The biggest case of the term, so far, is being argued this morning and there is anticipation in the chilly Washington air. Demonstrators on each side of United States v. Skrmetti, the dispute over access to puberty blockers and hormone therapy for transgender teenagers, have arrived early in front of the court building and will still be there when the argument is finished after noon.
Inside the courtroom, I recognize a few lawyers in the bar section who were here yesterday when several members of the National Trans Bar Association were sworn into the Supreme Court Bar. (Today might have been the group’s first choice, but it can be quite competitive to secure such slots.)
Among the individuals who will be sworn into the Supreme Court Bar this morning is Tennessee Attorney General Jonathan Skrmetti, a Republican, who coincidentally is the named respondent in today’s case. The last time such a prominent lawyer who was involved in a case joined the court’s bar the same day was in 2017, when then-New Jersey Gov. Chris Christie was sworn in
before what was then called Christie v. National Collegiate Athletic Association, a case about sports betting.
In the justices’ guest box, I see either Dr. Patrick Jackson, the husband of Justice Ketanji Brown Jackson, or his twin brother, the lawyer William Jackson. Each has attended arguments before, and I have probably mistaken one for the other, as Justice Jackson described in her memoir as having once memorably done herself when all three were undergraduates at Harvard.
Ashley Kavanaugh, the wife of Justice Brett Kavanaugh, is also in her seat in the guest box today.
In the press section, I am fortunate today to be seated next to Melissa Brown, the state political reporter for The Tennessean newspaper of Nashville. She points out some of the Tennesseans who are in the courtroom, including Gov. Bill Lee, state House Majority Leader William Lamberth and state Senate Majority Leader Jack Johnson. All three are Republicans, and all supported the state law, SB 1, at the center of the case.
Also here, according to Brown, is one of the plaintiff families: a 16-year-old transgender girl identified in court papers as L.W. and at least one of her parents (as best Brown can see). Three transgender teens, their families, and a Memphis doctor who treats transgender youth brought the suit against the state officials responsible for enforcing the SB1 ban.
When the justices take the bench, and the bar induction is complete, Skrmetti moves over to a seat at the Tennessee counsel table.
U.S. Solicitor General Elizabeth Prelogar is making perhaps her last argument as SG before President Biden and his administration leave office. (However, the current administration will still be in office for the first week of the court’s January sitting. The one logical case in which Prelogar might show up to argue as an amicus would be Free Speech Coalition v. Paxton, about the Texas law that seeks to impose age-verification measures on certain websites offering sexually explicit material.)
Prelogar is sharing argument time with Chase Strangio of the American Civil Liberties Union, who is representing the private plaintiffs, including L.W.
Today, Strangio becomes the first known or openly transgender lawyer to argue before the high court. Asked about this yesterday on a press call, Strangio deferred to the team of lawyers at the ACLU who work on transgender cases and said he was “truly honored” to have this opportunity.
Chase Strangio arguing for the private plaintiffs. (William Hennessy)
On the day’s call sheet, Prelogar and Strangio each are slated for 15 minutes of argument, while Tennessee Solicitor General Matthew Rice is slated for 30 minutes. But anyone who has been to Supreme Court arguments knows that these are mere suggestions. Actually, the court hews to those times for its free-for-all rounds, but it is the seriatim round that tends to get out of hand. Prelogar will face about 45 minutes of seriatim questioning, Strangio about a half hour, and Rice barely five minutes.
Prelogar faces some tough questioning from the court’s conservatives, including Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito, who grills her for a prolonged period about “the state of medical evidence at the present time.” There is a fair amount of discussion about recent transgender treatment developments in Sweden, Finland, and the United Kingdom.
Strangio also faces tough questions, but is well prepared with page citations to briefs and the Joint Appendix to back up his arguments that the Tennessee law creates sex-based classifications that violate the 14th Amendment’s equal protection clause. When his red light comes on to indicate his time has expired just as a justice has asked a question, Strangio asks the chief justice if he may answer. (Roberts, who always seems to appreciate the request even as some advocates barrel through their red lights, says “sure.”)
He also deftly handles a question about the effects of heightened scrutiny on state laws that bar transgender girls and women from female athletics. Those might survive such a level of scrutiny, he suggests, because “it’s wholly different state interests that are being asserted.” He leaves aside any details about himself and the ACLU challenging those laws.
Rice gets his toughest questions from the court’s liberal bloc, Justices Sonia Sotomayor, Elena Kagan, and Jackson.
“You might have reasons for thinking that it’s an appropriate regulation,” Kagan says, “and those reasons should be tested and respect given to them, but it’s a dodge to say that this is not based on sex, it’s based on medical purpose, when the medical purpose is utterly and entirely about sex.”
Rice replies, “Justice Kagan, we think … that’s a request for a substantive right to engage in non-conforming behavior. We don’t think it’s actually drawing a line based on sex.”
In her rebuttal, closing out the lengthy argument, Prelogar goes to one of her preferred rhetorical tools.
“Finally, I think the court should think about the real-world consequences of laws like SB1,” she says. She refers to one of the plaintiffs challenging the Tennessee law, identified in court papers as Ryan Roe, a 16-year-old transgender boy who relied on testosterone treatments to deal with his gender dysphoria.
“Ryan’s gender dysphoria was so severe that he was throwing up before school every day,” Prelogar says. “And Ryan has told the courts that getting these medications after a careful consultation process with his doctors and his parents has saved his life. His parents say he’s now thriving. But Tennessee has come in and categorically cut off access to Ryan’s care, and they say this is about protecting adolescent health, but this law harms Ryan’s health and the health of all other transgender adolescents for whom these medications are a necessity.”
The case is submitted. Some of the advocates will go outside to address their supporters on either side. The debate on this contentious issue won’t be settled today.
During almost two-and-a-half hours of debate on Wednesday, nearly all of the court’s conservative majority expressed skepticism about a challenge to Tennessee’s ban on puberty blockers and hormone therapy for transgender teenagers. Three transgender teens, their families, and a Memphis physician, along with the Biden administration, contend that the law violates the Constitution’s guarantee of equal protection and should be examined with the higher degree of legal scrutiny required in such cases. But Tennessee counters that it is simply exercising its power to regulate the practice of medicine for all youth and is not distinguishing based on a patient’s sex.
Several of the court’s conservative justices voiced concerns about whether legislatures, rather than judges, are best suited to make determinations about what they saw as the complicated medical issues underlying the dispute. This idea has become a familiar theme at the court in recent years, including in the landmark 2022 decision overturning the constitutional right to abortion. Justice Brett Kavanaugh in particular on Wednesday wondered aloud whether decisions about issues like gender-affirming care for transgender teens might be best left to the democratic process.
The court’s decision could have ripple effects beyond Tennessee or even the other 23 states that have similar laws, affecting other protections for transgender people.
U.S. Solicitor General Elizabeth Prelogar urged the justices to focus on the narrow question whether the Tennessee law, known as SB1, draws distinctions based on sex and should therefore be subject to a more stringent review than the one applied by a federal appeals court in Cincinnati, which had upheld the law. But although the court’s three Democratic-appointed justices clearly agreed with her, it was difficult to say whether there were two more votes to join them and send the case back to that court for another look.
Representing the Biden administration, Prelogar emphasized that SB1 singles out gender dysphoria as the sole basis to ban access to puberty blockers and hormone therapy, because young people who are not transgender can still have access to those drugs for other medical purposes. Because SB1 prohibits such access only when the drugs are used in a manner that is inconsistent with the sex that a young person was assigned at birth, she explained, it draws lines based on sex. It should therefore be subject to heightened scrutiny, she argued, rather than the more deferential rational-basis review used by the U.S. Court of Appeals for the 6th Circuit in upholding the law.
The court’s three liberal justices echoed Prelogar’s insistence that SB1 should be subject to heightened scrutiny. Justice Sonia Sotomayor told J. Matthew Rice, Tennessee’s solicitor general, that the law relies on sex to determine who gets medicine. If a child who appears to be gender neutral goes to the doctor seeking medicine to prevent them from growing breasts, Sotomayor said, the doctor has to know whether that child is male or female to know whether SB1 bans the use of drugs.
Rice argued that the application of SB1 “turns entirely on medical purpose,” rather than drawing lines based on sex. But Justice Elena Kagan was dubious, telling Rice that the purpose that SB1 bans is treating gender dysphoria. Pointing to medical purpose, she said, is “a dodge” when the medical purpose of SB1 “is utterly and entirely about sex.”
Chief Justice John Roberts voiced concern that the case was different from other cases involving heightened scrutiny, which he described as “simple stereotyping” cases – for example, whether men and women should have the same rights on issues like adoption and being able to purchase liquor. This case, he said, involves “quite a distinct type of inquiry” because of the need to review “evolving” medical standards. “We’re not the best situated to address issues like that,” he posited, suggesting that such determinations such instead be left to the legislature.
Prelogar countered that although states have leeway to regulate the practice of medicine, heightened scrutiny should apply when states regulate access to medicine based on a patient’s birth sex. It would “be a pretty remarkable thing,” she said, to say that heightened scrutiny wouldn’t apply in areas of medical regulations.
Justice Samuel Alito observed that medical groups in European countries have more recently been skeptical of the benefits of gender-affirming care for trans teens.
Prelogar pushed back, noting that countries like Sweden, Finland, and Norway had not changed their laws in light of those reports but instead called for more individualized approaches to gender-affirming care. Similarly, she added, there is no outright ban on the use of hormone therapy and puberty blockers in the United Kingdom.
Kavanaugh told Prelogar that she had presented “forceful policy arguments,” but that Tennessee and other states with similar laws had also advanced forceful arguments. If the “Constitution doesn’t take sides on how to resolve medical and policy arguments,” he said, why shouldn’t the courts leave these kinds of questions to the democratic process?
Prelogar reiterated that the Biden administration was not asking the Supreme Court “to take options away from the states.” The court could, she assured Kavanaugh, write a “very narrow” opinion holding only that when a state prohibits conduct based on sex, heightened scrutiny applies. The court could then send the case back to the 6th Circuit for another look using that more stringent standard, which would require the state to show that the law is substantially related to an important government interest.
Sotomayor was more skeptical about the ceding the issue to the democratic process. Asking Rice about whether a ruling in Tennessee’s favor would also allow states to block gender-affirming care for adults, she observed that transgender people make up just 1% of the population. It’s “very hard to see how the democratic process” will protect them, she contended, just as it didn’t protect women or people of color for a long time.
Kavanaugh also wanted to know what a decision indicating that heightened scrutiny applies to SB1 would mean for issues like transgender women in sports and efforts to regulate bathrooms.
Prelogar distinguished the dispute over SB1 from those cases, emphasizing that allowing transgender teens to access medicine “in no way affects the rights of other people.” The Supreme Court, she suggested, could indicate that its ruling does not affect the separate government interest in those cases.
Justice Amy Coney Barrett focused on suggestions that heightened scrutiny is appropriate because SB1 discriminates based on transgender status. She pressed both Prelogar and Chase Strangio, representing the families and who on Wednesday became the first openly transgender lawyer to argue before the court, on whether there is a long history of legal discrimination against transgender people.
Prelogar indicated that even if there was no history of laws discriminating against transgender people, there is a “wealth of evidence” of other kinds of discrimination against them. Strangio pointed to earlier bans on service by transgender people in the military, as well as bans on cross-dressing.
Barrett also emphasized that the court’s resolution of the case would not affect the separate question (which the court declined to review) of whether SB1 violates the fundamental rights of parents to make decisions about their children’s medical care.
Justice Ketanji Brown Jackson drew questioning back to the fundamental role of the court’s authority on equal protection, invoking Loving v. Virginia, the Supreme Court’s 1967 case striking down Virginia’s ban on interracial marriage. In that case, she said, whether you could get married depended on your race even as the law banned interracial marriage for all people, while here access to puberty blockers hinges on a patient’s sex as assigned at birth. She noted that Virginia had also made arguments based in science to defend the ban on interracial marriage, and it contended that the court should defer to the legislature. If the court declines to hold that SB1 should be subject to heightened scrutiny, she said, it would be ignoring “bedrock precedent.”
Prelogar stressed that even if the courts apply heightened scrutiny to laws like SB1, it still leaves “real space” for states to regulate. She pointed to West Virginia’s law regulating gender-affirming care for trans teens, which she described as imposing “precisely tailored guardrails” – for example, requiring two doctors to diagnose gender dysphoria along with a mental health screening and consent from both parents and the patient’s primary-care physician.
Alito countered that even with such guardrails, applying heightened scrutiny would require “lay judges” to make “complicated medical” decisions that would lead to “endless litigation.”
Strangio stressed that the West Virginia law had not faced any challenges, but – particularly with Justice Neil Gorsuch silent throughout the argument – a majority of the justices were not persuaded.
The Supreme Court on Tuesday appointed a former clerk to Chief Justice John Roberts to defend a ruling by the U.S. Court of Appeals for the 4th Circuit in an immigration case after the Biden administration declined to do so.
The announcement that the court had appointed Stephen Hammer, an associate in the Dallas office of Gibson Dunn, to brief and argue in support of the 4th Circuit’s decision in Riley v. Garland
came in a short unsigned order
released by the court on Tuesday afternoon.
In Riley, the justices will weigh in on questions relating to the 30-day deadline to seek review of a ruling by the Board of Immigration Appeals denying a request to block deportation to a country where an immigrant’s life or freedom is threatened. Pierre Riley, a native of Jamaica who has lived in New York for nearly three decades, contends that he is likely to be killed if he is required to return to Jamaica. The Biden administration agrees with Riley that the court of appeals was wrong when it concluded that the 30-day deadline to file a petition to block deportation is jurisdictional – that is, that the court cannot review the petition if the deadline is missed. But the government urged the justices to send the case back to the lower court for another look in light of a recent decision by the Supreme Court holding that a similar statutory filing deadline is not jurisdictional.
Riley encouraged the justices to go ahead and take up the case and, if necessary, appoint a “friend of the court” to defend the 4th Circuit’s ruling, as they occasionally do when the federal government changes its position.
The court granted review on Nov. 4. On Tuesday, just under one month later, the justices appointed Hammer, who clerked for Judge Gregory Katsas on the U.S. Court of Appeals for the District of Columbia Circuit and Judge Jeffrey Sutton on the U.S. Court of Appeals for the 6th Circuit before clerking for Roberts, who serves as the “circuit justice” for the 4th Circuit.
Hammer is a Texas native and former Rhodes Scholar
who served two tours of duty in Afghanistan as a U.S. Army officer before going to law school. In 2019 he earned the year’s highest score on the Texas bar exam.
A long-running dispute reached the Supreme Court again on Tuesday over efforts by survivors of the Hungarian Holocaust to receive compensation for property that was seized by the Hungarian government during its extermination campaign in collaboration with the Nazis. The survivors and their heirs brought their suit in U.S. court. At issue in the case before the justices is whether the Hungarian government and the country’s national railway are entitled to immunity under the federal law governing lawsuits against foreign countries in U.S. courts, or whether a ruling by a federal appeals court in Washington allowing the survivors’ lawsuit to go forward should stand.
During nearly 90 minutes of debate, the justices grappled with the text of the law, as well their concerns about both the potential impact on U.S. foreign relations if the lawsuit is allowed to go forward and the prospect that foreign countries could easily escape liability if the justices accept Hungary’s interpretation of the law.
The federal law at the center of the case is the Foreign Sovereign Immunities Act, which establishes a general presumption that foreign countries cannot be sued in U.S. courts. But there are several exceptions to that rule, including one known as the “expropriation” exception, which allows cases to go forward when they involve property taken in violation of international law. To fall within this exception, the property – or “any property exchanged for” it – must either be located in the United States in connection with a commercial activity or it must be “owned or operated by an agency or instrumentality” of the foreign country that engages in commercial activity in the United States.
In the late stages of World War II, the Hungarian government, in collaboration with Nazi Germany, began intensifying its systematic killing of Hungarian Jews, sending cattle cars of people to death camps four times a day. The government nationalized all property of value owned by Jews and MÁV, the national railway, took property from individuals before they boarded the trains. More than 560,000 people were killed in the Hungarian Holocaust.
The group of survivors and their heirs filed a lawsuit against Hungary and MÁV in 2010, seeking compensation for confiscated property.
In the most recent chapter of the case, the U.S. Court of Appeals for the District of Columbia Circuit allowed the survivors’ case to go forward under the expropriation exception. Even if the survivors do not allege that any of the property that Hungary and MÁV took 80 years ago is now in the United States or owned by the railway, the D.C. Circuit ruled last year, it was enough that Hungary and MÁV “commingled” the property with their other funds used to do business in and with the United States.
Representing Hungary, Joshua Glasgow urged the justices to focus on the phrase “exchanged for” in the expropriation exception. To exchange something, he argued, means “to give one thing for another.” Simply showing, as the D.C. Circuit ruled, that expropriated funds or the proceeds from expropriated property were deposited into a country’s general treasury isn’t consistent with the plain text of the FSIA.
Sopan Joshi, an assistant to the U.S. solicitor general, represented the federal government, which appeared as a “friend of the court” supporting Hungary. He too contended that the D.C. Circuit’s commingling theory was inconsistent with the FSIA’s text – which, he argued, applies to “specific identifiable property in transactions.”
Some justices pressed both governments’ lawyers to clarify exactly how their proposed rules would operate. Chief Justice John Roberts, for example, asked Glasgow whether, under his formulation of the rule, the commingling of funds in a country’s general account would rule out the application of the expropriation exception.
Glasgow indicated that commingling will generally make it very difficult, if not impossible, to trace the expropriated funds, but it is not necessarily fatal. The question, he reiterated, is whether a subsequent withdrawal from the general account is “exchanged for” expropriated funds.
Justice Sonia Sotomayor wanted more information, asking Glasgow how the court should draft its opinion. The D.C. Circuit, she observed, “espoused a ‘historical commingling’ theory,” but Hungary wants the court to “say that’s not enough.” What, she queried, is “the clearest and most succinct way to articulate the concept?”
Glasgow responded that to show an exchange, the items at the beginning and end of a transaction must be given in return for one another. Someone gives Item A in return for Item B, he stressed.
Joshi put it slightly differently, although he told Roberts that there was no real difference between the federal government’s position and Hungary’s. In the federal government’s view, he explained, the test is whether the property that is the subject of the exchange “retains its distinct identity.” The focus, he suggested, should be on whether the property itself is tainted or instead the account in which the proceeds were placed is tainted.
Representing the survivors, Shay Dvoretzky maintained that when property is commingled with a country’s other funds, a withdrawal from those commingled funds is an exchange for purposes of the expropriation exception. Hungary’s contrary rule, he insisted, “would nullify the expropriation exception by limiting it to barter economies and inept regimes.”
Several justices appeared sympathetic to the interpretation of the expropriation exception advanced by Hungary and the United States. Justice Amy Coney Barrett outlined a hypothetical scenario involving the theft of Justice Neil Gorsuch’s car, after which she sold it for cash. “That’s an exchange,” Barrett acknowledged. But if she then used the cash to buy a painting, which appreciated in value so much that she could sell it to buy a beach house, is that really an exchange of Gorsuch’s car for the beach house? “Why is any of that,” Barrett asked, “an exchange once we go beyond the first step?”
Justice Clarence Thomas pressed Dvoretzky to explain how, once expropriated funds are deposited in a country’s general account, all of the funds in the account are “exchanged for” the original property.
Dvoretzky told Thomas that money is fungible, and so the account “always has more money in it than it would have had but for the initial exchange.”
Thomas retorted that not all funds in the account are from the expropriated property, noting that a country’s general account could include (for example) all kinds of funds in addition to the seized property.
“That is the nature of commingling,” Dvoretzky responded.
Sotomayor also appeared unconvinced. She found it difficult to believe, she said, that if her mother had put $100 in a bank account for her when she was born, more than 70 years later the same money would remain in the account. “It’s a fiction that takes quite an imagination,” she posited.
Other justices, however, were more skeptical of the theory advanced by Hungary and the federal government. Justice Elena Kagan suggested that their interpretation would provide a “roadmap” to evade liability under the expropriation exception. “Congress,” she told Glasgow, “wouldn’t have wanted to write a provision that has no meaning. Under your theory, I think there would be precious little to this. It gives foreign countries an easy way to expropriate property and make sure there’s no accountability.”
Glasgow countered that Congress expected claims under the expropriation exception to be “rare,” while Joshi later added that the FSIA was “not intended to shape the conduct” of foreign countries.
Justice Samuel Alito echoed Kagan’s concerns. He noted that Congress had been sufficiently upset about a 1964 case holding that U.S. courts could not weigh in on Cuba’s expropriation of property owned by U.S. nationals to enact a law that effectively reversed that decision. Do you think, he asked Joshi, that Congress believed that “in the vast majority of instances in which the property of U.S. nationals is expropriated overseas,” it did not want relief to be available?
Justice Brett Kavanaugh however, appeared more concerned about the effect that allowing the lawsuit to go forward might have on U.S. foreign relations. With the United States already the only country to carve out an exception to the general presumption of sovereign immunity for expropriations, Kavanaugh wondered aloud whether extending the exception further “would really seem to push us into noncompliance with international law and international norms?”
Roberts also admonished Dvoretzky that he was asking the court to dispense with “the general rule that sovereigns can’t be sued for expropriations of these kinds.” Congress, Roberts posited, had in mind “a much narrower exception,” so that adopting the survivors’ position would be “throwing out the whole sovereign immunity principle under which the rest of the world operates.”
UPDATE Dec. 6: Plumbers Local has filed a motion to dismiss its petition for review in Plumbers Local #290 Pension Trust Fund v. Root, so the justices will not consider the case at their conference on Friday.
The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
The Supreme Court is continuing to work through its relisted cases. Last month it granted the petitions filed by the federal government
and by a group of schools and libraries
seeking to challenge the decision of the U.S. Court of Appeals for the 5th Circuit invalidating a system of subsidies for rural and low-income broadband service.
It appears that the two
relisted petitions
asking the court to decide whether laws that limit participation on women’s and girls’ sports teams based on sex assigned at birth violates the 14th Amendment and Title IX of the Education Amendments of 1972
are now being held for the transgender-care case United States v. Skrmetti, argued on Wednesday.
And the court denied review in the case asking the court to weigh in on whether the Fifth Amendment’s takings clause applies when the government destroys property during necessary police activity, with Justice Sonia Sotomayor (joined by Justice Neil Gorsuch) filing an opinion
questioning whether the court of appeals had applied the correct standard.
On to this week’s newly relisted cases. There are three of them, give or take.
Personal jurisdiction over the Palestine Liberation Organization
We start with Fuld v. Palestine Liberation Organization
and its companion case, United States v. Palestine Liberation Organization
. When courts entertain lawsuits against out-of-state defendants, they must first determine whether they have so-called “personal jurisdiction” over them – that is, authority under the Constitution’s due process clause to hale them into court and make decisions binding on them. When the cause of action arises under state law, courts must determine whether the defendant has sufficient contacts within the the court’s geographic area of authority that it is fair for the court to exercise its power over them. The question at the center of these two cases is whether the same is true when Congress creates a cause of action against foreign nationals and entities.
The families of dozens of U.S. citizens who were killed or injured in terror attacks in Israel brought suits against the Palestine Liberation Organization and the Palestinian Authority under the Anti-Terrorism Act
. The ATA creates a private right of actions for victims of terror attacks committed against U.S. nationals abroad. The United States does not recognize the PLO or PA as a sovereign state, and both are barred from operating in the United States, except for at the United Nations.
The families argue that the PLO and the PA had encouraged such attacks by, among other things, paying the families of Palestinians killed in suicide attacks or in prison for attacks on civilians in Israel. The PLO and PA make such payments to the families of all Palestinians killed or detained in the conflict with Israel.
In one of the cases, a New York jury awarded the plaintiffs a total of $655.5 million in damages. But the U.S. Court of Appeals for the 2nd Circuit reversed, concluding that the district court’s assertion of personal jurisdiction over the PLO and PA violated their rights under the due process clause.
Simplifying the procedural history greatly: Congress then enacted the Anti-Terrorism Clarification Act of 2018 and later the Promoting Security and Justice for Victims of Terrorism Act
, both of which provided that the PLO and PA would be deemed to have consented to personal jurisdiction in U.S. courts if they engaged in certain conduct.
As relevant here, the PSJVTA provides that the PA or PLO “shall be deemed to have consented to personal jurisdiction” in an ATA suit if it pays the families of terrorists, either dead or in prison, responsible for injuring or killing a U.S. national and it either maintains an office in the United States or a representative conducts any activity while physically present in the U.S. on their behalf.
The family of another U.S. citizen killed in the West Bank then also brought suit, and the United States then intervened in both cases to defend the PSJVTA’s constitutionality.
The district courts in both cases held that the provisions of the PSJVTA were unconstitutional and granted the PA and PLO’s motions to dismiss the cases for lack of personal jurisdiction. The district courts found that the PLO and PA had made qualifying payments, and one also assumed that they had engaged in activities in the United States that would trigger the law’s application. But both courts held that neither category of conduct could constitutionally be treated as reflecting the groups’ consent to personal jurisdiction in U.S. courts, and they thus concluded that the PSJVTA violates due process.
The 2nd Circuit affirmed, agreeing that the PSJVTA provisions violated due process. The court concluded that the “jurisdiction triggering activities” under the PSJVTA could not “reasonably be interpreted as evincing the defendants’ intention to submit to the United States courts
.” Although the government argued that the statute was “centrally concerned with matters of foreign affairs” and that the political branches’ judgments were entitled to significant weight, the court concluded that those considerations could not save the statute from being held unconstitutional. The court also held that acts of Congress were given no additional consideration over enactments of state legislatures and that the due process analyses of personal jurisdiction were the same under either the Fifth Amendment for enactments of Congress or the 14th Amendment for statutes enacted by state legislatures.
The full 2nd Circuit declined to rehear the case, over a dissent by Judge Steven Menashi
(joined by Chief Judge Debra Ann Livingston, Michael Park, and (in part) Richard Sullivan, who emphasized that the cases involved a question of exceptional importance about Congress’s ability to legislate in the realm of foreign affairs.
Both the victims’ families
and the federal government
have separately petitioned for review, arguing that Congress has broader authority than state legislatures to subject parties to personal jurisdiction and that review is warranted because of Congress’s judgment that the PSJVTA is an important measure to further U.S. interests and protect and compensate U.S. nationals.
[Disclosure: I am among the counsel representing the victims’ families in Fuld.]
“Second and successive” habeas petitions
That brings us to Rivers v. Lumpkin
. Under federal law, state prisoners can seek a writ of habeas corpus to challenge the lawfulness of their detention. But the Antiterrorism and Effective Death Penalty Act imposes stringent gatekeeping requirements on a “second or successive habeas corpus application.” Courts have long struggled to determine what constitutes a “second or successive” petition, and in particular whether the limits on such petitions apply to amendments that prisoners file to their initial application – frequently acting on their own without the assistance of lawyers to help them explain to courts what they mean to do.
Danny Richard Rivers was convicted of sexual abusing his children and possession of child pornography. After exhausting his available state remedies, Rivers filed a federal habeas petition. The district court denied him relief, and Rivers was granted a certificate of appealability to seek review of his claim that his trial counsel was ineffective for failing to conduct a reasonable investigation and interview witnesses.
While his appeal was pending, Rivers received information he believed was exculpatory, and – acting without a lawyer – filed it with the district court, arguing that it showed his trial counsel’s failure to present exculpatory evidence. The district court deemed Rivers’ submission to be a “second or successive” petition that was barred under the AEDPA.
The U.S. Court of Appeals for the 5th Circuit affirmed, although Rivers argued that the additional information was an amendment to his initial filing, rather than a successive petition.
Rivers now seeks review, arguing that the courts of appeals are divided about what constitutes a second or successive petition. Texas argues that Rivers’ filing was properly categorized as a second or successive petition because it included not just additional evidence relevant to his ineffective assistance claim, but also “a myriad of new claims
.” The justices seem to be taking a close look at Rivers’ case.
A replacement for Facebook?
That brings us to our last case. As regular readers will remember
, the Supreme Court granted review in Facebook, Inc. v. Amalgamated Bank
to decide what kinds of risk disclosures public companies must make in their filings with the Securities and Exchange Commission. At argument, several justices voiced concerns
that Facebook’s statements there about the risk of data breaches could be read to suggest that the breaches were merely hypothetical, when in fact data breaches had already occurred – Facebook’s disclosure had come after the company knew that Cambridge Analytica had improperly accessed millions of users’ data. Soon afterwards, the court dismissed the petition in that case as improvidently granted
.
The court first considered Plumbers Local in early November, just as it was preparing to hear argument in Facebook. The justices accordingly held Plumbers Local in abeyance awaiting resolution of Facebook. But soon after the dismissal of Facebook, the court released that hold and put the case on for discussion at Friday’s conference. While technically that’s not what I would call a “relist” (because the case isn’t being considered at consecutive conferences), it’s close enough that I thought it was worth bringing to our readers’ attention.
What we’ll soon find out is whether the court is simply going to deny cert in Plumbers Local because it dismissed the case it was being held for, or whether it will grant review in Plumbers Local as a replacement for the dismissed Facebook case.
We should have a better idea very soon. Tune in next time!
New Relists
Rivers v. Lumpkin
, 23-1345 Issue: Whether 28 U.S.C. § 2244(b)(2)
applies only to habeas filings made after a prisoner has exhausted appellate review of his first petition, to all second-in-time habeas filings after final judgment, or to some second-in-time filings — depending on a prisoner’s success on appeal or ability to satisfy a seven-factor test.
(Relisted after the Nov. 22 conference.)
Plumbers Local 290 Pension Trust Fund v. Root, Inc.
, 24-224 Issue: Whether a company’s disclosure in the “Risk Factors” section of an Securities and Exchange Commission filing is misleading if it warns that a risk may or could materialize when that risk has already transpired at the time the company spoke.
(Relisted after the Nov. 22 conference.)
Returning Relists
Boston Parent Coalition for Academic Excellence Corp v. The School Committee for the City of Boston
, 23-1137 Issue: Whether an equal protection challenge to facially race-neutral admission criteria is barred simply because members of the racial groups targeted for decline still receive a balanced share of admissions offers commensurate with their share of the applicant pool.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Andrew v. White
, 23-6573 Issues: (1) Whether clearly established federal law as determined by this court forbids the prosecution’s use of a woman’s plainly irrelevant sexual history, gender presentation, and role as a mother and wife to assess guilt and punishment; and (2) whether this court should summarily reverse in light of cumulative effect of the errors in this case at guilt and sentencing, including the introduction of a custodial statement made without the warnings required by Miranda v. Arizona
.
(Rescheduled before the March 28, April 5, April 12, April 19, April 26, May 9, May 16, May 23, May 30, June 6, June 13, June 20, and July 1 conferences; relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Kerr v. Planned Parenthood South Atlantic
, 23-1275 Issues: (1) Whether the Medicaid Act’s any-qualified provider provision unambiguously confers a private right upon a Medicaid beneficiary to choose a specific provider; and (2) what the scope of a Medicaid beneficiary’s alleged right is to choose a provider that a state has deemed disqualified.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Wilson v. Hawaii
, 23-7517 Issue: Whether the test of New York State Rifie & Pistol Association, Inc. v. Bruen
determines when a state’s criminal prosecution for carrying a handgun without a license violates the Second Amendment.
(Relisted after the Sept. 30, Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Diamond Alternative Energy LLC v. Environmental Protection Agency, 24-7 Issues: (1) Whether a party may establish the redressability component of Article III standing by relying on the coercive and predictable effects of regulation on third parties; and (2) whether EPA’s preemption waiver for California’s greenhouse-gas emission standards and zero emission-vehicle mandate is unlawful.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Ohio v. Environmental Protection Agency
, 24-13 Issue: Whether Congress may pass a law under the commerce clause that empowers one state to exercise sovereign power that the law denies to all other states.
(Relisted after the Oct. 11, Oct. 18, Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Parents Protecting Our Children, UA v. Eau Claire Area School District
, 23-1280 Issue: Whether, when a school district adopts an explicit policy to usurp parental decision-making authority over a major health-related decision — and to conceal this from the parents — parents who are subject to such a policy have standing to challenge it.
(Relisted after the Nov. 1, Nov. 8, Nov. 15 and Nov. 22 conferences.)
Turco v. City of Englewood, New Jersey
, 23-1189 Issues: (1) Whether the City of Englewood’s speech-free buffer zones, including zones outside an abortion clinic, violate the First Amendment; and (2) whether the court should overrule Hill v. Colorado
.
(Relisted after the Nov. 15 and Nov. 22 conferences.)
The Supreme Court on Friday afternoon agreed to decide whether a 2019 law that seeks to give U.S. courts the power to hear claims by victims of terrorism against the Palestine Liberation Organization and the Palestinian Authority violates the Fifth Amendment’s guarantee of fair treatment.
The Promoting Security and Justice for Victims of Terrorism Act of 2019 provides that the PLO and the PA are “deemed to have consented to personal jurisdiction” in any civil case brought under the federal Anti-Terrorism Act, a 1992 law that allows lawsuits in federal court to recover treble damages for any U.S. national injured by international terrorism. The PSJVTA applies regardless of when the act of terrorism occurred, if at any time after the law was enacted the PLO or the PA made payments to the families of terrorists, either dead or in prison, responsible for the deaths or injuries of U.S. nationals. The PLO and PA can also be deemed to have given their consent to jurisdiction if they maintain offices or conduct activities in the United States, although the law does not apply to official United Nations business.
A group of U.S. citizens injured during terror attacks in Israel, along with the survivors of U.S. citizens killed in such attacks, filed a lawsuit in 2004. U.S. District Judge George Daniels determined that his court had jurisdiction over the PLO and the PA.
In 2015, a jury found the PLO and the PA liable for six terror attacks and awarded the victims $218.5 million. Under the Anti-Terrorism Act, that figure was automatically tripled to $655.5 million.
The U.S. Court of Appeals for the 2nd Circuit threw out the case the following year. It concluded that the PLO and the PA did not have sufficient contacts with the United States to be sued there in connection with the terrorist attacks. That prompted Congress (after an initial effort to address the jurisdictional problem was unsuccessful) to pass the PSJVTA.
The victims and families had appealed to the Supreme Court, which then sent the case back to the lower courts for another look in light of the PSJVTA.
In 2020, the family of a U.S. citizen who was murdered in the West Bank in 2018 filed their own lawsuit against the PLO and the PA in federal court.
While emphasizing that it found the terror attacks that gave rise to the case “unquestionably horrific,” the 2nd Circuit once again ruled that it lacked jurisdiction over the victims’ cases. The activities that trigger jurisdiction under the PSJVTA, the court of appeals explained, cannot “reasonably be interpreted” as showing that the PLO and the PA “consented” to be subject to courts in the United States.
The full 2nd Circuit declined to reconsider the question. Four judges dissented from that decision, in an opinion by Judge Steven Menashi that characterized the issue as one of “exceptional importance.”
Both the federal government (which had joined the cases to defend the constitutionality of the PSJVTA) and the victims came to the Supreme Court, asking the justices to take up the question. The victims told the justices that the lower court’s decision was “more than dangerous” but was in fact “flat wrong.” Moreover, they added, the court of appeals “hamstrung Congress on matters involving foreign affairs and national security.”
The federal government echoed those arguments, arguing that “Congress’s judgment that the PSJVTA is an important measure to further U.S. interests and protect and compensate U.S. nationals.”
The PLO and PA countered that the 2nd Circuit’s rulings have only a limited practical effect because they apply only to the PLO and PA – but not to “Hamas, Hezbollah, the Islamic State, or any other terrorist groups or state-sponsors of terrorism.” And in any event, they added, U.S. courts will continue to have jurisdiction over cases brought under the ATA “where attacks are targeted at America or U.S. citizens, or are planned or financed in the United States.”
In a brief unsigned order, the justices agreed on Friday to take up both the victims’ case and that of the federal government and consolidated them for one hour of oral argument.
The justices also agreed to hear Rivers v. Lumpkin
, in which they will decide whether and in what circumstances the federal law that strictly limits the circumstances in which an inmate can file a second petition for federal post-conviction relief prohibits an inmate from seeking to amend his original petition while it is pending on appeal.
The justices will issue more orders from their private conference at 9:30 am on Monday. That list of orders, however, is likely to consist primarily of orders denying review and is not expected to add new cases to the 2024-25 docket.
The Petitions of the Week column highlights some of the cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.
The Sixth Amendment gives defendants in criminal trials the right “to be confronted with the witnesses against” them. Known as the confrontation clause, this provision has been interpreted by the Supreme Court to recognize that cross-examining the prosecution’s witnesses is especially essential to a fair trial in the criminal context. This week, we highlight petitions that ask the court to consider, among other things, whether allowing key prosecution witnesses to testify remotely over a two-way video call violates the confrontation clause.
John Won and Tae Hung Kang are New York residents charged with operating an international investment scam. Through a series of ads placed in Korean newspapers and radio programs, as well as in-person seminars in a Korean enclave of Queens, Won and Kang sold dozens of individuals on a lucrative offer to speculate in foreign currency markets. The pair hinted that they had a “secret trading method” guaranteeing 10% returns with zero risk.
In reality, Won and Kang had no such method. They allegedly spent many investors’ funds on business expenses and personal salaries instead. After an investigation by the U.S. Commodity Futures Trading Commission, federal prosecutors charged the pair with a slew of fraud and securities crimes.
Won’s trial was scheduled for November 2021, a year-and-a-half into the COVID-19 pandemic. Although vaccinations were by then available and international travel was expanding, the pandemic’s effects still lingered. For its part, the federal courthouse in Brooklyn had resumed in-person trials but continued to hold many pre-trial conferences remotely. At one of those conferences, the government sought permission for two key witnesses who lived outside the country to testify over a two-way video call.
Won objected, arguing that virtual testimony by government witnesses at his criminal trial would deprive him of his rights under the confrontation clause. Only in-person testimony can satisfy the Sixth Amendment, he insisted, because cross-examining a witness on a video screen deprives jurors of key cues they need to evaluate that witness’s credibility.
The government responded that each witness was “crucial” and that travel would be more than merely inconvenient for them. One witness, a professor in South Korea who had invested in Won and Kang’s scheme, was a caretaker for his elderly mother and worried about both leaving her behind for weeks and exposing her to COVID-19. The other witness, an employee of a foreign currency exchange in Hong Kong who had dealt extensively with Won, would be required to quarantine for three weeks, at his own expense, upon his return.
In the end, the trial court allowed the two witnesses to testify by video. The jury convicted Won on all counts.
The U.S. Court of Appeals for the 2nd Circuit rejected Won’s request for a new trial. Relying on a prior circuit decision, the 2nd Circuit concluded that “exceptional circumstances” justified the virtual testimony in Won’s case notwithstanding the confrontation clause. Although “two-way video ‘should not be considered a commonplace substitute for in-court testimony,’” the court of appeals wrote, the pandemic was precisely the type of exceptional circumstance contemplated by its prevailing policy.
In Won v. United States
, Won asks the justices to grant review and reverse the 2nd Circuit’s ruling. He argues that in permitting two-way video testimony from government witnesses in criminal trials, the 2nd Circuit stands alone from its sister circuits, which have uniformly held that the confrontation clause requires in-person testimony and cross-examination. Moreover, Won contends that the ruling is in tension with prior Supreme Court decisions allowing video testimony only under a tougher standard — when justified by “important public policy,” such as shielding children who were sexually abused from having to face their alleged abusers in court. “The Confrontation Clause applies in all circumstances,” Won writes, “even ‘exceptional’ ones.”
The government urges the justices to leave the 2nd Circuit’s ruling — and Won’s conviction — in place. Regardless of the behavior of other circuits, the government argues, the 2nd Circuit’s approach to video testimony is consistent with the Supreme Court’s own cases, which have interepreted the confrontation clause as a “preference” for in-person testimony rather than an “absolute” rule. And in any event, the admission of remote testimony was “harmless” in Won’s case because prosecutors had ample other evidence for conviction, the government reasons.
A list of this week’s featured petitions is below:
Burt v. Gordon
24-73 Issue: Whether the U.S. Court of Appeals for the 6th Circuit improperly denied qualified immunity to prison officials based on their response to the unprecedented COVID-19 global pandemic by defining the relevant law at too high level of generality, and identifying no precedent recognizing a constitutional right under similar circumstances that would have put reasonable officials on notice that their conduct may violate the Constitution given the novel challenge of the pandemic.
Crouch v. Anderson
24-90 Issues: (1) Whether West Virginia violated the equal protection clause of the 14th Amendment by declining to cover surgical treatments for gender dysphoria; and (2) whether West Virginia violated the Medicaid Act
and the Affordable Care Act
by declining to cover surgical treatments for gender dysphoria.
Folwell v. Kadel
24-99 Issue: Whether a state’s decision to decline to provide health benefit coverage for treatments leading to sex changes violates the equal protection clause of the 14th Amendment.
Zuniga-Ayala v. Garland
24-103 Issue: Whether, under the categorical approach, when a state statute of conviction on its face criminalizes conduct not prohibited by the corresponding federal statute, this mismatch defeats removal under 8 U.S.C. § 1227(a)(2)
, or a noncitizen must instead show something more.
Won v. United States
24-121 Issue: Whether the confrontation clause of the Sixth Amendment contains an exception that permits the government to present testimony at a criminal trial by two-way video so long as “exceptional circumstances” are present and admitting such testimony would serve the “interest of justice.”
Catholic Charities Bureau, Inc. v. Wisconsin Labor & Industry Review Commission
24-154 Issues: (1) Whether a state violates the First Amendment’s religion clauses by denying a religious organization an otherwise-available tax exemption because the organization does not meet the state’s criteria for religious behavior; and (2) whether, in addressing federal constitutional challenges, state courts may require proof of unconstitutionality “beyond a reasonable doubt.”
