This Week’s Brief: March 23

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

Another somber week followed the last. What was supposed to be the start of the March oral argument session was instead marked by empty gallery seats and closed doors. In response to the ongoing spread of COVID-19, the Court postponed oral arguments, issued orders and opinions in private, and conducted its own weekly conference over the phone. As for its opinions, the Court released four of them. The opinions came in cases ranging from one that interestingly blends copyright infringement, state sovereign immunity, and a pirate ship (I reviewed the case for the blog here); to Kansas’ adoption of a specific kind of insanity defense (or lack thereof); to a race discrimination claim; to a jurisdictional question in immigration procedure. The Court also released a per curiam decision, and Justice Kavanaugh responded to a denial of cert. Here’s your brief for the week of March 23.


This Week:
Decisions: 4
Per Curiam Decisions: 1
Opinions Relating to Orders: 1
Oral Arguments: 0*
Cert. Grants: 0
GVRs: 2

O.T. 2019:
Cases Decided: 19
Cases Remaining: 52
Weeks Left in Term: 13

*Oral Arguments scheduled for this week were postponed due to COVID-19.



On Monday morning, the Court released orders from last week’s conference. The Justices didn’t add any new cases to their docket. They allowed the U.S. Solicitor General to participate in oral argument in a host of cases, and they GVR’d Bazan v. United States in light of Davis v. United States, a per curiam decision announced later in the day.

The Court’s denial in Avery v. United States elicited a statement from Justice Kavanaugh. The case involves a circuit split over a certain part of appellate procedure in criminal law: postconviction relief. The case has several moving parts, so bear with me.

State prisoners can seek postconviction relief in a federal court under 28 U.S.C. §2254Federal prisoners can seek the same relief under a neighboring statute, 28 U.S.C. §2255. A different provision, 28 U.S.C. §2244(b)(1), details what happens when state prisoners re-file the same claim in multiple petitions for postconviction relief, called “second or successive” applications. It says that “[a] claim presented in a second or successive application under section 2254 that was presented in a prior application shall be dismissed” (emphasis added). Note that there isn’t a similar provision that applies to federal prisoners if they file “second or successive” applications under §2255.

However, six federal courts of appeals have (bizarrely) held that §2244(b)(1) does apply to federal prisoners under §2255. This was the crux of Kavanaugh’s statement. The lower court in this case stopped the trend and held that §2244(b)(1) does not apply to §2255 applications under the plain text of the statute. This has created a split in the federal courts of appeals, and Justice Kavanaugh would grant cert in an appropriate case to resolve that split.

Per Curiam Decision:

Attached to the orders list was a per curiam decision in Davis v. United States. Charles Davis, a Texas resident, has two state criminal convictions on his record. In 2016, he tacked on a federal conviction. The federal district court ordered that the sentence for his federal conviction run consecutively to his state-crime sentences. Davis did not object in the district court to the consecutive nature of his federal sentence. Instead, Davis raised that objection for the first time in the Fifth Circuit Court of Appeals. Under normal circumstances, when a criminal defendant fails to raise an argument in a district court, an appeals court may review the issue only on a “plain error” standard (Fed. Rule Crim. Proc. 52(b)). Indeed, nine of the country’s twelve regional appeals courts have followed Rule 52 to the tee, holding that they will review for plain error an issue that the defendant did not raise in the district court.

But the Fifth Circuit eschewed Rule 52 entirely. Following circuit precedent, the Fifth Circuit refused to hear Davis’ argument at all, holding that his objection raised a “question of fact” and that such questions “never constitute plain error” if they could have been reviewed by the district court but were not raised there by the defendant.

The Supreme Court rebuked the Fifth Circuit. “We agree with Davis,” it wrote in its per curiam decision, that there is “no legal basis” for the Fifth Circuit’s “outlier practice of refusing to review certain unpreserved factual arguments for plain error.” Rule 52(b)’s text “does not immunize factual errors from plain-error review,” the Court said. The Justices remanded the case back to the Fifth Circuit with instructions to entertain Davis’ argument. They “express[ed] no opinion” on the actual merits of Davis’ claim.


Following the orders list, the Court released opinions in four argued cases.

Comcast Corp. v. Nat’l Assn. of African American-Owned Media
The first decision of the week comes from Justice Gorsuch in a case stemming from a race discrimination lawsuit. Gorsuch holds for a unanimous Court that a plaintiff who alleges race discrimination under 42 U.S.C. §1981(a) must prove that race was a “but-for” cause of the injury.

Entertainment Studios (ESN) is an African American-owned operator of several TV networks. ESN entered negotiations with Comcast, seeking to have its channels run on Comcast’s major cable networks. After extensive bargaining, however, Comcast ultimately refused.

ESN sued. It alleged, as relevant, that Comcast violated a federal anti-discrimination law (42 U.S.C. §1981(a)), which provides that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” The district court employed a “but-for” causation standard. In other words, it held that ESN must prove that race was the cause behind Comcast’s decision, or that Comcast would not have refused to run ESN’s channels were it not for the race of ESN’s owner. The district court then concluded that ESN failed to meet the but-for causation standard and dismissed the suit.

On appeal, however, the Ninth Circuit reversed. It held that the appropriate burden of proof was not but-for causation. Instead, it said that ESN only had to prove that race was one of the motivating factors behind Comcast’s refusal. Comcast appealed to the Supreme Court, which reversed again.

After recounting the facts of the case, Gorsuch canvasses the history behind the but-for causation standard. Simply put, it is “textbook tort law” (quoting University of Texas Southwestern Medical Center v. Nassar (2013)). The Court has long held that but-for causation “supplies the default or background rule” against which courts assume Congress has legislated, including when it comes to anti-discrimination laws. Next, he considers the text of the statute itself. While §1981(a) admittedly “does not expressly discuss causation,” Gorsuch says, “it is suggestive.” Read the text again (as relevant): “All persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens.” “The guarantee that each person is entitled to the ‘same right . . . as is enjoyed by white citizens,'” Gorsuch notes, “directs our attention to the counterfactual—what would have happened if the plaintiff had been white?” That, by definition, implies but-for causation. Under the statute, a person cannot be subjected to differential treatment if it weren’t for that person’s non-white race. Gorsuch helps to put it another way: “If the defendant would have responded the same way to the plaintiff even if he had been white, an ordinary speaker of English would say that the plaintiff received the ‘same’ legally protected right as a white person.” On the other hand, “if the defendant would have responded differently but for the plaintiff’s race, it follows that the plaintiff has not received the same right as a white person” (emphasis added).

Gorsuch next directs our attention to a neighboring provision. §1981(a) was enacted as part of the 1866 Civil Rights Act. §2 of that Act makes it a crime to “deprive” any person of “any right” protected by the substantive provisions of the Act (which include §1981(a)) “by reason of ” that person’s “color or race.” That causal term (“by reason of”) is clearly one that “indicate[s] a but-for causation requirement,” Gorsuch maintains. Finally, Gorsuch checks this statutory conclusion against the Court’s precedents. They “confirm all that the statute’s language and history indicate,” he concludes, citing Johnson v. Mississippi (1975), General Buildings Contractors Assn., Inc. v. Pennsylvania (1982), and CBOCS West, Inc. v. Humphries (2008), among others.

ESN’s arguments to the contrary, Gorsuch asserts, either ignore the Act’s history, reference past precedents that are inapposite, or put the Court in the precarious position of second-guessing the will of Congress when it enacted the statute. In short, “[a]ll the traditional tools of statutory interpretation persuade” Gorsuch that §1981(a) “follows the usual rules, not any exception.” Thus, Gorsuch holds that a §1981(a) plaintiff “must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right.” Gorsuch’s opinion garnered approval from every other Justice.

Justice Ginsburg penned a short concurrence in which she responds to a secondhand argument advanced by the victor, Comcast. Specifically, where §1981(a) guarantees “the same right . . . to make . . . contracts,” Comcast contended that this guarantee applies only to the end decision whether to enter into a contract, not the earlier groundwork for constructing the contract. Gorsuch’s majority opinion wrestled with this issue but ultimately did not resolve it, since it is irrelevant to determining the appropriate causation standard under §1981(a). Ginsburg, while recognizing its irrelevance to the case’s principal question, writes separately to push back against Comcast’s argument. To Ginsburg, this interpretation of §1981(a) simply “cannot be squared” with the statute’s intended effect. “An equal ‘right . . . to make . . . contracts'” is an “empty promise without equal opportunities to present or receive offers and negotiate over terms,” she writes.

Kahler v. Kansas
The next opinion comes from Justice Kagan in Kahler v. Kansas. The question presented was whether the Constitution prohibits a state from abolishing its insanity defense. The Court, however, finds that the question is far more nuanced than that. Kagan concludes for a 6:3 majority that due process does not require a state to adopt a certain kind of insanity defense called the “moral capacity” test.

A little context-setting: In Clark v. Arizona (2006), the Supreme Court laid out the different strains of insanity defenses. The two relevant versions are the “cognitive capacity” test and the “moral capacity” test. The former asks whether a defendant’s mental illness renders him “unable to understand what he is doing” when he commits a crime (emphasis added); the latter asks whether a defendant’s mental illness renders him “unable to understand that his action is wrong” (emphasis added).

Kansas employs only the cognitive capacity test. A defendant may plead “not guilty by reason of mental illness/insanity” if he can prove that, “as a result of mental disease or defect, [he] lacked the culpable mental state required as an element of the offense charged” (emphasis added)—in other words, that his mental illness deprived him of intent to commit the crime, or that it precluded him from understanding “what he [was] doing.” However, Kansas also says that “[m]ental disease or defect is not otherwise a defense.” Thus, Kansas does not recognize the moral capacity test as a legitimate insanity defense. So, a Kansas defendant cannot plead an insanity defense if his mental illness (1) blocked him from understanding that what he was doing was wrong, but (2) didn’t block him from understanding what he was actually doing. An example might help: Suppose John Doe, who has a severe mental illness, shoots and kills a police officer. Why? John thought God commanded him to do it. It’s clear, then, that John did not understand that what he was doing was wrong—quite the opposite, he thought it was God’s divine will—and thus John would meet the moral incapacity requirement. But John was fully aware of what he was actually doing. He knowingly carried out what he thought was God’s command by picking up a gun, seeking out a police officer, firing the gun, and killing the officer. Thus, John doesn’t meet the cognitive capacity requirement. In Kansas, John would be ineligible to plead “not guilty by reason of mental illness.” Instead, if John is convicted, Kansas allows him to raise his mental illness as a mitigating factor when he is sentenced.

The question before the Court is whether Kansas’ scheme is unconstitutional—specifically, whether the Due Process Clauses of the Constitution require Kansas to adopt as a pleading an insanity defense modeled after the moral capacity test. Kagan, writing for a 6:3 majority, answers “no.” Chief Justice Roberts and Justices Thomas, Alito, Gorsuch, and Kavanaugh join in her opinion.

She begins by pointing out the “high bar” that a challenge to Kansas’ pleading scheme must pass. Kansas’ system violates due process “only if it ‘offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental,'” she says (quoting Leland v. Oregon (1952)). The Court’s “primary guide in applying that standard is ‘historical practice'” (quoting Montana v. Egelhoff (1996) (plurality op.). To assess that practice, the Court regularly consults two things: “eminent common-law authorities” (such as Henry de Bracton, Sir William Blackstone, Sir Edward Coke, and Lord Matthew Hale) and “early English and American judicial decisions.”

Kahler argues that the moral capacity test was firmly entrenched in the common law, and thus Kansas flouts historical practice. But Kagan disagrees. She first notes that the cognitive capacity test (which Kansas uses at trial) has old relatives in the several moral-inculpability tests used throughout the common law. She then makes clear that Kansas uses elements of the moral capacity test at sentencing. Those elements are so broad, she writes, that “any manifestation of mental illness that Kansas’ guilt-phase insanity defense disregards . . . can come in later to mitigate culpability and lessen punishment.” But as for the idea that an integral part of common law pleadings was an insanity defense that turned on an inability to understand that a crime was immoral, the data simply aren’t there. True, Kagan admits, two early commentators did propose a morality-based insanity defense (citing William Lambard’s Eirenarcha (1581) (a “madman” is one who “hath no knowledge of good nor evil”) and William Hawkins’ Pleas of the Crown I (1716) (a “lunatick[]” is unpunishable because he is “under a natural disability of distinguishing between good and evil”)). But a “more famous trio of jurists” proposed differently. In the 1200s, Henry de Bracton expounded the “wild beast” test, likening a “madman” to an “animal[] which lack[s] reason” and, thus, could not have “the intention to injure.” He affirmed his mens rea requirement later, writing that a madman is inculpable because “[i]t is will and purpose which mark” wrongdoing. Next, Kagan cites Sir Edward Coke’s Institutes of the Laws of England II (1628), saying that Coke regarded “a legally insane person . . . as so utterly ‘without his mind or discretion’ that he could not have the needed mens rea.” Consider next Lord Matthew Hale’s writings a century later. He wrote that legal insanity entails “a total alienation of the mind or perfect madness,” such that a defendant could not act “animo felonico,” or “with felonious intent” (Pleas of the Crown I (1736)). Hale further stated that “for being under a full alienation of mind, [an insane person] acts not per electionem or intentionem [“by choice or intent”]” (ibid.).

Early common law judicial decisions follow suit. Kagan cites Rex v. Arnold, an English case from 1724, which held that if a defendant is “deprived of his reason, and consequently of his intention, he cannot be guilty.” The jury in the case exculpated the insane defendant using de Bracton’s “wild beast” test:

[I]t is not every kind of frantic humour or something unaccountable in a man’s actions, that points him out to be such a madman as is to be exempted from punish- ment: it must be a man that is totally deprived of his understanding and memory, and doth not know what he is doing, no more than an infant, than a brute, or a wild beast (emphasis added).

In the Trial of William Walker (1784), the law of jury verdicts hinged on whether the defendant suffered from a “distemper of mind which had deprived him of the use of his reason,” or whether “he knew what he was doing [and] meant to do it.” Beverley’s Case (1603) asked whether the defendant “is deprived of reason and understanding” and so “cannot have a felonious intent.” Finally, consider Rex v. Lord Ferrers (1760). There the prosecutor instructed Britain’s House of Lords to weigh “the capacity and intention of the noble prisoner.” “Relying heavily on Hale’s treatise,” Kagan reasons, the prosecutor “defined the legally insane as suffering from an ‘alienation of mind’ and a ‘total[ ] want of reason.'” “In recapping the evidence on that issue,” she continues, “he asked about the defendant’s intention: ‘Did [the defendant] proceed with deliberation? Did he know the consequences’ of his act?”

All these cases, Kagan concludes, demonstrate that the common law’s principal idea was this: “[I]f a defendant had such a ‘total[] want of reason’ as to preclude moral thinking, he could not possibly have formed the needed criminal intent.” Bellingham’s Case sums it up:

If a man were deprived of all power of reasoning, so as not to be able to distinguish whether it was right or wrong to commit the most wicked transaction, he could not certainly do an act against the law. Such a man, so destitute of all power of judgment, could have no intention at all (see G. Collinson 1 Treatise on the Law Concerning Idiots, Lunatics, and Other Persons Non Compotes Mentis 636, 671 (1812)).

The cognitive capacity test was thus the common law rule. And it wasn’t until England’s M’Naghten’s Case in 1843 “did a court articulate, and momentum grow toward accepting, an insanity defense based independently on moral incapacity,” Kagan observes (emphasis added). Even then, M’Naghten provided that either the cognitive or the moral capacity test could serve as a basis for an insanity defense. Plus, as the Supreme Court recognized in Clark v. Arizona (2006), “[h]istory shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle” that due process requires a challenge like Kahler’s to show. Therefore, Kagan “decline[s] to require that Kansas adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong.”

Justice Breyer—joined by Justices Ginsburg and Sotomayor—dissented in an opinion nearly matching Kagan’s in length. He agrees with the majority that the Constitution “gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity.” But, in essence, his dissent reads the common law history differently. For example, for de Bracton’s “wild beast” test (sometimes translated as the “brute animal” test), Breyer inquires further. What does it actually “mean to be ‘like a brute animal'” (emphasis added)? “A brute animal may well and readily intend to commit a violent act without being able to judge its moral nature,” Breyer argues (emphasis added). Reading it this way, Breyer contends de Bracton’s test hinges not just on cognitive capacity but moral capacity too. He points also to a later note from de Bracton, which stated that “lunatic[s]” are like “infant[s]” in that they cannot be punished unless they “[are] capable of perceiving the wrongful character of [their] act.”

Subsequent legal scholars—like Coke, Hale, and Blackstone—at one point or another all referred back to de Bracton’s “infant” test. Hale, for instance, compared insane persons to “infants” under 14 years of age, who are subject to criminal conviction only if they “had discretion to judge between good and evil.” And Blackstone wrote that a crime requires both a “vitious will” and a “vitious act”; that people who suffered from a “deficiency in will” due to a “defective or vitiated understanding” were “not [criminally] chargeable for their own acts”; and that “lunatic[s] [and] infant[s]” are “incapable of committing any crime, unless in such cases where they show a consciousness of doing wrong, and of course a discretion, or discernment, between good and evil” (Commentaries on the Laws of England IV (1769)).

These sources, as well as his own arsenal of common law judicial rulings, lead Breyer to conclude that a moral-capacity-based insanity defense is deeply rooted in the common law—and thus that due process requires Kansas to adopt it.

Allen v. Cooper
The third opinion on Monday comes again from Justice Kagan. The case arose after a marine salvage company discovered the wreck of the Queen Anne’s Revenge, Blackbeard’s famous pirate ship, off the coast of North Carolina and recorded documentary footage of the discovery. When the State of North Carolina published some of the footage, the company sued the state for copyright infringement. The question before the Court was whether the Constitution gives Congress the power to strip the states’ immunity from copyright infringement suits. Kagan answers “no,” leaving the company’s claims high and dry.

I took an in-depth look at the Court’s holding. My analysis is available on the blog here. (Warning: If you don’t enjoy wordplay, skip the analysis; it’s inebriated with it.)

Guerrero-Lasprilla v. Barr
The final opinion of the week comes in an immigration procedure case. Justice Breyer holds for a 7:2 majority that the phrase “questions of law” in a provision of the Immigration and Nationality Act (INA), 8 U.S.C. §1252(a)(2)(D), includes the application of a legal standard to undisputed or established facts in an immigration removal case. Chief Justice Roberts and Justices Ginsburg, Sotomayor, Kagan, Gorsuch, and Kavanaugh joined Breyer in the majority.

When the federal government issues a final order to remove an illegal alien from the country, the alien can seek judicial review in a federal appeals court (8 U.S.C. §1252(a)). However, if the alien’s removal is predicated on the fact that the alien committed a crime while in the U.S., the INA limits the scope of review that the alien can seek (id., §1252(a)(2)(C)). Specifically, that review is limited to “constitutional claims or questions of law,” as laid out in the aptly named “Limited Review Provision” (id., §1252(a)(2)(D)). In this case, two criminally-convicted, illegal aliens sought to equitably toll the deadline for filing a motion to reconsider their final removal orders. The Board of Immigration Appeals (BIA) denied their motions, holding (inter alia) that the aliens had not met a certain “due diligence” requirement. The aliens sought judicial review of the BIA’s decision in the Fifth Circuit Court of Appeals under §1252(a). The Fifth Circuit, however, denied their request. Applying the Limited Review Provision, it held that the alien’s requests amounted to a question of fact, not a “question of law,” and it therefore lacked jurisdiction to entertain their requests. The aliens appealed to the Supreme Court, presenting the question whether the application of a legal standard to an undisputed set of facts counts as a “question of law.” As noted above, Breyer says “yes.”

First, as in any statutory interpretation case, Breyer consults the text of the Limited Review Provision. “Nothing in [its] language precludes the conclusion that Congress used the term ‘questions of law’ to refer to the application of a legal standard to settled facts,” he says. Plus, Breyer notes that the Court in the past has said that the question “does a given set of facts meets a particular legal standard?” presents a “legal inquiry.” To be sure, that question in the aliens’ context presents both a question of fact and a question of law. It is thus a “mixed question.” But the Court has “often used the phrase ‘mixed questions’ in determining the proper standard for appellate review of a [judicial] decision that applies a legal standard to underlying facts.”

The federal government tries to object that Congress intended to exclude all “mixed questions” from judicial review when it enacted the INA. But Breyer disagrees. The conclusion that the application of a legal standard to a set of undisputed facts—i.e., a “mixed question”—is a “question of law” under the Limited Review Provision is supported by “a longstanding [jurisprudential] presumption, the statutory context, and the statute’s history,” Breyer asserts.

Ultimately, Breyer reverses the Fifth Circuit’s judgment and orders it to hear the aliens’ requests for judicial review. Of course, Breyer expresses no opinion as to the merits of their requests.

Justice Thomas, along with Justice Alito (for the most part), dissented. Thomas first argues that the majority ends up expanding the inquiry the Court agreed to hear. “We granted certiorari to decide whether a denial of equitable tolling for lack of ‘due diligence’ is reviewable as a ‘question of law’ under” the Limited Review Provision, he says (emphasis added). But the majority goes further; it decides (in the affirmative) the question whether “federal courts may review immigration judges’ applications of any legal standard to established facts in criminal aliens’ removal proceedings” (emphasis added). Thomas views the Court’s decision as a “nullifi[cation]” of a “jurisdiction-stripping statute,” an “expan[sion] [of] the scope of judicial review well past the boundaries set by Congress.” Or, to put it differently, the statute concerned is the “Limited Review Provision.” “Ironic[],” Thomas quips; “the majority’s interpretation . . . is anything but ‘limited.'”


The Court held no proceedings Tuesday through Thursday. Oral arguments that had been scheduled during these days were postponed.


The Court conducted its weekly, private conference on Friday. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution regarding COVID-19, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. We can expect 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.
  • 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 postponed the oral arguments that were scheduled for next week. On Monday the Justices at 9:30am EDT will release orders from Friday’s conference. At 10:00am EDT there is a possibility of opinions. On Friday, the Justices will hold their weekly, private conference (again over the phone).

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