At 9:30am EDT, the Court released orders from last Thursday’s private conference. The Court added eight cases to its docket for next term, for a total of five hours of oral argument. The cases, however, are not very blockbuster-esque.

  • In Guerrero-Lasprilla v. Barr—with which Ovalles v. Barr is consolidated—the Court will resolve a circuit split and decide whether a request for equitable tolling of the deadline to file a motion to reopen under 8 U.S.C. §1229(a)(c)(7) is a reviewable “question of law”—as the Ninth Circuit has held—or a nonreviewable “question of fact”—as the Fourth and Fifth Circuits have held.
  • In Dex Media, Inc. v. Click-to-Call Technologies, LP, the Court will decide whether federal patent law (35 U.S.C. §314(d)) permits a party to appeal a decision of the Patent Trial and Appeal Board (PTAB) to begin inter partes review after the PTAB found that §315(b)‘s one-year time bar does not apply.
  • In Maine Community Health Options v. United States—with which Moda Health Plan, Inc. v. United States and Land of Lincoln Mutual Health v. United States are consolidated—the Court will confront a trio of lawsuits alleging that Congress has failed to pay up to $12 billion to insurance providers who lost revenue due to the Affordable Care Act (ACA). The ACA set up a system by which the Department of Health and Human Services (HHS) could reimburse the insurers, but Congress enacted appropriations riders that severely restricted the reimbursement funds provided to the HHS, leading to the alleged $12 billion underpay. The Court will decide whether Congress acted impermissibly by enacting the riders.
  • In Georgia v. Public.Resource.Org Inc., the Court will determine whether annotations to the Official Code of Georgia Annotated—and other similar works that “lack the force of law” under the “government edicts doctrine”—are copyrightable.
  • And in Banister v. Davis, the Court will decide whether—and if so, when—a motion under Federal Rule of Civil Procedure 59(e) should be considered a second or successive habeas corpus petition.

The Court also called for the views of the U.S. Solicitor General (“CVSG”) in three cases. In Archdiocese of San Juan, Puerto Rico v. Feliciano, the Court asked the Solicitor General to weigh in on whether the First Amendment prohibits a court from deferring to a religious organization’s stated legal structure, and instead requires a court to declare the religious organization and all its parts a single legal entity. Next, Arizona v. California concerns whether California’s “doing business” tax is impermissibly broad—so much so that it taxes even out-of-state companies that have no connection to California whatsoever, as Arizona claims. And Avco Corp. v. Sikkelee involves whether federal law preempts a claim under state law that a company’s product design was defective—in this case, an (allegedly) defective aircraft engine.


The Court released four opinions in argued cases on Monday.

United States v. Davis
The first decision of the week comes from Justice Gorsuch—who flipped and joined the four more-liberal Justices—for a 5:4 majority in United States v. DavisDavis concerns a subsection of the Gun Control Act, as amended in 1986 (18 U.S.C. §924(c) et seq.). The Gun Control Act permits, as relevant here, harsher penalties for a criminal who uses, carries, or possesses a firearm in conjunction with any federal “crime of violence or drug trafficking crime.” The subsection at issue, §924(c)(3)(B) (the “residual clause,” as it is called), defines a “crime of violence” as a felony “that by its nature[] involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Two men convicted under the Gun Control Act challenged the constitutionality of §924(c)(3)(B), arguing that it is unconstitutionally vague under the Due Process Clauses of the Fifth and Fourteenth Amendments.

Justice Gorsuch—joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan—agrees, looking mostly at the text of §924(c)(3)(B) and its relationship to other similar laws. In two other federal criminal statutes, the Court in recent years has struck down a pair of “residual clauses”, both of which bear “more than a passing resemblance” to §924(c)(3)(B). In Johnson v. United States (2015), the Court invalidated the residual clause of the Armed Career Criminal Act; and in Sessions v. Dimaya (2018), the Court likewise found the residual clause of 18 U.S.C. §16 et seq. to be impermissibly vague. Both residual clauses there required a judge to use a “categorical approach” to decide whether a crime qualified as a violent felony. That approach, Gorsuch writes, forced a judge to “disregard how the defendant actually committed his crime” and instead “imagine the idealized ‘ordinary case’ of the defendant’s crime and then guess whether a ‘serious potential risk of physical injury to another’ would attend its commission” (quoting Johnson). §924(c)(3)(B) here in Davis is the exact same deal, imposing the same “categorical approach” on a judge who reviews a §924(c) charge. Gorsuch also looks to §924(c)(3)(B)’s role in the “broader context of the federal criminal code” and its legislative relationship with the statute at issue in Dimaya as further evidence supporting his conclusion.

Justice Kavanaugh writes a long dissent—35 pages to Gorsuch’s 25—and is joined by Justices Thomas and Alito in full and Chief Justice Roberts in part. Kavanaugh begins his dissent by stating, “[c]rimes and firearms form a dangerous mix.” Kavanaugh finds the Court’s decision to invalidate §924(c)(3)(B) “surprising” and “extraordinary,” given that §924(c)(e)(B) has been applied “so often” (tens of thousands of times) “for so long” (33 years) “with so little problem.” The Court’s power of judicial review is an “awesome” one, he continues, but the majority’s conclusion here in Davis “overstep[s] our role” and consequently “transgress[es] the separation of powers.” Addressing Davis in relation to Johnson and Dimaya, Kavanaugh would hold that §924(c)(3)(B) here “operates entirely in the present,” while the statutes in those two cases operated with regard to “prior convictions,” and thus §924(c)(3)(B) should not be held unconstitutionally vague (emphasis in original). In other words, to Kavanaugh, “[i]t is a serious mistake . . . to follow Johnson and Dimaya off the constitutional cliff.”

Food Marketing Institute v. Argus Leader Media
The second opinion of the week comes in Food Marketing Institute v. Argus Leader Media, which concerns when information given by a private citizen to the federal government is “confidential” under the Freedom of Information Act (FOIA). The D.C. Circuit Court of Appeals held that such information is only “confidential” if its disclosure would result in “substantial competitive harm” to the party that provided it to the government.

But Justice Gorsuch, writing for a 6:3 majority, struck down that “substantial competitive harm” test as too restrictive under FOIA. FOIA, Gorsuch points out, “nowhere defines the term ‘confidential.'” Thus, Gorsuch does what the Court routinely does in such situations—look at the word’s “ordinary, contemporary, common meaning . . . when Congress enacted FOIA in 1996” (internal quotation marks and citation omitted). That meaning—then, as now—is “private” or “secret.” Does the appeals court’s “substantial competitive harm” test follow at all from “private” or “secret”? Gorsuch thinks not. The D.C. Circuit, in conjuring up that test, “concluded that ‘commercial or financial matter is ‘confidential’ [only] if disclosure of the information is likely'” to do one of two things: one, “‘impair the Government’s ability to obtain necessary information in the future'”; or two, “’cause substantial harm to the competitive position of the person from whom the information was obtained'” (quoting National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C. Cir. 1974)). But this conclusion is nothing but a “casual disregard of the rules of statutory interpretation,” Gorsuch counters, and it is a “relic from a bygone era of statutory construction” (internal quotation marks and citation omitted). Thus, Gorsuch holds that “commercial or financial information” is “confidential” under FOIA when it is “both customarily and actually treated as private by its owner and provided to the government under an assurance of privacy.”

Chief Justice Roberts and Justices Thomas, Alito, Kagan, and Kavanaugh make up the rest of the majority.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, filed an opinion concurring in part and dissenting in part. Breyer agrees that commercial or financial information which is both “treated as private by its owner” and “provided to the government under an assurance of privacy” qualifies as “confidential” under FOIA. But Breyer would also add a third condition: that the “[r]elease of such information must also cause genuine harm to the owner’s economic or business interests.” So while Breyer concurs with the majority’s first two conditions for categorizing such information as “confidential” under FOIA, he would remand this specific case back to the lower court to determine whether the particular information at issue here would cause “genuine harm” to the owner. Since the majority did not elect to do this, Breyer dissents on this point.

Iancu v. Brunetti
Fair note of warning: Perhaps it would be best not to read this section aloud when around small children.

Iancu v. Brunetti stems from a lawsuit filed by the owner of a clothing brand, who was denied a trademark due to his brand’s name. That name, as he wrote it, is “FUCT.” (See what I mean by my note?)

Now that we’ve gotten that out of the way, Brunetti at its core concerns the 1946 Lanham Act and whether the Act’s ban on “immoral[] or scandalous” trademarks (15 U.S.C. §1052(a)) violates the Free Speech Clause of the First Amendment. Writing for a 6:3 majority, Justice Kagan in a brief eleven-page opinion holds that it does.

First, Kagan looks to one of the Court’s recent decisions, Matal v. Tam (2017). In Tam, the Court struck down another provision of the Lanham Act, the ban on any mark that “disparage[s]” any “person[], living or dead.” That ban was viewpoint-based—that is, it discriminated against speech simply because the government finds it to be offensive, even though a reasonable observer may disagree—and therefore was unconstitutional. Turning back to Brunetti, Kagan similarly finds its ban on immoral or scandalous marks to be viewpoint-based and hence inconsistent with the First Amendment.

Second, she explains that the U.S. Patent and Trademark Office (PTO), in applying the ban on “immoral” and “scandalous” trademarks, has effectively placed itself as the sole determinator for what offends society and what doesn’t (in other words, has applied §1052s arbitrarily). For example, the PTO rejected marks like “YOU CAN’T SPELL HEALTHCARE WITHOUT THC” while approving marks like “SAY NO TO DRUGS—REALITY IS THE BEST TRIP IN LIFE”; rejected marks like “BONG HITS 4 JESUS” while approving marks like “JESUS DIED FOR YOU”; and rejected marks like “BABY AL QAEDA” while approving marks like “WAR ON TERROR MEMORIAL.”

“[I]n any event,” Kagan concludes, “the ‘immoral or scandalous’ bar is substantially overbroad.” “There are a great many immoral and scandalous ideas in the world . . . and the Lanham Act covers them all.” Thus, §1052(a) violates the First Amendment. Justices Thomas, Ginsburg, Alito, Gorsuch, and Kavanaugh join Kagan in her majority opinion.

Justice Alito writes a short, two-page concurrence. Alito simply emphasizes that “[a]t a time when free speech is under attack, it is especially important for this Court to remain firm on the principle that the First Amendment does not tolerate viewpoint discrimination.” He further notes that Brunetti “does not prevent Congress from adopting a more carefully focused statute that precludes the registration of marks containing vulgar terms that play no real part in the expression of ideas”—á la the swear word close to Bruentti’s mark (“FUCT”), which, “as commonly used today, generally signifies nothing except emotion and a severely limited vocabulary” (per Alito).

Chief Justice Roberts also writes a two-page opinion, this time concurring in part and dissenting in part. While the majority reads “immoral” and “scandalous” as two adjectives together (and strikes them both down at the same time), Roberts would treat the read the two words separately: “immoral” or “scandalous.” Following from this, Roberts would agree with the majority that the ban on “immoral” marks is unconstitutional. But a ban on “scandalous” marks is a different story. He would hold that the prohibition of “scandalous” marks can be read “more narrowly to bar only marks that offend because of their mode of expression”—specifically, marks that are “obscene, vulgar, or profane,” as the PTO “now understands the term” “scandalous”.

Justice Breyer does the same as Roberts and writes a concurrence- and a dissent-in-part, in which he would read the ban on “scandalous” marks more narrowly than the majority and therefore would not strike down the Lanham Act’s “scandalous” provision. Finally, Justice Sotomayor (joined by Breyer) pens another concurrence- and dissent-in-part. She also would strike down the “immoral” provision but uphold the “scandalous” provision.

Dutra Group v. Batterton
The fourth and final opinion on Monday comes from Justice Alito in Dutra Group v. Batterton. Christopher Batterton worked on a shipping vessel owned by Dutra Group when a hatch blew open and injured his hand. Batterton then sued Dutra, claiming, inter alia, that the vessel was “unseaworthy” (think of an airplane being unfit to fly) and seeking punitive damages. Dutra countered that Batterton’s suit should be dismissed on the ground that punitive damages cannot be sought on a claim of unseaworthiness. The question before the Court was, effectively, whether a claim of unseaworthiness permits a plaintiff to recover punitive damages.

Writing for a 6:3 majority, Justice Alito answers in the negative. The modern claim of unseaworthiness finds its roots in the Supreme Court’s 1903 decision in The Osceola. There, the Court held that “the vessel and her owner are . . . liable to an indemnity for injuries received by seamen in consequence of the unseaworthiness of the ship.” However, the Court “strictly cabined” unseaworthiness claims. Most notable is the idea that an unseaworthiness claim “could not prevail based on ‘the negligence of the master, or any member of the crew” (quoting The Osceola). Instead, Alito says, “a seaman had to show that the owner of the vessel had failed to exercise due diligence in ensuring the ship was in seaworthy condition” (emphasis added).

Since The Osceola, the Court in two separate decisions has staked out the means by which it resolves questions regarding the extent of unseaworthiness claims. Miles v. Apex Marine Corp. (1990) directed the Court to “look primarily to . . . legislative enactments for policy guidance” and advised that the Court “may supplement these statutory remedies where doing so would achieve the uniform ‘vindication’ of the policies served by the relevant statutes.” And in Atlantic Sounding Co., Inc. v. Townsend (2009), though the Court went beyond its Miles guidance, it did so “based on the established history of awarding punitive damages for certain maritime torts.” And Atlantic Sounding, Alito points out “represented a gloss on Miles rather than a departure from it.” Thus, applying Miles and Atlantic Sounding to this case, Alito considers “whether punitive damages have traditionally been awarded for claims of unseaworthiness” and whether “conformity” with similar statutes “require[s] such damages.”

But the historical evidence against awarding punitive damages upon a finding of unseaworthiness is “overwhelming.” Batterton tries to make two early cases work in his favor. One hails from the U.S. District Court for the Northern District of California in 1923, and the other comes from the Oregon Supreme Court in 1886. But the plaintiffs in both cases did not bring claims of unseaworthiness—Batterton simply tries to argue the plaintiffs could have brought them based on the cases’ facts. This renders the cases “irrelevant” in Alito’s mind since “courts award damages for claims a plaintiff actually pleads rather than those he could have brought.”

Having tossed the “traditional history” piece out the window, Alito addresses Batterton’s only other hope under Miles and Atlantic Sounding: that punitive damages for claims of unseaworthiness are “required to maintain uniformity with Congress’[] clearly expressed policies.” But the only somewhat-relevant statute, the Jones Act, provides no support for the idea that punitive damages may be awarded upon a finding of unseaworthiness.

Thus, Alito concludes, “[p]unitive damages are not a traditional remedy for unseaworthiness,” and Miles “prevents us from recognizing a new entitlement to punitive damages where none previously existed.” Therefore, Alito holds that a plaintiff may not recover punitive damages on a claim of a ship or vessel’s unseaworthiness. Chief Justice Roberts and Justices Thomas, Kagan, Gorsuch, and Kavanaugh joined in the majority.

Justice Ginsburg authors a dissent, in which Justices Breyer and Sotomayor join. Ginsburg would afford greater weight to Atlantic Sounding specifically, which she feels is more beneficial to Batterton in this case than the majority says.


The Court held no proceedings on Tuesday.


The Court released three opinions on Wednesday.

United States v. Haymond
The first decision on Wednesday comes in a Sixth Amendment case, United States v. Haymond. If a judge finds by a preponderance of the evidence that a federal criminal defendant violates the terms of his supervised release, then federal law (18 U.S.C. §3583(e)(3)) permits the judge to impose a new sentence. But there’s a catch: If the defendant violated the terms of his supervised release by committing any of a number of “enumerated” offenses under §3583(k), then the judge is compelled to impose a new prison term (between five years and life, in fact) on the defendant. This latter scenario is exactly what happened to Andre Haymond, who then challenged §3583(k) under the Fifth and Sixth Amendments (rights to due process of law and a trial by jury, respectively).

Justice Gorusch for a four-Justice plurality agreed with Haymond, holding that §3583(k) violates a defendant’s Sixth Amendment right to a trial by jury. Justices Ginsburg, Sotomayor, and Kagan joined him. Gorsuch looks to the text of the Amendments and two prior cases to guide his opinion. First, the Framers understood, in ratifying the Fifth and Sixth Amendments, that a judge’s power to sentence criminals “derives from, and is limited by, the jury’s factual findings of criminal conduct.” A judge may sentence only once a jury finds beyond a reasonable doubt (not by a preponderance of the evidence) all the facts necessary to convict. But §3583(k) puts the cart before the horse. Second, in Apprendi v. New Jersey (2000), the Court invalidated a federal sentencing statute that authorized a judge to increase a defendant’s sentence beyond the maximum sentencing guideline upon a finding by a preponderance of the evidence of new incriminating facts. And in Alleyne v. United States (2013), the Court extended Apprendi to cases in which a judge uses the same standard to increase a defendant’s mandatory minimum sentence. To Gorsuch, Haymond here follows directly from Apprendi and Alleyne.

Justice Breyer concurs with the plurality’s principal conclusion that §3583(k) is unconstitutional. For a number of reasons, Breyer agrees that §3583(k) acts “less like [an] ordinary supervised-release revocation and more like punishment for a new offense, to which the jury right would typically attach.” Breyer, however, is more hesitant to transplant Apprendi and Alleyne into the discussion, noting that a judge’s role in supervised-release proceedings is an awful lot like that of parole.

Justice Alito, joined by Chief Justice Roberts and Justices Thomas and Kavanaugh, dissents. To Alito, Gorsuch’s plurality opinion “is not based on the original meaning of the Sixth Amendment, is irreconcilable with precedent, and sports rhetoric with potentially revolutionary implications.” Alito argues the plurality “represents one particular view about crime and punishment that is ascendant in some quarters today but is not required by the Constitution.”

Kisor v. Wilkie
Kisor v. Wilkie concerns one of the most significant facets of administrative law: Auer deference, named after the Court’s 1997 decision in Auer v. Robbins (also called Seminole Rock deference after Bowles v. Seminole Rock & Sand Co. (1945)). Under the nondelegation doctrine, Congress delegates to federal agencies the authority to promulgate rules and regulations. Sometimes, however, an agency’s regulation is ambiguous, and a case arises in which the ambiguous regulation must be interpreted. Auer deference holds that in such cases, a court ought to defer to a federal agency’s own interpretation of its own ambiguous rule or regulation. The general rationale is that the agency will have more knowledge than will the courts about its own regulation generally and the regulation’s nuances specifically. Kisor asked the Court to overturn Auer and Seminole Rock, and thereby end the deference courts give to federal agencies.

But Justice Kagan—writing for a 5:4 majority that includes Chief Justice Roberts (in part) and Justices Ginsburg, Breyer, and Sotomayor—declines to do so. However, Kagan stakes out a number of limits to Auer deference, noting that Auer deference should not apply in all cases concerning ambiguous agency rules and regulations.

One reason for not overruling the deference doctrine in Auer and Seminole Rock is that the doctrine itself is “rooted in a presumption that Congress intended for courts to defer to agencies when they interpret their own ambiguous rules.” An agency is better equipped and better versed than a court, the reasoning goes, to give meaning to its own promulgated regulation. Another reason is, of course, stare decisis, and the fact that ignoring stare decisis here in Kisor would result in the Court having to overturn multiple cases, not just one.

But Auer deference is not without bounds. For example, above I noted that Kagan references the court’s presumption that Congress intended for courts to defer to agencies. “But when the reasons for the presumption do not hold up, or when countervailing reasons outweigh them,” Kagan says, courts should not give deference to an agency’s reading. A court ought to “carefully consider the text, structure, history, and purpose” of an agency regulation “before resorting to deference.” And even if a court invokes Auer deference, the agency’s interpretation of its statute “must still fall ‘within the bounds of reasonable interpretation'” (quoting City of Arlington, Texas v. FCC (2013)).

Chief Justice Roberts authors a separate opinion concurring in part. Roberts argues that the difference between Kagan’s majority opinion and Gorsuch’s concurrence- and dissent-in-part is not as large as it may seem at first glance. He also emphasizes that Auer deference, though also a part of administrative law, is “distinct” from the other principal deference standard, Chevron deference (named after Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. (1984)), and Kisor does not address Chevron in any way, shape, or form.

Justice Gorsuch—joined in full by Justice Thomas and joined in part by Justices Alito and Kavanaugh—filed a 42-page opinion concurring in part and dissenting in part. While he agrees with the majority’s disposition (to remand Kisor), he disagrees on effectively everything else. Gorsuch labels Auer “really little more than an accident,” and he paints this case as “more a stay of execution than a pardon.” Gorsuch urges the Court in a future case to “stop this business of making up excuses for judges to abdicate their job of interpreting the law.”

Finally, Justice Kavanaugh (joined by Justice Alito) writes a short opinion concurring and dissenting in part. Much like Gorsuch, Kavanaugh agrees that Kisor should be remanded, but disagrees with the majority’s conclusion that Auer should not be overruled. He also aligns with Chief Justice Roberts in that “the distance between the majority and Justice Gorsuch is not as great as it may initially appear,” and that Kisor and future cases addressing Auer do not bear on cases concerning Chevron deference.

Tennessee Wine & Spirits Retailers Association v. Thomas
Forgive the pun, but after a week like this, the Justices may be in need of a stiff drink just like the kind at issue here in Tennessee Wine & Spirits.

This case concerned a Tennessee state law that imposed, among other things, a two-year residency requirement on any retailer seeking a license to sell alcohol in the state. The law was challenged under the Commerce Clause and the Twenty-First Amendment.

For a 7:2 Court, Justice Alito strikes down the law as a violation of the Commerce Clause of Article I, Section 8, clause 3 of the Constitution. The law itself, Alito says, is the kind of law that “blatantly” discriminates against out-of-state retailers since it imposes residency requirements that only seek to harm out-of-state retailers and help in-state retailers. In order for such a law to survive, the government must show that it is “narrowly tailored to ‘advanc[e] a legitimate local purpose,'” borrowing from the Supreme Court’s “strict scrutiny” test (quoting Department of Revenue of Kentucky v. Davis (2008)). But Tennessee’s law does not meet that standard. Alito argues it has “at best a highly attenuated relationship to public health or safety.” While Section 2 of the Twenty-First Amendment “grants the States latitude with respect to the regulation of alcohol, . . . it does not allow the States to violate the ‘nondiscrimination principle’ that was a central feature of the regulatory regime that the provision was meant to constitutionalize.” Moreover, Section 2 “is not a license to impose all manner of protectionist restrictions on [interstate] commerce in alcoholic beverages.” For these reasons, Alito holds that Tennessee’s two-year residency-requirement law violates the Commerce Clause and is not “saved” by the Twenty-First Amendment. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh constitute the rest of the majority.

Justice Gorsuch, with whom Justice Thomas joins, dissents. Right off the bat, Gorsuch remarks that alcohol “occupies a complicated place in this country’s history.” Gorsuch writes that a fundamental principle that follows from the history behind the Eighteenth and Twenty-First Amendments is that “States may impose residency requirements on those who seek to sell alcohol within their borders to ensure that retailers comply with local laws and norms.” To Gorsuch, based on the way in which the Twenty-First Amendment was ratified, “the regulation of alcohol wasn’t left to the imagination of a committee of nine sitting in Washington, D.C.”; it was left to “the judgment of the people themselves and their local elected representatives.” For these reasons, Gorsuch would hold that the Tennessee law does not violate either the Commerce Clause or the Twenty-First Amendment.


The Court decided three cases on Thursday.

Mitchell v. Wisconsin
The first case of the Court’s headline-grabbing day on Thursday likely would have been the top story from the Court on any other given day. Nonetheless, Mitchell v. Wisconsin concerns a Wisconsin “implied-consent” state law, which provides that if you operate a motor vehicle in the State, you impliedly give consent to any arresting officer to draw your blood in order to test for levels of alcohol—even if you are unconscious at the scene of the crime and during the blood draw, as was the case here in Mitchell. But when the law was challenged as an unreasonable and warrantless search and seizure under the Fourth Amendment, the Wisconsin Supreme Court upheld the law.

Justice Alito, writing for four Justices, agrees. Blood-alcohol content (BAC) tests qualify, of course, as a search under the plain meaning of the word in the Fourth Amendment. And normally, of course, to exercise a lawful search, a police officer needs a warrant. But there are some exceptions to this rule, like probable cause and (as relevant here) “exigent circumstances.” Alito says that latter exception allows for warrantless searches in cases where obtaining a warrant would result in “imminent destruction of evidence.” In other words, Alito argues a warrantless search is permissible when “there is compelling need for official action and no time to secure a warrant” (quoting Missouri v. McNeely (2013)).

Although BAC evidence by itself does not qualify as an “exigent circumstances” exception, it can in cases where an accident gives officers “other pressing duties” beyond obtaining a warrant for a BAC test. In such cases, by the time the officers attend to the other pressing duties (say, medical attention for a suspect involved in a major accident) and then apply for the warrant, the BAC evidence may have dissipated already. Those are the “exigent circumstances” in which a warrantless BAC test qualifies as an exception to the Fourth Amendment’s warrants requirement. And Wisconsin’s state law, which applies to unconscious drivers, is exactly this kind of an exigent circumstance, according to Alito. Chief Justice Roberts and Justices Breyer and Kavanaugh join Alito in his plurality opinion.

Justice Thomas files an opinion concurring in the judgment. While he agreed with the plurality’s disposition, he would apply different reasoning to uphold the Wisconsin law as constitutional. “The better (and far simpler way to resolve this case,” he says, is his “per se rule” he set out in his dissent in McNeely. That rule says that the “natural metabolization of alcohol in the blood stream creates an exigency once police have probable cause to believe the driver is drunk”—notwithstanding the consciousness (or lack thereof) of the driver.

Justice Sotomayor, joined by Justices Ginsburg and Kagan, dissents. Sotomayor claims that Alito’s plurality opinion relies on a “false premise”: that police officers should be “spare[d] . . . from a choice between attending to emergency situations and securing evidence used to enforce state drunk-driving laws.” Of course drunk driving “poses significant dangers” that any State must to be able to curb, she remarks. But states can do that without relying on the flimsy idea that a situation of the kind like Wisconsin’s law attempts to address here qualifies as an “exigent circumstance” free from Fourth Amendment constraints. “If there is time,” Sotomayor writes, “get a warrant.” It’s as simple as that.

Finally, Justice Gorsuch dissents in only a one-paragraph opinion. Gorsuch feels the Court dodged the real question. “We took this case to decide whether Wisconsin drivers impliedly consent to blood alcohol tests” (a Fourth Amendment search) “thanks to a [Wisconsin] state statute,” he explains. “But the Court today declines to answer the question presented,” he claims. “Instead, it upholds Wisconsin’s law on an entirely different ground”: the exigent circumstances doctrine. To Gorsuch, the application of the exigent circumstances doctrine in this context “poses complex and difficult questions that neither the parties nor the courts below discussed.” Thus, Gorsuch would DIG Mitchell and “wait[] for a case presenting the exigent circumstances question.”

Department of Commerce v. New York
The second decision on Thursday comes in arguably the biggest case all year—the question of whether the Constitution permits the addition of a citizenship question to the 2020 census. In a splintered decision, Chief Justice Roberts holds that (1) the Constitution does permit the addition of a citizenship question to the census, but (2) Commerce Secretary Wilbur Ross’ stated rationale for adding such a question to the 2020 census was “pretextual” and therefore insufficient under administrative law. Thus, until (or unless) Secretary Ross comes up with a better reason, there will be no citizenship question on the 2020 census.

You can read more about Dep’t. of Commerce v. New York in my Blockbuster Review No. 6.

Rucho v. Common Cause
The final decision of the term comes in the twin partisan gerrymandering cases, Rucho v. Common Cause from North Carolina and Lamone v. Benisek from Maryland. Chief Justice Roberts, for an ideologically-based 5:4 majority, held that partisan gerrymandering claims present political questions beyond the legal scope of federal courts, and thus federal courts have no jurisdiction over such claims.

As with Dep’t. of Commerce v. New York, you should read my in-depth analysis of Rucho v. Common Cause in my Blockbuster Review No. 7.


After an impromptu private conference Thursday afternoon, the Justices released a miscellaneous orders list on Friday morning. The Court granted review for thirteen cases (for eleven hours of oral argument), including a trio of cases about the Trump Administration’s push to whittle away at the Deferred Action for Childhood Arrivals (DACA) policy. The questions presented in all these cases are as follows:

  • In Trump v. NAACP (with which two others are consolidated), the Court will decide (1) whether the Department of Homeland Security (DHS)’s decision to wind down DACA is judicially reviewable; and (2) whether DHS’s decision to wind down DACA is lawful.
  • In Opati v. Sudan, the Court will decide whether the Foreign Sovereign Immunities Act applies retroactively and thereby permits recovery of punitive damages against foreign states for terrorist activities occurring prior to the passage of the current version of the statute.
  • Thole v. U.S. Bank, N.A.: (1) Whether petitioners have Article III standing; and if so, (2) whether an Employee Retirement Income Security Act (ERISA) plan participant or beneficiary may seek injunctive relief against fiduciary misconduct without demonstrating individual financial loss or the imminent risk thereof, and (3) whether an ERISA plan participant or beneficiary may seek restoration of plan losses caused by fiduciary breach under without demonstrating individual financial loss or the imminent risk thereof.
  • Babb v. Wilkie: Whether the federal-sector provision of the Age Discrimination in Employment Act of 1967 requires a plaintiff to prove that age was a but-for cause of the challenged personnel action.
  • GE Energy Power Conversion France SAS v. Outokumpu Stainless USA, LLC: Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.
  • Kelly v. United States: Whether a public official “defraud[s]” the government of its property by advancing a “public policy reason” for an official decision that is not his/her subjective “real reason” for making the decision.
  • Lucky Brand Dungarees, Inc. v. Marcel Fashion Group, Inc.: Whether, when a plaintiff asserts new claims, federal preclusion principles can bar a defendant from raising defenses that were not actually litigated and resolved in any prior case between the parties.
  • Espinoza v. Montana Department of Revenue: Whether invalidating a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools violates the First Amendment or the Equal Protection Clause of the Fourteenth Amendment.
  • Romag Fasteners, Inc. v. FossilInc.: Whether, under Section 35 of the Lanham Act willful infringement is a prerequisite for an award of an infringer’s profits for a violation of Section 43(a).
  • Rodriguez v. Federal Deposit Insurance Corp.: Whether courts should determine ownership of a tax refund paid to an affiliated group based on the federal common law “Bob Richards rule” (as three circuits hold) or based on the law of the relevant state (as four circuits hold).
  • Shular v. United States: Whether the determination of a “serious drug offense” under the Armed Career Criminal Act requires the same categorical approach used in the determination of a “violent felony” under the act.

The orders list also generated two opinions: one from Justice Thomas concurring in the denial of certiorari for an Alabama abortion law case, and one from Justice Sotomayor dissenting from the denial of certiorari in a case concerning Brady v. Maryland (1963) evidence.

A Look Ahead

This concludes the Court’s October Term 2018. All cases from O.T. 2018 have been decided (save for Carpenter v. Murphy), and the Court will not resume formal proceedings until the first Monday of this coming October—the start of O.T. 2019. This means that for the next three months in change, the Court will not be releasing any decisions, will not hear oral arguments, will not hold weekly private conferences, and will not release weekly orders. The Court may release a rare summer order at some point—in which it may grant or deny a case—but only if the offhand petition requires it (this sort of summer order is very rare).

I will be taking the next few months to peruse the cases the Court has granted for O.T. 2019, and I will announce in due course the case next term for which I will write my own opinion. Stay tuned.

As for my weekly briefings, they will take a temporary hiatus until the Court begins O.T. 2019. If the Court releases any orders this summer, I will write a short brief discussing any such orders. Once the first Monday of October 2019 rolls around, your weekly summaries of the action at the Supreme Court will resume.

Until then, enjoy your summers. Signing off on a riveting O.T. 2018.

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