Gorsuch Makes His Mark: Weekly Brief for June 15

Oyez, oyez, oyez!“That is the Marshal’s call, signaling to all that the Supreme Court is in session. Even though the Court is not meeting in person, the Oyezs this week rang loud and clear. The Court handed down two of the term’s biggest decisions. On Monday, Justice Neil Gorsuch held for a six-Justice majority that Title VII of the 1964 Civil Rights Act outlaws workplace discrimination on the basis of sexual orientation and gender identity. And on Thursday, Chief Justice Roberts held for a five-Justice majority that the Trump administration violated the Administrative Procedure Act when it sought to rescind Deferred Action for Childhood Arrivals, or “DACA.” Beyond these firecrackers, the Court also set off some streamers in its Monday orders list, denying a host of high-profile petitions concerning gun rights, qualified immunity, and “sanctuary” laws. In an ordinary week, the Supreme Court’s presence is not felt around the country. But this was no ordinary week. The Court made its mark—starting with Justice Gorsuch.


This Week:
Decisions: 4
Cert Grants: 2
Opinions Relating to Orders: 2
GVRs: 2

O.T. 2019:
Cases Decided: 47
Cases Remaining: 15*
Weeks Left in Term: 2**

* This number does not include cases that were granted and had been set for oral argument in March or April, but were postponed due to COVID-19 and were not rescheduled for the May virtual argument sitting.

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



First thing Monday morning, the Court released an orders list. With several high-profile petitions on the docket, Court-watchers expected to see some significant additions to next term. Instead, the orders list landed with a dull thud. The Court turned down virtually all of them, declining to take up hot-button issues including gun rights, legal protections for police officers, and sanctuary cities.

The Court seems a bit gun-shy after it dismissed its first Second Amendment case in years earlier this term. Several other Second Amendment cases had been awaiting action, including Worman v. Healey and Malpasso v. Pallozzi (mainstays on my list of high-profile petitions). But the Court demurred on Monday. The denial in Rogers v. Grewal drew a nineteen-page dissent from Justices Thomas and Kavanaugh. That particular case concerned a New Jersey law that requires all gun permit applicants to show a “justifiable need” to carry a firearm in public. A federal appeals court upheld the statute, but other appeals courts have struck down similar statutes with the “justifiable need” standard. Given this circuit split, Thomas would have taken up the case.

But that wasn’t the only reason Thomas dissented. The last time the Court dealt meaningfully with the Second Amendment was in McDonald v. Chicago (2010) and District of Columbia v. Heller (2008). “In the years since those decisions,” Thomas writes, “lower courts have struggled to determine the proper approach for analyzing Second Amendment challenges.” So, taking up this case would have allowed the Court to create a clearer framework, Thomas argues. Finally, Rogers v. Grewal contained the question whether the Second Amendment confers the right to bear a firearm in public. The Court has never answered that question definitively. Thomas, however, is already prepared to answer “yes.” “This case gives us the opportunity to . . . acknowledge that the Second Amendment protects the right to carry in public,” he asserts. Notably, Kavanaugh did not join this part of Thomas’ dissent. This suggests he either does not agree with Thomas or would wait to make a conclusion until he hears a full case.

The Court also denied a host of cases (including Zadeh v. Robinson, also on my high-profile-petitions list) asking it to reconsider its doctrine of “qualified immunity.” The doctrine’s current iteration comes from Harlow v. Fitzgerald (1982). It shields public officials from civil suits if the officials’ actions did not violate “clearly established law.” In the wake of the George Floyd Protests over the past few weeks, several commentators have called on the Court to either abolish the doctrine or weaken it, which would give police officers fewer legal protections against lawsuits alleging excessive force or illegal conduct.

There are likely a few reasons for the Court’s unwillingness. First, several bills altering or abolishing the doctrine have already been proposed in Congress. So, the Court may be waiting to see whether the doctrine will be amended through the legislative process. Second, the doctrine was not common knowledge until George Floyd’s death. To take up a qualified immunity case now—even though it would not be heard and decided for several months—would place the Court in the center of what has become a considerably hot-button political and emotional issue. That is a place, I’m willing to bet, the Court does not want to be.

However, the Court was not unanimous on this front. One Justice—again, Justice Thomas—dissented in Baxter v. Bracey. Thomas has long been a skeptic of qualified immunity, a stance he made crystal clear just a few years ago in Ziglar v. Abbasi (2017). The doctrine, as laid out in Fitzgerald, “is no longer grounded in the common-law backdrop against which Congress” first authorized civil suits against public officials in 1871, Thomas argues. For this reason, he would have granted Baxter v. Bracey and reconsidered the Court’s qualified immunity doctrine.

The Court turned down two more high-profile petitions I was watching. In United States v. California, the Trump administration had challenged California’s statewide “sanctuary” law, which prohibits state law-enforcement officers from providing information about immigrants (both legal and illegal) to federal immigration officials. The Ninth Circuit Court of Appeals upheld the law, and the Court’s denial leaves that ruling in place. No dissenting votes were recorded. Sanctuary jurisdictions are relatively new (many of them first appeared after President Trump took office), and this was the first “sanctuary” case to reach the Court. So it’s likely the Court will want the issue of sanctuary laws to play out a bit more in the lower courts before jumping into the fray.

Second, the Court declined to hear Ohio v. Ford, a capital case. In Atkins v. Virginia (2002), the Court held that executing “intellectually disabled” inmates violates the Cruel and Unusual Punishment Clause of the Eighth Amendment. The Court did not define “intellectually disabled,” leaving it to the states to define it for themselves. Shawn Ford, an Ohio death row inmate, had asked the Court to rethink that decision and provide a standard legal definition of “intellectually disabled.” The Court turned down his petition with no noted dissents.

After all of that, the Court agreed to hear two more cases next year. Both cases are “low-profile,” as we like to say in the legal world. In Albence v. Chavez, the Court will decide whether 8 U.S.C. §1226 or §1231 governs the detention of a noncitizen who is seeking deferral of removal after a second removal order.

Second, Henry Schein, Inc. v. Archer & White Sales, Inc. is back at the Supreme Court. The two companies are in the midst of a seven-year-long dispute over dental equipment. (Yes, you read that right.) Last year, the Court decided Henry Schein I. The companies wanted to take their feud to an arbitrator, but they disagreed about which parts of their dispute should be arbitrated. Then they disagreed about who should decide which parts should be arbitrated—the arbitrator or a judge? Henry Schein I—Justice Kavanaugh’s very first majority opinion on the Supreme Court—unanimously held that the arbitrator should decide, since the contract between the two companies contains an arbitration agreement and that agreement contains a “delegation” clause which gives the authority to decide matters of arbitrability to the arbitrator. So, the companies had their answer. But on remand, the lower court threw a wrench into the operation. Another clause in the agreement excludes certain claims from being arbitrated. The lower court seized on this. It concluded that that clause overrides the delegation clause—and thus a judge gets to choose which claims are subject to arbitration. The Justices will now review that decision next year, in Henry Schein II. So, how far have the companies gotten in their seven-year disagreement? Well, they’ve progressed to haggling over how to decide who should decide which issues are arbitrable. *Sigh.*


Andrus v. Texas
Attached to Monday’s orders list was a per curiam decision in Andrus v. Texas. Terence Andrus is a Texas capital inmate who, after his conviction, raised the claim that his trial attorney was ineffective under Strickland v. Washington (1984) in violation of his Sixth Amendment rights. A Texas trial court agreed, but the Texas Court of Criminal Appeals (CCA) reversed with a cursory analysis. Andrus appealed to the Supreme Court.

Six Justices (Roberts, Ginsburg, Breyer, Sotomayor, Kagan, and Kavanaugh) jointly sided with Andrus. The Court concluded that Andrus has made a preliminary showing of ineffective counsel. But to prevail under Strickland, Andrus must also show that his trial would have turned out differently had his attorney not made the “unprofessional” errors. The CCA bluntly stated that Andrus did not have ineffective counsel. The Court was of the opinion that it did not elaborate on that decision, that it remained silent as to its reasoning and whether Andrus had even passed Strickland‘s first prong. Finding fault with the CCA, the Justices held that Andrus passed Strickland‘s first prong. The Court then remanded his case back to the CCA for it to determine whether Andrus can pass Strickland‘s second prong.

There is a problem, however. Read for yourself what the CCA said:

[Andrus] fails to meet his burden under Strickland v. Washington . . . to show by a preponderance of the evidence that his counsel’s representation fell below an objective standard of reasonableness and that there was a reasonable probability that the result of the proceedings would have been different, but for counsel’s deficient performance.

Justice Alito—joined by Thomas and Gorsuch—dissented in an opinion whose tone can only be described as incredulous. The CCA’s conclusion relies on two findings: (1) “that [Andrus’] counsel’s representation fell below an objective standard of reasonableness,” and (2) “reasonable probability that the result of the proceedings would have been different, but for counsel’s deficient performance.”

Those two reasons would appear to align with Strickland‘s two prongs, if not explain the CCA’s reasoning under Strickland. Indeed, Alito thinks this is manifest. Reason (1) “clearly” speaks to Strickland‘s first prong, and reason (2) “explicitly” says that Andrus “failed to show prejudice” under Strickland. “It is hard to write a more conclusive sentence” than the CCA’s here, Alito argues. He chides: “Perhaps the Court thinks the CCA should have used CAPITAL LETTERS or bold type. Or maybe it should have added: ‘And we really mean it!!!'” (alterations in original).

Bostock v. Clayton County, Georgia
With its first full decision of the week, the Court marked a watershed moment in the history of gay and transgender rights. Justice Gorsuch held for a six-Justice majority that Title VII of the 1964 Civil Rights Act prohibits employment discrimination on the basis of sexual orientation or gender identity. Chief Justice Roberts and Justices Ginsburg, Breyer, Sotomayor, and Kagan agreed. As long as Title VII remains on the books, no public employer can fire, refuse to hire, or make any adverse employment decision against an employee based on whom that employee is attracted to or whether that employee identifies with their biological sex.

For a full analysis of the Court’s blockbuster decision, see my in-depth post here.

U.S. Forest Service v. Cowpasture River Preservation Assn.
The latter decision on Monday was completely overshadowed by Bostock. In a complex environmental case, Justice Thomas held for a 7:2 majority that a proposed natural gas pipeline, which would run from West Virginia through the George Washington National Forest to the Atlantic Coast, could proceed. Specifically, Thomas concluded that the Mineral Leasing Act of 1920 did not shift the authority to grant the pipeline “rights-of-way” from the U.S. Forest Service to the National Park Service, even though the pipeline’s intended route runs beneath the Appalachian Trail within the George Washington National Forest. If you have no idea what you’ve just read, I understand; this case is not easy to unpack, and that was as simple a summary as I could make.

Cowpasture involves a complex web of environmental statutes. To untangle this web, consider the following diagram:

A non-artist’s sad attempt at depicting the relevant area of the George Washington National Forest.

The gray rectangle is the George Washington National Forest (GWNF). The red squiggly line is the Appalachian Trail as it traverses through the GWNF. And the black straight line is the proposed path of the natural gas pipeline. Notice that the pipeline enters the GWNF, passes under the Appalachian Trail (600 feet below ground), and continues until it exits the GWNF.

Now to the statutes. Under the 1911 Weeks Act, the U.S. Forest Service has the authority to manage all National Forests and the land therein. So, it has total jurisdiction over the GWNF, the gray area in the box above (16 U.S.C. §1609). Next, the 1968 National Trails System Act created the Appalachian Trail and, via a Congressional delegation, gave the National Park Service the authority to manage all National Trails. So, the National Park Service has jurisdiction over the Appalachian Trail, the red squiggly line above. However, the National Park Service does not have total jurisdiction, as we will see later.

Let’s turn back to the pipeline. Its intended route—the black straight line above—would travel under parts of the GWNF and the Appalachian Trail. To do so, its owner (Atlantic Coast Pipeline, LLC) must obtain special permits (or “rights-of-way”). For the portion of the pipeline that would run under only the GWNF (that is, from the start of the GWNF to the Appalachian Trail, and then from the Appalachian Trail to the end of the GWNF), Atlantic Coast Pipeline must obtain a right-of-way permit from the U.S. Forest Service. The parties do not dispute this.

The question is about who has the authority to grant a right-of-way permit for the portion of the GWNF over which the Appalachian Trail runs (that is, the part of the diagram above where the black line and red line intersect within the gray box). Is it the U.S. Forest Service or the National Park System?

Thomas answers that the Forest Service retains responsibility for granting the permit. To justify his conclusion, he cites a third statute, the 1920 Mineral Leasing Act. He also distinguishes the land’s surface—occupied by the Appalachian Trail—from the land under the surface (through which the pipeline would run), which, he argues, remains the GWNF.

The Mineral Leasing Act gives the U.S. Forest Service the authority to grant rights-of-way for “Federal lands” over which it has jurisdiction (30 U.S.C. §§ 185(a), (b)(3)). The Act defines “Federal lands” as “all lands owned by the United States,” except (as relevant) “lands in the National Park System” (id., §185(b)).

No one disputes that the Forest Service controls the “Federal lands” within the GWNF. “The question before us,” Thomas explains, “becomes whether these lands within the forest have been removed from the Forest Service’s jurisdiction and placed under the Park Service’s control because the Trail crosses them” (emphasis in original). If the answer is no, “then the lands remain National Forest lands, i.e., ‘Federal lands’ subject to the grant of a pipeline right-of-way.” But if the answer is yes, “then the lands fall under the [Mineral] Leasing Act’s [exception] for ‘lands in the National Park System,’ thus precluding the grant of the right-of-way.”

When the Appalachian Trail was created in 1968, the U.S. Forest Service granted the National Park Service its own rights-of-way so that the Appalachian Trail could run through the GWNF. But the Forest Service didn’t give the National Park Service total control over this part of the Appalachian Trail. Instead, it gave it an “easement.” An easement is simply a temporary granting of authority to use the grantor’s land. It is not a sale of property. Nor is it a (temporary) handing-over of land ownership. The grantor still retains possession of the land granted. Thomas offers a helpful analogy:

If a rancher granted a neighbor an easement across his land for a horse trail, no one would think that the rancher had conveyed ownership over that land. Nor would anyone think that the rancher had ceded his own right to use his land in other ways, including by running a water line underneath the trail that connects to his house.

Thus, an easement is like another’s trail that runs over the owner’s land. Turning back to the case, it should be clear how Thomas makes his argument: The Forest Service granted the National Park Service an easement, allowing the National Park Service to use the surface of the Forest Service’s lands for the Appalachian Trail. The Forest Service still owns the land—that is, all the earth over which the trail runs. It has allowed the National Park Service to use the surface of that land for the Trail. Thomas admits that this is a fine distinction grounded in a mess of administrative statutes. “Sometimes a complicated regulatory scheme may cause us to miss the forest for the trees,” he writes. But “at bottom, these cases boil down to a simple proposition: A trail is a trail, and land is land.”

Having established that the Appalachian Trail is not itself “Federal land[]” under the Mineral Leasing Act, Thomas is now in a position to conclude that the U.S. Forest Service is the agency that can grant rights-of-way for the pipeline. Under the Mineral Leasing Act, the subterranean pipeline would traverse “Federal lands[]” within the GWNF, and thus the Forest Service has the permit-granting authority. The Act’s exception for “lands within the National Park System” is inapplicable because the Appalachian Trail is not itself land; it simply uses the land within the GWNF.

Thus, the Forest Service did not overstep its authority in allowing Atlantic to construct the pipeline through the GWNF. Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Gorsuch, and Kavanaugh joined Thomas in the majority.

Justice Sotomayor—joined by Justice Kagan—dissented. Sotomayor seizes on the Mineral Leasing Act’s exception for “lands within the National Park System.” The Appalachian Trail qualified as “lands within the National Park System,” she argues. Why? Because, first, that phrase is defined as “any area of land and water now and hereafter administered by . . . the National Park Service” (54 U.S.C. §100501) (emphasis added). And second, the National Park Service “administers” the Appalachian Trail under the 1968 National Trails System Act (16 U.S.C. §§ 1242(a)(2), 1244(a)(1)). So, “by statutory definition,” the Appalachian Trail is “land[] within the National Park Service,” thereby invoking the Mineral Leasing Act’s exception and transferring the authority to grant rights-of-way for that land over to the National Park Service, Sotomayor concludes.

I’ve left out much of the majority opinion’s and dissent’s objections and responses to each other. They are extremely technical and would require far more words to explain than are appropriate for a “weekly brief.” For readers who are unsatisfied with my coverage, I invite you to read the decision in full.


Tuesday evening, the Court stayed the execution of Texas inmate Rubin Gutierrez. Gutierrez sought to have a spiritual advisor with him in the execution chamber, but Texas prison policy does not allow it. Gutierrez has challenged Texas’ policy on First Amendment grounds. The Court temporarily stayed his execution until it decides what to do with his First Amendment claim. There were no noted dissents.


The Court held no proceedings on Wednesday.



The Court decided one case on Thursday, and it was a big one:

DHS v. Regents of the University of California
In September 2017, the Trump administration decided to wind down Deferred Action for Childhood Arrivals (“DACA”), an Obama-era immigration policy that temporarily exempts certain noncitizens from normal deportation laws. Several groups challenged that decision, arguing it violated principles of administrative law as well as the Equal Protection Clause of the Constitution. Chief Justice Roberts, writing for a 5:4 majority, held that the Trump administration acted “arbitrarily and capriciously” in the manner in which it tried to rescind DACA, sending the administration back to the drawing board. Roberts joined his four more-liberal colleagues in coming to this conclusion. Three Justices—Thomas, Alito, and Gorsuch—dissented, arguing that DACA itself is illegal.

For an in-depth analysis of the decision, see my post here. In the meantime, I will note a few important things: First, the Court’s decision was narrow. It held only that the manner in which the Trump administration sought to cancel DACA violated the Administrative Procedure Act. Second, current DACA recipients can breathe a temporary sigh of relief. The Court’s opinion keeps DACA on the books for the time being. But because of the narrowness of the Court’s opinion, the Trump administration can try to rescind DACA a second time. It has until at least November’s presidential election to do so. Third, the Court did not conclude that the entire DACA policy is legal. That issue was not before the Court. However, only three Justices signaled their opposition to DACA’s legality. Justice Kavanaugh—who dissented from Roberts’ majority opinion—did not join that part of the dissent.


Thursday afternoon, 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 orders list next 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.
  • Hunt v. Board of Regents of the University of New Mexico. This is a First Amendment case which asks whether university disciplinary action for off-campus, political speech violates the Free Speech Clause of the First Amendment.
  • 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 bars a state from suing the leader of the protest for criminal negligence where the leader did not necessarily promote or 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.
  • 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 Court held no proceedings on Friday.

The Week Ahead

Next week is shaping up to look the same as this week. On Monday, the Court will release orders at 9:30am EDT and opinions at 10:00am. It’s likely the Court will release more opinions later in the week (likely on Thursday).

Photo Credits: Associated Press

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