Opinion analysis: Justices reject state-court justification for limiting tribal immunity from state-court actions to adjudicate title to land

Opinion analysis: Justices reject state-court justification for limiting tribal immunity from state-court actions to adjudicate title to landRarely have I read a set of opinions that so closely tracked the discussion at oral argument as the opinions this morning in Upper Skagit Indian Tribe v Lundgren. The case involves a narrow and technical question of sovereign immunity: whether the immunity of a federally recognized Indian tribe protects it from a suit in […]

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Opinion analysis: Justices reject state-court justification for limiting tribal immunity from state-court actions to adjudicate title to land

Rarely have I read a set of opinions that so closely tracked the discussion at oral argument as the opinions this morning in Upper Skagit Indian Tribe v Lundgren. The case involves a narrow and technical question of sovereign immunity: whether the immunity of a federally recognized Indian tribe protects it from a suit in state court to adjudicate the tribe’s claim to land located outside the tribe’s reservation. The Washington Supreme Court rejected the tribe’s plea of immunity, reasoning that tribal immunity never applies to suits that are brought “in rem” (against the land), as opposed to “in personam” (against the tribe itself). The Supreme Court’s decision this morning rejected the state court’s analysis for the time being, though the various opinions leave little reason to think that the tribe ultimately will prevail.

To give a little context, the case involves a 40-acre piece of land adjacent to the reservation of the Upper Skagit tribe in northwestern Washington, which the tribe purchased in 2013. When it undertook to survey the land, the tribe discovered a barbed-wire fence running for about 1,300 feet a few feet inside the boundary of the parcel. About one acre of the parcel was on the far side of the fence, adjacent to land owned by the respondent Lundgrens. When the tribe threatened to tear down the fence and build a fence on the parcel’s boundary, the Lundgrens claimed that they  own the land outside the fence under rules for “adverse possession,” because they have continuously exercised control over the land for more than half a century, with the acquiescence of the parcel’s prior owner.

The problem the Lundgrens faced in the Supreme Court is that there is almost no support for the distinction between “in rem” and “in personam” actions that the Washington Supreme Court offered to allow the Lundgrens’ suit to proceed. By the time of the oral argument, even the Lundgrens admitted that the only basis for that distinction was the Supreme Court’s 1992 decision in County of Yakima v Confederated Tribes and Bands of Yakima Nation, and the justices who discussed the question at the argument seemed to think Yakima could not support such a broad intrusion on sovereign immunity. Justice Neil Gorsuch’s brief opinion for the court bluntly dismissed the state court’s reliance on Yakima as “error,” explaining that “Yakima did not address the scope of tribal sovereign immunity.” Rather, he explained, “it involved only a much more prosaic question of statutory interpretation concerning the Indian General Allotment Act of 1887.” Thus, Yakima “resolved nothing about the law of sovereign immunity,” as the Lundgrens “[c]ommendably … acknowledged … at oral argument.”

If this were the only thing going on in the opinions, the tribe would win the case easily. The problem for the tribe, though, is that the reason the Lundgrens abandoned Yakima as a justification for the decision below is that they found a much stronger basis for rejecting the tribe’s sovereign immunity: the idea that a sovereign has no immunity for actions involving “immovable property” located in the territory of another sovereign.  As Gorsuch acknowledged, that doctrine has been recognized by the Supreme Court for more than 200 years. If the doctrine were adopted as an attribute of tribal sovereign immunity, the tribe would have no immunity from the Lundgrens’ action, because the Lundgren parcel is outside the Upper Skagit reservation. The majority of the justices, though, declined to resolve that question, “leav[ing] it to the Washington Supreme Court to address these arguments in the first instance.” The court noted that “[d]etermining the limits on the sovereign immunity held by Indian tribes is a grave question; … and the alternative argument for affirmance did not emerge until late in this case, … only when the United States filed an amicus brief.” Closing his opinion, Gorsuch suggested that “[t]he source of confusion in the lower courts that led to our review was the one about Yakima … , and we have dispelled it.  That is work enough for the day.”

To make matters worse for the tribe, the two separate opinions that accompanied Gorsuch’s opinion for the majority underscored that the justices are unlikely to welcome a decision by the Washington Supreme Court granting the tribe immunity on remand.  First, Chief Justice John Roberts (joined by Justice Anthony Kennedy) wrote briefly to suggest that it would be “intolerable” if a grant of immunity left the Lundgrens without any legal remedy to protect the land they have occupied since World War II. As his comments at the argument suggested, Roberts was particularly incensed by the suggestion of the solicitor general that the Lundgrens were free to “[g]o onto the disputed property and chop down some trees … or otherwise attempt” to force the tribe to come into court against them. Roberts found himself “skeptical that the law requires private individuals – who had no prior dealings with the Tribe – to pick a fight in order to vindicate their interests.”

Even more pointedly, Justice Clarence Thomas (joined by Justice Samuel Alito) filed a sharp dissent, almost twice as long as Gorsuch’s opinion for the majority, arguing that the “immovable property” exception to sovereign immunity is so well settled that the justices should have reached out to decide the question in this case rather than leaving it for the Washington Supreme Court. Thomas offered a tour de force of historical arguments, citing among other things four treatises that predated adoption of the Constitution, numerous decisions of the Supreme Court addressing the problem in the context of foreign sovereigns, and even longstanding guidance from the State Department on the question. For Thomas, the idea that a sovereign would be immune from litigation over land it held in the territory of another sovereign is so ridiculous that it was absurd for the court to leave the question unresolved. As Thomas put it, it is “difficult to justify” subjecting the Lundgrens to yet another round of litigation over the tribe’s claim of “a sweeping and absolute immunity that no other sovereign has ever enjoyed—not a State, not a foreign nation, and not even the United States.”

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Opinion analysis: Employers prevail in arbitration case

Opinion analysis: Employers prevail in arbitration case[NOTE: This post will be updated with additional analysis later in the day.] In 1925, Congress passed the Federal Arbitration Act, which (among other things) provides that an agreement to arbitrate a dispute “shall be valid, irrevocable, and enforceable.” Ten years later, Congress enacted the National Labor Relations Act, which makes clear that employees have […]

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Opinion analysis: Employers prevail in arbitration case

[NOTE: This post will be updated with additional analysis later in the day.]

In 1925, Congress passed the Federal Arbitration Act, which (among other things) provides that an agreement to arbitrate a dispute “shall be valid, irrevocable, and enforceable.” Ten years later, Congress enacted the National Labor Relations Act, which makes clear that employees have the right to work together for “mutual aid and protection.” Today the Supreme Court ruled, by a vote of 5-4, that employers can include a clause in their employment contracts that requires employees to arbitrate their disputes individually, and to waive the right to resolve those disputes through joint legal proceedings instead. Although it likely won’t garner the attention that some of this term’s other cases will receive, the decision was a huge victory for employers, because it could significantly reduce the number of claims against them.

Today’s opinion resolved three cases that were argued together on the first day of the term: Epic Systems Corp. v. Lewis, Ernst & Young LLP v. Morris and National Labor Relations Board v. Murphy Oil USA. Each arose when an employee who had signed an employment agreement that contained an arbitration provision filed a lawsuit in federal court, seeking to bring both individual and collective claims. The employers argued that, under the terms of the arbitration agreements, the employees needed to go to individual arbitrations, and today the Supreme Court agreed.

Justice Gorsuch with opinion in Epic Systems v. Lewis (Art Lien)

In an opinion by the court’s newest justice, Neil Gorsuch, the majority emphasized that the Federal Arbitration Act “instructed federal courts to enforce arbitration agreements according to their terms—including terms providing for individualized proceedings.” Nothing in the National Labor Relations Act trumps that requirement, the majority explained, particularly when the provision of the NLRA on which the employees rely “does not express approval or disapproval of arbitration” and “does not mention class or collective action procedures.” Indeed, the majority stressed, the NLRA “does not even hint at a wish to displace the Arbitration Act—let alone accomplish that much clearly and manifestly, as our precedents demand.”

The majority concluded that, although it “may be debatable” whether the result it reaches is a sound policy, “the law is clear.” Congress can always pass new legislation to reach a different result, the majority pointed out, but it is not the Supreme Court’s job to “substitute its preferred economic policies for those chosen by the people’s representatives.”

Justice Ginsburg dissents in Epic Systems v. Lewis (Art Lien)

Justice Ruth Bader Ginsburg took the relatively rare step of reading her dissent – which was joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan – from the bench. Criticizing the majority’s decision as “egregiously wrong,” Ginsburg lamented that today’s ruling will lead to “the underenforcement of federal and state statutes designed to advance the well-being of vulnerable workers,” because it will rarely be worthwhile for individual employees to pursue their own claims.

This post was originally published at Howe on the Court.

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Opinion analysis: When a statutory exclusionary rule “makes sense”

Opinion analysis: When a statutory exclusionary rule “makes sense”The Supreme Court’s brisk opinion in Dahda v. United States awarded the government yet another exclusionary rule victory, this time in the context of a statutory provision rooted in the Omnibus Crime Control and Safe Streets Act of 1968. The justices ruled unanimously (with Justice Neil Gorsuch recused) against a defendant’s request for suppression of […]

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Opinion analysis: When a statutory exclusionary rule “makes sense”

The Supreme Court’s brisk opinion in Dahda v. United States awarded the government yet another exclusionary rule victory, this time in the context of a statutory provision rooted in the Omnibus Crime Control and Safe Streets Act of 1968. The justices ruled unanimously (with Justice Neil Gorsuch recused) against a defendant’s request for suppression of evidence collected under a wiretap order that authorized surveillance outside the territorial jurisdiction of the district judge who issued the order. But while the court’s decision helpfully clarifies the law, it generally tries to avoid big questions, leaving deeper debates about statutory exclusionary rules for another day.

 

Justice Breyer with opinion in Dahda v. U.S. (Art Lien)

This case involves the relationship between two exclusionary rules that sit next to one another within the same section of the U.S. Code. The first applies to covered communications that are “unlawfully intercepted” and the second applies to any wiretap order that is “insufficient on its face.” Decades ago, the court held that the “unlawfully intercepted” provision applied only when the government’s unlawful conduct implicated certain “core” congressional concerns. In Dahda’s case, the court of appeals had extended that core-concern test to limit the applicability of the “insufficient on its face” provision. But the justices disagreed. Siding with Dahda on this point, the court held that it had previously adopted the core-concern test to prevent the “unlawfully intercepted” provision from rendering the other provision superfluous, so there was no reason to export that largely atextual test more broadly. The “insufficient on its face” provision, the Court stated, “means what it says.” So far, so good for Dahda.

But Dahda’s victory on that discrete point proved unavailing. In its filings in the Supreme Court, the United States raised a new argument that it had not advanced in the court of appeals. And although the court frequently reminds us that it typically operates only as a court of “review, not first view,” here the justices decided to entertain the government’s essentially new argument. The basic idea is that the wiretap order in Dahda’s case was merely defective, as opposed to insufficient. True, the order purported to authorize surveillance outside Kansas, where the district court had territorial jurisdiction, and all agreed that that authorization was unlawful. But the court concluded that the order was nonetheless sufficient. “Were we to remove the [admittedly defective] sentence from the Orders,” the court explained, in an opinion by Justice Stephen Breyer, “they would then properly authorize wiretaps within the authorizing court’s jurisdiction.” Thus, the offending sentence was mere “surplus.”

The implications of the court’s ruling are mixed—and perhaps no better for defendants than if the court had simply adopted the view set out by the decision below. On the one hand, the court asserted that insufficiency is present whenever a wiretap order fails to include the information that federal law “specifically requires the order to contain,” such as the identity of the person to be surveilled. At the same time, the court also rejected Dahda’s argument that the order in his case was insufficient in that it never explicitly stated the lawful territorial area where wiretaps could occur—namely, Kansas. And the court also declined to address several other kinds of potential insufficiency, such as when an order lacks a judge’s signature. In the short term, the main effect of this decision is to override the two circuits that had found suppression to be warranted in cases akin to Dahda’s.

The court also noted that some “overly broad” wiretap orders might be dealt with under the “unlawfully intercepted” provision, as opposed to the provision that Dahda had invoked. For example, an order that purported to authorize surveillance for unduly long periods of time might generate “unlawfully intercepted” information, assuming the violation also implicated a core congressional concern. But that kind of problem was not present in Dahda’s case. As the court repeatedly noted, the wiretaps produced at Dahda’s trial did not rest on the order’s admittedly defective sentence. Because “the unlawfully intercepted communications from the Missouri listening post were not introduced at trial,” Dahda could not obtain suppression under the “unlawfully intercepted” exclusionary rule. These points call to mind the United States’ argument that any error in the wiretap order was severable, given that prosecutors did not rely on the wiretap order’s defective provision in proving its case.

In previous posts, I have suggested that any view of what it means for a wiretap order to be “insufficient on its face” raises the question, “Insufficient for what?” For example, an order could be facially insufficient to authorize: any surveillance at all, the surveillance that it purports to authorize, or the surveillance that is actually introduced at trial. The court seems largely to embrace the first type of insufficiency, while only indirectly touching on the other possibilities. But some readers might think that the choice among the various options is difficult—and not dictated by the dictionary definition of “insufficient.” So, consistent with the oral argument and exclusionary case law more generally, the court was guided by what, in its view, “makes sense” of the various suppression provisions involved.

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Opinion analysis: Constitutional challenge to shackling policy becomes moot when criminal prosecutions terminate

Opinion analysis: Constitutional challenge to shackling policy becomes moot when criminal prosecutions terminateIn United States v. Sanchez-Gomez, Chief Justice John Roberts wrote today for a unanimous Supreme Court, holding in 12 straightforward pages that a challenge by several criminal defendants to a district-wide policy of shackling pretrial detainees was moot. The U.S. District Court for the Southern District of California, at the suggestion of the U.S Marshal, […]

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Opinion analysis: Constitutional challenge to shackling policy becomes moot when criminal prosecutions terminate

In United States v. Sanchez-Gomez, Chief Justice John Roberts wrote today for a unanimous Supreme Court, holding in 12 straightforward pages that a challenge by several criminal defendants to a district-wide policy of shackling pretrial detainees was moot.

The U.S. District Court for the Southern District of California, at the suggestion of the U.S Marshal, adopted a district-wide policy allowing marshals to produce all in-custody pretrial defendants in full five-point restraints for most nonjury proceedings. In full restraints, a defendant’s hands are closely handcuffed together, these handcuffs are connected by a chain to another chain running around the defendant’s waist, and the defendant’s feet are shackled and chained together. Four defendants challenged the constitutional validity of their shackling and of the policy as a whole. They argued that they were bringing the challenges on behalf of themselves and similarly situated defendants. The district court denied their challenges. While the cases were on appeal to the U.S. Court of Appeals for the 9th Circuit, the four prosecutions were resolved, either via guilty plea or dismissal.

Chief Justice Roberts with opinion in U.S. v. Sanchez-Gomez (Art Lien)

The question for the Supreme Court was whether resolution of the four prosecutions eliminated any live controversy, rendering the dispute moot. In concluding that the case was moot, the court rejected the 9th Circuit’s recognition of “class-like claims” as a means to avoid mootness absent certification of an actual class under Federal Rule of Civil Procedure 23. The court also rejected the respondents’ argument that the controversy was not moot because it was “capable of repetition yet evading review.”

Precedents such as Gerstein v. Pugh and Sosna v. Iowa establish that plaintiffs in class actions can avoid mootness when the named plaintiffs’ claims become moot, because the unnamed class members still have their personal stakes in the matter, retaining a live controversy with the defendants. But the Supreme Court declined to endorse the 9th Circuit’s creation of a “freestanding exception to mootness outside the class action context.” The class action is a unique device, a product of the Federal Rules and an exception to the “usual rule that litigation is conduct by and on behalf of the individual named parties only.” A certified class “acquires a legal status separate from the interest asserted by the named plaintiff” and the class’ “independent legal status” is essential to avoiding mootness. But no similar mechanism applies in this case. This was not a civil action, so there was no class certification. The Federal Rules of Criminal Procedure do not provide a litigation vehicle comparable to the class action, and federal courts lack power to “create de facto class actions at will.” That the respondents purported to seek relief for all in-custody defendants in the district did not create a “functional class action.” A case does not escape mootness because the claims of the parties might, if resolved in some way, benefit other similarly situated individuals.

The 9th Circuit also could not keep the action alive by casting the appeal as an exercise of supervisory mandamus, the courts of appeals’ authority to supervise and control district courts through discretionary writs of mandamus. Whatever the scope of supervisory mandamus, the power requires live controversies and does not exempt cases from normal mootness rules.

The respondents argued that their claims remained alive as a controversy that was capable of repetition yet evading review. This exception to the regular rules of mootness applies when litigation (including appeals) cannot be concluded before the challenged action ends of its own force and there is a “reasonable expectation that the same complaining party will be subjected to the same action again.” The respondents argued that they met the second part of this test because the two who had been charged with unlawfully entering the United States had violated the law again by re-entering unlawfully, something the crime’s high recidivism rate suggested was reasonably likely to occur. Once unlawfully in the United States, they would likely be arrested and returned to pretrial custody, where they again would be subjected to the shackling policy. But the Supreme Court “refused to ‘conclude that the case-or-controversy requirement is satisfied by’ the possibility that a party ‘will be prosecuted for violating valid criminal laws.’” In past cases, the court has “‘assume[d] that [litigants] will conduct their activities within the law and so avoid prosecution and conviction as well as exposure to the challenged course of conduct.’”

The court rejected the respondents’ reliance on two cases in which it applied the capable-of-repetition exception to mootness — a disabled student’s challenge to his unilateral suspension from school, when his inability to control his behavior made future misconduct and unilateral suspension reasonably likely to occur, and an indigent civil litigant’s challenge to contempt citations for failure to pay child support, when his steep arrearages (more than $13,000) and looming hearing (five months away) “destined” him to be held in contempt again. In both civil cases, the court reasoned, litigants were unable “for reasons beyond their control, to prevent themselves from transgressing and avoid recurrence of the challenged conduct.” The respondents, on the other hand, “are ‘able—and indeed required by law’—to refrain from further criminal conduct.” That they have an incentive to break the law by unlawfully returning to the United States, and that they are statistically likely to do so, “do not amount to an inability to obey the law.”

The court concluded by acknowledging a point made during oral argument: There are other avenues to challenge the shackling policy, notably a civil action for injunctive relief, including a class action that would allow detainee-plaintiffs to avoid similar mootness problems.

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Opinion analysis: Justices rule unanimously for driver in rental-car case

Opinion analysis: Justices rule unanimously for driver in rental-car case[NOTE: This post will be updated with additional analysis later in the day.] The Fourth Amendment protects us from (among other things) a warrantless search of a place – such as our homes – that we can reasonably expect to remain private. Today the Supreme Court ruled that a driver who has permission to use […]

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Opinion analysis: Justices rule unanimously for driver in rental-car case

[NOTE: This post will be updated with additional analysis later in the day.]

The Fourth Amendment protects us from (among other things) a warrantless search of a place – such as our homes – that we can reasonably expect to remain private. Today the Supreme Court ruled that a driver who has permission to use a rental car is generally entitled to the same protections under the Fourth Amendment as the driver who rented the car.

The court’s decision came in the case of Terrence Byrd, a New Jersey man who was driving a car rented by his fiancée (or former girlfriend, depending on whose account you are reading) when he was pulled over by a state trooper in Pennsylvania. The trooper gave him a warning for driving in the left lane and then searched the car, believing that he didn’t need Byrd’s consent because Byrd was not listed as an authorized driver on the rental agreement. The troopers found body armor and 49 bricks of heroin in the trunk, leading to federal charges against Byrd.

After the trial court rejected his argument that the heroin and body armor could not be introduced as evidence because the trooper lacked probable cause to search the trunk, Byrd pleaded guilty and was sentenced to 10 years in prison. The U.S. Court of Appeals for the 3rd Circuit upheld his conviction, but today the Supreme Court reversed.

In a unanimous decision by Justice Anthony Kennedy, the justices rejected the federal government’s argument that a driver who is not listed on the rental agreement can never have a reasonable expectation of privacy in the car, because the rental company has not given him permission to use it. That rule, the justices concluded, “rests on too restrictive a view of the Fourth Amendment’s protections.” Under the Supreme Court’s cases, the justices explained, whether someone has an expectation of privacy in a car shouldn’t hinge on whether the person who gave them permission to drive it owns the car or rented it.

After today’s decision, Byrd is not entirely in the clear. The justices vacated the 3rd Circuit’s ruling but sent the case back for the lower courts to consider whether the government could prevail on two other grounds: whether Byrd still would not have any expectation of privacy because he used his significant other to mislead the rental company, knowing that he wouldn’t be able to rent the car himself because of his prior criminal record; and whether – putting everything else aside – the police had probable cause to search the car because they believed it contained evidence of a crime.

This post was originally published at Howe on the Court.

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Opinion analysis: Court rules for death-row inmate whose lawyer conceded guilt

Opinion analysis: Court rules for death-row inmate whose lawyer conceded guilt[NOTE: This post will be updated with additional analysis later in the day.] This morning the Supreme Court overturned a Louisiana inmate’s death sentence because the inmate’s lawyer – hoping to save his client’s life – had told the jury that the inmate was guilty, even though the inmate had expressly objected to that strategy. […]

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Opinion analysis: Court rules for death-row inmate whose lawyer conceded guilt

[NOTE: This post will be updated with additional analysis later in the day.]

This morning the Supreme Court overturned a Louisiana inmate’s death sentence because the inmate’s lawyer – hoping to save his client’s life – had told the jury that the inmate was guilty, even though the inmate had expressly objected to that strategy. The 6-3 ruling reiterated that the Constitution gives a criminal defendant the fundamental right to make decisions about his defense and therefore bars a defense lawyer from going against his client’s instructions, even when the lawyer’s defense strategy might seem perfectly reasonable.

The decision came in the case of Robert McCoy, who in 2011 was on trial for the shooting deaths of his estranged wife’s son, mother and stepfather. McCoy clashed with his public defenders, so his parents hired a private attorney, Larry English, to represent him. McCoy insisted that he was innocent and was being framed in retaliation for revealing that local police were involved in a drug ring, but English believed that the evidence against his client was “overwhelming.” So English first encouraged McCoy to plead guilty in exchange for a life sentence; as McCoy’s trial approached, English told McCoy that he planned to tell the jury that McCoy had committed all three murders, in the hope that doing so would convince the jury to sentence McCoy to life in prison, rather than death. McCoy was furious, but English went ahead with his plan, telling the jury that McCoy was “crazy” and “lives in a fantasy world.”

English’s strategy failed: The jury found McCoy guilty of first-degree murder and sentenced him to death. State courts in Louisiana upheld McCoy’s conviction and death sentence, rejecting his argument that English’s decision to admit McCoy’s guilt, despite McCoy’s objections, violated the Constitution. Today the Supreme Court, in a relatively brief (13-page) decision by Justice Ruth Bader Ginsburg, ordered the Louisiana courts to give McCoy a new trial.

The majority explained that even when a defendant is represented by an attorney, he does not give up all control over his case to the attorney. A criminal defendant’s lawyer may be responsible for what the court described as “trial management” – for example, what evidence to object to and what arguments to pursue – but the defendant himself has the sole right to make some decisions, such as whether to plead guilty or to waive the right to a jury trial. The decision to maintain one’s innocence, the court reasoned, falls within the category of decisions reserved for the defendant: If the defendant tells his attorney that “the objective of ‘his defence’ is to maintain innocence of the charged criminal acts,” the court continued, the attorney must follow that instruction and cannot “override it by conceding guilt.” This means, the majority concluded, that once English knew that McCoy objected to his proposed strategy of admitting McCoy’s guilt to the jury, it was not English’s place to override McCoy’s objection.

This post was also published at Howe on the Court.

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Opinion analysis: Justices strike down federal sports gambling law

Opinion analysis: Justices strike down federal sports gambling law[NOTE: This post will be updated with additional analysis later in the day.] The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long […]

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Opinion analysis: Justices strike down federal sports gambling law

[NOTE: This post will be updated with additional analysis later in the day.]

The 10th Amendment provides that, if the Constitution does not either give a power to the federal government or take that power away from the states, that power is reserved for the states or the people themselves. The Supreme Court has long interpreted this provision to bar the federal government from “commandeering” the states to enforce federal laws or policies. Today the justices ruled that a federal law that bars states from legalizing sports betting violates the anti-commandeering doctrine. Their decision not only opens the door for states around the country to allow sports betting, but it also could give significantly more power to states generally, on issues ranging from the decriminalization of marijuana to sanctuary cities.

The federal law at issue in the case is the Professional and Amateur Sports Protection Act, which dates back to 1992. The law, known as PASPA, bans most states from (among other things) authorizing sports gambling; it carved out an exception that would have permitted New Jersey to set up a sports-betting scheme in the state’s casinos, as long as the state did so within a year. But it took New Jersey 20 years to act: In 2012, the state legislature passed a law that legalized sports betting.

Justice Alito delivers opinion in Murphy v. NCAA (Art Lien)

The National Collegiate Athletic Association and the four major professional sports leagues went to court, arguing that the 2012 law violated PASPA. The lower federal courts agreed, prompting the New Jersey legislature to go back to the drawing board. In 2014, it passed a new law that rolled back existing bans on sports betting, at least as they applied to New Jersey casinos and racetracks. The NCAA and the leagues returned to court, arguing that the new law also violated PASPA, and the U.S. Court of Appeals for the 3rd Circuit again ruled against the state.

The Supreme Court agreed to consider the state’s constitutional challenge to PASPA, and today the court reversed. It explained that the PASPA provision that bars states from authorizing sports gambling violates the anti-commandeering doctrine because it “unequivocally dictates what a state legislature may and may not do.” “It is as if,” Justice Samuel Alito wrote for the majority, “federal officers were installed in state legislative chambers and were armed with the authority to stop legislators from voting on any offending proposals. A more direct affront to state sovereignty,” Alito concluded, “is not easy to imagine.”

The majority acknowledged that the question of whether to legalize sports gambling “is a controversial one” that “requires an important policy choice.” But that choice, the majority continued, “is not ours to make. Congress can regulate sports gambling directly, but if it elects not to do so, each State is free to act on its own.”

New Jersey has long hoped that allowing sports betting would revive the state’s struggling racetracks and casinos. In March of this year, ESPN projected that if New Jersey were to win, the state could have legal sports betting by the time football season kicks off in the fall; nearly two dozen other states are also considering bills that would allow sports betting. The economic impact of allowing sports betting cannot be understated: Legal sports betting in Las Vegas takes in over $5 billion each year, and most estimates put the value of illegal sports betting in the United States at up to $100 billion.

Today’s ruling could also have a much broader reach, potentially affecting a range of topics that bear little resemblance to sports betting. For example, supporters of so-called “sanctuary cities” – cities that refuse to cooperate with federal immigration officials to enforce immigration laws – have cited the 10th Amendment in recent challenges to the federal government’s efforts to implement conditions on grants for state and local law enforcement. Challenges to the federal government’s recent efforts to enforce federal marijuana laws in states that have legalized the drug for either recreational or medical use may also be based on the 10th Amendment.

This post was originally published at Howe on the Court.

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Justices add three new cases to next term’s docket

Justices add three new cases to next term’s docketThis morning the justices issued orders from their private conference last week. They added three new cases to their docket for next fall, but once again did not act on the government’s petition to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for an […]

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Justices add three new cases to next term’s docket

This morning the justices issued orders from their private conference last week. They added three new cases to their docket for next fall, but once again did not act on the government’s petition to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for an undocumented pregnant teenager to obtain an abortion.

In the first case granted today, Frank v. Gaos, the justices agreed to weigh in on the use in class-action cases of an ancient legal doctrine known as cy pres. The doctrine – whose name comes from a French phrase that means “as close as possible” – gives courts the power to interpret a will or a charitable gift to implement the giver’s intent when it is impossible to carry out the terms as they are written. In recent years, some courts in the United States have applied the cy pres doctrine to distribute to charity the proceeds of a class-action settlement that have not been claimed by class members, usually because the award to each person is relatively small. Giving the funds to charity, the thinking goes, is better than allowing the defendants to keep the unclaimed funds, which would reduce the deterrent value of the lawsuits.

But others have objected to the use of the cy pres doctrine for class actions, suggesting (among other things) that the settlements should not transfer money to charities and nonprofits that have not been injured by the conduct that sparked the lawsuit. Cy pres settlements of class actions also create potential conflicts of interest for both the lawyers and the judges who select the recipients of the funds, opponents say. One such skeptic may be Chief Justice John Roberts, who in 2013 suggested that the Supreme Court “may need to clarify the limits of the use of” cy pres remedies.

Today the court agreed to do so, in a case challenging the $8.5-million settlement of a class action brought against Google, which alleged that the search engine had violated its users’ privacy by disclosing their search terms to other websites. Approximately $2 million of the settlement went to the lawyers for the plaintiffs, and the named plaintiffs themselves received a few thousand dollars each. But the remainder of the settlement – approximately $5 million – went to groups that work on privacy-related issues, including the World Privacy Forum and the alma maters of the plaintiffs’ lawyers.

Ted Frank, a well-known attorney who frequently challenges class-action settlements, objected to the Google settlement, but the district court approved it over his objections. The U.S. Court of Appeals for the 9th Circuit affirmed, explaining that district courts can approve cy pres settlements of class actions as long as they are “fair, adequate, and free from collusion.” The justices will now review that ruling.

Eight years ago, the Supreme Court ruled that courts could not require class arbitrations unless there was a “contractual basis” to believe that both parties had agreed to such proceedings. In Lamps Plus, Inc. v. Varela, the justices will review a dispute that arose when Frank Varela, a Lamps Plus employee, tried to file a class action in California, alleging that a data breach at the company had broken various state laws. Lamps Plus asked the court to require Varela to arbitrate his claims individually, but a panel of the U.S. Court of Appeals for the 9th Circuit – including Judge Stephen Reinhardt, who died in late March – disagreed. It pointed to language in an arbitration agreement that Varela had signed, which indicated (among other things) that “arbitration shall be in lieu of any and all lawsuits,” to support its conclusion that there was a “contractual basis” for class arbitration.

Lamps Plus asked the Supreme Court to weigh in, telling the justices that the 9th Circuit’s ruling was a “palpable evasion” of their earlier decision. Moreover, it added, the language on which the 9th Circuit relied to find a “contractual basis” for class arbitration is standard fare in many arbitration agreements. If the lower court’s ruling is allowed to stand, the company warned, it will open the door for the 9th Circuit and other courts to “impose class arbitration on parties that never agreed to it.”

And in the third case granted today, Bucklew v. Precythe, the justices will review a challenge by death-row inmate Russell Bucklew to his execution, which had been scheduled for March. The justices put that execution on hold to give them time to consider Bucklew’s petition for review, which they granted today.

Bucklew told the justices that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.” If he has trouble breathing when the execution begins, Bucklew contends, the tumor in his throat could rupture, filling his mouth and airway with blood – resulting in an execution that would likely be “gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

Bucklew asked the justices to rule on three different questions related to the state’s plan to execute him by lethal injection, including whether courts should assume that the medical personnel overseeing the execution will be able to manage his condition. Today the justices agreed to take his case and instructed both Bucklew and the state to address a fourth question as well: Whether Bucklew has made the showings that the court’s lethal-injection precedent requires regarding the procedures that would be used to execute him by the alternative method that he has proposed – the gas chamber – and the kind of pain that execution by lethal gas, compared with lethal injection, would cause.

The court once again did not act on Azar v. Garza, the case involving the undocumented teenager who was allowed to obtain an abortion. The justices have considered the government’s petition, which was filed in early November, at 11 conferences this year, with six of those conferences coming since the justices received the lower-court records in the case.

The justices are not scheduled to hold a conference this week; the next conference is scheduled for May 10. Orders from that conference are likely to follow on Monday, May 14.

This post was originally published at Howe on the Court.

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Now available on Oyez: This week’s oral argument audio aligned with the transcripts

Now available on Oyez: This week’s oral argument audio aligned with the transcriptsOyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in: Lucia v. Securities and Exchange Commission Pereira v. Sessions Chavez-Meza v. United States Abbott v. Perez Animal Science Products, Inc. v. Hebei Welcome Pharmaceutical Co. Ltd. Trump v. Hawaii (published Wednesday afternoon)

The post Now available on Oyez: This week’s oral argument audio aligned with the transcripts appeared first on SCOTUSblog.

Now available on Oyez: This week’s oral argument audio aligned with the transcripts

Oyez has posted the aligned audio and transcripts from this week’s oral arguments at the Supreme Court. The court heard argument this week in:

The post Now available on Oyez: This week’s oral argument audio aligned with the transcripts appeared first on SCOTUSblog.

from http://www.scotusblog.com

Now available on Oyez: Oral argument audio aligned with the transcript in Trump v. Hawaii

Now available on Oyez: Oral argument audio aligned with the transcript in <em>Trump v. Hawaii</em>Oyez has posted the aligned audio and transcript from today’s oral argument in Trump v. Hawaii. The aligned audio and transcripts for the other arguments heard this week will be posted on Friday.    

The post Now available on Oyez: Oral argument audio aligned with the transcript in <em>Trump v. Hawaii</em> appeared first on SCOTUSblog.

Now available on Oyez: Oral argument audio aligned with the transcript in <em>Trump v. Hawaii</em>

Oyez has posted the aligned audio and transcript from today’s oral argument in Trump v. Hawaii.

The aligned audio and transcripts for the other arguments heard this week will be posted on Friday.

 

 

The post Now available on Oyez: Oral argument audio aligned with the transcript in <em>Trump v. Hawaii</em> appeared first on SCOTUSblog.

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