Opinion analysis: Florida wins another chance, and the case goes back to the drawing board

Opinion analysis: Florida wins another chance, and the case goes back to the drawing boardOn the last possible decision day, the Supreme Court issued a 5-4 decision in Florida v. Georgia written by Justice Stephen Breyer and joined by Chief Justice Roberts and Justices Kennedy, Ginsburg and Sotomayor. Justice Thomas filed a dissenting opinion, joined by Justices Alito, Kagan and Gorsuch. In a win for Florida, which is seeking […]

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Opinion analysis: Florida wins another chance, and the case goes back to the drawing board

On the last possible decision day, the Supreme Court issued a 5-4 decision in Florida v. Georgia written by Justice Stephen Breyer and joined by Chief Justice Roberts and Justices Kennedy, Ginsburg and Sotomayor. Justice Thomas filed a dissenting opinion, joined by Justices Alito, Kagan and Gorsuch.

In a win for Florida, which is seeking an equitable allocation of the Apalachicola-Chattahoochee-Flint River system under the court’s original jurisdiction, the court held that the special master assigned to hear the case had applied too high a standard of review for redressability. The court held that although a state has to show via “clear and convincing evidence” that it has suffered an “invasion of rights” and “substantial injury” when seeking equitable apportionment of water between states, this standard does not apply in “respect to a showing of a ‘remedy’ or ‘redressability.’”

The court remanded the case to the special master for further consideration of a variety of evidentiary issues, while reserving judgment on the ultimate disposition of the case.

Brief background:

After more than 30 years of litigation and efforts to resolve allocation of the ACF system, Florida sued Georgia seeking equitable allocation in 2013. The court assigned the case to a special master. Following extensive discovery and a multi-week trial, the special master issued a report in February 2017 rejecting Florida’s argument that Georgia’s water consumption should be limited. He concluded that Florida had “not proven by clear and convincing evidence” that putting a cap on how much water Georgia could consume would actually improve the river flows “at a time that would provide a material benefit to Florida.” Further, he found that because the U.S. Corps of Engineers was not a party to the case, Florida could not actually receive the relief it requested. Florida filed exceptions to the special master’s report, and after another round of briefing, the Supreme Court heard oral argument on January 8, 2018.

Overview of findings:

The court first reviewed the doctrine of equitable apportionment, finding that both Georgia and Florida possess “an equal right to make reasonable use of the waters of the stream.” Second, the court’s “effort is to secure an equitable apportionment without quibbling over formulas.” Third, a state complaining of an injury “must prove by clear and convincing evidence some real and substantial injury or damage.” In addition, the complaining state bears the “initial burden” of showing that the injury can be redressed, and that an equitable apportionment can result in some benefit: “An effort to shape a decree cannot be a ‘vain thing.’” Fourth, when a state has met its initial burden of showing “real or substantial injury,” the court will seek to “arrive at a just and equitable apportionment” using a flexible and not formulaic approach that takes into consideration all relevant factors. The court then cited several equitable-apportionment cases that had been remanded for additional factual findings.

After comparing these precedents with the standard applied by the special master, the court concluded “that the Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree.” The court further stated that “[i]n our view, unless and until the Special Master makes the findings of fact necessary to determine the nature and scope of likely harm caused by the absence of water and the amount of additional water necessary to ameliorate that harm significantly, the complaining State should not have to prove with specificity the details of an eventually workable decree by ‘clear and convincing’ evidence. Rather, the complaining State should have to show that, applying the principles of ‘flexibility’ and ‘approximation’ we discussed above, it is likely to prove possible to fashion such a decree.”

The court independently reviewed the record before the special master and concluded that “at this stage, Florida met its initial burden in respect to remedy but noted that a remand is necessary “to conduct the equitable-balancing inquiry.”

The court raised five critical questions, quoted below:

  • First, has Florida suffered harm as a result of decreased water flow into the Apalachicola River?
  • Second, has Florida shown that Georgia, contrary to equitable principles, has taken too much water from the Flint River?
  • Third, if so, has Georgia’s inequitable use of basin waters injured Florida?
  • Fourth, if so, would an equity-based cap on Georgia’s use of the Flint River lead to a significant increase in streamflow from the Flint River into Florida’s Apalachicola River?
  • Fifth, if so, would the amount of extra water that reaches the Apalachicola River significantly redress the economic and ecological harm that Florida has suffered?

After reviewing the evidence for the first through third questions, to which the Special Master assumed the answer was yes, the court focused on the fourth and fifth questions.

For the fourth question, the court found that putting a consumption cap on Georgia would lead to benefits: “[T]he record suggests that an increase in streamflow of 1,500 to 2,000 cubic feet/second is reasonably likely to benefit Florida significantly.” The court then examined whether such water would be delivered through the ACF system by the U.S. Army Corps of Engineers under its revised “Master Manual” in various types of conditions, including normal or “non-drought” operations” and “drought operations.” After significant analysis, the court eventually concluded “even when the Corps conducts its operations in accordance with the Master Manual, Florida’s proposed consumption cap would likely mean more water in the Apalachicola [River system].”

Although the majority rebutted the views of the dissent about whether the consumption cap would allow more water to reach Florida, the majority eventually concluded that “without explicit findings, it is neither possible nor prudent for us in the first instance to read through this voluminous record and discover who is right on this matter of how much extra water there will be, when, and how much Florida would benefit from the extra water that there might be. That is why we are sending this case back for more findings.”

The court then examined the fifth question in detail: Would the amount of water that reaches the Apalachicola significantly redress the economic and ecological harm suffered by Florida? The court found evidence that the answer to this is yes, but noted that the special master’s report did not explicitly answer the question and therefore sent this question back on remand.

After summarizing its conclusions on the evidentiary issues, the court then addressed the U.S. Army Corps’ of Engineers’ role, noting the U.S. had agreed to abide by any decision of the court. While recognizing that “the Corps must take account of a variety of circumstances and statutory obligations when it allocates water,” the court concluded that “in this case, the record leads us to believe that, if necessary and with the help of the United States, the Special Master, and the parties, we should be able to fashion [a decree]” that offers “meaningful relief.”

Finally, the court reiterated that “Florida will be entitled to a decree only if it shown that the benefits of the apportionment substantially outweigh the harm that might result.” It then listed a set of questions for the special master to assess, along with others that may also arise, while noting that answers “need to not be mathematically precise or based on definite present and future conditions.”

Dissent:

In a 39-page dissent, Justice Clarence Thomas focused on the extensive review by the special master and would have upheld his findings. In reaching this conclusion, the dissent first reviewed factual information about Florida’s and Georgia’s “respective interests.” The dissent also reviewed the U.S. Army Corps of Engineers “extensive operations.”

Turning to the law, the dissent examined the court’s equitable-apportionment jurisprudence “or at least what used to be the rules before the Court’s opinion muddled them beyond recognition.” It focused on the “balance of harms analysis” and whether the “appreciable-benefit requirement” had been met, finding that “Florida could not prove that it would receive more water when it needed it” if a consumption cap were placed on Georgia. The dissent disagreed vehemently that Florida’s ability to prove an appreciable benefit required further hearing, noting that the Special Master had already conducted a full trial. The dissent also disagreed with the majority’s findings on how future uncertainties might affect the ability to fashion a decree under previous case law, as well as the lack of Article III standing. According to the dissent, the “Court’s suggested order of operations [for the Special Master to review on remand]… would fundamentally transform our equitable-apportionment jurisprudence,” and a “do-over” would subvert the Supreme Court’s independent review. Finally, the dissent focused on the Corps of Engineers’ role, finding that “the Corps will not change its existing practices, even if this Court caps Georgia’s water use.” In conclusion, Thomas noted that “[i]f we contrast the de minimus benefits that Florida might receive from small amounts of additional water during nondroughts with the massive harms that Georgia would suffer if this Court cut its water use in half during droughts, it is clear who should prevail in this case.”

Next steps:

This case has now been remanded to the special master for further proceedings. While the case has been pending, other litigation challenging the Corps’ revised Master Manual for the ACF system has been filed. Both the court in this decision and the special master in previous communications have encouraged the states to negotiate an outcome. Whether this happens remains to be seen; in the meantime, stay tuned for an updated schedule from the special master.

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Opinion analysis: Court strikes down public-sector union fees

Opinion analysis: Court strikes down public-sector union fees[Editor’s Note: This post will be updated with additional analysis later today.] This morning the Supreme Court announced that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees. […]

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Opinion analysis: Court strikes down public-sector union fees

[Editor’s Note: This post will be updated with additional analysis later today.]

This morning the Supreme Court announced that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the union’s costs to negotiate a contract that applies to all employees. The 5-4 decision overturned an earlier ruling, dating back to 1977, that allowed the unions to charge such fees, which are often known as “fair share” or “agency” fees. Opponents of the fees hailed today’s ruling as a major victory for the First Amendment, while Justice Elena Kagan, who wrote the main dissent in the case, warned that the ruling could disrupt “thousands of ongoing contracts involving millions of employees.”

The decision came in the case of Mark Janus, who works as a child-support specialist for the Illinois Department of Healthcare and Family Services. Janus – who is not a union member – challenged the $45 per month that is deducted from his paycheck to go to the local branch of the American Federation of State, County, and Municipal Employees, the union that represents him. He argued that requiring him to pay even a limited fee to cover the cost of collective bargaining violates the First Amendment, because it finances speech by the union intended to influence the government on issues like salaries, pensions and benefits for government employees. And that, he said, is no different than requiring him to subsidize a group that lobbies the government.

Although the justices ruled today on Janus’ challenge, his case was the third time that they had been asked to weigh in on the constitutionality of “fair share” or “agency” fees. In 2014, in another case from Illinois, the justices never reached the question, holding instead that the employees in that case – home health aides, who are paid by the state but generally take care of family members – were not actually government employees. Two years later, the justices heard oral argument in a challenge by a group of California public-school teachers, but Justice Antonin Scalia died before the court could release its opinion, leaving the eight-member court deadlocked.

In an opinion by Justice Samuel Alito, the court concluded today that the fees violate the First Amendment. No one would doubt, Alito wrote, that the First Amendment bars a state from requiring its residents to “sign a document expressing support for a particular set of positions on controversial public issues.” Requiring someone to pay for speech by someone else also raises First Amendment concerns, Alito noted. And whether the constitutionality of agency fees is reviewed using the most stringent test (known as “strict scrutiny”) or a more permissive test, Alito concluded, the union fees are unconstitutional.

In Abood v. Detroit Board of Education, the 1977 decision upholding agency fees, Alito explained, the Supreme Court pointed to the state’s interest in “labor peace” and in avoiding the problem of “free riders” – people who reap the benefits of union representation without paying for them. But any worries about “conflict and disruption” in the absence of union fees have been proven wrong in the 41 years since Abood, Alito suggested. Nor is the possibility of a “free rider” problem enough to justify the fees, Alito continued: “Many private groups speak out with the objective of obtaining government action that will have the effect of benefitting nonmembers. May all those who are thought to benefit from such efforts be compelled to subsidize this speech?” He concluded: “In simple terms, the First Amendment does not permit the government to compel a person to pay for another party’s speech just because the government thinks that the speech furthers the interests of the person who does not want to pay.”

Having concluded that the fees violate the First Amendment, Alito turned to the next question: Whether the court should overrule the Abood decision, given the general presumption against overruling older decisions “unless there are strong grounds for doing so” – a legal doctrine known as stare decisis. The majority answered this question in the affirmative.

Alito pointed to several factors that led the majority to conclude that Abood should indeed be overruled. First, he asserted, the Abood decision was “poorly reasoned, because, among other things, it relied on cases involving a “very different First Amendment question” than the one before it. Second, the ruling has proven “unworkable,” because (as even the unions themselves conceded in this case) it is so hard to distinguish between the expenses that nonmembers can be required to shoulder and those that they cannot. Third, the court decided Abood in a very different legal and economic environment; since the ruling 41 years ago, public spending – including the “mounting costs of public-employee wages, benefits, and pensions” – has skyrocketed, giving collective bargaining a political significance that it might not have had at the time of the Abood ruling. And the prospect that the unions and public employers may have relied on the constitutionality of the agency fees (for example, in negotiating the collective bargaining agreements now in effect), in Alito’s view, is not a reason to keep Abood. Those contracts will only last a few more years anyway, Alito stressed, and in any event the unions and public employers have known for several years that the Abood ruling could be in jeopardy.

Alito acknowledged that today’s decision “may cause unions to experience unpleasant transition costs in the short term, and may require unions to make adjustments in order to attract and retain members.” But those side effects are outweighed, he suggested, by the “many billions of dollars” that “have been taken from nonmembers and transferred to public-sector unions in violation of the First Amendment.”

Justice Elena Kagan wrote the main dissent in the case, which was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor. Kagan emphasized that, for over four decades, the Abood decision “struck a stable balance between public employees’ First Amendment rights and government entities’ interests in running their workforces as they thought proper.” Kagan complained that there “are no special justifications for reversing Abood”: In her view, it is both workable and still relevant. “And it is deeply entrenched,” she noted, as over “20 States have statutory schemes built on the decision” that “underpin thousands of ongoing contracts involving millions of employees.” Today’s decision, she cautioned, will upset significant reliance on Abood and create “judicial disruption.”

This post was originally published at Howe on the Court.

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Opinion analysis: Divided court rules for anti-abortion pregnancy centers in challenge to California law

Opinion analysis: Divided court rules for anti-abortion pregnancy centers in challenge to California lawThis morning the Supreme Court ruled in favor of crisis pregnancy centers – nonprofit groups that oppose abortion – in their challenge to a California law that was passed out of concern that the centers were holding themselves out as full-service reproductive health clinics and providing pregnant women with inaccurate or incomplete information about their […]

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Opinion analysis: Divided court rules for anti-abortion pregnancy centers in challenge to California law

This morning the Supreme Court ruled in favor of crisis pregnancy centers – nonprofit groups that oppose abortion – in their challenge to a California law that was passed out of concern that the centers were holding themselves out as full-service reproductive health clinics and providing pregnant women with inaccurate or incomplete information about their options. Two lower federal courts had rejected the centers’ request to step in and block the state from enforcing the law, but today the Supreme Court reversed. By a vote of 5-4, the justices ruled that the centers were likely to prevail on their argument that the law, which requires the centers to make specific disclosures to their patients or in their advertisements, violates the First Amendment.

The case was a challenge to California’s Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act – also known as the Reproductive FACT Act. The law, passed in 2015, imposes two different sets of requirements on the centers, depending on whether they are licensed to provide medical services. The centers that have licenses must post notices that inform their patients that they may obtain free or low-cost abortions and that include the number of the state agency that can connect the women with abortion providers. The centers that are not licensed must include disclaimers in their advertisements – in up to 13 languages – to make clear that their services do not include medical help.

Justice Thomas with majority opinion, Justice Breyer in dissent in NIFLA v. Becerra (Art Lien)

The centers argued that both requirements violate the First Amendment. First, they alleged, requiring licensed centers to post notices about the availability of free or low-cost abortions conflicts with the anti-abortion message that they would like to convey. They also argued that the law singles out anti-abortion groups to publicize the availability of abortions. Second, the centers asserted, requiring unlicensed centers to include extensive disclosures in their advertisements makes it almost impossible for the centers to spread their own anti-abortion messages.

Shortly after California governor Jerry Brown signed the law, the centers in this case went to court, asking a federal judge in San Diego to put the law on hold while they litigated their First Amendment challenge. The district court declined to do so, and the U.S. Court of Appeals for the 9th Circuit affirmed that ruling, holding that the centers had not shown that they were likely to succeed on the merits of their challenge – a key factor in getting temporary relief. The Supreme Court agreed to review that ruling last fall, and today the justices reversed.

In an opinion by Justice Clarence Thomas, the majority began with the notice required for licensed centers. That notice, the majority concluded, is “content based” – that is, it “alters the content” of the licensed centers’ speech by requiring them to notify pregnant women about the availability of low- or no-cost abortions even though the centers’ goal is to persuade women not to have abortions at all.

Laws that regulate speech based on their content, Thomas explained, are normally subject to the most stringent standard of review, known as “strict scrutiny.” But even if the notice requirement for licensed clinics were subject to a less exacting standard of review, the law still does not pass muster, Thomas continued. First, the law is “wildly underinclusive,” because it does not apply to most of the community clinics in the state, nor does it apply to federal clinics or clinics that provide a full range of family-planning services. Second, there are other ways for the state to notify women about the availability of state-subsidized abortions without requiring the clinics to do so for it – for example, conducting an advertising campaign or posting notices on public property near the licensed centers.

Thomas and the majority reached a similar conclusion for the unlicensed centers. First, the majority observed, the only justification that California has cited for the law was “purely hypothetical”: Although the legislature had emphasized the need for pregnant women in the state to “know when they are getting medical care from licensed professionals,” the state had not pointed to any evidence “suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals.” And even if the state had advanced a concrete justification for the notice requirement, Thomas continued, the requirement still places too much of a burden on the unlicensed centers’ speech. Thomas noted that, as the state had agreed at the oral argument in March, a billboard for an unlicensed center bearing the message “Choose Life” would also have to include a 29-word notice “in as many as 13 different languages.” “In this way,” Thomas suggested, “the unlicensed notice drowns out the facility’s own message,” making it unlikely that an unlicensed center would even try to have “such a billboard in the first place.”

Concluding that both the licensed and unlicensed pregnancy centers “are likely to succeed on the merits of their claim that the FACT Act violates the First Amendment,” the majority reversed the 9th Circuit’s ruling in favor of the state and sent the case back to the lower courts for new proceedings in light of today’s ruling.

Justice Anthony Kennedy joined Thomas’ opinion for the majority, but he also filed a concurring opinion that was joined by Chief Justice John Roberts, Samuel Alito and Neil Gorsuch (all of whom also joined the Thomas opinion). Kennedy warned that the FACT Act “is a paradigmatic example of the serious threat presented when government seeks to impose its own message in the place of individual speech, thought, and expression.” And Kennedy strongly rebuked what he described as the California legislature’s “congratulatory statement” that the FACT Act “was part of California’s legacy of ‘forward thinking.’” It “is not forward thinking to force individuals to be an instrument for fostering public adherence to an ideological point of view they find unacceptable.” Rather, Kennedy stressed, it “is forward thinking to begin by reading the First Amendment as ratified in 1791; to understand the history of authoritarian government as the Founders then knew it; to confirm that history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech; and to carry those lessons onward as we seek to preserve and teach the necessity of freedom of speech for generations to come.”

Justice Stephen Breyer dissented from today’s ruling, in an opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. In his view, both the licensed and unlicensed notice requirements would be likely to pass constitutional muster. Addressing the notice requirements for licensed centers, Breyer returned to a theme that he had pressed repeatedly (but ultimately unsuccessfully) at the oral argument: If, as the Supreme Court has ruled, a state can require a doctor to notify a woman seeking an abortion about adoption as an alternative option, why can’t it require a pregnancy center to tell a woman about abortion? As Breyer put it at the oral argument, “what is sauce for the goose is normally sauce for the gander.”

Turning to the notice requirements for unlicensed centers, Breyer pushed back against the majority’s assertion that the state had only shown a “hypothetical” interest in imposing the requirement. Even putting aside the testimony that the California legislature heard about the problems that result when pregnant women don’t receive health care right away, Breyer deemed it “self-evident that patients might think they are receiving qualified medical care when they enter facilities” – like the unlicensed centers – “that collect health information, perform obstetric ultrasounds or sonograms, diagnose pregnancy, and provide counseling about pregnancy options or other prenatal care.” And although Breyer agreed that the notice requirement might in some circumstances create too much of a burden on unlicensed centers, he rejected the idea that such circumstances mean that the requirement is always unconstitutional. For example, although the notice requirement could obligate unlicensed centers to include disclosures in as many as 13 languages, only two languages – English and Spanish – would be required in “the vast majority of California’s 58 counties.”

This post was originally published at Howe on the Court.

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Opinion analysis: Divided court upholds Trump travel ban (Updated)

Opinion analysis: Divided court upholds Trump travel ban (Updated)[Editor’s Note: This post, originally published at 12:11 p.m., was expanded with additional analysis at 2:05 p.m.] The Supreme Court today handed a major victory to the Trump administration. By a vote of 5-4, the justices rejected a challenge to President Donald Trump’s September 2017 order – often referred to as the “travel ban” – […]

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Opinion analysis: Divided court upholds Trump travel ban (Updated)

[Editor’s Note: This post, originally published at 12:11 p.m., was expanded with additional analysis at 2:05 p.m.]

The Supreme Court today handed a major victory to the Trump administration. By a vote of 5-4, the justices rejected a challenge to President Donald Trump’s September 2017 order – often referred to as the “travel ban” – restricting immigration to the United States by citizens of eight countries, most (but not all) of which are predominantly Muslim. In an opinion by Chief Justice John Roberts, the majority relied on the national security justifications for the ruling, while Justice Sonia Sotomayor, in dissent, lamented that the court had “blindly” endorsed “a discriminatory policy motivated by animosity toward” Muslims.

Chief Justice Roberts announces majority opinion in Trump v. Hawaii (Art Lien)

The order under scrutiny at the court was the most recent of three orders issued by the president since he took office in 2017. The first order, issued on January 27, 2017, imposed a 90-day ban on the entry into the United States of citizens from seven overwhelmingly Muslim countries – Iran, Iraq, Libya, Syria, Somalia, Sudan and Yemen – and put a 120-day hold on the admission of refugees, although it contained an exception for refugees who were religious minorities in their home countries.

After the lower federal courts blocked the Trump administration from enforcing the January 2017 order, Trump replaced that order with a new and similar (although not identical) order in March 2017. That order also imposed a 90-day ban on the entry of citizens from six of the seven Muslim-majority countries included in the first order (removing Iraq from the list) and suspended the entry of refugees, this time without any exceptions for religious minorities. When lower courts barred the federal government from enforcing that order as well, the Trump administration went to the Supreme Court, which agreed in June 2017 to weigh in and allowed the government to implement part of the ban until the court could rule on the dispute. But that case was removed from the justices’ argument calendar in late September, after the March 2017 order expired and Trump issued the current version of the order.

The state of Hawaii returned to court to challenge the September 2017 order, arguing that – just like its predecessors – it violated both federal law and the U.S. Constitution. The Supreme Court allowed the government to implement the September 2017 order while it appealed lower-court rulings in favor of the challengers (a development that made today’s ruling less of a surprise, because the government would have needed five votes to block the lower court’s injunction barring enforcement of the order), and in January of this year the court announced that it would review the new challenge.

In his opinion for the majority, Roberts first rejected Hawaii’s argument that the September 2017 order exceeds the president’s authority under federal immigration laws. Section 1182(f) of the Immigration and Nationality Act, Roberts explained, “exudes deference” to the president, giving him “broad discretion to suspend” the entry of noncitizens into the United States. Under this provision, Roberts reasoned, the president can block noncitizens from coming into the United States if he determines that allowing them to enter “would be detrimental to the interests of the United States.” And the president has done exactly that here, Roberts emphasized, because the September 2017 order was the result of a “worldwide, multi-agency review” that concluded that the entry restrictions in the order were necessary, for example, to prevent foreign nationals from coming to the United States from countries that did not share enough information about their citizens to allow U.S. immigration officials to vet them properly. “In short,” Roberts concluded, “the language of §1182(f) is clear, and the Proclamation does not exceed any textual limit on the President’s authority.”

The majority similarly rejected Hawaii’s contention that the September 2017 order violates another provision of federal immigration law, Section 1152(a)(1)(A), which bars discrimination based on nationality in issuing visas. Section 1182(f), Roberts observed, “defines the universe” of noncitizens who can get a visa to come to the United States; Section 1152(a)(1)(A) then prohibits discrimination based on nationality in granting or denying visas to those noncitizens. But Section 1152(a)(1)(A) does not, Roberts stressed, limit the president’s ability to block the entry of nationals of some countries. Indeed, he noted, other presidents have done exactly that: President Ronald Reagan suspended the immigration of Cuban nationals to the United States, while President Jimmy Carter issued an order denying visas to Iranian nationals. But Hawaii’s argument, Roberts wrote, would mean that both of those orders would violate the law. “Nor would the President be permitted to suspend entry from particular foreign states in response to an epidemic confined to a single region, or a verified terrorist threat involving nationals of a specific foreign nation, or even if the United States were on the brink of war,” Roberts pointed out.

The majority then turned to Hawaii’s argument that the September 2017 order violated the Constitution’s establishment clause, which prohibits favoring one religion over another. Here the state had pointed to statements and tweets by the president and his advisers that, in Hawaii’s view, made clear that the September 2017 order, like the others that preceded it, was intended to target Muslims. As examples, Hawaii cited Trump’s campaign statements calling for a “total and complete shutdown of Muslims entering the United States” and a reference by a campaign official, shortly after the inauguration, to a “Muslim ban.”

Roberts began with what seemed like a subtle rebuke of the president, observing that the president “possesses an extraordinary power to speak to his fellow citizens and on their behalf.” He recounted stories of other presidents speaking out on the need for the United States to protect all religions, from George Washington telling a Hebrew congregation that the government “gives to bigotry no sanction” to Dwight Eisenhower assuring the audience at the opening of an Islamic center that “America would fight with her whole strength for your right to have here your own church.” “Yet it cannot be denied,” Roberts acknowledged, that the federal government and other presidents have “performed unevenly in living up to those inspiring words.” But the question before the Supreme Court, Roberts emphasized, is what role those statements should play in determining the constitutionality of the September 2017 order.

Under the Supreme Court’s cases, Roberts suggested, the justices would normally only look at whether the order is neutral on its face – that is, whether it applies to all religions equally. But even if they look beyond the text of the September 2017 order at other evidence of the president’s intent, Roberts continued, the order still survives because it is directly based on a legitimate purpose: “preventing entry of nationals who cannot be adequately vetted and inducing other nations to improve their practices.” Roberts acknowledged that five of the seven countries currently covered by the order have Muslim-majority populations. But “that fact alone,” he suggested, “does not support an inference of religious hostility, given that the policy covers just 8% of the world’s Muslim population and is limited to countries that were previously designated by Congress or prior administrations as posing national security risks.” Roberts dismissed the state’s contention that the September 2017 order applies too broadly and “does little to serve national security interests,” responding that courts should not substitute their own judgment for that of the executive branch on national-security matters, which he characterized as “delicate,” “complex,” and involving “large elements of prophecy.”

Roberts cited three specific features of the September 2017 order that, in his view, further buttress the government’s claim that the order was intended to serve genuine national-security interests. First, he emphasized, three Muslim-majority countries covered by the president’s January 2017 order – Iraq, Sudan and Chad – are no longer covered by the restrictions, and the September 2017 order contains exceptions that would allow some nationals from almost all of the countries covered by the order to come to the United States. What’s more, Roberts added, the September 2017 order also contains a waiver provision that allows nationals from covered countries to travel to the United States in certain circumstances, such as to obtain urgent medical care. When all of these circumstances are considered together, Roberts concluded, the government has demonstrated “a sufficient national security justification” for the September 2017 order to survive. The district court’s injunction that temporarily blocked the government from enforcing the order is now reversed, and the case will go back to the lower courts, Roberts indicated, “for such further proceedings as may be appropriate.”

Justice Anthony Kennedy filed a concurring opinion in which he made clear that he joined the majority’s opinion “in full” but added a warning to the Trump administration. Although there are “numerous instances” in which the courts will not review or step in to correct the actions of government officials, he acknowledged, that lack of scrutiny “does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects.” If anything, he cautioned, the prospect that an official’s conduct will not be subject to judicial review makes it more important for that official to “adhere to the Constitution and to its meaning and promise.” “An anxious world,” Kennedy concluded, “must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”

Justice Clarence Thomas also filed a concurring opinion, in which he expressed his belief that the president has “inherent authority to exclude” noncitizens from the United States. Thomas also urged the court to take up an issue that the majority specifically did not address: whether a federal district court, as in this case, can issue a “nationwide” or “global” injunction, which bars the executive branch from enforcing a law against anyone, anywhere. Asserting that such injunctions “are beginning to take a toll on the federal court system” – by, for example, “preventing legal questions from percolating through the federal courts” and “encouraging forum shopping” – Thomas concluded that they “are legally and historically dubious”: “If federal courts continue to issue them,” he wrote, “this Court is dutybound to adjudicate their authority to do so.”

Justice Breyer dissents in Trump v. Hawaii (Art Lien)

Justice Stephen Breyer filed a dissenting opinion, which was joined by Justice Elena Kagan. In particular, Breyer focused on the exemption and waiver programs on which the majority partly relied to uphold the order. If the government is applying those programs as they are written, he posited, then the order is more likely to be legitimate – including because the programs “would help make clear” that the September 2017 order is not targeting Muslims, by allowing them to come to the United States when it is clear that they do not pose a security risk. But Breyer cited evidence suggesting that the exemption and waiver programs are not in practice providing any actual relief from the order, including an affidavit from a U.S. consular official describing the waiver process as “window dressing” and averring that he and others like him do not have the discretion to grant waivers. Because no court has had a full opportunity to consider this issue, Breyer would send the case back to the trial court for further development, and he would keep the order on hold until the issue is resolved.

Although the Breyer dissent was fairly measured in tone, Justice Sonia Sotomayor had much sharper words for the majority in her dissent, which was joined by Justice Ruth Bader Ginsburg. Sotomayor complained that the majority’s decision “leaves undisturbed a policy first advertised openly and unequivocally as a ‘total and complete shutdown of Muslims entering the United States’ because the policy now masquerades behind a façade of national-security concerns.” It does so, she lamented, “by ignoring the facts, misconstruing our legal precedent, and turning a blind eye to the pain and suffering the Proclamation inflicts upon countless families and individuals, many of whom are United States citizens.”

Justice Sotomayor dissents in Trump v. Hawaii (Art Lien)

In making her case against the majority’s decision, Sotomayor invoked two of the court’s earlier decisions, one very recent and one dating back to World War II. First, she noted that earlier this month, in Masterpiece Cakeshop v. Colorado Civil Rights Commission (a ruling from which she also dissented), the justices ruled in favor of a baker who declined on religious grounds to make a custom cake for a same-sex couple because the state agency that considered his case “was found to have acted without the neutrality that” the Constitution requires. But, she said, “the majority here completely sets aside the President’s charged statements about Muslims as irrelevant.”

Sotomayor also pointed to what she described as the “stark parallels between the reasoning of this case and that of Korematsu v. United States,” a 1944 Supreme Court case upholding an executive order requiring the internment of Japanese Americans. In Korematsu, Sotomayor noted, “dissenting justices warned of that decision’s harm to our constitutional fabric.” Although the majority opinion repudiated Korematsu, Sotomayor concluded, today’s decision “merely replaces one gravely wrong decision with another.”

This post was originally published at Howe on the Court.

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The final four

The final fourThe justices are expected to take the bench this morning for the second time this week to issue opinions in argued cases. After Monday’s two opinions, there are four cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued). Florida v. Georgia (argued January 8, 2018): […]

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The final four

The justices are expected to take the bench this morning for the second time this week to issue opinions in argued cases. After Monday’s two opinions, there are four cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued).

Florida v. Georgia (argued January 8, 2018): This is a relatively rare “original jurisdiction” case – a lawsuit that begins in the Supreme Court, rather than coming to the justices as an appeal. It arises from a decades-long dispute between Florida and Georgia over Georgia’s use of water in the Apalachicola-Chattahoochee-Flint River Basin, which begins in northeast Georgia and flows south into the Florida Panhandle, along the two states’ borders with Alabama. The Supreme Court appointed a special master to hold a trial in the case; last year the special master issued a report recommending that Florida’s request to limit Georgia’s water use be denied. Florida objected to his conclusions, and the justices heard oral argument in the case earlier this year.

This opinion is likely to come from Justice Stephen Breyer, the only justice who has not written a majority opinion yet for January. If Breyer is writing in this case, it would bring him to seven opinions for the term.

Janus v. AFSCME (argued February 26, 2018): This is a case filed by Mark Janus, an Illinois child-support specialist. Although Janus does not belong to the union that represents him, he is still required to pay the union a fee (usually known as an “agency fee” or “fair-share fee”) to cover the costs of collective bargaining from which he benefits. The Supreme Court approved such an arrangement over 40 years ago, but Janus is asking the justices to overrule that decision. He argues that the fee violates his rights under the First Amendment because it finances speech by the union that is intended to directly influence the government’s policies on issues like salary, benefits and pensions. Janus’ case is the third time that the justices have considered this question: In the first case, they concluded that the challengers were not actually government employees, and they deadlocked in the second case after the death of Justice Antonin Scalia.

The case likely hinges on the vote of the court’s newest justice, Neil Gorsuch, who did not tip his hand at the oral argument. This is the only case still left from the court’s February sitting, but it’s hard to predict who might be writing this opinion because three justices have not yet written opinions in February. Many court-watchers believe that if Janus wins, Justice Samuel Alito is likely to write the opinion, because he wrote the ruling in the first challenge to the union fees. One of the other justices who has not yet written in March is Justice Sonia Sotomayor, but she already has seven opinions for the term and therefore is not likely to be writing again. That leaves Justice Ruth Bader Ginsburg (who only has six opinions so far, with no other real prospects to pick up a seventh) as the other possible author, which would almost certainly signal a victory for the unions. Justice Elena Kagan would be the most logical author of a ruling for the unions because she wrote the main dissent in Harris v. Quinn, the first case in which the justices considered the union-fees question, but this case is a sufficiently big deal that Ginsburg – who would have the power to assign the opinion if she were, as would be likely, the most senior justice in the majority – might have wanted to keep it for herself.

NIFLA v. Becerra (argued March 20, 2018): This is a challenge to a California law that imposes two different sets of requirements on crisis-pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion and offer their assistance to pregnant women. Centers that are licensed to provide medical services (such as pregnancy tests and ultrasounds) must post notices to inform their patients that free or low-cost abortions may be available, while unlicensed centers (which provide pregnant women with diapers and formula, for example) must include disclaimers in their advertisements to make clear that their services do not include medical help. The centers argue that the law violates the First Amendment’s free speech clause.

Justices Clarence Thomas, Stephen Breyer and Sonia Sotomayor are all still without a majority opinion for March, but Sotomayor has already written seven majority opinions this term to Thomas’ six. Breyer has also written six, but, as noted above, he is likely to be writing in January’s water-rights case, leaving Thomas as the likely author.

Trump v. Hawaii (argued April 25, 2018): This is the challenge to President Donald Trump’s September 2017 order, which limited travel to the United States by citizens of eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. Like the two similar orders that preceded it, the September 2017 order drew immediate legal challenges. The state of Hawaii has two main arguments. First, it says, although the president has broad power over immigration, the order goes too far. Second, it contends that the order violates the Constitution’s establishment clause, which bars the government from (among other things) favoring one religion over another. The state points to the two earlier versions of the order, which targeted Muslim countries, as well as comments and tweets made by the president calling for a ban on the entry of Muslims into the United States.

This opinion is very likely to come from Chief Justice John Roberts, the only justice who has not written a majority opinion yet for April and who has written only five majority opinions so far this term.

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Opinion analysis: Divided court defines credit-card networks as single two-sided market, rejecting antitrust challenge to anti-steering provision

Opinion analysis: Divided court defines credit-card networks as single two-sided market, rejecting antitrust challenge to anti-steering provisionToday, the Supreme Court ruled that American Express’ anti-steering provisions do not violate the federal antitrust laws. In a 5-4 decision, Justice Clarence Thomas wrote that credit networks such as Amex provide services to cardholders and merchants in a “special type of two-sided platform known as a ‘transaction platform,’” and that this platform is a […]

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Opinion analysis: Divided court defines credit-card networks as single two-sided market, rejecting antitrust challenge to anti-steering provision

Today, the Supreme Court ruled that American Express’ anti-steering provisions do not violate the federal antitrust laws. In a 5-4 decision, Justice Clarence Thomas wrote that credit networks such as Amex provide services to cardholders and merchants in a “special type of two-sided platform known as a ‘transaction platform,’” and that this platform is a relevant market for the purposes of antitrust analysis in this vertical-restraints case.

According to the majority, the district court did not define the relevant market properly and the plaintiffs below, Ohio and 10 other states, failed to meet their burden of proving that the challenged anti-steering provision caused competitive harm in a properly defined market. Thomas was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Samuel Alito and Neil Gorsuch. Justice Stephen Breyer, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, dissented.

The case arose from a Sherman Act Section 1 complaint filed by the U.S. Department of Justice and 17 states that challenged provisions in contracts between American Express and merchants that accept Amex credit cards.

In credit-card transactions, a platform such as the one operated by Amex effectively connects cardholder buyers and merchant sellers, allowing the buyers to obtain the product or service immediately and pay later, and the merchant to receive prompt, guaranteed payment. Amex charges a fee to merchants for each transaction with an Amex card. Merchant fees can vary and the district court found in this case that the Amex merchant fees were historically higher than the fees of other networks. Because the price a buyer pays for the item does not change depending on the particular credit card used, merchants prefer to accept credit cards with lower merchant fees. The Amex anti-steering contract provision prohibited merchants from steering customers to use another credit card or means of payment at the moment of the purchase.

The issue in the case was whether Amex’s anti-steering contract provision was an unreasonable restraint of trade prohibited by the Sherman Act. As I explained in my preview, vertical price and non-price agreements are judged under the rule of reason, which provides that business practices only violate the antitrust law when their effect is to restrain trade unreasonably. Traditionally, plaintiffs have the burden of identifying and describing the challenged conduct and showing that it causes harm to competition. If they meet that burden, the burden shifts to the defendants to establish procompetitive benefits from the conduct. The district court found that the plaintiffs had met their burden, establishing a prima facie case by showing that there was an actual harm to competition in the market for cardholder services for merchants. The 2nd Circuit reversed, holding that the relevant market was the entire two-sided market, consisting of both merchants and cardholders, and that the plaintiffs had failed to show actual or predicted harm in that market. Today, the Supreme Court accepted the 2nd Circuit’s market definition for this particular type of market, and held that the plaintiffs had not proved that the anti-steering provision adversely affected competition.

The majority and dissent agreed on the burden-shifting structure of an antitrust rule of reason case, but little else. Citing a number of scholarly articles, Thomas described modern credit-card transactions as part of a “special type” of two-sided platform called “transaction” platforms. Two-sided markets in general involve sales of products or services to two different sets of buyers. For the majority, a transaction platform requires a simultaneous sale to both sides of the market — that is, the consumer cardholder and the merchant — facilitated by the credit-card platform. These two-sided platforms involve “indirect network effects” because the value of each side of the platform depends on the other side of the platform – the more consumers that use Amex cards, the more merchants are likely to accept Amex cards for payment. In a footnote, Thomas stated that, in competitive markets, these indirect network effects “encourage” firms to increase prices and profits on one side of the platform and divert them to the other side to increase the number of participants on that side of the market.

With that as background, the majority sketched out areas of agreement between the parties: The challenged anti-steering provisions are vertical agreements, the proper antitrust analysis involves a three-step burden-shifting rule of reason, and the plaintiff must prove a substantial anticompetitive effect to shift the burden of going forward with the evidence to the defendant. There was also agreement that the anticompetitive effects can be shown directly by actual harm to competition or by proof of market power and “some evidence” of harm. At this stage, the government is relying on direct evidence of competitive harm. However, the majority stated that market definition is required, even when plaintiffs assert direct evidence of actual anticompetitive effects. Distinguishing Federal Trade Commission v. Indiana Federation of Dentists because it involved horizontal agreements, the court stated that “vertical restraints are different” because there is usually no risk to competition absent market power, so the market and the defendant’s market shares must be identified.

Markets are usually defined by starting with the product at issue and then identifying reasonable substitutes from the buyers’ point of view. However, the majority stated, “commercial realities” may require inclusion of different products or services in a single market, citing United States v. Grinnell Corp. (1966) and Brown Shoe Company Inc. v. United States (1962). Accordingly, the majority wrote that price increases on the merchant side of the two-sided credit card platforms may not reflect either market power or competitive harm. Therefore, both sides of the platform must be included in credit-card markets. The majority took care to limit this rule, noting that “two-sided transaction platforms, like the credit-card market, are different,” so not every two-sided market constitutes a relevant market for antitrust purposes. The key distinction is that a credit-card platform is a transaction platform that facilitates a single, simultaneous transaction.

Having defined the relevant market, the majority stated that the competitive effects must include both the merchant side and the consumer/buyer side of the credit-card transaction. Credit card firms sell transactions, the majority stressed, so plaintiffs must prove that the anti-steering provision increased the cost of transactions or reduced the number of transactions as compared to competitive markets. In this case, they failed to do so. Higher merchant fees were not sufficient proof and, in any case, might indicate a competitive market in which the consumer side of the market was receiving benefits, such as rebates or airline miles. Finally, the majority observed that the credit-card market has expanded, offering a larger variety of cards to diverse consumers and more credit cards overall.

In dissent, Breyer began with a short history of the antitrust rule of reason. He noted that everyone agrees that step one of the analysis requires plaintiffs to show the fact or likelihood of anticompetitive effects and that the issue in this case is how to apply step one. Then the dissent diverged from the majority almost completely. Relying on Indiana Federation of Dentists, Breyer emphasized that market definition is not always required because it is merely a surrogate for actual competitive effects.

The dissent went on to fault the majority’s market definition for incorrectly conflating complementary products rather than using substitutes to define a relevant product market. Complementary products, Breyer argued, are those that function in tandem so that output likely increases together — for example, gasoline and car tires, tennis balls and tennis rackets, and so forth. Breyer found no support in antitrust law for treating customer- or buyer-related services and merchant-related services as a single market. Accordingly, using consumer substitution or, as in Grinnell, producer substitution, as the test, he argued that the market is merchant-related credit-card services, at least as part of step one of the rule of reason.

Breyer found no support in case law or economic literature for the majority’s definition of a market for “two-sided transaction platforms” that include four elements: different products or services, different groups of customers, connection by the platform and simultaneous transactions. Characterizing the definition as “novel,” the dissent failed to find adequate justification for a special rule of market definition, and concluded that traditional principles of market definition should apply to this industry.

Pointing to footnote 7 in the majority opinion, Breyer also noted that the majority “seems categorically to exempt vertical restraints from the ordinary ‘rule of reason’ analysis that has applied to them since the Sherman Act’s enactment in 1890.” He asserted that this would be a new development, because, although the majority cites Leegin Creative Leather Products Inc. v. PSKS Inc. in support, that case did not create such a “novel exemption.”

Finally, Breyer maintained that the government had proved its prima facie case even under the market definition employed by the 2nd Circuit and the majority. He concluded that the “majority’s decision in this case is contrary to basic principles of antitrust law, and it ignores and contradicts the District Court’s detailed factual findings, which were based on an extensive trial record.”

The case is important for the announcement of a new requirement of proof of market definition and market power at step one of the rule of reason in vertical-restraints cases, even when plaintiffs seek to prove competitive harm by direct evidence. It also appears to announce a new relevant market for transaction platforms, which may be distinguishable from other two-sided markets. From now on, plaintiffs may be required to prove total competitive harm summing both sides of the market at step one of a rule of reason case.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioners in this case. The author of this post is not affiliated with the firm.]

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Opinion analysis: Texas scores near-complete victory on redistricting

Opinion analysis: Texas scores near-complete victory on redistrictingThis morning the Supreme Court ruled in favor of Texas in a dispute alleging that the state’s lawmakers had drawn redistricting maps to discriminate against some of the state’s black and Hispanic residents. By a vote of 5-4, the justices threw out almost all of a ruling by a three-judge federal district court that would […]

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Opinion analysis: Texas scores near-complete victory on redistricting

This morning the Supreme Court ruled in favor of Texas in a dispute alleging that the state’s lawmakers had drawn redistricting maps to discriminate against some of the state’s black and Hispanic residents. By a vote of 5-4, the justices threw out almost all of a ruling by a three-judge federal district court that would have invalidated the maps, agreeing with the lower court only that one state legislative district was a racial gerrymander. Today’s ruling means that elections this year will likely go forward using the existing maps.

The decision came in the two cases known as Abbott v. Perez, which date back to 2011, when Texas’ Republican-controlled legislature began to redistrict after the 2010 census. The legislature’s federal congressional and state legislative maps never took effect, because a three-judge district court (which normally hears redistricting cases) barred the state from using the maps and created its own plans instead. But the U.S. Supreme Court threw out the court-created maps in 2012, telling the lower court to use the state legislature’s maps as a “starting point” for new maps. The district court did so, and in 2013 the state legislature adopted the maps for permanent use.

Justice Alito announces opinion in Abbott v. Perez (Art Lien)

Last year the district court ruled that parts of the 2011 federal congressional maps violated the law because one district diluted the votes of Hispanic residents, while a second was the product of racial gerrymandering. The court also found vote dilution in the state legislative maps. A few months later, the court weighed in on the 2013 plans, holding that because they perpetuate the discrimination found in the 2011 maps, they too violate the law. After the state indicated that it would not redraw the plans to fix the violations that the court had found, the court ordered hearings on new plans. The state asked the U.S. Supreme Court to step in and block the lower court’s orders, which the justices agreed to do last year.

Justice Samuel Alito wrote for the majority, in an opinion joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Neil Gorsuch. Alito began by rejecting the challengers’ contention that the Supreme Court lacked the authority to review the case at all because federal law only gives the court the power to hear appeals from a three-judge district court that either grants or denies an injunction – which, the challengers argued, the district court’s orders were not. Even if the district court had not specifically labeled the orders at issue in this case as “injunctions,” Alito explained, the real question is whether the orders had the “practical effect” of an injunction. And these did, he reasoned, because the orders not only found violations of federal law and the U.S. Constitution but also required the state to quickly notify the court whether the state legislature would meet to fix the violations. “The short time given the Legislature to respond,” Alito posited, “is strong evidence that the three-judge court did not intend to allow the elections to go ahead under the plans it had just condemned” – which, “for all intents and purposes, constituted” injunctions against the state.

Alito then turned to what he characterized as the main question on the merits of the state’s appeal: whether the district court was wrong “when it required the State to show that the 2013 Legislature somehow purged the ‘taint’ that the court attributed to the defunct and never-used plans enacted by a prior legislature in 2011.” According to Alito, the district court’s analysis was exactly backward: Even if a state has been found to have discriminated in the past, he observed, there is still a presumption that it acted properly in drafting later redistricting plans. This means that the plaintiffs challenging a redistricting plan still have to show that the legislature intended to discriminate when it enacted the current plan.

Alito acknowledged that the intent of the Texas legislature when it enacted the 2011 plan was something that a court could consider, and he added that the mere fact that the 2013 plans largely mirrored the 2012 interim plans adopted by the court did not immunize the 2013 plans from a challenge. But when all of the evidence is considered together, Alito concluded, it does not show that the legislature intended to discriminate against minority voters. If anything, Alito stressed, the available evidence suggests that the legislature did not intend to discriminate, but instead adopted the 2013 plans because it had been advised that doing so was the best way to end the “expensive and time consuming” litigation over the redistricting plans.

The majority’s holding that the district court had applied the wrong test resolved almost all of the case in Texas’ favor, leaving only four districts that the district court had invalidated for reasons other than discriminatory intent. Here the majority reversed the district court’s holding that three of the districts diluted the votes of minority voters, but it upheld the district court’s ruling that a state legislative district in Tarrant County was the product of racial gerrymandering. The legislature had “substantially modified” the Tarrant County district in 2013, and the state contended that it had done so to comply with the Voting Rights Act. But the reasons that the state cited to justify its decision to focus on race in drawing the district were “simply too thin a reed to support the drastic decision to draw lines in this way,” Alito concluded. The court therefore sent the case back to the lower court, presumably for it to apply the correct test to the districts that it had previously struck down.

Justice Sonia Sotomayor dissented, in an opinion joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. Sotomayor would not have reached the merits of the challenges at all, because in her view the lower court’s orders did not grant or deny an injunction. And she lamented the majority’s ruling to the contrary, predicting that the court’s docket will soon be “flooded by unhappy litigants in three-judge district court cases, demanding our review.”

Although the majority should not have discussed the merits at all, Sotomayor continued, there too it went astray. First, Sotomayor complained, the district court did not (contrary to Texas’ assertion and the majority’s conclusion) get the legal test wrong: The district court did focus on the legislature’s intent when it adopted the 2013 plans, “rather than simply presuming invidious intent from the failure to remove the taint, as the majority claims.” And when all of the evidence is considered together, Sotomayor contended, the district court properly concluded that the legislature did intend to discriminate.

In a blistering final paragraph that closed with the phrase “I dissent,” rather than the “I respectfully dissent” often used by the justices, Sotomayor protested that today’s ruling “does great damage to” the right “to equal participation in our political processes.” “Not because it denies the existence of that right, but because it refuses its enforcement. The Court intervenes when no intervention is authorized and blinds itself to the overwhelming factual record below. It does all of this to allow Texas to use electoral maps that, in design and effect, burden the rights of minority voters.”

This post was originally published at Howe on the Court.

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Last Monday in June: The final six

Last Monday in June: The final sixThe justices are expected to take the bench again this morning to issue opinions in argued cases. After Friday’s four opinions, there are six cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued). Florida v. Georgia (argued January 8, 2018): This is a relatively rare […]

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Last Monday in June: The final six

The justices are expected to take the bench again this morning to issue opinions in argued cases. After Friday’s four opinions, there are six cases left for them to decide; this post briefly summarizes those cases (in the order in which they were argued).

Florida v. Georgia (argued January 8, 2018): This is a relatively rare “original jurisdiction” case – a lawsuit that begins in the Supreme Court, rather than coming to the justices as an appeal. It arises from a decades-long dispute between Florida and Georgia over Georgia’s use of water in the Apalachicola-Chattahoochee-Flint River Basin, which begins in northeast Georgia and flows south into the Florida Panhandle, along the two states’ borders with Alabama. The Supreme Court appointed a special master to hold a trial in the case; last year the special master issued a report recommending that Florida’s request to limit Georgia’s water use be denied. Florida objected to his conclusions, and the justices heard oral argument in the case earlier this year.

Janus v. AFSCME (argued February 26, 2018): This is a case filed by Mark Janus, an Illinois child-support specialist. Although Janus does not belong to the union that represents him, he is still required to pay the union a fee (usually known as an “agency fee” or “fair-share fee”) to cover the costs of collective bargaining from which he benefits. The Supreme Court approved such an arrangement over 40 years ago, but Janus is asking the justices to overrule that decision. He argues that the fee violates his rights under the First Amendment because it finances speech by the union that is intended to directly influence the government’s policies on issues like salary, benefits and pensions. Janus’ case is the third time that the justices have considered this question: In the first case, they concluded that the challengers were not actually government employees, and they deadlocked in the second case after the death of Justice Antonin Scalia. The case likely hinges on the vote of the court’s newest justice, Neil Gorsuch, who did not tip his hand at the oral argument. There are two decisions still left from the court’s February sitting, but it’s hard to predict who might be writing this opinion because four justices have not yet written opinions in February. Many court-watchers believe that if Janus wins, Justice Samuel Alito is likely to write the opinion, because he wrote the ruling in the first challenge to the union fees.

Ohio v. American Express (argued February 26, 2018): This is an antitrust case, in which a group of states are challenging a provision in the contract between American Express and the merchants that accept its cards; the provision bars the merchants from trying to steer their customers to use a particular credit card. The main issues before the court are twofold. First, at what market should courts look at in a case like this: just the merchants, or the merchants and the cardholders? Second, if courts look at both the merchants and the cardholders as the market, do the plaintiffs have to show that both sides are harmed by the provision?

NIFLA v. Becerra (argued March 20, 2018): This is a challenge to a California law that imposes two different sets of requirements on crisis-pregnancy centers – nonprofit organizations, often affiliated with Christian groups, that are opposed to abortion and offer their assistance to pregnant women. Centers that are licensed to provide medical services (such as pregnancy tests and ultrasounds) must post notices to inform their patients that free or low-cost abortions may be available, while unlicensed centers (which provide pregnant women with diapers and formula, for example) must include disclaimers in their advertisements to make clear that their services do not include medical help. The centers argue that the law violates the First Amendment’s free speech clause.

Abbott v. Perez (argued April 24, 2018): This case involves allegations of racial gerrymandering – that is, that Texas lawmakers drew federal congressional and state legislative districts that harmed black and Hispanic residents there. It began as a challenge to maps drawn by the state’s Republican-controlled legislature in 2011. In 2012, a federal district court drew new maps for the election that year; the state legislature adopted those maps the following year. Last year the district court invalidated parts of the 2013 plans, on the ground that they perpetuated discrimination in the 2011 plan, and the Supreme Court agreed to weigh in. Before the justices can reach the merits of the case, though, they must determine whether they have the authority to hear it at all, when the district court did not either issue or deny an injunction – a requirement before the Supreme Court can review appeals from a three-judge district court. If the justices do reach the merits, they then must decide whether the state could have been discriminating against minority voters when it was simply using the maps that the district court had ordered it to use.

Trump v. Hawaii (argued April 25, 2018): This is the challenge to President Donald Trump’s September 2017 order, which limited travel to the United States by citizens of eight countries: Libya, Iran, Somalia, Syria, Yemen, North Korea, Venezuela and Chad. Like the two similar orders that preceded it, the September 2017 order drew immediate legal challenges. The state of Hawaii has two main arguments. First, it says, although the president has broad power over immigration, the order goes too far. Second, it contends that the order violates the Constitution’s establishment clause, which bars the government from (among other things) favoring one religion over another. The state points to the two earlier versions of the order, which targeted Muslim countries, as well as comments and tweets made by the president calling for a ban on the entry of Muslims into the United States.

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Opinion analysis: Justices approve broad damage recovery for patent-infringing exports

Opinion analysis: Justices approve broad damage recovery for patent-infringing exportsThis morning’s opinion in WesternGeco v. Ion Geophysical Corp., holding that the Patent Act authorizes a damage award for patent-infringing exports, is far from what you would have expected from the argument. In April when the justices heard from counsel for the parties, the bench engaged in a heated and far-ranging debate that touched on […]

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Opinion analysis: Justices approve broad damage recovery for patent-infringing exports

This morning’s opinion in WesternGeco v. Ion Geophysical Corp., holding that the Patent Act authorizes a damage award for patent-infringing exports, is far from what you would have expected from the argument. In April when the justices heard from counsel for the parties, the bench engaged in a heated and far-ranging debate that touched on extraterritorial application of the Patent Act as well as basic tort-theory concepts of proximate cause in the like. This morning, though, the justices disposed of the matter with a short and highly formalistic opinion from Justice Clarence Thomas, which barely alludes to those topics. With seven votes for Thomas’ opinion, the concerns of the oral argument and the briefing were relegated almost entirely to a dissent from Justice Neil Gorsuch, joined only by Justice Stephen Breyer.

The case involves Section 271 of the Patent Act, which defines the types of conduct that amount to infringement of a patent. In general, the section applies only to conduct that occurs in the United States. There is an exception, though, in Section 271(f), a provision adopted in response to (and overruling) a notorious Supreme Court case that exonerated a defendant who had manufactured the components of an invention in the United States but had shipped them abroad for assembly into an infringing device. Specifically, Section 271(f) includes within its definition of “infringement” the act of supplying the components of a patented device from the United States. In this case, for example, ION Geophysical manufactured in the United States components that it shipped to companies abroad; when assembled by ION’s customers, those components produced a system for surveying the seafloor that duplicated patented technology held by WesternGeco (perhaps better known by its earlier name Western Geophysical).

The question is what the proper remedy should be for ION’s infringement. The basic premise of the Patent Act (reflected in Section 284) is that the patent-holder should receive full compensation for infringement. Because WesternGeco as a matter of policy did not license its technology, it would have signed service agreements with the parties who bought the components from ION. The lower courts concluded that WesternGeco’s profit from those contracts would have been about $90 million, but they declined to award that amount as damages, reasoning that WesternGeco could not obtain damages for use of the patented device overseas.

Thomas sees it quite differently. He starts by reciting the well-known presumption that federal statutes “apply only within the territorial jurisdiction of the United States,” ornamenting it with his citation of a “medieval maxim” that is new to me: “Statua suo clauduntur territorio, nec ultra territorium disponunt.” (Loosely translated, that means something like “A statute is bound by its own territory and has not effect beyond that domain.”) The parties briefed and debated the question whether that presumption should “apply to statutes, such as § 284, that merely provide a general damages remedy for conduct that Congress has declared unlawful.” Thomas, however, declines to address that question, noting that it “could implicate many other statutes besides the Patent Act.”

Rather, he explains, application of the presumption of extraterritoriality depends on the statute’s “focus,” which he describes as “the object of its solicitude, … the conduct it seeks to regulate, as well as the parties and interests it seeks to protect or vindicate” (quotation cleaned up considerably). Here, Thomas explains, because Section 284 provides “damages adequate to compensate for the infringement,” the focus of this statute is “the infringement.” Because the act that constituted infringement under the relevant portion of Section 271 was the act of supplying components from the United States, Thomas reasons that the “focus” is a wholly domestic act. Thus, he concludes abruptly, “[t]he conduct in this case that is relevant to that focus clearly occurred in the United States,” as it was ION’s domestic act of supplying the components that infringed WesternGeco’s patents. Because Thomas sees the case as “a domestic application of Section 284,” the presumption against extraterritoriality is irrelevant.

Gorsuch’s dissent emphasizes that in every practical way the court’s opinion has validated an award of damages that compensates the patentholder for extraterritorial conduct and notes the disruption that could occur if foreign countries applied a rule of similar breadth to activity within our borders. Thomas dismisses those concerns out of hand, repeating his point that the focus of the statute is infringement and his view that the “infringement” was the act of supply, not the overseas use, and criticizing Gorsuch for “wrongly conflat[ing] legal injury with the damages arising from that injury.”

The only suggestion of a narrowing possibility in the opinion is a brief footnote at the end suggesting that the court “do[es] not address the extent to which other doctrines, such as proximate cause, could limit or preclude damages in particular cases,” a topic that Justice Elena Kagan discussed at oral argument. In context, though, that does not seem likely to provide much of a limiting effect, given the likelihood that the U.S. Court of Appeals for the Federal Circuit already recognizes proximate cause in its framework for the assessment of damages. What we have, then, is a rare reversal of the Federal Circuit for being unduly niggardly in its assessment of the rights of patentholders.

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Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trial

Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trialIn a 5-4 decision authored by Justice Neil Gorsuch, the Supreme Court upheld the Virginia state courts’ conclusion that a defendant’s agreement to statutory severance of a felon-in-possession count from substantive burglary counts waived his right to invoke the issue-preclusion protection of the double jeopardy clause after he was acquitted of the substantive offenses. In […]

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Opinion analysis: Court holds agreement to statutory severance of overlapping counts waives issue-preclusion claim after acquittal at first trial

In a 5-4 decision authored by Justice Neil Gorsuch, the Supreme Court upheld the Virginia state courts’ conclusion that a defendant’s agreement to statutory severance of a felon-in-possession count from substantive burglary counts waived his right to invoke the issue-preclusion protection of the double jeopardy clause after he was acquitted of the substantive offenses. In a separate concurrence, Justice Anthony Kennedy refused to join the portion of the opinion that attempted to place the final nail in the coffin of Ashe v. Swenson’s constitutional issue-preclusion protection for acquittals. Justice Ruth Bader Ginsburg, joined by Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, dissented.

Briefly, Michael Currier was charged with three crimes growing out of a residential break-in during which a safe containing firearms was taken: breaking and entering, larceny and possession of a firearm following a felony conviction. The felon-in-possession charge was based on the allegation that Currier had possessed the guns in the safe during the break-in. A Virginia court rule permits a felon-in-possession charge to be severed unless either party objects, and both sides agreed to the severance. Currier was tried first on the substantive charges and was acquitted. He then argued that the jury’s acquittal resolved the question of whether he had participated in the burglary and theft, so that the state was barred from introducing any evidence of his alleged involvement in those crimes. Because the possession-of-the-weapon charge required proof of that participation, he contended, issue preclusion precluded the second trial. Virginia argued that Currier’s consent to the severance waived his issue-preclusion claim. The court agreed, Currier was tried and convicted, and the conviction was upheld on appeal. The Virginia Supreme Court affirmed.

The Supreme Court agreed with the lower courts that the claim had been waived. It held that a defendant who consents to multiple trials waives not only the protection against multiple trials but also the protection against relitigation of an issue following an acquittal. In doing so, the court assumed without deciding that Ashe would bar the second trial in this case. The court’s precedent shows that this is correct. In Ashe, the court recognized a separate collateral estoppel, or issue preclusion, protection in the double jeopardy clause. The defendant was charged with robbing six victims in a poker game. At his first trial, he was acquitted of robbing one of them; in light of the record, the acquittal necessarily rested on a jury finding that he was not one of the robbers. When the prosecution attempted to try him again for robbery of the second victim, the court held the relitigation of the issue of the defendant’s identity as a robber violated the double jeopardy clause.

But the court held that Currier’s issue-preclusion claim had been waived. It did so by relying on three precedents: Jeffers v. United States, United States v. Dinitz and United States v. Scott. In Jeffers, the defendant had requested separate trials and, after being convicted on a lesser count, moved to bar a second trial on a greater count. In Dinitz, the defendant’s motion for a mistrial was found to be a waiver of a claim that a second trial was barred. In Scott, a defendant’s motion was held to waive a claim that a second trial was barred by double jeopardy. According to the court, these cases demonstrate that a defendant’s consent to a second proceeding waives all double jeopardy objections to that proceeding because the consent shows that the second trial was not the result of government overreaching, but, rather, a result of the defendant’s choice.

To this extent, Kennedy joined the opinion of the court.

But a four-justice plurality went further.

The plurality rejected on what it called “a narrower ground” Currier’s argument that his agreement to separate trials did not waive his claim that under straight Ashe analysis, the state was barred from producing evidence of his involvement in the crime for which he had been acquitted, even if it were allowed a second trial. Questioning whether issue preclusion following an acquittal is even protected by the double jeopardy clause, the court noted that last term in Bravo-Fernandez v. United States, it had warned that issue preclusion should have “guarded application … in criminal cases.” Relying on the clause’s “same offence” text, history and precedent, Gorsuch explained that civil collateral estoppel cannot be imported into the double jeopardy protection and, in addition, that the protection against issue preclusion in cases involving different offenses recognized in Ashe is inconsistent with the text and purpose of the double jeopardy clause. It’s difficult to describe this analysis as “narrow.”

In addition to the plurality’s unnecessary attempt to put the last nail in the coffin of Ashe, what is striking is the lack of any real discussion in the majority opinion of the protection afforded the finality of an acquittal. This is a core double jeopardy protection that exists independent of the protection against multiple trials and that is central to the issue-preclusion doctrine.

Ginsburg’s dissent recognizes these constitutional principles. She begins by identifying as separate the protection against multiple attempts by the government to convict (multiple trials) and the protection for the finality of acquittals. Because these are separate rights, the majority’s reliance on Jeffers, Dinitz and Scott is misplaced: None of those cases involved the finality of an acquittal. Moreover, Ginsburg points out, the majority’s reliance on Dowling v. United States as limiting the applicability of issue preclusion in criminal cases is inappropriate, because there the court simply refused to extend the issue-preclusion doctrine to preclude not proof of guilt but simply proof of other crimes under Federal Rule of Evidence 404(b).

Moreover, because the right against multiple trials and the right to the finality of an acquittal are separate rights, and because an issue-preclusion claim does not necessarily bar a second proceeding, a defendant’s agreement to separate trials does not waive an issue-preclusion claim. As Ginsburg explained, Currier took no action inconsistent with assertion of an issue-preclusion plea. Relying on well-established Supreme Court waiver analysis, under which the court “indulge[s] every reasonable presumption against waiver of fundamental constitutional rights,” she stated that waiver of Currier’s issue-preclusion claim cannot be implied from his agreement to separate trials; it is not even inconsistent with an agreement to separate trials.

Finally, even assuming that the majority is correct that, given the defendant’s agreement, this case does not involve the kind of government overreaching that the double jeopardy clause is designed to prevent, the dissent, relying on precedent, concluded that issue preclusion does not require a showing of government overreaching. The protection against overreaching is protected by the right against multiple trials. But, importantly, Ginsburg pointed out that today the prosecution has an unprecedented array of charges that can be brought based on a single criminal incident. For that reason, issue preclusion remains an important double jeopardy protection.

The outcome of the case was not particularly surprising. But double jeopardy has always confused the court, resulting in reversals of recently announced principles and arguably inconsistent results. Unfortunately, the court continues to demonstrate its longstanding confusion about the various protections contained in the double-jeopardy protection, conflating “same offense,” “successive proceedings” and “finality of acquittal” purposes, protections and precedents. This confusion is manifest in the 5-4 split. Although the plurality’s attempt to further limit Ashe is a bit surprising, it is not unexpected. Courts have attempted to limit Ashe to its unique facts. But the extent to which the opinion seeks essentially to eviscerate the issue-preclusion protection from criminal cases is something new. For now, that assault remains a plurality effort.

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