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.


This Week:
Decisions: 7
Per Curiam Decisions: 1
Opinions Relating to Orders: 4
Cases Argued: 4
Cert. Grants: 1 (for O.T. 2020)
CVSGs: 1
GVRs: 3

O.T. 2019:
Cases Decided: 13
Cases Remaining: 60
Weeks Left in Term: 17



First thing Monday morning, the Court released an orders list from last week’s conference. The Court granted one case, Fulton v. City of Philadelphia, for next term. The Justices called for the views of the U.S. Solicitor General in a pair of First Amendment cases consolidated under Americans for Prosperity Foundation v. Becerra. They also granted, vacated, and remanded three cases in light of last term’s decision in Rehaif v. United States.

The orders list generated four signed opinions from various Justices. The first comes from Justice Thomas (joined by Justice Alito) in Arizona v. California, an original jurisdiction case arising from a dispute over a California tax assessment initiative. The Court denied Arizona the ability to file a complaint, and Justice Thomas felt that was the incorrect decision.

“Original jurisdiction” means that the Supreme Court is the first court to hear the case; it decides questions of law and conducts factfinding. This is contrasted with “appellate jurisdiction,” where a lower court establishes the facts and the higher court only decides appealed questions of law (the Supreme Court exercises this kind of jurisdiction in 99% of the cases it hears). The Constitution gives the Supreme Court original jurisdiction over a select few types of cases, including disputes that arise between U.S. states (Art. III §2, cl. 2).

Arizona sought to file a complaint against what it saw as an “extraterritorial” tax assessment and enforcement program. When the Court ultimately denied the motion, Justice Thomas penned a short dissent. The Court exercises discretionary review in most types of cases. But in original jurisdiction cases, Thomas argues the Court does not have discretionary review. First, the Constitution says the Court “shall have” original jurisdiction over inter-state cases—not “may have.” Second, Thomas interprets Art. III to say the Supreme Court has exclusive original jurisdiction in cases like these—that no other judicial body is empowered to hear a state-state dispute. So, the argument goes, “[i]f this Court does not exercise jurisdiction over a controversy between two States, then the complaining State has no judicial forum in which to seek relief,” Thomas writes. Arizona’s motion asked the Justices to reconsider the Court’s discretionary approach to original jurisdiction cases, and Thomas (joined by Alito) would have taken the State up on that offer.

The second opinion comes from Justice Alito (joined by Justices Thomas and Gorsuch) in Patterson v. Walgreen Co. The case—which was denied cert review—cited Title VII of the 1964 Civil Rights Act and, specifically, the Title’s prohibition of employment discrimination “because of . . . religion.” Alito concurred in the denial of cert, but he suggested the Court should reconsider the framework for determining when an employment decision is made “because of” an employee’s religious beliefs. (The standard was espoused in Trans World AirlinesInc. v. Hardison (1977).) In an appropriate case, “the Hardison issue should be undertaken,” he writes; but this case is not the right vehicle.

Next, Justice Thomas dissented from the denial of cert in Baldwin v. United States. Thomas called for revisiting his own majority opinion in Nat’l Cable & Telecommunications Ass’n. v. Brand X Internet Services (2005). I will be writing an in-depth review of Thomas’ dissent in the near future.

Finally, Justice Sotomayor penned a seven-page opinion respecting the denial of cert in Reed v. Texas, the highly-publicized death penalty case of Texas inmate Rodney Reed. In September 2019, Reed asked the U.S. Supreme Court to weigh certain claims that stemmed from his eighth and ninth state habeas corpus applications (which Texas courts had denied). While that petition was pending, Reed filed his tenth state habeas application in a Texas court. On November 15, the Texas Court of Criminal Appeals held that Reed’s tenth application satisfied the procedural requirements to proceed, granting his application and ordering further litigation. On Monday, the U.S. Supreme Court dismissed Reed’s petition relating to his eighth and ninth habeas applications. One of the reasons was likely that Reed now has more than one limb to stand on. Sotomayor’s statement hints at this, before emphasizing a couple things: First, the Court’s denial here expresses zero opinion as to the merits of Reed’s tenth habeas application. Second, if Texas ends up denying Reed’s tenth habeas application, the Court’s order “in no way prejudices [his] ability to seek review” before the Justices.

Per Curiam Decision:

Attached to the orders list was a per curiam decision in Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano. On the surface, the case presents a host of Establishment Clause questions. A central issue is whether to treat Petitioners, the half-dozen Catholic entities on the island, as a single unit representing the entire Roman Catholic Church; or as distinct entities, each a fragment of the Church. But buried beneath these questions lurks a swampy, procedural mess. The case has pinballed between multiple lower courts—federal and territorial. At one point, a Puerto Rico trial judge ordered the Catholic plaintiffs to turn over a trove of records when the case wasn’t even in his court. Put differently, the judge didn’t have jurisdiction and was legally barred from issuing any such order.

On the basis of this procedural fubar, the U.S. Supreme Court remanded the case back to the trial court, ordering it to sort out how the case should proceed. Justice Alito (joined by Justice Thomas) wrote a short concurrence, calling attention to some of the Establishment Clause questions this case presents and suggesting the Court should consider them in a (much) more appropriate case.

Oral Arguments:

Next the Court heard oral argument in two cases. First on the tee was United States Forest Service v. Cowpasture River Preservation Ass’n., an incredibly complex environmental law case involving the application of several administrative statutes. Atlantic Coast Pipeline, LLC is seeking to install a natural gas pipeline from the mountains of West Virginia through Virginia to the coast of North Carolina. The pipeline’s route would cross through the George Washington National Forest and under part of the Appalachian National Scenic Trail. For this to happen, the company would have to acquire a “right-of-way” permit. In November 2017, the U.S. Forest Service authorized the permit, granting the pipeline “right-of-way” through the land occupied by the forest and the trail.

Cowpasture River Preservation Association immediately sued the U.S. Forest Service in the Fourth Circuit Court of Appeals—and won. The Fourth Circuit held that the U.S. Forest Service does not have the authority to grant rights-of-way for the sliver of land occupied by the Appalachian Trail, despite the fact that it does have such authority for the vast swaths of land around the trail that make up the George Washington National Forest. Why? Well, here’s where it gets tricky.

The section of the Appalachian Trail at issue is located on land in the George Washington National Forest. The U.S. Forest Service is responsible for managing lands within the National Forest System, which includes the George Washington National Forest (36 CFR §§ 200.3(b)(2)(i), (ii)). So, the U.S. Forest Service does have the authority to grant rights-of-way on any piece of land within a national forest. But the Appalachian Trail is not a part of the George Washington National Forest; it’s not even a part of the National Forest System. With one trailhead in Maine, it simply runs through the George Washington National Forest on its journey to the end in Georgia.

The Appalachian Trail is subject to the National Trails System Act (NTSA) of 1968 (16 U.S.C. §1241 et seq.). Under the NTSA, the Appalachian Trail is administered by the Secretary of the Interior, who has since delegated that authority to the National Park Service (not the U.S. Forest Service). Also under the NTSA, the Secretary of the Interior (and by extension the Director of the National Park Service) has the power to grant rights-of-way for all national trails—seemingly including the Appalachian Trail (16 U.S.C. §1246(a)(2)).

With this in mind, the Fourth Circuit relied on the Mineral Leasing Act (MLA) to hold that the U.S. Forest Service does not have the authority to grant the pipeline right-of-way under the land occupied by the Appalachian Trail. The MLA gives the Secretary of the Interior the power to grant pipelines rights-of-way through “federal lands” (see 30 U.S.C. §185(a)). However, “federal lands” does not include lands “in the National Park System” (id., §185(b)(1)). The National Park System in turn is defined as “any area of land or water administered by the Secretary [of the Interior], acting through the Director [of the National Park Service]” (54 U.S.C. §100501). Thus, the Fourth Circuit concluded that only the Director of the National Park Service—not the U.S. Forest Service—has the authority to grant the Atlantic Coast Pipeline right-of-way under the land occupied by the Appalachian Trail. In other words, the U.S. Forest Service can allow the pipeline to pass through the left and right halves of the George Washington National Forest. But as for the narrow strip of a footpath that bisects the two halves (i.e., the Appalachian Trail), right-of-way privileges lie with the National Park Service.

The question presented before the Supreme Court is whether the Mineral Leasing Act gives the U.S. Forest Service the authority to grant the pipeline right-of-way under the Appalachian Trail. The oral argument is available via audio and transcript.

The other case argued on Monday was Opati v. Republic of Sudan. The principal question is whether the Foreign Sovereign Immunities Act of 2008 (FSIA) applies retroactively for the purposes of recovering punitive damages.

The FSIA grants foreign states immunity (in most cases) from being sued in U.S. courts (28 U.S.C. §1604). In 1996, Congress amended the FSIA to include a “terrorism exception.” Specifically, foreign states who are designated a sponsor of international terrorism by the U.S. Secretary of State do not enjoy immunity in cases involving “personal injury or death that was caused by an act of … extrajudicial killing” on the part of the foreign state (28 U.S.C. §1605(a)(7) (later amended)). Two years later, Congress further amended the FSIA to say that, in cases implicating the terrorism exception, foreign states no longer enjoy immunity from punitive damages claims. Finally, in January 2008, Congress revisited its 1996 and 1998 amendments and clarified the terrorism-exception and punitive-damages language. Now, U.S. citizens who have been subjected to a state-sponsored act of terrorism have a private right of action against foreign states (28 U.S.C. §§1605A(a), (c)). Furthermore, those foreign states are susceptible to a number of damages claims, including punitive damages (id., §(c)(4)).

But what about state-sponsored, punitive-damages-liable acts of terrorism that took place before these subsequent amendments? Can victims of terrorist attacks that took place long ago claim punitive damages against the terrorism-sponsoring foreign state? That’s the question before the Court. Something that will surely weigh on the Justices’ minds is the Court’s 2004 decision in Republic of Austria v. Altmann. The Altmann Court held that, for a different kind of immunity exception (the “expropriation exception”), it was permissible to apply the FSIA retroactively. The oral argument in Opati is available via audio and transcript. Note that Justice Kavanaugh is recused from this case, as he took part in it while on the D.C. Circuit Court of Appeals.



The Court decided four cases on Tuesday:

McKinney v. Arizona
The first decision came from freshman Justice Brett Kavanaugh in a narrow capital sentencing case. In 1993, James McKinney was sentenced to death for murdering two Arizona residents. In 2015, the Ninth Circuit Court of Appeals vacated McKinney’s death sentence, finding that the Arizona courts had failed to weigh McKinney’s posttraumatic stress disorder (PTSD) as a mitigating factor at sentencing. The Ninth Circuit held that this failure flouted the Supreme Court’s 1982 decision in Eddings v. Oklahoma, in which the Court ruled that a sentencing judge cannot fail to consider any mitigating factor for the purposes of imposing a death sentence. This is called an “Eddings error.”

On remand to the Arizona Supreme Court, the parties disagreed about who should reweigh the aggravating and mitigating factors in McKinney’s case. The State argued that the Arizona Supreme Court should do it; McKinney argued a jury must do it. The Arizona Supreme Court agreed with the State, reconsidered McKinney’s aggravating and mitigating factors (including his PTSD), and ultimately upheld McKinney’s death sentence. McKinney then appealed to the U.S. Supreme Court, arguing that a jury—not a judge—must be tasked with reweighing a capital defendant’s aggravating and mitigating factors after an Eddings error.

But Justice Kavanaugh (writing for a five-member majority) disagreed. One fatal flaw in McKinney’s argument, Kavanaugh writes, is that it does not square with Clemons v. Mississippi (1990). There the Court held that, after an Eddings-like error involving an invalid aggravating factor, “it is constitutionally permissible for an appellate court to reweigh [a defendant’s] aggravating and mitigating evidence.”

McKinney tried to argue that Clemons is inapplicable to his case on two grounds. First, he pointed out that Clemons involved a mistake regarding an aggravating factor whereas his case involves a mistake regarding a mitigating factor. But Clemons hinged on its assessment of appellate courts’ ability to weigh aggravating and mitigating evidence” in general, Kavanaugh replies; “not on any unique effect of aggravators as distinct from mitigators.” Second, McKinney asserted that Clemons has been overruled by Ring v. Arizona (2002) and Hurst v. Florida (2016). But Kavanaugh also waves off this objection. The Ring Court held that capital defendants are “entitled to a jury determination of any fact on which” the State seeks to base aggravating evidence. Hurst applied Ring to invalidate Florida’s capital sentencing scheme because it allowed a judge, not a jury, to find that a defendant has an aggravating factor for the purposes of capital sentencing. Under Ring and Hurst, then, it is clear that it must be a jury must who finds the aggravating and mitigating circumstances. But once the jury has found those factors and laid them on the table, it no longer must be the job of the jury to weigh those factors to ascertain an appropriate punishment. Clemons says that a judge may weigh aggravating and mitigating factors found by the jury; it says nothing about a judge being able to find those factors in the first place.

Finally, Kavanaugh rebuts one last argument advanced by McKinney. In 1993, when aggravating factors were found in McKinney’s case (thus making him death-penalty-eligible), those factors were found by a judge, not a jury. McKinney argued that this finding is now invalid under Ring and Hurst. But there’s a catch: In Schriro v. Summerlin (2004), the Supreme Court held that Ring and Hurst do not apply retroactively to capital cases that have become final on “direct” review. McKinney’s case became final on direct review in 1996, six years before Ring and more than a decade before Hurst. What’s more, McKinney’s case is now before the Supreme Court on collateral review, not direct review. Hence, the Court is not bound to apply Ring and Hurst retroactively to McKinney’s case.

In all, Kavanaugh holds that state appellate courts may conduct a Clemons reweighing of an Eddings error—not the outcome McKinney was hoping for. Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch joined Kavanaugh in the majority.

Justice Ginsburg—writing with Justices Breyer, Sotomayor, and Kagan—dissented. Ginsburg focuses principally on the question whether McKinney’s case is before the Supreme Court on direct or collateral review. If direct, then Ring and Hurst apply retroactively, and hence the 1993 sentencing judge’s finding of aggravating factors in McKinney’s case was unconstitutional. If collateral, then Ring and Hurst do not apply retroactively. Kavanaugh holds collateral; Ginsburg, given her dissent, holds direct.

In Arizona, when a capital defendant appeals his death sentence, the appeal goes directly to the Arizona Supreme Court. That court considers the propriety of the death sentence de novo, reviewing each finding of an aggravating and mitigating factor and assessing the appropriateness of a capital sentence. To Ginsburg, it is “[b]eyond doubt” that this process constitutes direct review. “A defendant’s first opportunity to appeal his conviction and sentence is the archetype of direct review,” she writes (quoting Brecht v. Abrahamson (1993) (“[d]irect review is the principal avenue for challenging a conviction”)). Based on this, Ginsburg would apply Ring and Hurst retroactively to McKinney’s case; find that his death sentence was unconstitutional under the pair of cases because a judge found aggravating factors in his case, not a jury; and overturn McKinney’s death sentence.

Rodriguez v. Federal Deposit Insurance Corporation
The next decision came from Justice Gorsuch for a unanimous Court in a tax law case. The Internal Revenue Service (IRS) has long allowed an affiliated group of businesses to file a single, consolidated tax return. But what happens when the entire group receives a single tax refund? To which business(es) does that refund go? Deciding that question might actually provoke some interest in the lay-reader. Unfortunately, not even that question was before the Court. Instead, the question was, which method for deciding who the refund goes to should be used?

Many affiliated groups enter into tax agreements, which spell out who will receive how much of a tax refund. But sometimes those agreements don’t exist. What then? The parties almost always head to court. If the parties head to a state court, several states have enacted a litany of laws that determine who gets the refund. If the parties head to a federal court, however, it gets a bit murkier. Some federal courts simply defer to the laws of the state in which the court is located or the state in which the dispute plays out. But other federal courts have adopted their own rule to decide where the tax refund goes. The Ninth Circuit Court of Appeals started this trend in 1973 in a case called In re Bob Richards Chrysler-Plymouth Corp., after which the eponymous federal courts’ rule has been named. Originally, the Bob Richards rule was meant to be used only as a last resort, in cases where there is no tax agreement between an affiliated group of companies and where the companies are unable to reach a verbal agreement thereafter. But over time, some federal courts have expanded the use of the Bob Richards rule. Those courts regard the Bob Richards rule as the principal authority, a rule to be used in all cases except where an affiliated group’s tax agreement “unambiguously” would lead to a different result.

The question before the Court, then, is when to apply the Bob Richards rule in cases involving a single tax refund to a group of affiliated businesses. Should it be used sparingly, as the Sixth Circuit thinks, and only after deference to state law yields a “significant conflict” with federal policy? Or should it be used freely, as other courts have held, even to supplant relevant state law?

Justice Gorsuch, writing for a unanimous court, held the former: use it sparingly. Bob Richards is an example of judicial common lawmaking. This doctrine “plays a necessarily modest role” in our Constitutional republic, and “only limited areas exist in which federal judges may appropriately craft the rule of decision.” Chief among these areas is the “absence of congressional authorization,” Gorsuch offers.

But “[n]othing like that exists here.” The federal government naturally has interests “in “regulating how it receives taxes from corporate groups” and in the “delivery of any tax refund due a corporate group,” Gorsuch writes (emphasis in original). “But what unique interest could the federal government have in determining how a consolidated corporate tax refund, once paid to a designated agent, is distributed among group members” (emphasis in original)? Bob Richards did not identify any such interest—in fact, it “bypassed” that question. Moreover, corporations “are generally ‘creatures of state law,’ Gorsuch points out (quoting Cort v. Ash, (1975)), “and state law is well equipped to handle disputes involving corporate property rights.”

For these reasons, Gorsuch warns against wielding Bob Richards freely. This case “underscore[s] the care federal courts should exercise before taking up an invitation to try their hand at common lawmaking.” Bob Richards, despite starting out on sound footing, has “made the mistake of moving too quickly past important threshold questions at the heart of our separation of powers,” Gorsuch concludes.

Hernández v. Mesa
The most high-profile decision this week came in the third case on Monday. Hernández stems from a tragic incident in which a U.S. Border Patrol Agent, standing on the American side of the U.S.–Mexico border, shot and killed a Mexican teenager across the border. The teenager’s family filed a specific kind of lawsuit for damages, called a “Bivens claim” after the Supreme Court’s 1971 decision in Bivens v. Six Unknown Fed. Narcotics Agents. But Justice Alito, writing for a 5:4 majority, holds that the separation of powers bars courts from extending Bivens to a case like this.

Alito begins by first recounting the Bivens decision, and then describing the Court’s subsequent drawback from Bivens claims. The Bivens Court recognized an implicit Fourth Amendment right to file a claim for damages against the federal government after a victim was subjected to an unreasonable search or seizure. In two subsequent cases, the Court extended the Bivens remedy to other situations—even cases in which the law that a government official allegedly violates makes no mention of the ability to file for damages. After these two extensions, Alito writes, “we came to appreciate more fully the tension between this practice and the Constitution’s separation of legislative and judicial power.” When a court acknowledges a non-explicit damages claim simply because it furthers the “purpose” of an act of Congress, the judicial branch “risks arrogating legislative power.” In other words, sometimes the legislature enacts a statute that prohibits certain conduct but does not also authorize damages lawsuits, or instead provides other means for obtaining a remedy. In this instance, Alito says, “finding that a damages remedy is implied by a provision that makes no reference to that remedy may upset the careful balance of interests struck by the lawmakers.”

With this in mind, Alito points out that the “expansion of Bivens is ‘a disfavored judicial activity'” (quoting Ziglar v. Abbasi (2017)), and the Court has “consistently rebuffed requests to add to the claims allowed under Bivens,” citing nine such cases. To extend Bivens, a case must pass a two-pronged test. First, the claim must come in a “new context” or involve a “new category of defendants” (quoting Correctional Services Corp. v. Malesko (2001)). True, this case passes this prong; a U.S. Border Patrol Agent shooting a noncitizen across an international border is a brand-new context.

But the second prong is a higher hurdle: “[I]f we have reason to pause before applying Bivens in a new context,” Alito writes, “we reject the request.” Hernández evokes hesitation on several fronts. First, it involves “by definition an international incident.” The respective governments of the U.S. and Mexico disagree about what should be done regarding both the agent and the family. And as the Court recognized in Jesner v. Arab Bank, PLC (2018), “[t]he political branches, not the Judiciary, have the responsibility and institutional capacity to weigh foreign-policy concerns.” Second, the case implicates national security concerns. “Since regulating the conduct of agents at the border unquestionably has national security implications,” Alito notes, “the risk of undermining border security provides reason to hesitate before extending Bivens into this field.” Finally, applying Bivens to this case conjures up the same separation-of-powers concern that has been the principal cause of the Court’s reluctance toward extending Bivens. “Congress has repeatedly declined to authorize the award of damages for injury inflicted outside our borders,” Alito asserts. 42 U.S.C. §1983—the bedrock federal damages statute—does not do so; it authorizes recovery of damages only in cases where federal officials flout state law. Nor does the 1988 “Westfall Act,” which made the Federal Tort Claims Act “the exclusive remedy for most claims against Government employees arising out of their official conduct” (quoting Hui v. Castaneda (2010) (footnote omitted)); or the Tortue Victim Protection Act of 1991, which authorizes damages claims against foreign states, not U.S. officials, for international terrorism incidents.

For these reasons, Alito declines to extend Bivens to this case. Thus, the Hernández family is not entitled to file a claim for damages against the U.S. Border Patrol Agent, absent an express, contrary Congressional intent. Chief Justice Roberts and Justices Thomas, Gorsuch, and Kavanaugh constitute the rest of the majority.

Justice Thomas (joined by Justice Gorsuch) wrote a short concurrence to question whether Bivens should even remain on the books. “[T]he time has come to consider discarding the Bivens doctrine altogether,” Thomas says. He notes that the foundation for Bivens—”the practice of creating implied causes of action in the statutory context”—is eroding. The Court after all “has consistently refused to extend the Bivens doctrine for nearly 40 years.” So, Thomas would reconsider Bivens‘ holding entirely “to ensure that we are not “perpetuat[ing] a usurpation of the legislative power” (quoting Gamble v. United States (2019) (Thomas, J., concurring)).

Justice Ginsburg, joined by her ideological colleagues (Justices Breyer, Sotomayor, and Kagan), dissented. Where Alito sees this case as arising in a “new” Bivens context, Ginsburg does not. Here, as in Bivens, Ginsburg writes, the U.S. official “acted in disregard of instructions governing his conduct and of [the victim’s] constitutional rights.” The Court has also recognized the “fixed principle” that Bivens claims may be brought against federal officials “for seizures that violate the Fourth Amendment” (citing Abbasi). “Using lethal force against a person who ‘poses no immediate threat to the officer and no threat to others,'” she argues, “surely qualifies as an unreasonable seizure” (quoting Tennessee v. Garner (1985)). Whereas Alito distinguishes this case’s specific context (a cross-border shooting of a Mexican national) from other Bivens-related contexts, Ginsburg sees this case’s general context as the same (a federal official acting out-of-bounds and violating the plaintiff’s constitutional rights).

Ginsburg also rebuts at length some of the majority’s points. First, recall that Alito listed several federal tort statutes that did not explicitly authorize damages claims against federal officials. He argued the lack of such authorization is instructive. Ginsburg, however, turns this argument on its head. What follows from this statutory scheme, she says, is that Hernández—and other plaintiffs like him—have no “alternative form of relief” in state law, federal law, or even Mexican law, beyond the relief provided by Bivens. Second, Ginsburg does not find striking the majority’s foreign policy and national security concerns. “True, cross-border shootings spark bilateral discussion,” she writes, “but so too does a range of smuggling and other border-related issues that courts routinely address.” And the majority speaks with nothing but “generality” about the national security issues, failing to “home in on how a Bivens suit for an unjustified killing would in fact undermine security at the border,” she asserts.

To Ginsburg, “it is all too apparent that to redress injuries like the one suffered here, it is Bivens or nothing.” Overall, she would have allowed the Hernández family to pursue its claim for damages against the Border Patrol Agent.

Monasky v. Taglieri
The fourth and final opinion of the day comes in an international law case from Justice Ginsburg. Six other Justices (Roberts, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh) joined her opinion fully; Justices Thomas and Alito joined partially.

When a toddler is wrongfully taken from her country of “habitual residence,” she must be returned to that country under the Hague Convention on the Civil Aspects of International Child Abduction. How should a court go about determining a child’s country of habitual residence? That is the general question before the Court. To answer it, Ginsburg says, two upstream questions must be addressed.

First, is an agreement between the child’s parents to raise the child in a certain country necessary to establish the child’s country of habitual residence? Negative, says Ginsburg. She first looks to the text of the Convention and the context in which it was written. The Convention (oddly) does not define “habitual residence.” Citing Black’s Law Dictionary, “[a] child ‘resides’ where she lives,” Ginsburg says, “and ‘[h]abitual’ implies ‘[c]ustomary, usual, of the nature of a habit.'” Determining a child’s “customary” or “usual” residence thus suggests a “fact-sensitive inquiry, not a categorical one,” she notes. Nothing in the Convention says anything to the contrary about a formal parent-parent agreement. As for the Convention’s context, she consults its Explanatory Report, which similarly stresses the fact-specific nature of such an investigation. A child’s habitual residence is “the family and social environment in which [the child’s] life has developed.” So, to make a child’s residence “habitual,” the Report says there must be “some degree of integration by the child in a social and family environment.” Thus, a child’s habitual residence “depends on the specific circumstances of the particular case,” Ginsburg says. It does not depend on any “categorical” rule, “least of all an actual-agreement requirement for infants.”

The second, more fundamental question is: When a federal appeals court reviews a district court’s determination of a child’s country of habitual residence, should it do so deferentially or de novo? Ginsburg says deferentially.

The Convention is unhelpful; it simply says a court should act “expeditiously.” In the absence of a bright-line rule, Ginsburg writes, the answer “depends on whether [the appeals court is] resolv[ing] a question of law, a question of fact, or a mixed question of law and fact.” Questions of law yield a de novo standard; questions of fact, a deferential one. For a mixed-question scenario, the standard depends simply on whether more legal or factual work is involved. Applying this framework here, the trial court is faced with a mix of legal and factual questions. The trial court must first ascertain the appropriate standard for approaching a question about a child’s habitual residence—a question of law—and then apply that standard to find the child’s habitual residence—a question of fact. But the appeals court—tasked with reviewing the trial court’s determination of a child’s habitual residence—is simply reconsidering the trial court’s factual finding. This warrants “a clear-error review standard deferential to the factfinding court,” Ginsburg holds.

In all, Ginsburg concludes that discerning a child’s habitual residence under the Convention “depends on the totality of the circumstances specific to the case.” It does not require an actual agreement between the child’s parents (though such an agreement of course would be useful). And when a trial court makes its determination, an appeals court must review that finding deferentially since it rests on a fact-based inquiry.

Justice Thomas wrote the first concur-in-part and concur-in-judgment. He agrees with the principal findings above, but he thinks they can be derived directly from the Convention’s text. He similarly produces dictionary definitions of the words “habitual” and “residence.” “These definitions demonstrate that the concept of habitual residence for a child too young to acclimatize cannot be reduced to a neat set of necessary and sufficient conditions,” he says. Instead, they involve “a host of facts” that a judge must consider. Plus, nowhere in the text of the statute is there a requirement for an actual parent-parent agreement.

Justice Alito penned the other concurring opinion. He simply seeks to clarify what “habitual” actually means in light of today’s opinion. “Habitual” can entail different things in different contexts. But he “think[s] the [majority] accurately captures what the term means under the Convention when it says that a child’s habitual residence is the child’s ‘home.'” That said, even “home” is a “multifaceted” concept. Alito would define it as “the place where the child in fact has been living for an extended period—unless that place was never regarded as more than temporary or there is another place to which the child has a strong attachment.”

Oral Arguments:

After releasing opinions, the Court heard from counsel in one case, United States v. Sineneng-Smith. The case is straightforward: It involves a Free Speech Clause challenge to certain federal laws that prohibit “encouraging” or “inducing” illegal immigration for commercial or private financial gain (8 U.S.C. §§ 1324(a)(1)(A)(iv), (B)(i)). The Justices are tasked with determining whether those laws should be struck down as facially violative of the First Amendment. The oral argument in Sineneng-Smith is available via audio and transcript.


Wednesday followed a similar structure to the day before: opinions first (three this time), and one oral argument thereafter.


Intel Corp. Investment Policy Committee v. Sulyma
The first opinion is a unanimous one from Justice Alito concerning the oft-litigated Employee Retirement Income Security Act of 1974 (ERISA). This case specifically targets ERISA’s statute of limitations, asking whether the limitations period is triggered as soon as information about an employer’s breach of fiduciary duty becomes materially available to an employee, or only when the employee actually becomes aware of the breach. (For more information and context-setting, see my discussion of the case when it was argued on Wednesday, December 4.)

Alito holds that ERISA’s limitations clock begins to run only when an employee becomes aware—acquires “actual knowledge”—of a breach of fiduciary duty. He begins, naturally, with ERISA’s text. While the statute does not go out of its way to define “actual knowledge,” “its meaning is plain . . . [and] [d]ictionaries are hardly necessary to confirm the point,” Alito quips. “Actual,” today and in 1974 when Congress enacted ERISA, means “existing in fact or reality”; “knowledge” means “the fact or condition of being aware of something” (both then and now). Thus, to have “actual knowledge” of a piece of information, “one must in fact be aware of it,” Alito says. Perusing specific legal dictionaries only confirms that conclusion. If you’re still unconvinced, Alito points you to other provisions in ERISA where Congress affirmed the distinction between what an employee should know and what an employee actually knows. An employee who is handed a document revealing a breach of fiduciary duty but who nevertheless declines to read it or familiarize himself with it at all cannot be said to have actual knowledge of the breach.

In sum, ERISA’s limitations provision (29 U.S.C. §1113(2))—which commences after the “plaintiff ha[s] actual knowledge of the breach or violation” of fiduciary duty—begins to run only when the plaintiff-employee literally becomes aware of the breach. Alito is joined by all eight of his colleagues on the bench.

Holguin-Hernandez v. United States
The next opinion was another unanimous one, this time from Justice Breyer in an esoteric criminal procedure case. When a criminal defendant wants an appellate court to hear a claim that a trial judge’s decision was erroneous, the defendant must first make his intentions clear to the trial judge. The Federal Rules of Criminal Procedure give two ways of doing so: (1) the defendant may inform the trial judge of the appellate action he intends to take or (2) he may simply object to the trial judge’s decision and state his reasons for doing so (Fed. Rule Crim. Proc. 51(b)). In this case, after a sentencing judge imposed a twelve-month prison sentence, the defendant objected to the length of the sentence on the basis of certain federal sentencing factors (18 U.S.C. §3553(a)). The question presented is whether this falls under either of the two methods above for preserving a claim on appeal.

Breyer’s answer is yes. The defendant objected to the length of the sentence and called for a shorter one. This “certainly” qualifies as “informing the court” of the “action” the defendant “wishes to take,” Breyer writes. Put differently, the defendant is calling the judge’s attention to what he thinks is an “unreasonabl[y]” long sentence. “Judges, having in mind their “overarching duty” under §3553(a), would ordinarily understand that a defendant in that circumstance was making the argument . . . that the shorter sentence would be sufficient and a longer sentence greater than necessary to achieve the purposes of sentencing,” Breyer points out (internal quotation marks and citation omitted). One could also say that, by advocating for a lesser sentence, the defendant is “object[ing] to the trial judge’s [sentencing] decision” and, by referring to the federal sentencing factors in §3553(a), is “stat[ing] his reasons for doing so.”

Thus, Breyer holds that a criminal defendant properly reserves his claim on appeal under Rule 51(b) when the defendant argues that a sentence imposed is unreasonably long and advocates for a lesser sentence on the basis of §3553(a).

Justice Alito (joined by Justice Gorsuch) authored a brief concurrence. He wrote separately only to “emphasize what we are not deciding” (emphasis added). The federal government and numerous amici sought to have the Court decide a number of questions that this case did not place on the table. Some of those questions got at potential consequences of the Court’s eventual holding (which are irrelevant to the matter of law actually before the Court), and some questions were not addressed by the lower court.

Shular v. United States
The final opinion of the week comes in an Armed Career Criminal Act (ACCA) case, a Congressional statute that has become a regular at the building across the street. Justice Ginsburg wrote for a unanimous Court, holding that the definition of the ACCA’s “serious drug offense” provision “requires only that the state offense involve the conduct specified in the statute; it does not require that the state offense match certain generic offenses.” Justice Kavanaugh concurred.

The ACCA—enacted in 1984—provides that an armed criminal defendant with three prior state-law “serious drug offense” convictions must be sentenced to a minimum 15-year prison term (18 U.S.C. §924(e)). A state-law drug crime qualifies as a “serious drug offense” under the ACCA if it “involv[es] manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance” (id., §924(e)(2)(A)(ii)). This case deals with the way in which courts should apply that definition to the elements included in a state drug crime. The government says that a state drug crime qualifies as a “serious drug offense” simply if the underlying criminal conduct matches what §924(e)(2)(A)(ii) describes: “manufacturing . . . a controlled substance,” “distributing . . . a controlled substance,” or “possessing [a controlled substance] with intent to manufacture or distribute [it].” Mr. Shular (Petitioner), on the other hand, argues that the three things listed in §924(e)(2)(A)(ii) all refer to distinct drug crimes in themselves; and thus that, to determine whether a state-law drug crime is an ACCA “serious drug offense,” a court must determine the elements of the generic “distributing, manufacturing, [etc.], a controlled substance” offense and then see if any of those elements line up with those included in the state-law drug crime.

Justice Ginsburg sides with the government for two reasons. First, it is “unlikely” that the language of §924(e)(2)(A)(ii)—”manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance”—was meant to constitute generic offenses. Even Shular admitted that, while the language certainly describes conduct or actions, it does not identify “universal names of offenses.” States across the country call drug offenses a bevy of different things, like “trafficking, selling, giving, dispensing, distributing, delivering, promoting, and producing.” Contrast this with a neighboring provision, §924(e)(2)(B)(ii), which lays out certain generic offenses (like “burglary, arson, [and] extortion”) that comprise “violent felon[ies].” “Burglary,” “arson,” and “extortion” are names for actual crimes because of their “common-law history and widespread usage” today, Ginsburg writes. The same cannot be said of “manufacturing, distributing, or possessing with intent to manufacture or distribute, a controlled substance.”

Second, §924(e)(2)(A)(ii) says a “serious drug offense” means any state-law offense “involving manufacturing, distributing,” etc. (emphasis added). Conversely, §924(e)(2)(B)(ii) says a “violent felony” means “any crime . . . that is burglary, arson, extortion,” etc. (emphasis added). Juxtaposing these two provisions makes the following clear in Ginsburg’s eyes: “Involving” implies “that the descriptive terms immediately following the word ‘involving’ identify conduct.” Conversely, “is” implies a “congruence between ‘crime’ and the terms that follow, terms that are also crimes.”

For these reasons—along with a few other responses that easily sweep away some of Shular’s more far-fetched objections—Ginsburg holds that for a state crime to qualify as a “serious drug offense” under the ACCA, the conduct of the state crime need only match the conduct spelled out in §924(e)(2)(A)(ii). The Court found this holding unanimously.

Justice Kavanaugh wrote a short concurrence. One of Shular’s alternative objections was that the Court should apply the “rule of lenity” to his case. Ginsburg’s opinion dismisses this objection in as many words; Kavanaugh simply wants to chip in a few more.

Oral Arguments:

The Court heard arguments in its last case of the week on Wednesday, a criminal procedure case in Lomax v. Ortiz-Marquez. 28 U.S.C. §1915(g) is a three-strikes-you’re-out provision. It says that an incarcerated criminal defendant cannot appeal a civil judgment or bring a civil action if the defendant, while imprisoned, has had three or more similar actions dismissed “on the grounds that [they are] frivolous, malicious, or fail[] to state a claim upon which relief may be granted.” It essentially dissuades prisoners from deluging federal courts in inane appeals, giving prisoners three chances to construct a serious claim. In Lomax, a prisoner’s claim was dismissed “without prejudice”—which is the better alternative to having a claim dismissed “with prejudice” (or even with “extreme” prejudice)—but also “for failure to state a claim.” The question the Justices must decide is whether the dismissal of a claim “without prejudice for failing to state a claim” counts as a “strike” under §1915(g). The oral argument in Lomax is available via audio and transcript.


The Court held no proceedings on Thursday.


The Court met for its weekly private conference, at which it reviews the petitions on its docket and debates whether to grant review for any of them. We can expect more news from this conference in the Court’s next orders list on Monday. Some high profile cases the Justices are considering 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.
  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • California v. Texas. This case concerns the oft-challenged “individual mandate” in the 2010 Patient Protection and Affordable Care Act (ACA). In December 2019, the Fifth Circuit Court of Appeals held that the Tax Cuts and Jobs Act of 2017 (TCJA) overruled the Supreme Court’s decision in NFIB v. Sebelius (2012) upholding the constitutionality of the individual mandate. The Fifth Circuit then ordered the district court to consider whether the ACA must be struck down. The questions before the Supreme Court are (1) whether Petitioners have standing; if so, (2) whether the TCJA overruled NFIB; and if so (3) whether the individual mandate is severable from the ACA.
  • United States v. California. This case involves the Trump administration’s challenge to California’s statewide “sanctuary” law. The law 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.
  • Worman v. Healey. This case concerns a Massachusetts state law that bans, inter alia, semiautomatic “assault weapon[s]” and magazines capable of accepting 10+ rounds of ammunition. The question presented is whether that law violates the Second Amendment to the Constitution.
  • Malpasso v. Pallozzi. This is a constitutional law case asking whether a state law that categorically prohibits residents from carrying handguns outside the home for self-defense violates the Second Amendment.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Territory of Guam v. Davis. This case concerns a unique Fifteenth Amendment challenge to a political referendum Guam undertook under the 2000 Plebiscite Law. The federal territory allowed only “native inhabitants of Guam” to vote on the island’s future political status with the United States. The question presented is whether the Fifteenth Amendment permits Guam to invite only “native inhabitants of Guam” to participate in a potential political-status plebiscite that would yield only a nonbinding, symbolic expression of self-determination preferences.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
The Week Ahead

The Court has another busy week. On Monday, the Court will first release orders from this Friday’s conference. Then it will hear oral argument in two immigration-related cases: Nasrallah v. Barr, an immigration procedure case; and Department of Homeland Security v. Thuraissigiam, an as-applied Suspension Clause challenge to 8 U.S.C. §1252(e)(2), the habeas corpus statute for deportation proceedings.

On Tuesday, there is a possibility of opinions. The Court will also hear arguments in two cases: the blockbuster Seila Law, LLC v. Consumer Financial Protection Bureau, the constitutional challenge to the structure of the CFPB; and Liu v. Securities and Exchange Commission, a securities law case.

On Wednesday, the Justices will listen to arguments in what is arguably the most explosive case of the term: June Medical Services, LLC v. Russo, which concerns a Louisiana state law that requires abortion doctors to have “admitting privileges” at area hospitals.

On Friday, the Court will meet for its next private conference.

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