Traffic Fails and Flushing Tales: Weekly Brief for May 4

The Supreme Court generated a bevy of headlines this week, all for very different reasons. The Court issued two unanimous decisions: In Kelly v. United States, it vacated the fraud convictions of two state officials in the 2013 Bridgegate scandal who caused a traffic fubar by shutting down two lanes of the George Washington Bridge for a few days. And in United States v. Sineneng-Smith, the Court rebuked the Ninth Circuit for abusing its judicial discretion after it wrested control of a criminal case from the parties involved. Meanwhile, the Court heard its first-ever telephonic oral arguments this week. Surprisingly, the project went down quite swimmingly—save for a few mic snafus and the distinctive sound of a toilet flush. Here’s your brief for the week of May 4.


This Week:
Decisions: 2
Cases Argued: 4
Cert Grants: 2 (for O.T. 2020)
GVRs: 1

O.T. 2019:
Cases Decided: 34
Cases Remaining: 37
Weeks Left in Term: 7*

This number reflects the date at which the Supreme Court’s term usually ends (the last week of June). However, it’s likely O.T. 2019’s end date will be later due to measures taken in response to COVID-19.



First thing Monday morning, the Court released an orders list. The Court added two cases to next term’s merits docket: CIC Services, LLC v. Internal Revenue Service, which asks whether the Anti-Injunction Act (28 U.S.C. §2283 et seq.) prohibits suits that seek injunctions against certain IRS reporting and information gathering requirements, which carry tax penalties; and Edwards v. Vannoy, which asks whether the Court’s recent decision in Ramos v. Louisiana applies retroactively to cases on federal collateral review. The Court also granted, vacated, and remanded Kinder Morgan Energy v. Upstate Forever in light of County of Maui, Hawaii v. Hawaii Wildlife Fund, decided two weeks ago.

Oral Arguments:

At 10:00am, the Court began its foray into the unknown, hearing its first telephonic arguments in history. The argument went about as swimmingly as it could have, all things considered. Justice Thomas, who has gone years without asking a question at oral argument, surprised many with a flurry of questions when it was his turn. The only minor hiccup appeared to be Justice Sotomayor briefly forgetting to unmute herself when the potato came around her way.

Its guinea pig case—and the only one heard on Monday—was U.S. Patent and Trademark Office (PTO) v. B.V. In general, the 1946 Lanham Act (15 U.S.C. §1051 et seq.) does not allow the trademarking of generic terms. For example, a shoe company that calls itself “Shoes, Inc.” cannot acquire the exclusive right to use the word “shoes” since that is a common, generic word. But suppose the shoe company was an exclusively online retailer and called itself “, Inc.” Could it trademark the term “” This is the question in this case. The popular, online hotel-reservation service sought to trademark the term “,” but the PTO refused to confer the trademark because, it argued, adding “.com” to an otherwise generic term still invokes the Lanham Act’s prohibition. The Justices will decide whether the PTO got it right. The argument in is available via audio and transcript.


On Tuesday, the Justices heard from counsel via telephone in U.S. Agency for Int’l Development (USAID) v. Alliance for Open Society Int’lInc. Humorously, Justice Sotomayor appeared to forget she was still muted for the second day in a row. “I’m sorry Chief, I did it again,” she commented to Chief Justice Roberts. But that aside, the session went without a hitch.

Respondents here are a group of non-governmental organizations (NGOs) that receive federal funds to fight the HIV/AIDS epidemic overseas. When Congress in 2005 created the program—”PEPFAR,” or President’s Emergency Plan for AIDS Relief (22 U.S.C. §7601 et seq.)—it sought to attach a few conditions on the disbursement of funds. One was that an NGO could not give funds to “any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking” (§7631(f)). At the time, some U.S.-based NGOs objected. While they didn’t necessarily support prostitution or sex trafficking, they worried that adhering to such a policy “may alienate certain host governments, and may diminish the effectiveness of some of [our] programs by making it more difficult to work with prostitutes in the fight against HIV/AIDS.” When these NGOs were refused federal funds, they filed suit, arguing that §7631(f) amounted to a type of “compelled speech” and violated the First Amendment. In USAID v. Alliance for Open Society Int’l, Inc. (2013), the Supreme Court agreed, holding that §7631(f) was unconstitutional as applied to the U.S.-based NGOs.

This iteration of the case came along shortly thereafter. Following the Court’s opinion, USAID stated it would lift the statutory requirement for U.S.-based NGOs but not for internationally-based NGOs. In other words, foreign affiliates of the U.S.-based NGOs that won the first time around would still be subject to the §7631(f) condition. Those foreign affiliates again challenged §7631(f) as applied, arguing that the Court’s 2013 decision should be extended so as to prohibit §7631(f) from applying to both domestic and foreign NGOs—in effect, seeking to strike down §7631(f) entirely. The Justices will decide whether §7631(f) violates the First Amendment as applied to foreign NGOs. The argument in Alliance for Open Society Int’l is available via audio and transcript.


Oral Arguments:

The Court wrapped up arguments for the week with two more cases on Wednesday. Thankfully, Justice Sotomayor didn’t have a problem with her unmute button. But the Court still wasn’t able to escape a few laughs. During the second case—in fact smack dab in the middle of when an attorney was answering a question—listeners were treated to the sound of a toilet flushing in the background. While we don’t know who the culprit was (be it a Justice, counsel, or a family member), the “Supreme Court Toilet Flush” is just another example that “duty calls” in more ways than one at our nation’s highest court. Kudos to the attorney at the podium, who forged ahead unflagged despite the noise; I just wish the sound was somehow written into the transcript (it wasn’t).

The first case argued was Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, which deals with the “conscience exemption” to providing contraceptive care in healthcare packages. With a few exceptions, the Affordable Care Act (ACA) requires employers to provide “preventive care and screenings” for women, which includes contraceptive care. Since the ACA’s enactment, religious nonprofits have challenged the requirement under the 1993 Religious Freedom Restoration Act (RFRA). They argue that their religious beliefs stand opposed to including contraceptives in their female employees’ healthcare plans, and so the ACA’s mandate as applied violates the Free Exercise Clause of the First Amendment. The Court has not yet answered this “RFRA question,” instead urging the federal government and the states to work out the dispute. But after the Trump administration took office, it seems the two parties dug their heels in. When the Trump administration sought to fully exempt religious employers from the contraception mandate, several states sued, arguing that RFRA is not a valid means at all to exempt the employers from the ACA’s mandate. The Court will now roll up its sleeves and put the matter to bed. The argument in Little Sisters is available via audio and transcript.

The second case was Barr v. American Assn. of Political Consultants, Inc. (AAPC), a First Amendment challenge to an exception in the 1991 Telephone Consumer Protection Act (TCPA). The TCPA generally prohibits the use of any “automatic telephone dialing system or an artificial or prerecorded voice” to “make any call” to “any telephone number assigned to a . . . cellular telephone service”—i.e., robocalls to cellphones (47 U.S.C. §227(b)(1)(A)(iii)). But there are some exceptions. Important here is the “government debt” exception, whereby calls “made solely to collect a debt owed to or guaranteed by the United States” are allowed (ibid.).

AAPC wants to use automated dialing systems or prerecorded voiceovers to call registered voters to solicit campaign contributions or advise on current political issues. Suing the Department of Justice (DOJ), AAPC challenged the TCPA as a content-based restriction on speech in violation of the First Amendment. The Fourth Circuit Court of Appeals agreed, but then elected to sever just the government-debt exception and leave the rest of the TCPA intact. This decision satisfied neither party. The DOJ wants to have the entire TCPA upheld, including the government-debt exception; AAPC wants to have the entire TCPA struck down. The Supreme Court will decide two questions: (1) whether the government-debt exception violates the First Amendment, and if so (2) whether the proper remedy is to sever it from the rest of the TCPA or strike the entire Act down. The argument in this case is available via audio and transcript.

Miscellaneous Order:

Wednesday evening, the Court issued a miscellaneous order in Friends of Danny DeVito v. Wolf, Gov. of Pennsylvania. Petitioners had sought a stay of Pennsylvania’s COVID-19 shutdown orders. They asked the Supreme Court to intervene, but the Justices declined, leaving the orders in place. No dissents were recorded.


The Court issued two unanimous decisions Thursday morning:

Kelly v. United States
The first decision comes from Justice Kagan in a case stemming from the infamous “Bridgegate” scandal in 2013. The Court overturned the fraud convictions of two state officials who took part in the scandal, William Baroni and Bridget Anne Kelly. Kagan, writing for a unanimous Court, holds that the officials’ actions—though not necessarily excusable—did not amount to fraud as defined in the statutes at issue.

In September 2013, senior officials at the Port Authority of New York and New Jersey shut down two lanes of public traffic over the George Washington Bridge between Manhattan, NY and Fort Lee, NJ, gridlocking the entire town of Fort Lee and decreasing traffic elsewhere. Their motive was political retribution; Mark Sokolich, then-mayor of Fort Lee, had recently refused to endorse Chris Christie, then-governor of New Jersey. The New Jersey District Attorney indicted the officials, charging them with “defrauding” “government property” (see 18 U.S.C. §§ 666(a), 1343). One official pleaded guilty. Two, Baroni and Kelly, went to trial. A jury convicted them of federal property fraud and the Third Circuit Court of Appeals affirmed.

After recapping the procedural history, Kagan gets right to the heart of the case: whether Baroni and Kelly’s actions amounted to federal property fraud. The government has a two-part burden here, Kagan says. It must prove both that Baroni and Kelly engaged in deception (that is, the fraud part) and that an “object” of their deception was to deprive someone of “property” (quoting Cleveland v. United States (2000)). The government easily clears the first hurdle; Baroni and Kelly testified that their intention was to run a traffic study, but the jury found this explanation to be contrived—hence, deception. However, the government stumbles at the second hurdle. It offers two arguments as to why the purpose of Baroni and Kelly’s deception was to deprive governmental property. First, that they aimed to “commandeer[]” a portion of the George Washington Bridge and to “take control” of two of its “physical lanes.” (Of course, “physical” as opposed to what?) And second, that the two sought to “deprive the Port Authority of the costs of compensating the traffic engineers and back-up toll collectors who performed work relating to the lane realignment.”

Kagan finds neither argument sufficient. As to the first, she says, Baroni and Kelly did not commandeer property when they shut down the two lanes. “They (of course) did not walk away with the lanes; nor did they take the lanes from the Government by converting them to a non-public use,” she writes. What they did instead was regulate the use of the Bridge’s lanes, which is something “officials responsible for roadways so often do.” Now true, they did so “for bad reasons” and “by resorting to lies.” But the reasons for their actions do not change the nature of their actions: an “exercise of regulatory power,” not the “taking of property.” So, the government’s first argument does not suffice for the taking of property that property fraud requires.

As to the second claim—that Baroni and Kelly sought to deprive traffic engineers and toll collectors of compensation—it’s true that depriving the “government’s right to its employees’ time and labor . . . can undergird a property fraud prosecution,” Kagan notes. But remember, to qualify as property fraud, the object of Baroni and Kelly’s actions had to be to so deprive the government. And it wasn’t, Kagan points out. The time and labor of the traffic engineers and toll collectors were “incidental” to Baroni and Kelly’s efforts to exact retribution on a political opponent. That was the objective, “to impede access from Fort Lee to the George Washington Bridge” as a political reprisal.

This case is certainly one of “public corruption” and “political payback,” Kagan admits. Baroni and Kelly’s actions “jeopardized the safety of [Fort Lee’s] residents.” But while “wrongdoing” was certainly present here, that wrongdoing does not amount to federal property fraud as defined in 18 U.S.C. §§ 666(a) and 1343. In other words, federal prosecutors erred when they elected to charge Baroni and Kelly under those federal criminal statutes. Thus, Kagan vacates Baroni and Kelly’s property fraud convictions for a unanimous Court.

United States v. Sineneng-Smith
The other decision this week comes from Justice Ginsburg for a unanimous Court, in which she slaps the Ninth Circuit Court of Appeals on the wrist. Ginsburg holds that the Ninth Circuit “abused its discretion” and remands the case so that it can correct its error.

Ginsburg begins—and ultimately ends—with the procedural history. Originally, Sineneng-Smith had been ensconced as a consequential case involving a First Amendment challenge to a notable immigration statute. Evelyn Sineneng-Smith was convicted of violating 8 U.S.C. §1324, which makes it a federal felony to knowingly “encourag[e] or induc[e]” an illegal alien “to come to, enter, or reside in the United States.” (§1324(a)(1)(A)(iv)). She was also convicted under a penalty-enhancing statute, which applies when the actions above are taken for the purpose of “commercial advantage or private financial gain” (§1324(a)(1)(B)(i)). Sineneng-Smith challenged the constitutionality of both provisions, arguing that the First Amendment gave her the right to file immigration applications on her clients’ behalf (even though she knew such applications would never meet the filing deadline). Since these provisions restricted her ability to do so, the argument goes, they violate her First Amendment rights.

The District Court disagreed. But on appeal, the Ninth Circuit turned the case on its head and then proceeded to strike down the provisions on a different First Amendment ground—one that Sineneng-Smith had never raised. Specifically, the Ninth Circuit heard the same, self-regarding First Amendment argument from Sineneng-Smith. But then the appeals court changed course. First, it thought the immigration provisions at issue might fail under a different First Amendment argument—namely, that they cabin the free speech rights of others, like political advocacy groups or relatives of illegal immigrants in the U.S (in other words, that the provisions are “facially overbroad”). Nevermind the fact that Sineneng-Smith never sought relief on this ground; the Ninth Circuit forged ahead. Next, it appointed three outside parties (amicus curiae, or “friends of the court”) and ordered them to brief and argue its own, self-conjured First Amendment issue. It essentially shunned Sineneng-Smith and the federal government as parties, relegating them to a “secondary” kind of party that could only respond to the amicus briefs on the court-constructed issue. After receiving the briefs and hearing arguments from amici, the Ninth Circuit then struck down the statutes as facially overbroad.

To put it colorfully, the Ninth Circuit hypothesized early on that this case turned on an issue that no party sought to raise; appointed its own litigants to “argue” about that hypothesis; and then concluded its own hypothesis was correct—striking down as unconstitutional a federal immigration law in the process.

No extraordinary circumstances justified the panel’s takeover of the appeal,” Ginsburg writes. She highlights the role that litigants and courts are supposed to play in the judicial process. “[W]e rely on the parties to frame the issues for decision,” says Ginsburg, and we “assign to courts the role of neutral arbiter of matters the parties present” (quoting Greenlaw v. United States (2008)). Quoting the late Justice Antonin Scalia, Ginsburg makes clear that “as a general rule, our system ‘is designed around the premise that [parties represented by competent counsel] know what is best for them, and are responsible for advancing the facts and argument entitling them to relief'” (quoting Scalia’s concurrence in Castro v. United States (2003)). This is called the “party presentation rule.”

Yet the Ninth Circuit utterly eschewed this rule here. In a pithy conclusion, Ginsburg orders the Ninth Circuit to reconsider the case “shorn of the overbreadth inquiry” that it “interjected” and “bearing a fair resemblance to the case shaped by the parties.” No further explanation required.

Justice Thomas filed a concurring opinion. He fully agrees with Ginsburg that the Ninth Circuit “abused its discretion” when it wrested control of the case. Thomas writes separately to express his doubts about the overbreadth doctrine—the ground on which the Ninth Circuit purported to strike down the statute. “In an appropriate case,” he says, the Court should “consider revisiting this doctrine.”


Friday afternoon, Chief Justice Roberts entered a routine, ten-day administrative stay in Department of Justice v. House Committee on the Judiciary. The case concerns the release of grand jury information from Special Counsel Robert Mueller’s investigation to the House Judiciary Committee. The D.C. Circuit Court of Appeals had ordered the DOJ to turn over the grand jury materials, and the DOJ appealed to the Supreme Court. Roberts’ order gives the full Court more time to consider how to proceed with the appeal.

Also on Friday, the Court conducted its weekly, private (tele-)conference. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, 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.
  • Ohio v. Ford. This is a capital case that asks what the proper standard is for determining whether a criminal defendant is “intellectually disabled” under the Eighth Amendment’s Cruel and Unusual Punishment Clause.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment permits a state to sue the leader of a protest for criminal negligence, even where the leader does not necessarily instigate the violence.
  • 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

Next week the Court will hear the last telephonic arguments in six more cases. On Monday will be McGirt v. Oklahoma, which asks—for the purpose of criminal trials—whether a large portion of eastern Oklahoma is still a federal Indian reservation; and Our Lady of Guadelupe School v. Morrissey-Berru, which concerns the First Amendment’s “ministerial exception.” On the docket for Tuesday is President Trump’s tax returns. First will be Trump v. Mazars USA, LLP, which concerns the House of Representative Oversight and Reform Committee’s subpoena. Following that will be Trump v. Vance, which concerns the New York District Attorney’s subpoena. On Wednesday the Court will hear two identical cases pertaining to “faithless electors”: Chiafalo v. Washington and Colorado Dep’t. of State v. Baca (Justice Sotomayor is recused from the latter case). There is a possibility of opinions on Thursday, and on Friday the Court will hold its next private teleconference.

Photo Credits: Washington Post

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