This week at the court

This week at the court

On Monday, the Supreme Court released orders from the June 20 conference; the justices granted eight new cases, for a total of five hours of oral argument next term: Guerrero-Lasprilla v. BarrOvalles v. Barr, Dex Media Inc. v. Click-To-Call Technologies, LP, Maine Community Health Options v. United States, Moda Health Plan Inc. v. United States, Land of Lincoln Mutual Health Insurance Co. v. United States, Georgia v. Public.Resource.Org Inc. and Banister v. Davis.

Also on Monday, the justices released their opinions in four argued cases: United States v. DavisFood Marketing Institute v. Argus Leader MediaIancu v. Brunetti and The Dutra Group v. Batterton.

The Supreme Court will release opinions in one or more argued cases on Wednesday at 10 a.m.

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Opinion analysis: Punitive damages not available under general maritime law in personal-injury unseaworthiness action

Opinion analysis: Punitive damages not available under general maritime law in personal-injury unseaworthiness action

In a decision implicating two of its recent admiralty precedents and its role in fashioning general maritime law more generally, the Supreme Court today held 6-3 that a seaman cannot recover punitive damages for injuries allegedly caused by the unseaworthiness of a vessel to which he was assigned.

Justice Samuel Alito rested his majority opinion largely on the absence of a “historical basis for allowing punitive damages in unseaworthiness actions” and “to promote uniformity with the way courts have applied parallel statutory causes of action.” That formulation allowed Alito to reconcile the two precedents, the 2009 decision in Atlantic Sounding Co. v. Townsend and the 1990 opinion in Miles v. Apex Marine Corp. In the process, Alito, who had written a forceful dissent in Atlantic Sounding, was joined in today’s opinion by Justice Clarence Thomas, the author of the majority opinion in Atlantic Sounding, even though Justice Ruth Bader Ginsburg, who had joined Thomas then, argued in dissent that the logic of Thomas’ majority opinion dictated a contrary result.

The Supreme Court had held 5-4 in Atlantic Sounding that punitive damages are available to a seaman for an employer’s willful and wanton disregard of its obligation to pay maintenance and cure, a strict remedy essentially affording a very limited allowance for some living and medical expenses. Christopher Batterton argued in this case that Atlantic Sounding supports allowing recovery of exemplary damages for personal injuries due to a vessel owner’s willful and wanton failure to provide a vessel reasonably fit for its intended purpose, the test for the unseaworthiness action the general maritime law provides.

Yet Miles had held that the estate and survivors of a deceased Jones Act seaman could not recover for nonpecuniary loss under the general maritime-law unseaworthiness doctrine because such relief was unavailable under the Jones Act, a statute that provides a seaman a negligence remedy against his or her employer, modeled on the Federal Employers Liability Act applicable to railroad workers. The Dutra Group argued that the logic of Miles precludes allowing a seaman to recover punitive damages under a general maritime-law unseaworthiness action because the Jones Act and FELA were thought to bar such recovery.

Alito found that “the overwhelming historical evidence” suggests that exemplary damages were unavailable in an unseaworthiness action for personal injuries. The absence of such recovery in “traditional maritime law cases” was “practically dispositive.” The “overwhelming historical evidence” precluded creating “a novel remedy” unless necessary to preserve “uniformity with Congress’s clearly expressed policies,” a formulation drawn from Miles.

The majority also thought the uniformity consideration led to the same result as its historical inquiry. Consistent with his Atlantic Sounding dissent, Alito concluded that long-standing Supreme Court and lower court precedent precluded recovery of punitive damages under FELA and the Jones Act. In Atlantic Sounding, Thomas had relied on “historical evidence” that punitive damages had been available in maintenance-and-cure cases, but the absence of such proof regarding unseaworthiness cases made it unnecessary for the court to revisit the long-standing interpretation of these federal statutes. The situation accordingly did not call on the court to fashion a novel remedy “to maintain uniformity with Congress’s clearly expressed policies.”

Alito was unpersuaded by multiple public-policy arguments raised by Batterton. The Supreme Court’s “overriding objective” in maritime cases is “to pursue the policy expressed in congressional enactments.” Because the Supreme Court had created “unseaworthiness in its current strict-liability form” following the Jones Act,  “it would exceed our current role to introduce novel remedies contradictory to those Congress has provided in similar areas.” The need for uniformity between maritime common law and maritime statutory law is particularly compelling because unseaworthiness, more than maintenance and cure, resembles and duplicates the Jones Act. Punitive damages are a needed incentive to deter an employer from abandoning an ill or injured seaman in a distant port, but vessel owners have other incentives to avoid unseaworthy conditions. Allowing punitive damages in injury cases would also create various anomalies and would disadvantage American shippers.

Finally, Alito rejected the argument that the doctrine that seamen deserve “special solicitude” justifies a punitive-damages remedy. Alito reasoned that in view of changes in the respective maritime-law roles of the Supreme Court and the political branches and in the position of seamen, “the special solicitude to sailors has only a small role to play in contemporary maritime law,” a statement that seemed at odds with the court’s invocation of that doctrine to “reinforce[]” its decision in Justice Brett Kavanaugh’s majority opinion in Air & Liquid Systems Corp. v. Devries just over three months ago. Chief Justice John Roberts and Justices Elena Kagan and Kavanaugh joined both majority opinions, which seem to assign different weight to the “special solicitude” doctrine.

Ginsburg’s dissent, which Justices Stephen Breyer and Sonia Sotomayor joined, started from the premise that punitive damages are normally available in maritime cases, and accordingly viewed the court’s decision as an exception that followed Miles instead of Atlantic Sounding. She distinguished Miles as  involving the more narrow situation in which a judge-made cause of action was created as a gap-filler. In her view, Atlantic Sounding provides the appropriate approach. The court reasoned in that case that punitive damages had a long common-law pedigree whose general applicability was not undermined by anything in maritime law. Contrary to Alito’s claim that Atlantic Sounding relied on evidence of the availability of punitive damages in maintenance and cure cases, Ginsburg cited Alito’s Atlantic Sounding dissent for the proposition that little such authority existed. Nor did Congress preclude punitive damages under the Jones Act, a question Atlantic Sounding had reserved. The Jones Act had expanded, not contracted, a seaman’s remedies and had not barred punitive damages in unseaworthiness actions. The general availability of punitive damages in maritime matters should govern here, too.

Both opinions, as had Kavanaugh’s earlier Air & Liquid Systems Corp. majority opinion, explicitly or implicitly reaffirm the court’s role in fashioning federal common law in an admiralty context. Alito’s majority opinion endorses the approach Justice Sandra Day O’Connor took in Miles in suggesting that the court’s formulation of general maritime law will be somewhat constrained by legislative policies in areas in which Congress has been active.

The decision produced a somewhat unusual alignment, as Alito’s opinion was joined by Roberts, Thomas, Kagan, Justice Neil Gorsuch and Kavanaugh. Ginsburg and Breyer had been part of the five-justice majority in Atlantic Sounding, but significantly, Thomas, who wrote that opinion, silently joined Alito’s majority opinion in this case. At oral argument, Kagan had focused on how the justices might reconcile their general maritime-law-making role with the Jones Act and she may have found appealing a resolution that expressed deference to congressional policies and perceived doctrine, especially given her recent protests against the court’s overturning long-standing precedents.

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Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information

Opinion analysis: Court gives broad meaning to “confidential” in FOIA exemption for commercial and financial information

In Food Marketing Institute v. Argus Leader Media, the Supreme Court held today that the Freedom of Information Act allows a federal agency to withhold from disclosure records submitted by a private entity when the submitter keeps the records secret and the agency promises to keep the records from disclosure. In an opinion by Justice Neil Gorsuch for a six-justice majority that included the court’s other conservatives and Justice Elena Kagan, the court overruled the U.S. Court of Appeals for the 8th Circuit’s decision below, which was based on longstanding precedent from the U.S. Court of Appeals for the District of Columbia Circuit that had held sway among most of the other circuits. Focusing only on the relevant statutory language, the majority concluded that an agency and private submitter need only show that the records are kept “confidential,” in the court’s broad interpretation of the term, and not that disclosure would cause any harm to the private-sector submitter.

The case concerned a request by a South Dakota newspaper, the Argus Leader, for records that would disclose data about the U.S. Department of Agriculture’s Supplemental Nutrition Assistance Program, known as SNAP. That data included commercial information about the retail grocery stores at which SNAP recipients purchase their groceries. USDA and the grocers whose data had been captured in SNAP transactions claimed that the retailers’ individual market positions, which they keep secret from competitors and the general public, would be revealed by the information’s release. The 8th Circuit, affirming a district court decision, had held that the SNAP data was not exempt from FOIA because the grocers could not meet the prevailing Exemption 4 test first adopted by the D.C. Circuit in 1974 in National Parks & Conservation Association v. Morton. National Parks had held that Exemption 4 applied only to information whose disclosure is likely “(1) to impair the Government’s ability to obtain necessary information in the future; or (2) to cause substantial harm to the competitive position of the person from whom the information was obtained.” The grocers could show that they kept the data from the public and their competitors, and that USDA assured them it would keep the information private (as the United States stated in its amicus brief and during oral argument). But the grocers could not show a likelihood of substantial harm from the information’s disclosure.

After holding that the grocers had standing to sue because the injury they would suffer from disclosure would be fairly traceable to the decision that Exemption 4 does not apply and could therefore be redressed by a decision that it does, the Supreme Court held that the statutory language did not support the National Parks test. FOIA’s Exemption 4 applies to “commercial or financial information obtained from a person and privileged or confidential,” as stated in 5 U.S.C. § 552(b)(4). In interpreting the word “confidential,” Gorsuch focused solely on dictionary definitions from the time of FOIA’s original enactment, none of which considered harm from disclosure to be an aspect of the word’s meaning.

Instead, the contemporaneous understanding of “confidential” extended to information customarily kept private, and also included assurances given by the receiving party that it would keep privately disclosed information secret. This, the Supreme Court observed, had been the test in some circuit courts prior to National Parks. It will now be the authoritative test under Food Marketing Institute: Henceforth, a private-sector submitter of information to an agency will only need to show their efforts to keep the information private and the assurances they received from the agency that it would keep the information from the public. No longer will a submitter need to show any harm, whether substantial or negligible.

Joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor, Justice Stephen Breyer’s partial dissent agreed with the majority that the statutory text could not support the substantial-competitive-injury test that National Parks had established. But the dissent disagreed with the majority’s decision to remove harm entirely from consideration under Exemption 4. Finding definitions of “confidential” in other contexts (including national security) in which disclosure’s consequences are deemed part of a confidential classification, the dissent would have required more than merely a process-related definition established by the direct parties to the provision and receipt of the information. The dissent worried that the new test would allow, and perhaps even incentivize, private entities and agencies to overstate their efforts to keep information private in contexts in which disclosure would not harm the submitter but would serve a public benefit. A more expansive exemption that does not even consider harm to the submitter, the dissent argued, runs counter to FOIA’s purpose of informing the public and enabling citizens to hold the government accountable for its decisions.

The decision is significant in two regards. First, it will broaden the reach of Exemption 4, making it easier for private records to be kept from disclosure. Food Marketing Institute will benefit businesses in regulated industries who are frequently asked or required to provide information to government agencies that is confidential but does not meet the definition of “trade secret” that federal courts apply to Exemption 4. But it will frustrate news media, watchdogs and competitors who will be less likely to have their FOIA requests met. Notably, the majority never explained that the Argus Leader submitted its FOIA request as part of its investigation into SNAP-related fraud. That investigation will now have to proceed without access to the SNAP data. The decision’s influence will vary among administrations and even among agencies within the same administration, depending on the extent to which agencies provide assurances that they will keep submitted records private. But it will narrow access to information the government holds.

The decision also offers a snapshot of statutory interpretation on the Roberts Court. Gorsuch’s decision began and ended with the statutory text. He interpreted the key term that the statute did not define solely by reference to contemporaneous dictionaries. He did not consider FOIA’s legislative history or Congress’ purpose in enacting it. Nor was he persuaded by the newspaper’s effort to argue for the relevance of common law definitions of “confidential” and of Congress’ implied ratification of National Parks in more recent FOIA amendments and in similar language Congress has incorporated into other statutory provisions. This approach is consistent with Kagan’s 2011 decision in Milner v. Department of Navy, which also overruled an influential and longstanding D.C. Circuit test for a FOIA exemption — although Milner, from which only Breyer dissented, included legislative purpose as a secondary justification. The Food Marketing Institute dissent argued that abandoning harm as a part of Exemption 4 runs counter to FOIA’s general purpose of requiring broad disclosure, and rejects prior statements in Supreme Court FOIA precedent prescribing narrow readings of the statute’s exemptions. The majority considered only the text. Justice Antonin Scalia might well have been pleased by what this decision says about the influence on the court’s interpretive practice of his textualist approach to statutory interpretation.

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Challengers notify justices about additional developments in census case

Challengers notify justices about additional developments in census case

The Supreme Court is expected to rule any day now on the legality of the Trump administration’s decision to include a question about citizenship on the 2020 census. Despite that looming deadline, the wrangling over new evidence, some of which was discovered in the files of a Republican redistricting specialist, continued today, with lawyers for the challengers notifying the justices about new developments outside the Supreme Court.

The justices heard oral argument in the case in late April. At the end of May, the challengers notified the Supreme Court about new evidence that, they said, demonstrated that the strategist – Thomas Hofeller, who died last year – was involved in the decision to add the citizenship question to the census. The evidence, the challengers argued, showed that the government wanted to add the citizenship question to give an advantage to whites and Republicans in upcoming elections – not, as the government has long maintained, to better enforce federal voting-rights laws.

Earlier this month, the challengers asked the Supreme Court to put off its ruling on the citizenship question in light of the new evidence. Instead, they contended, the justices should send the case back to the district court for it to look at whether government officials shared Hofeller’s motives. The government resisted, calling the challengers’ suggestion a “conspiracy theory” that is “implausible on its face.” The justices need to resolve the legality of the citizenship question by the end of June, the government stressed, so that the Department of Commerce can finalize the census questionnaire and start printing the forms.

With no sign of any action on the challengers’ request, today the challengers returned to the Supreme Court to inform the justices about two more developments. A federal judge in Maryland, explained lawyer Dale Ho of the ACLU, ruled that the new evidence had created a “substantial issue” about whether Secretary of Commerce Wilbur Ross had intended to discriminate against Hispanic voters. Although the case is now pending in the U.S. Court of Appeals for the 4th Circuit, U.S. District Judge George Hazel indicated that if it were sent back to him, he would move quickly to rule on the Maryland challengers’ discrimination and civil-rights claims.

The challengers also told the justices about a new Census Bureau paper that indicates that the effect of including the citizenship question on responses by households with residents who are not U.S. citizens will be more significant than previously believed.

The justices will take the bench to release opinions again on Wednesday morning at 10 a.m. There is no way to know whether the census case will be one of those opinions or – if it is not – when the decision will be released.

This post was originally published at Howe on the Court.

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Opinion analysis: Long-time prohibition on registration of scandalous and immoral trademarks is struck down

In a 6-3 ruling, the Supreme Court today struck down a provision of the Lanham Act that prohibited trademark registration for marks deemed “immoral” or “scandalous.” This is a win for Eric Brunetti, whose trademark for a streetwear brand, FUCT, had been rejected on these grounds. The case follows the court’s 2017 decision in Matal v. Tam, which invalidated a ban on registration for disparaging trademarks on the same basis; the disparagement bar had allowed trademark owners to register a mark that was positive about a person, but denied registration to derogatory marks.

Justice Kagan with opinion in Iancu v. Brunetti (Art Lien)

Writing for the majority, Justice Elena Kagan found that the “immoral or scandalous” bar discriminated on the basis of viewpoint and violated the First Amendment: “It distinguishes between two opposed sets of ideas: those aligned with conventional moral standards and those hostile to them; those inducing societal nods of approval and those provoking offense and condemnation. This facial viewpoint bias in the law results in viewpoint discriminatory application.” Justices Ruth Bader Ginsburg, Samuel Alito, Clarence Thomas, Neil Gorsuch and Brett Kavanaugh joined the majority opinion.

No one seemed to like the statute in its current form, although the justices expressed some discomfort with getting rid of it entirely, both during oral argument and in the Supreme Court’s divided opinions. For its part, the government argued that if the statute were upheld, it would interpret the provision more narrowly going forward. The government agreed that the statute as it has been interpreted incorporates viewpoint bias, yet suggested that the “immoral or scandalous” bar is capable of being limited in a way that would remove such bias — for example, by narrowing it to marks that are offensive or shocking because of their mode of expression, independent of viewpoint. The majority rejected this argument, noting that although the court may interpret ambiguous statutory language to avoid serious constitutional doubts, this provision was not ambiguous: “To cut the statute off where the Government urges is not to interpret the statute Congress enacted, but to fashion a new one.”

Justice Stephen Breyer wrote a divided opinion, concurring in the court’s holding that the bar on registering “immoral” marks violates the First Amendment holding but dissenting from that holding as applied to “scandalous” marks. He reasoned that this portion of statute passes First Amendment muster because the harm to the First Amendment interests is proportional in light of relevant regulatory objectives. Under his analysis, the First Amendment harm is limited because trademark owners can still use offensive trademarks, just not register them, and the government has a reasonable interest in not promoting or associating with highly vulgar or obscene speech.

Breyer also joined Justice Sonia Sotomayor’s divided opinion. Sotomayor was particularly concerned about outcomes from the decision, including a likely “rush to register” offensive marks and the “Government’s powerlessness to say no.” To avoid these problems, Sotomayor proposed separating “scandalous” and “immoral,” eliminating the “immoral” prong, and construing “scandalous” narrowly. In Sotomayor’s view,  the majority opinion collapsed the two concepts. Standing alone, the term “scandalous” need not be understood to reach marks that offend because of the ideas they convey; it can be read more narrowly to bar only marks that offend because of their mode of expression — marks that are obscene, vulgar or profane.

Multiple justices explicitly raised or alluded to the possibility that Congress could move forward with a more carefully focused statute that does not discriminate on the basis of viewpoint. In a concurrence, Justice Samuel Alito noted that the Supreme Court’s role is limited and it cannot substitute a new statute in place of this one as it is written. In particular, his concurrence explicitly stated that new legislation could preclude registration of marks that contain terms that “play no real part in the expression of ideas.” Chief Justice John Roberts also focused on narrower statutory language in his divided opinion. Roberts commented that the government is not required to “give aid and comfort to those using obscene, vulgar, and profane modes of expression.” And in his opinion, Breyer asserted that the statute would not discriminate based on viewpoint if it prohibited registration of only highly vulgar or obscene words.

In light of the decision in Tam, today’s outcome seemed the most likely one. To hold otherwise could have produced an anomalous situation in which the only types of “offensive” trademarks that could be registered are ones that disparage particular individuals or groups of people. And although Alito lamented that the “registration of such marks serves only to further coarsen our popular culture,” whether or not Congress steps in at this point remains to be seen.

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A “view” from the courtroom: From the T-shirt shop to the high seas

A “view” from the courtroom: From the T-shirt shop to the high seas

With 12 opinions remaining, no one expects today to be the last day of the court’s term. Still, there is an air of anticipation and some special guests are in the courtroom this morning.

In the public gallery, the second group of high-school teachers from the Supreme Court Summer Institute for Teachers is here. (The first group was here last Monday.) Both groups held moot courts on American Legion v. American Humanist Association, about whether a World War I memorial cross in Bladensburg, Maryland, violates the establishment clause. The institute’s first group of teachers serving as high-court justices ruled overwhelmingly to allow the cross to remain. This past weekend, the second group, even with the benefit of the real Supreme Court’s decision last Thursday in favor of the cross, ruled narrowly against the American Legion and the state of Maryland. Those civics teachers are independent spirits.

Opinions announced by Justices Gorsuch, Kagan and Alito (Art Lien)

Elsewhere in the public gallery, there is a group of about a dozen or more high school students, ready for a firsthand civics lesson. They will soon be joined in the courtroom by two more pupils. Margaret and Liza Kavanaugh, the daughters of Justice Brett Kavanaugh, arrive with their mother, Ashley, and take their seats in the VIP section. There are many tender ears here this morning.

Also in the VIP section are Martha-Ann Alito, the wife of Justice Samuel Alito, and Joanna Breyer, the wife of Justice Stephen Breyer.

Justice Kavanaugh’s wife and daughters seated in the courtroom (Art Lien)

In the press section, this is the time of the year when most regular reporters feel duty-bound to stay in the press room on the ground floor, adjacent to the Public Information Office, where opinions are distributed as soon as a justice begins reading from his or her summary from the bench. That way, reporters may immediately take to Twitter or the web to give their first take on the news.

Some news outlets arrange for another reporter to assist their Supreme Court correspondent by going up to the courtroom to observe. The Washington Post’s regular court reporter, Robert Barnes, has been aided in recent days by ace legal reporter Ann Marimow. Adam Liptak, the Supreme Court correspondent of The New York Times, is being assisted today by Peter Baker, the Times’ senior White House correspondent as well as an accomplished author and a familiar face on cable television.

As Solicitor General Noel Francisco and his team arrive, there is another familiar face that has been in the news in recent days. Michael Dreeben, a longtime deputy solicitor general who specializes in criminal matters, is here today for the first time in quite a while. Dreeben was dispatched to special counsel Robert Mueller’s office for the investigation of Russian interference in the 2016 election.

Dreeben, a 30-year Department of Justice veteran who has argued more than 100 cases before the Supreme Court, is leaving the department in coming weeks, the department’s public affairs office has confirmed. He has not indicated publicly where he is going. (Chief Justice John Roberts recognized Dreeben’s 100th argument in April 2016.)

The court takes the bench, and the chief justice announces that Justice Neil Gorsuch “has the opinion this morning in two cases.”

The first is United States v. Davis, about whether a provision of federal law defining a “crime of violence” for purposes of federal criminal prosecution for using a gun during such a crime is unconstitutionally vague.

Right at the outset of his bench announcement, Gorsuch stresses that the two defendants in the case, who robbed several gas stations in Texas and were convicted of multiple federal crimes, “are going to spend a very long time in prison.”

This nonetheless suggests that he is coming down on the side that the provision is unconstitutionally vague, and that is the holding of the court. Gorsuch explains that Kavanaugh has filed a dissenting opinion, joined in full by Justices Clarence Thomas and Alito, and in part by Roberts.

So, it’s another split between the court’s two newest justices, and another 5-4 decision.

Gorsuch’s second opinion is Food Marketing Institute v. Argus Leader Media, about whether certain commercial or financial information provided to the government qualifies as confidential and thus subject to an exemption from disclosure under the Freedom of Information Act.

The case arises from efforts by a South Dakota newspaper, the Argus Leader, to report on fraud in the federal food-stamp program, which is formally called the Supplemental Nutrition Assistance Program, “or SNAP,” Gorsuch says snappily.

The newspaper sought store-level SNAP data as part of its investigation of retailer fraud in the program, but the U.S. Department of Agriculture withheld the data based on FOIA’s Exemption 4, which shields trade secrets and other privileged or confidential commercial or financial information.

The U.S. Court of Appeals for the 8th Circuit ruled for the newspaper, applying the “substantial competitive harm” test developed decade ago by the U.S. Court of Appeals for the District of Columbia Circuit in National Parks & Conservation Association v. Morton.

“Today, we reject National Parks’ ‘substantial competitive harm’ test as a relic from a bygone era of statutory construction,” Gorsuch says.

Breyer has filed an opinion concurring in part and dissenting in part, joined by Justices Ruth Bader Ginsburg and Sonia Sotomayor.

The chief justice announces that Justice Elena Kagan has the opinion in Iancu v. Brunetti, about whether the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” trademarks violates the First Amendment.

Justice Kagan with opinion in Iancu v. Brunetti (Art Lien)

This is when we get anxious about the tender ears of the teenagers and preteens in the courtroom today. The proposed trademark at issue in this highly publicized case is from a line of streetwear founded by Erik Brunetti of California under the name FUCT.

But that name will not be mentioned in the courtroom today. Just as the justices and the arguing counsel did contortions to avoid mentioning Brunetti’s mark or the many variations of vulgarities discussed in the briefs, Kagan keeps her bench announcement at most PG-rated. (She mentions it a mere three times in her written opinion.)

“The most fundamental principle of free speech law is that the government can’t penalize or disfavor or discriminate against expressions based on the ideas or viewpoints it conveys,” she says. “The ban on ‘immoral’ and ‘scandalous’ marks does just that.”

The prohibition “allows trademark registration when a mark’s message conforms with society’s sense of decency or morality,” Kagan continues. “But it prohibits any mark expressing a contrary view—when it goes against that societal sense. That’s exactly the kind of discrimination against ideas that the First Amendment prohibits.”

She adds that if that all sounds a little abstract, “some examples should make the point.”

The anxiety meter goes back up a few degrees, but her examples, drawn from the record and the briefs, stay on the tame side. She cites proposed marks such as “Marijuana Cola” and “You Can’t Spell Healthcare Without THC,” which were rejected by the U.S. Patent and Trademark Office because they glamorize drug use. Yet the PTO approved marks such as “Say No to Drugs” that express an anti-drug message. There are similar viewpoint-based distinctions on trademarks in the areas of religion and terrorism, she says. Those in the courtroom unfamiliar with the case would never guess that it stems from a line of clothing that skateboarders have been wearing for more than 20 years.

Kagan says the court cannot accept the limiting construction proposed at oral argument by Deputy Solicitor General Malcolm Stewart to read the statute to cover only marks that are lewd, sexually explicit or profane.

“But although we try to interpret statutes to avoid constitutional problems, we simply can’t rewrite Congress’s words,” she says.

Alito has filed a concurring opinion. Roberts has an opinion concurring in part and dissenting in part. Breyer has an opinion concurring in part and dissenting in part. And so does Sotomayor, joined by Breyer. None of these are read in the courtroom, even though the dissenting portions all suggest that those justices would adopt the government’s limiting principle and bar marks such as Brunetti’s.

The final opinion today is from Alito, and we’re moving from the T-shirt shop at the mall to the high seas.

In The Dutra Group v. Batterton, Alito writes for the court that a plaintiff may not recover punitive damages on a claim of unseaworthiness.

The case arises from an accident in which a hatch on a vessel exploded and seriously injured the hand of Christopher Bratton, a deckhand covered by the Jones Act of 1920.

Alito gives a brief history of legal claims protecting seamen, including “maintenance and cure” (which as his written opinion points out goes back to laws promulgated by Eleanor of Aquitaine in 1160) and “unseaworthiness,” which was meant to give sailors under contract to sail on a ship the right to collect their pay even when they refused to board what they discovered to be an unsafe vessel.

As with his discussion of the Yeti last week in his decision in Gamble v. United States, Alito again sprinkles a lively element into his bench announcement.

Think of the “old salt who put his mark to go out to sea on the S.S. Rusty Bucket,” Alito says. “When the sailor sobered up” he saw that this ship was “not very likely to make it to its destination.” Under a seaworthiness claim, that sailor could still collect his wages.

Alito skips ahead a bit and refers to two cases upon which Batterton relies to establish that punitive damages were traditionally available for breach of the duty of seaworthiness.

But upon close inspection, those cases—The Rolph, from 1923, and The Noddleburn, from 1886—do not support the respondent’s argument, Alito says.

The U.S. Court of Appeals for the 9th Circuit is reversed and the case is remanded. Ginsburg has a dissent, joined by Breyer and Sotomayor.

With that, there is an abrupt bang of the gavel by Marshal Pamela Talkin, who announces Wednesday is the next day of departure for the S.S. SCOTUS.

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Opinion analysis: Vagueness doctrine as a shield for criminal defendants

Opinion analysis: Vagueness doctrine as a shield for criminal defendants

Today, as expected, the Supreme Court invalidated 18 U.S.C. § 924(c)(3)(B). In United States v. Davis, the court declared that the categorical approach is dead, and with it Section 924(c)(3)(B). Justice Neil Gorsuch wrote the opinion for a 5-4 majority (joined by the four more liberal justices), and Justice Brett Kavanaugh wrote the dissent.

This case involved the constitutionality of a federal criminal statute — Section 924(c). Section 924(c) makes it a crime to use a firearm during or in relation to a crime of violence, and Section 924(c)(3)(B) (now defunct) defined a crime of violence as “any other offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In Sessions v. Dimaya, the Supreme Court held that the identical language was unconstitutionally vague when it appeared in Section 16(b), the general federal definition of a crime of violence. Today in Davis, the court said what is good for the goose is good for the gander: Section 924(c)(3)(B) is unconstitutionally vague as well.

In Davis, the federal government had agreed that Section 924(c)(3)(B), as currently interpreted, is unconstitutionally vague. Courts interpret Section 924(c) using the so-called categorical approach, which requires courts to assess whether the “typical version” of the defendant’s offense, defined by its elements, involves a substantial risk of force.

The government had urged the Supreme Court to kill the categorical approach in order to save Section 924(c). In its place, the government would have had courts assess whether the defendant’s actual conduct involved a substantial risk of force. Gorsuch’s majority opinion begins by conceding that a statute requiring an inquiry into the defendant’s actual conduct would not be unconstitutionally vague.

But, the majority continues, Section 924(c) is not that statute. Rather, after engaging in a straightforward exercise of statutory interpretation, the majority concludes that the text, structure and context of 924(c) all suggest that the statute requires courts to look at a generic offense and assess the risk of that offense, rather than the defendant’s conduct. The “language in the statute before us,” the majority goes on to say, “isn’t the language posited in the dissent’s push poll.” After determining the proper interpretation of Section 924(c), there was not much left for the majority to decide, because the court had already found that interpretation to be unconstitutionally vague in Dimaya.

Gorsuch’s majority opinion contains an interesting passage on the relationship between the doctrine of constitutional avoidance and the rule of lenity, which requires ambiguous criminal laws to be read in a defendant’s favor — an issue that he had raised at oral argument. The government had urged the court to invoke the canon of constitutional avoidance and interpret Section 924(c) in a way that would make it constitutional. The majority opinion primarily rejects the application of the canon of constitutional avoidance because the (much) better reading of the statute is that it requires the categorical approach.

But Gorsuch’s majority opinion suggests that the canon of constitutional avoidance is inapplicable for another reason as well. The opinion reasons:

[N]o one before us has identified a case in which this Court has invoked the canon to expand the reach of a criminal statute in order to save it… Employing the avoidance canon to expand a criminal statute’s scope would risk offending the very same due process and separation-of-powers principles on which the vagueness doctrine itself rests.

The majority opinion thus ensures that the canon of constitutional avoidance can function as a sword for criminal defendants. But it also declares that the vagueness doctrine operates as a shield to protect criminal defendants from attempts by the government to wield the constitutional-avoidance canon against them.

The opinion in Davis underscores an important jurisprudential difference in criminal cases between the two most recent nominees to the Supreme Court, Kavanaugh and Gorsuch. The tone of the majority opinion — and its concern about judges’ broadening already expansive criminal statutes — is very different from the tone of Kavanaugh’s dissent. The dissent opens with the claim that “crime and firearms form a dangerous mix,” and it then proceeds to discuss various statistics about violent crime. Against this backdrop, the dissent finds ways to interpret Section 924(c) that would save the statute, perhaps to rescue us from that “dangerous mix” of “crime and firearms.”

As I wrote in my argument analysis, Section 924(c) may be the last Johnson domino to fall — that is, the last criminal statute the Supreme Court invalidates on the basis of the court’s opinion in Johnson v. United States, which invalidated the Armed Career Criminal Act’s residual clause as unconstitutionally vague.

Johnson was a significant opinion, and so is Davis. But the reach of Johnson — and of Davis — will be dictated by the procedures that judges use to implement those decisions. For example, courts are addressing whether a defendant may be resentenced if the court that sentenced the defendant did not specifically identify which definition of “crime of violence” the court relied on — an invalid one, or one of the surviving ones. Another question that has divided the courts is whether a defendant who can be resentenced in light of Johnson (and now Davis) may rely on the Supreme Court’s subsequent decisions that interpret the scope of the other, still valid definitions of the phrase.

Those procedural questions will determine the reach of Davis and Johnson. Whether the Supreme Court will take up those questions, in addition to the flashier issues about whether particular provisions are unconstitutionally vague, remains to be seen.

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Justices bulk up next term’s docket

Justices bulk up next term’s docket

This morning the Supreme Court issued orders from last week’s conference. The justices granted review in eight cases, for a total of five hours of argument, including in a trio of cases involving the federal government’s failure to fully reimburse health insurance companies for losses created as a result of the Affordable Care Act. The justices did not, however, act on the federal government’s petitions seeking review of three lower-court decisions blocking it from ending the program known as Deferred Action for Childhood Arrivals, or DACA.

One part of the Affordable Care Act was drafted to encourage insurers to provide insurance to people with pre-existing conditions. The ACA set up a system to reimburse the insurers who lose money on these policies for some of their losses, but when Congress later restricted the funds available to the Department of Health and Human Services to pay the insurers, the insurers went to court.

Arguing on behalf of one insurer, Moda Health Plan, former U.S. solicitor general Paul Clement (who in 2012 led the challenge in the Supreme Court to the constitutionality of the ACA) told the justices that the “net effect” of Congress’ actions was “a bait-and-switch of staggering dimensions in which the government has paid insurers $12 billion less than what was promised.” The justices granted Moda Health’s petition for review to decide whether Congress can avoid its promise to pay the insurers for losses that they have already suffered just by enacting appropriations riders that restrict the sources of funds available to satisfy the government’s obligations. The company’s case will be argued in the fall at the same time as similar ones filed by Maine Community Health Options and Land of Lincoln Mutual Health Insurance.

Other cases granted today include:

  • Guerrero-Lasprilla v. Barr and Ovalles v. Barr, involving whether courts can review a request for equitable tolling of the deadline to file a statutory motion to reopen as a question of law, or whether it is a question of fact that cannot be reviewed. The cases will be argued together.
  • Dex Media Inc. v. Click-to-Call Technologies, involving whether federal patent law allows an appeal of the Patent Trial and Appeal Board’s decision to institute an inter partes review – that is, a procedure for challenging the validity of a patent – after a finding that a one-year time bar does not apply.
  • Georgia v. PublicResource.org Inc., involving whether works that lack the force of law, such as the annotations to Georgia’s code, can be copyrighted.
  • Banister v. Davis, involving whether and when a motion under Federal Rule of Civil Procedure 59(e), which sets out the procedures for a motion to alter or amend a judgment, should be treated instead as a second or successive petition for habeas corpus.

The justices asked the U.S. solicitor general for his views in three cases. After granting review last week in a group of cases involving the constitutionality of appointments to an oversight board created to get Puerto Rico back on its financial feet, today the justices called for the federal government’s views in a case that arose when a pension fund for Catholic school employees in Puerto Rico stopped making payments. The employees sued not only the fund, but also the Archdiocese of Puerto Rico and the Catholic church there. As it comes to the Supreme Court, the case involves the First Amendment, the rights of religious organizations and the extent to which courts must defer to how those organizations have structured themselves.

In Avco Corp. v. Sikkelee, the federal government will weigh in on whether the Federal Aviation Act pre-empts state-law claims alleging that a product’s design was defective. Jill Sikkelee contends that Avco sold a defective aircraft engine that was installed on an airplane that lost power shortly after takeoff in July 2005, killing Sikkelee’s husband.

And in Arizona v. California, the government will provide its views on the constitutionality of California’s “doing business” tax – which, Arizona says, is so broad that it taxes out-of-state companies that don’t have any connection to California except “purely passive investment” in a limited-liability company doing business in California. There is no deadline for the solicitor general to file his briefs.

The justices also granted a motion by NPR to unseal the briefs in the case of Christopher Price, an Alabama death-row inmate who was executed last month. Price had argued that executing him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment; the briefs that both Price and the state filed in the Supreme Court were heavily redacted because they contained information about the state’s lethal-injection protocol that had been deemed “confidential.” NPR argued that the complete version of the briefs should be available to the public, and today the justices agreed.

The justices did not act on the government’s petitions to review rulings by three lower courts that bar the government from ending the DACA program. The justices had considered the petitions at two private conferences in January before putting them on hold for several months.

The justices also failed to act on a petition by Alabama, which is appealing from a decision by the U.S. Court of Appeals for the 11th Circuit that invalidated a state law barring the use of what the state calls “dismemberment” abortions and physicians refer to as “dilation and evacuation.” The method is used for virtually all abortions starting at 15 weeks of pregnancy, although those abortions account for only seven percent of abortions in the state. The justices had repeatedly put off review of the state’s petition before finally considering it last week.

The justices are likely to issue additional orders later this week, after all of their merits opinions have been released. They could (although there is no guarantee) act on both the DACA cases and the Alabama abortion case at that time.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in Georgia v. PublicResource.org and Avco Corp. v. Sikkelee; John Elwood, the author of this blog’s Relist Watch, is among the counsel to the petitioner in the Georgia case. I am not affiliated with the firm and am not involved in either case.]

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Opinion analysis: Felons-in-possession must know they are felons

Opinion analysis: Felons-in-possession must know they are felons

In order to convict an unauthorized immigrant for gun possession, a federal prosecutor must prove not only that the defendant knew he possessed the gun but also that he knew he was out of immigration status, the Supreme Court ruled 7-2 on Friday in Rehaif v. United States. The decision will almost certainly lead to collateral attacks on convictions under a much more commonly invoked provision criminalizing gun possession by convicted felons.

Justice Stephen Breyer’s majority opinion stated that the federal law in question, 18 U.S.C. § 922(g), criminalizes possession of firearms by a person falling into any of nine enumerated status categories, one of which is aliens unlawfully in the United States, and another of which is anyone convicted of an offense punishable by at least a year in prison. The majority explicitly held that the government “must show that the defendant knew he possessed a firearm and also that he knew he had the relevant status when he possessed it.”

In a vehement dissent, Justice Samuel Alito, joined by Justice Clarence Thomas, protested that the decision will lead to a flood of challenges by people currently incarcerated under Section 922(g), most of them in the felon-in-possession category. Noting that 6,032 people were convicted in fiscal year 2017 alone under Section 922(g), with an average sentence of 64 months, Alito warned of a coming flood of litigation. Those whose direct appeals are not yet exhausted will “likely be entitled to a new trial,” said Alito, and others will move to have their convictions vacated under 28 U.S.C. § 2255.

Alito specifically outlined the group of prisoners who could file under Section 2255. “[T]hose within the statute of limitations will be entitled to relief if they can show that they are actually innocent of violating Section 922(g), which will be the case if they did not know that they fell into one of the categories of persons to whom the offense applies,” he wrote. “If a prisoner asserts that he lacked that knowledge and therefore was actually innocent, the district courts, in a great many cases, may be required to hold a hearing … and make a credibility determination as to the prisoner’s subjective mental state at the time of the crime.”

Petitioner Hamid Rehaif will be among those who get a hearing on whether he actually knew he was out of immigration status. He had come to the United States on a student visa to study at a university in Florida, but he was academically dismissed. In informing him about his dismissal, the university’s email notified him that his immigration status would be terminated if he did not transfer to another school or leave the United States, neither of which he did. Instead, he stayed in Florida. During that stay, he went to a firing range, purchased ammunition and fired weapons. Hotel staff tipped off the FBI that Rehaif was engaging in suspicious behavior.

At the ensuing trial, the district court instructed the jury that it need not find that Rehaif knew he was out of immigration status, and the jury convicted. The U.S. Court of Appeals for the 11th Circuit affirmed, noting substantial agreement among its fellow circuits that the term “knowingly” in 18 U.S.C. § 924(a)(2) applies to possession of the weapon, but not to the status category of the possessor.

Breyer’s majority opinion rejected that position. “In determining Congress’ intent, we start from a longstanding presumption, traceable to the common law, that Congress intends to require a defendant to possess a culpable mental state regarding ‘each of the statutory elements that criminalize otherwise innocent conduct,’” wrote Breyer. “Here we can find no convincing reason to depart from the ordinary presumption in favor of scienter [requirement of guilty mind].”

The phrase “otherwise innocent conduct” strongly echoed concerns voiced by Justices Neil Gorsuch and Brett Kavanaugh at oral argument. They had noted that possession of a gun alone is not blameworthy and therefore that one’s membership in a prohibited status category is all that stands between innocent and criminal conduct under Section 922(g). If the status divides innocent from criminal conduct, then the defendant should have to know of that status in order to be convicted, they suggested. Along those lines, the majority opinion acknowledged that the statute’s “harsh” maximum punishment of 10 years played a role in its decision.

Now that the court has decided that knowledge of status is required for a conviction under Section 922(g), prosecutors must think about what kinds of tangible evidence can be used to show that state of mind, and those looking to challenge their convictions must scour their records to find some evidence casting doubt on the existence of such knowledge. These tasks are complicated greatly by the fact that there are nine different status categories. While reminding prosecutors that they may prove state of mind through circumstantial evidence, the majority refused to get too specific, saying, “We express no view … about what precisely the Government must prove to establish a defendant’s knowledge of status in respect to other Section 922(g) provisions not at issue here.”

However, the majority opinion did mention two hypothetical fact scenarios in which there could be reasonable doubt that the defendant knew his status. Echoing a remark by Justice Sonia Sotomayor at argument, the majority pointed out that a failure to require knowledge would criminalize firearm possession by “an alien who was brought to the United States unlawfully as a small child and was therefore unaware of his unlawful status.” The court made the same observation about “a person who was convicted of a prior crime but sentenced only to probation, who does not know that the crime is ‘punishable by imprisonment for a term exceeding one year.’” This would seem a particularly important scenario, given that the vast majority of convictions occur by plea bargain, where the lawyer, not the defendant, does the negotiating. Moreover, the average defendant’s curiosity only extends to the prosecutor’s actual offer, not to the theoretical maximum punishment that the prosecutor could have sought under the statute.

The dissent expressed concerns that the majority’s decision will lead gun owners to keep themselves in the dark about their membership in Section 922(g) status categories. “Consider a variation on the facts of the present case,” wrote Alito. “An alien admitted on a student visa does little if any work in his courses. When his grades are sent to him at the end of the spring semester, he deliberately declines to look at them. Over the summer, he receives correspondence from the college, but he refuses to open any of it. He has good reason to know that he has probably flunked out and that, as a result, his visa is no longer good. But he doesn’t actually know that he is not still a student.”

The majority did not address this hypothetical, but it seems extremely unlikely that such a gambit would succeed. Model Penal Code Section 2.02(7) addresses the very situation contemplated by the dissent, sometimes referred to as the “ostrich defense” — sticking one’s head in the sand and then pleading ignorance of incriminating facts. Under this provision, because the hypothetical student was aware of a “high probability” that he was out of immigration status, his refusal to confirm that fact will not prevent a conclusion that he knew it.

Although nothing in the Model Penal Code is legally binding on its own accord, it seems unlikely that the court would reject Section 2.02(7). After all, the majority openly relied on Section 2.02(4) to support its conclusion that the term “knowingly” should apply to all nonjurisdictional elements of the offense. Perhaps more importantly, if the ostrich defense were permitted in Section 922(g) cases, it would be hard to explain why that gambit should not be permitted to defeat the knowledge requirements in hundreds or thousands of other criminal statutes nationwide.

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Live blog of orders and opinions

Live blog of orders and opinions

We’re live-blogging as the Supreme Court releases orders from the June 20 conference (at 9:30 a.m.) and opinions in one or more argued cases (at 10 a.m.). Join us. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.

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