This Week’s Brief: November 25

Thanksgiving came early this week at the Supreme Court. The Justices issued their first decision of the term, a per curiam opinion in a campaign finance case. We also saw three opinions relating to Monday’s orders list: Justice Alito dissented from a denial of cert in a First Amendment defamation case, Justice Kavanaugh called for a revisitation of the Court’s nondelegation doctrine, and Justice Sotomayor seemed unnerved by a bizarre case of judicial bias out of Arkansas. The Justices also issued a temporary stay in one of President Trump’s tax returns cases. All this to start off the week of the best meal of the year—perhaps the Justices wanted to get their official work done in order to focus on food prep. At any rate, here’s a recap of what happened at the Supreme Court this week.


This Week:
Per Curiam Decisions: 1
Opinions Relating to Orders: 3
Cases Argued: 0
Cert Grants: 0
GVR’s: 3

O.T. 2019:
Cases Decided: 1
Cases Remaining: 54
Weeks Left in Term: 30



Monday morning, the Court released an orders list from its private conference last week. The Justices didn’t add any cases to their docket. They GVR’d three cases in light of Quarles v. United StatesUnited States v. Davis, and Rehaif v. United States, three criminal law cases decided last term.

The Court denied several petitions, three of which elicited opinions from individual Justices. One denial actually generated some buzz on the newswires:

National Review, Inc. v. Mann:
Michael E. Mann, Distinguished Professor of Atmospheric Science at Penn State University, published two papers in the late 1990s about the human effects on global climate change. The papers lay out his “hockey stick” graph, which depicts a shallow decrease in global temperatures from 1050 to 1900 followed by a sharp increase from 1900 to 2000.

In 2009, emails between climate scientists (including Mann) were leaked, and some questioned whether the graph’s data were manipulated. In 2012, Rand Simberg at the Competitive Enterprise Institute (CEI) called the developments the “Other Scandal” at Penn State (comparing Mann to former Penn State football coach Jerry Sandusky) and labeled it the “hockey-stick deception.” Soon after, Mark Steyn at the National Review (NR) cited Simberg’s post and echoed some of the “Penn State cover-up” sentiments that Simberg had expressed. Mann then sued CEI and NR in federal court for defamation. CEI and NR moved to dismiss the suit under D.C.’s anti-SLAPP statute, but the district court denied the motion and the D.C. Circuit Court of Appeals affirmed. CEI and NR appealed to the Supreme Court, but the Justices denied their petitions.

Justice Alito filed a lone dissent from the denial of cert, saying that the Court should have answered both questions presented in the cases. The first question asks about who determines whether an allegedly defamatory statement is true or false. Is that a judge or a jury? Currently, ten federal courts of appeals have answered that a judge must do so, but several state supreme courts have said that task falls to a jury. This is an “indisputably important question of constitutional law” with split answers among the lower courts, Alito says. “A question of this nature deserves a place on our docket.”

But the second question “may be even more important,” Alito writes. That question, as he frames it, is “whether the First Amendment permits defamation liability for expressing a subjective opinion about a matter of scientific or political controversy.” Alito says we have two different categories of speech here. One, from Professor Mann, is an “expression of opinion” which actually asserts “a fact that can be proven in court to be false.” The other, from CEI and NR, is a “pungently phrased” opinion regarding “one of the most hotly debated issues of the day.” Citing Milkovich v. Lorain Journal Co. (1990), it seems to Alito that the Free Speech Clause protects statements of CEI and NR’s kind, but not of Mann’s. “When an allegedly defamatory statement is couched as an expression of opinion on the quality of a work of scholarship relating to an issue of public concern,” into which category of speech under Milkovich does it fall? This, Alito argues, is a “very important” question that the Court should clarify.

For these reasons, Alito would have granted the petition, and he “respectfully dissent[s]” from the denial of cert.

Paul v. United States:
The second opinion relating to a denial of cert comes from Justice Kavanaugh in Paul v. United StatesPaul is a nondelegation doctrine case that is strikingly similar to last term’s Gundy v. United States. The Court denied review for Paul, and Kavanaugh penned a short opinion respecting the denial.

The Court’s nondelegation doctrine governs the circumstances under which Congress can delegate its legislative and regulatory authority to certain Executive branch agencies. The Court has not implemented a precise standard for nondelegation cases since Industrial Union Dept., AFL–CIO v. American Petroleum Institute (1980) (see Rehnquist, J., concurring in judgment). What the Court has done instead is set out a standard for interpreting the statute that delegates congressional authority to an agency, especially if that authority concerns the making or regulating of significant economic or political policy. If Congress wants to delegate such authority to an agency, the statute must, no matter what, “expressly and specifically” delegate to the agency the authority to regulate and enforce the policy concerned. But based on recent nondelegation cases, there seems to be some confusion about whether Congress decides the policy question and then gives the agency the power to implement the policy, or whether Congress can allow the agency itself to answer the policy question and then implement it.

The Court’s most recent nondelegation case was in Gundy v. United States last term, in which it upheld a delegation of authority to the U.S. Attorney General in the realm of federal sex offender registration. Justice Gorsuch dissented. Gorsuch echoed some of Rehnquist’s sentiments in 1980 and argued that the second type of delegation—where Congress gives an Executive agency the authority to decide by itself a major policy question and then regulate/enforce it—violates the Constitution’s separation of powers.

Kavanaugh’s opinion hails Gorsuch’s dissent in Gundy, calling it a “scholarly analysis of the Constitution’s nondelegation doctrine” and one that “may warrant further consideration in future cases.” While Paul isn’t the proper case with which to do that, Kavanaugh says, he’s open to considering whether Gorsuch and Rehnquist’s approach to nondelegation cases is the right one.

Isom v. Arkansas:
The third and final case that prompted an opinion came in Isom v. Arkansas. Kenneth Isom has been charged with burglary and theft three times by a former Arkansas prosecutor, Sam Pope. Isom was acquitted the first two times but convicted on the third. He served a three-year sentence before being released on parole. Upon his release, Pope met with the Arkansas governor to convey his concern about Isom and ask if there was any way to return Isom to prison. His meeting was unsuccessful.

Seven years later, Isom was charged and convicted of capital murder. Pope—now a trial judge—presided over the case. Isom then sought postconviction relief, but it was denied—again by Judge Pope. The Arkansas Supreme Court later gave Isom leave to file a writ of coram nobis, an order that permits a trial court to reverse or correct a previous judgment if the petitioner demonstrates that the court unknowingly made a fundamental error, or if critical and dispositive evidence was mistakenly omitted at trial. Judge Pope again presided over Isom’s coram nobis hearing. Isom filed a motion asking Pope to recuse himself. He argued that the adversarial history between him and Pope created at least an appearance of bias—if not actual bias—in violation of his Due Process rights. Judge Pope denied the recusal motion and then denied the petition for coram nobis. A divided Arkansas Supreme Court affirmed, over two dissenting Justices.

Isom appealed to the U.S. Supreme Court, asking the Justices to decide whether the adversarial history between him and Judge Pope created an unconstitutional risk of bias during his coram nobis hearing. The Supreme Court denied the petition—surprisingly, in my opinion. There were no noted dissents, though Justice Sotomayor filed a short opinion respecting the denial. She found Isom’s allegations of bias against Pope “concerning.” But she was turned off by the fact that Isom didn’t raise those same claims during any of his burglary/theft charges or during his capital murder trial. My guess on this is because, in the back of her mind, there’s always the possibility that the bias allegations were Isom’s last-ditch effort to get out of his murder conviction. At any rate, Sotomayor for this reason didn’t dissent from the denial of cert. She simply wrote to “encourage vigilance” about the risk of bias—and attendant infringement of the Constitution’s Due Process clauses—that can arise when trial judges “peculiarly familiar with a party sit in judgment of themselves.”

For someone who does not want to read a personal opinion and wants only facts, skip this paragraph. That risk of bias about which Sotomayor “encourage[s] vigilance” is very real, and it’s why I called the denial of Isom’s petition surprising. I’m an undergrad at Indiana University, and I am the Chief Justice of the IU Supreme Court. One of my duties is to serve on administrative panels that hear cases of student misconduct, both personal and academic. The panel determines guilt or innocence and imposes a proportional sanction if necessary. Students certainly have the right to appeal the panel’s determination to a higher board—which is staffed by new faculty members and another IU Supreme Court justice—if they feel there was a due process error during the panel’s hearing. There has been one instance in which my panel adjudged guilt at the first juncture, the student then appealed, and I was then selected to serve as the IU Supreme Court representative again on the appeal board. When this happened, I recused myself, precisely because of the risk that I might harbor some bias if I’m forced to consider whether I myself committed a due process error against the same student. As the Supreme Court has noted, “[a]llowing a [judge] to review and evaluate his own prior decisions causes problems” (Withrow v. Larkin, 421 U.S. 35, 58, n.25 (1975)). Why? Because there’s a chance the judge “‘would be so psychologically wedded’ to his or her previous position . . . that the judge ‘would consciously or unconsciously avoid the appearance of having erred or changed position'” (Williams v. Pennsylvania, 136 S. Ct. 1899, 1906 (2016) (quoting Withrow, 421 U.S., at 57)). To be sure, I was confident when I recused myself that I could still “consciously,” neutrally, and fairly evaluate whether I or my panel had erred with regard to due process. But even the risk that I was wrong, that I would be biased even “unconsciously,” eliminated my adjudging of the same student twice under the Due Process Clauses of the Constitution. This is why I say I’m surprised by the Supreme Court’s denial of Isom’s petition—at least insofar as we saw no dissents from the denial. Now, of course, there may be rules of civil or criminal procedure that govern when a judge must recuse him-/herself in this context, and I simply don’t know about them. But even if that’s the case, on principle I’m surprised.

Per Curiam Decision:

Ladies and gentlemen, we have our first decision of the term! As part of the orders list Monday morning, the Court issued a per curiam opinion in Thompson v. Hebdon, a case that had been a mainstay on my list of significant petitions. A per curiam opinion is one in which the Supreme Court acts collectively to decide a case, as opposed to one Justice writing the majority opinion for the rest of the Justices. Per curiam opinions are often issued when a case is decided on narrow, procedural grounds, which is exactly what the Court did here. In fact, to be precise, the Justices granted Thompson, immediately vacated the lower court’s ruling without hearing oral argument, and then remanded the case back to the lower court for further proceedings in line with the per curiam opinion (like a GVR).

Thompson v. Hebdon concerns an Alaska state law that places a $500 per year limit on state campaign contributions. Two Alaska citizens challenged the law under the First Amendment, but a federal district court upheld the contribution limit. On appeal, the Ninth Circuit Court of Appeals affirmed. The citizens then asked the Supreme Court to review the case and answer whether Alaska’s campaign-contribution-limit law violates their First Amendment right to free speech. If this makes you feel like we’re approaching the territory of Citizens United v. Federal Election Commission (2010), you’d be spot-on.

Under Ninth Circuit precedent, a state law that limits campaign contributions must further a “sufficiently important state interest” and must be “closely drawn” to that end (Montana Right to Life Ass’n. v. Eddleman (9th Cir. 2003)). The Ninth Circuit further recognized the Supreme Court’s decisions in Citizens United and McCutcheon v. Federal Election Commission (2014), in which the Court narrowed that kind of state interest to resisting “actual quid pro quo corruption or its appearance.” Applying all this to the Alaska law, the Ninth Circuit held that the contribution limit focuses narrowly on Alaska’s stated interest. It further concluded that the law still gave contributors the freedom to affiliate with a candidate and still permitted candidates to amass sufficient resources to run a successful campaign—in other words, that the law does not infringe either the contributor or the candidate’s Free Speech rights. On this basis, the Ninth Circuit upheld the law.

But there’s a problem. In so holding, the Ninth Circuit did not apply Supreme Court precedent in Randall v. Sorrell (2006). Randall was the last case to consider a personal limit on campaign contributions. There, the Court struck down a similar Vermont law that limited personal campaign contributions. Justice Breyer, writing for a plurality of the Court, held that contributions limits that are extremely low run the risk of “harm[ing] the electoral process by preventing challengers from mounting effective campaigns against incumbent officeholders.” So low a limit is an “obstacle to the very electoral fairness it seeks to promote.”

Turning back to the Alaska law, the per curiam opinion points out that the Alaska statute shares some of the “danger signs” about Vermont’s law in Randall. For one, Alaska’s $500 limit per year is “substantially lower than . . . the limits [the Court] ha[s] previously upheld” (quoting Randall). Indeed, to date, the lowest limit the Court has sustained is Missouri’s $1,075 per two-year election cycle limit for candidates for State Auditor in 1998, which is over $1,600 in today’s dollars. Second, Alaska’s limit is “substantially lower than . . . comparable limits in other States” (quoting Randall again). Only five other states—Colorado, Connecticut, Kansas, Maine, and Montana—have $500 per-year limits on personal campaign contributions. But even then, Alaska’s $500 limit applies to campaigns for all offices; those other five states all have limits above $500 for Governor and Lieutenant Governor. This makes Alaska’s law “the most restrictive in the country in this regard,” the Court points out. Finally, the Alaska law has not accounted for inflation, another problem with Vermont’s law in Randall. Alaska’s $500 limit was put in place in 1996, and it has not been adjusted since. (For reference, $500 in 1996 is over $800 today.)

For all these reasons, it appears the Supreme Court harbors doubts about Alaska’s law. But since the Ninth Circuit didn’t factor in Randall v. Sorrell, the Justices have elected to remand the case so that the Ninth Circuit can take another look at it in light of Randall and the concerns the Justices outlined here.

Justice Ginsburg filed a short, one-paragraph statement about the decision. She doesn’t oppose remanding the case to allow the Ninth Circuit to apply Randall. However, she highlights two things about Alaska’s law that are different—and more reassuring—than Vermont’s law in Randall. First, while individual contributions may be low under both statutes, political party contributions are not as limited under Alaska’s law as they were under Vermont’s law. And second, Alaska is “highly, if not uniquely, vulnerable to corruption in politics and government,” Ginsburg says. This is because the state has the “second smallest legislature in the country and derives 90 percent of its revenues from one economic sector.” This point, she says, may justify such a low limit on individual campaign contributions.

Miscellaneous Order:

Finally, the Supreme Court issued a miscellaneous order Monday afternoon in Trump v. Mazars, which concerns the fight between President Trump and a U.S. House of Representatives committee over Trump’s tax returns. The Committee on Oversight and Reform subpoenaed Mazars USA, LLP, a private, global accounting firm with whom Trump has filed his personal and corporate taxes. Trump has since sought to block the subpoena in federal court but has lost before both a district court and the D.C. Circuit Court of Appeals. A nearly identical set of circumstances has taken place in Trump v. Vance, which concerns Manhattan District Attorney Cyrus R. Vance and his subpoena to Mazars for the same documents.

Both cases are now before the Supreme Court. The parties in Vance have agreed not to enforce the subpoena until after the Supreme Court’s disposition. But in Mazars, the House Committee had opposed a long-term stay while the case is pending. So, on November 15, Trump asked the Justices to stay enforcement of the subpoena.

In the miscellaneous order, the Justices agreed to do so temporarily. They’ve given Trump a deadline of December 5 (this coming Thursday) to file his petition for certiorari. If he files by then, the stay will continue until the Justices decide whether to grant or deny the case.

For an in-depth analysis of these two cases, as well as an explanation of future timelines, see my recent post, Federal Friction and Federalism: President Trump’s Tax Returns Cases.


The Court held no official proceedings Tuesday through Friday.

There are a number of interesting petitions awaiting action from the Justices. These include:

  • Box v. Planned Parenthood of Indiana & Kentucky, Inc. This case challenges an Indiana state abortion law that requires women who seek an abortion to, among other things, undergo a fetal ultrasound eighteen hours before the abortion is performed. The question presented is whether such an ultrasound requirement violates a woman’s Fourteenth Amendment rights.
  • Trump v. Vance. President Trump’s tax returns have now made their way to the Supreme Court. The District Attorney for the County of New York subpoenaed Trump’s tax returns from Mazars LLP, a private, global accounting firm with whom President Trump has conducted business. This subpoena follows two similar requests from committees of the U.S. House of Representatives. Trump argued he did not have to comply with the subpoena because his tax returns were subject to executive immunity. The Second Circuit Court of Appeals, however, said executive immunity is irrelevant to this case—since the subpoena was served on a private, independent, third-party accounting firm, not on the President himself—and ordered Mazars to release Trump’s tax returns. Trump appealed to the Supreme Court, asking the Justices to decide whether the subpoena violates Article II and the Supremacy Clause of the Constitution.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law that prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The question before the Court is whether federal immigration law preempts California’s sanctuary law (and others like it in cities and states around the country) under the Supremacy Clause of the Constitution.
  • Chiafalo v. United States. This case concerns the constitutionality of “faithless electors,” or members of the Electoral College who vote for a different presidential candidate than the one whom a majority of the voters in a state chose. The questions presented are (1) whether a state can dictate how an elector casts his/her vote and (2) whether a law that penalizes an elector for voting “faithlessly” violates the elector’s First Amendment rights.
  • Lilley v. New Hampshire. This case involves a challenge to a Laconia, NH city ordinance that prohibits a woman from publicly exposing her breast “with less than a fully opaque covering of any part of the nipple.” Three women charged with violating the ordinance challenged their convictions on the ground that, since the regulation applies to women but not to men, it violates the Fourteenth Amendment. The question before the Court is whether Laconia’s city ordinance violates the Equal Protection Clause of the Fourteenth Amendment.
  • City of Boise, Idaho v. Martin. This case involves two Boise, ID city ordinances that make it a misdemeanor to camp or sleep in public places within city limits. The Ninth Circuit held that the ordinances violate the Eighth Amendment when the city enforces them against the homeless. The question before the Court is whether generally applicable laws that criminalize public camping and sleeping violate the Cruel and Unusual Punishment Clause of the Eighth Amendment.
The Week Ahead

The Court’s December sitting begins on Monday, and the Justices will hear oral arguments in six cases next week. On Monday will be New York State Rifle and Pistol Association v. City of New York, New York, a Second Amendment case; and Georgia v. Public.Resource.Org, Inc. On Tuesday, the Court will hear Rodriguez v. Federal Deposit Insurance Corp. and Atlantic Richfield Co. v. Christian. And argued on Wednesday will be Intel Corp. Investment Policy Committee v. Sulyma and Banister v. Davis. On Friday the Justices will meet for their weekly private conference.

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s