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self-study / Constitutional Law

Jul. 9, 2021

OT20: It’s a wrap

James Azadian

Member, Dykema Gossett PLLC


Pepperdine Univ School of Law

Becky James

Member, Dykema Gossett PLLC

Gaveling out last week, the justices issued their final opinions of the October 2020 term, drawing to a close one of the most agreeable Supreme Court terms in recent history. It was the first term in nearly three decades without Justice Ruth Bader Ginsburg, who passed away before the start of the term. The court's newest member, Justice Amy Coney Barrett, signed on shortly after the term began, surprising her critics who thought she'd solidly join what some call the court's right wing and even vote to dismantle the Affordable Care Act. Those critics were stunned when she voted with the court's majority to uphold the Affordable Care Act.

An aggressively mounted national campaign urged Justice Stephen Breyer's retirement, with the hope that the Senate's slim Democratic majority could confirm a younger justice nominated by President Joe Biden. Stephens' response? He hired a full panel of four law clerks for the coming October 2021 term, suggesting that the 82-year-old justice is going nowhere.

For the entire term, oral argument was conducted exclusively over the phone due to the pandemic. The Supreme Court heard 58 oral arguments and issued 67 merits opinions, reversing the lower court in almost half of those cases. Comprising almost a quarter of the court's docket this term were 16 9th U.S. Circuit Court of Appeals cases. The court reversed in all of those cases except one. But other circuits with multiple cases before the Supreme Court scored even poorer percentage-wise, with the court reversing in 100% of the cases it decided from the 4th, 6th, 10th and D.C. Circuits.

Over two-thirds of the cases decided this term garnered unanimity or a super-majority of justices (9-0, 8-1, or 7-2), while only about one-tenth of the decisions being closely divided (5-4). Undeterred by Congress' court-packing threats to increase the number of justices on the Supreme Court, the justices handed down significantly more unanimous opinions than in any of the previous seven terms. That certainly defies what many court watchers expected to be a term marked by a lot of 6-3 decisions in light of the court's current 6-3 majority of Republican-appointees.

As the political branches continue to divide sharply along partisan lines, the court once again showed itself to be composed not of conservative and liberal factions, but as one body of independent, objective umpires who find consensus in their calling to set aside their personal desires, proclivities, and ideologies to decide really tough questions as a non-partisan institution.

With Barrett recused in a dozen cases and Justice Samuel Alito recused in one case, a reliable picture cannot emerge as to which justices were in the majority the most this term. However, if considering only the divided cases (where there was at least one dissenting justice), Justice Brett Kavanaugh came in first place, finding himself in the majority 95% of the time. And with Barrett's addition and Ginsburg's departure, Justice Kavanaugh this term supplanted Chief Justice John Roberts as the court's new ideological median. (Recall the OT'19 term, when it was Roberts who most frequently was in the majority and held the controlling "anchor" vote over the outcome in close decisions.)

Interestingly, the cases that people thought would amount to blockbuster decisions -- such as the Affordable Care Act cases and the cursing cheerleader free speech case -- seemed to just fizzle out. In contrast, some of the decisions that got the least amount of attention in headlines -- such as the court's ruling that states can't require businesses to let union organizers onto their property without just compensation -- were the ones that portend the greatest impact on society now and in years to come.

Against this backdrop, let us take a closer look at some of this term's significant decisions:


NCAA v. Alston

Several college football and basketball players sued claiming the National Collegiate Athletic Association's restrictions on "non-cash education-related benefits" violate federal antitrust law. The district court ruled for the athletes that the NCAA must allow for certain types of academic benefits, such as "computers, science equipment, musical instruments and other tangible items not included in the cost of attendance calculation but nonetheless related to the pursuit of academic studies." But the district court also ruled that the NCAA may limit colleges' cash or cash-equivalent awards to athletes for academic purposes. The 9th Circuit affirmed, recognizing the NCAA's interest in "preserving amateurism," but decided nevertheless that the NCAA's practices violated antitrust law. The Supreme Court (Gorsuch, J.) unanimously affirmed the 9th Circuit's decision and held that the NCAA's strict limitations on compensating college athletes violate federal antitrust law. This decision is a game changer! It is expected to have broad implications for the future of college sports. NCAA colleges could now offer athletes better benefits tied to education, such as free graduate school, travel, internships, and academic-incentive payments.

Criminal Procedure/Civil Rights

Lange v. California

Recognizing that a man's garage is his castle, the Supreme Court limited the "exigent circumstances" exception to the Fourth Amendment warrant requirement. After an unsuccessful attempt to pull defendant over on suspicion of DUI, police followed defendant into his garage, where they questioned him and gave him a field sobriety test. The court (Kagan, J.), rejected California's application of a categorical rule that "hot pursuit" of a fleeing suspect constitutes exigent circumstances. The court held that where the suspected offense is a misdemeanor, mere flight is not enough to establish exigent circumstances; instead, the exception is determined on a case-by-case basis, considering among other factors the severity of the suspected offense.

Torres v. Madrid

In this Section 1983 case, the Supreme Court ruled that police shootings with intent to restrain a suspect constitute a "seizure" under the Fourth Amendment. As police attempted to execute an arrest warrant, the suspect sped off in her car; police then fired at her, hitting her twice in the back. Undeterred, she kept driving and escaped until being arrested the next day. The court (Roberts, C.J.) held that "the application of physical force to the body of a person with intent to restrain is a seizure even if the person does not submit and is not subdued." The dissent, led by Justice Neil Gorsuch, accused the majority of being result-oriented, to which the chief justice retorted that it was merely applying 30-year-old precedent.

Jones v. Mississippi

We all know that teenagers can be incorrigible, but are they "permanently incorrigible"? This is a question the Supreme Court (Kavanaugh, J.) held need not be answered before a juvenile may be sentenced to life without parole. The court decided that, while Miller v. Alabama, 567 U.S. 460 (2012), and Montgomery v. Louisiana, 577 U.S. 190 (2016), held mandatory life without parole sentences are unconstitutional for juveniles, no separate factual finding of "permanent incorrigibility" is required so long as courts have sentencing discretion. The decision does not change the unconstitutionality of capital punishment for juveniles or LWOP sentences for non-homicide juvenile offenses.

Edwards v. Vonnoy

Last term, the Supreme Court held, in what some might have termed a "watershed" ruling, that criminal jury verdicts must be unanimous. Ramos v. Louisiana, 2020 DJDAR 3504 (2020). This term, the court held that Ramos is a new rule of criminal procedure that, while applicable to cases pending in trial courts and on direct appeal, does not apply retroactively to cases on collateral review, citing Teague v. Lane, 489 U.S. 288 (1989). Perhaps even more significantly, the majority (Kavanaugh, J.) pronounced dead the exception noted in Teague that "watershed" rules of criminal procedure may apply retroactively. Justice Elena Kagan authored a spirited dissent, criticizing the majority for departing from precedent and going farther than it needed to in eradicating the "watershed" exception to non-retroactivity.

Charitable Donors

Americans for Prosperity Foundation v. Bonta

To solicit contributions in California, the Attorney General requires charitable organizations to disclose the identities of their major donors. The State argued that this information makes it easier to police misconduct by charities. In a 6-3 decision reversing the 9th Circuit, the Supreme Court (Roberts, C.J.) decided that California had gone too far in requiring tax-exempt charitable organizations to file with state regulators certain forms disclosing their major contributors, holding that the disclosure requirement violates the First Amendment right to free association.

Election Law

Brnovich v. DNC

In these lawsuits, the Democratic National Committee and certain of its affiliates challenged two aspects of the state of Arizona's regulations governing precinct-based election day voting and early mail-in voting, arguing they result in vote suppression by having an adverse and disparate effect on the state's American Indian, Hispanic and African-American citizens in violation of the Voting Rights Act of 1965 and the 15th Amendment.

First, Arizonans who vote in person on Election Day in a county that uses the precinct system must vote in the precinct to which they are assigned based on their address. If a voter votes in the wrong precinct, the vote is not counted. Second, for Arizonans who vote early by mail, Arizona law makes it a crime for any person other than a postal worker, an elections official, or a voter's caregiver, family member, or household member to knowingly collect an early ballot -- either before or after it has been completed.

The district court rejected all of these claims. A divided panel of the 9th Circuit affirmed, but the en banc court reversed, concluding that the challenged state regulations imposed a disparate burden on minority voters and the district court clearly erred in finding that the ballot-collection law was not enacted with discriminatory intent.

In one of its few 6-3 decisions of the term, the Supreme Court (Alito, J.) reversed and upheld the challenged state regulations. The court ruled that Arizona was on solid legal ground in enforcing its regulations that prohibit third parties from collecting mail-in ballots and disallow votes cast in the wrong precinct. The majority rejected the DNC's claims that the state discriminated against minority voters. Joined by Justices Stephen Breyer and Sonia Sotomayor, Justice Kagan dissented, calling the majority's decision "tragic" because "the Court has (yet again) rewritten -- in order to weaken -- a statute [the VRA] that stands as a monument to America's greatness, and protects against its basest impulses. What is tragic is that the Court has damaged a statute designed to bring about 'the end of discrimination in voting.'" (Quoting President Lyndon B. Johnson's statement about the VRA's purpose when he sent the VRA bill to Congress.)

Extraterritoriality of Laws

Nestle USA v. Doe

The Supreme Court (Thomas, J.) limited domestic corporations' liability under the Alien Tort Statute for harms that occur overseas. Plaintiffs were Mali individuals who alleged they had been forced into child slave labor to produce cocoa in the Ivory Coast. They sued domestic corporations Nestle USA and Cargill under the ATS, alleging the corporations aided and abetted child slavery by buying cocoa and providing technical and financial resources to the Ivory Coast farms.

Reversing the 9th Circuit, the court reaffirmed that the ATS does not apply extraterritorially and held that plaintiffs could not establish domestic application of the ATS simply because the corporations' "major operational decisions" were made in the United States, when all the alleged harms occurred overseas.

In a part of his opinion that was not adopted by a majority of the court, Justice Clarence Thomas would have held that the ATS does not create a private cause of action for this violation of international law.


California v. Texas and Texas v. California

In a 7-2 decision, the Supreme Court (Breyer, J.) preserved the Affordable Care Act for the third time, holding that its challengers didn't have Article III standing to bring their lawsuits after Congress zeroed-out the financial penalty for individuals not having health insurance. The court reasoned that, in light of the $0 penalty, the challengers were unable to show that they had been harmed. Justice Alito wrote a scathing dissent, joined by Justice Gorsuch, urging the majority to reach the merits of the core claims and determine the act (or at least part of the act) is unconstitutional. The court's ruling makes it more difficult for future challengers of the act to have their core claims resolved on the merits, as it will be harder for them to show that they have standing to sue unless Congress increases the current $0 monetary penalty.

TransUnion v. Ramirez

In one of the few 5-4 decisions of the term, the Supreme Court (Kavanaugh, J.) reversed the 9th Circuit and ruled that certain class claimants lack Article III standing to sue based on alleged violations of the Fair Credit Reporting Act. But the court's specific holding is that a statutory violation alone does not confer standing in federal court, even if the statute provides relief in the form of statutory damages; the statutory violation must have actually injured the plaintiff. This holding is not confined to the class action context, as it applies to any case brought in (or removed to) federal court that involves a damages claim premised on the violation of a federal or state statute where there is no concrete injury to the claimant. Citing its decision in Spokeo, Inc. v. Robins, 578 U. S. 330, 340-341 (2016), the court reiterated that "[t]o have Article III standing to sue in federal court, plaintiffs must demonstrate, among other things, that they suffered a concrete harm. No concrete harm, no standing. Central to assessing concreteness is whether the asserted harm has a 'close relationship' to a harm traditionally recognized as providing a basis for a lawsuit in American courts -- such as physical harm, monetary harm, or various intangible harms." Justices Thomas and Kagan each penned a dissent. Their beef with the majority is based on separation of powers. As Thomas notes, "Never before has this Court declared that legal injury is inherently insufficient to support standing. And never before has this court declared that legislatures are constitutionally precluded from creating legal rights enforceable in federal court if those rights deviate too far from their common-law roots." The new Article III standing rule that emerges from this case is that the alleged statutory violation must have actually injured the claimant for the claim to be sustained in federal court. In other words, the court is no longer going to buy the "anything-hurts-so-long-as-Congress-says-it-hurts" theory of Article III injury. It can be expected that this explicit injury requirement will keep many plaintiffs out of federal court because many plaintiffs seeking redress for violations of federal or state statutes do not actually suffer an injury. An easy way to remember the TransUnion rule is with this age-old riddle: If a tree falls in a forest and no one is there to hear it, does it make a sound? TransUnion instructs, when it comes to statutory violations, the answer is "no."

Religious Liberty

Fulton v. Philadelphia

The city of Philadelphia suspended a private Catholic foster care agency from a city-funded foster care program because it refused to place foster kids with same-sex parents, in violation of the city's policies forbidding discrimination against same-sex couples. In a unanimous decision, the Supreme Court (Roberts, C.J.) held that the city's refusal to contract with the Catholic agency unless it agreed to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment.

Student Speech

Mahanoy Area School District v. B.L.

A student cheerleader of a public high school used vulgar language and gestures criticizing the school and the school's cheerleading program because she did not make the varsity cheer squad. Oh, and she transmitted all of her vulgarities to her friends on Snapchat, a popular social media platform. The student's speech took place outside of school hours and away from the school's campus. Nonetheless, the school suspended the student for a year from the cheerleading program.

The Supreme Court (Breyer, J.) held that the school's disciplinary action violated the cheerleader's First Amendment right to free speech, thus extending the First Amendment's protection of student speech to social media. The lone dissenter, Justice Thomas, continues to follow the historical rule that "a school can regulate speech when it occurs off campus, so long as it has a proximate tendency to harm the school, its faculty or students, or its programs. He notes, "[i]f there is a good constitutional reason to depart from this historical rule, the majority and the parties fail to identify it. I would thus apply the rule."

Cedar Point Nursery v. Hassid

In this 6-3 decision reversing a decision of the 9th Circuit, the Supreme Court (Roberts, C.J.) held that a 1975 California regulation giving unions a "right to take access" to an agricultural employer's property to solicit support for unionization constitutes an unconstitutional physical taking of private property under the Fifth and Fourteenth Amendments. The dissenting opinion (Breyer, J., joined by Sotomayor and Kagan, JJ.) finds the regulation "does not 'appropriate' anything; it regulates the employers' right to exclude others." The dissent also argues that the regulation "allows only a temporary invasion of a landowner's property and that this kind of temporary invasion amounts to a taking only if it goes 'too far.'" Unquestionably, the court's ruling is a victory for private property owners and businesses, and a major defeat for labor organizations. Although the court's decision involves labor's access to farms, it could be applied to labor's access across other industries saddled with similar labor-organizing laws.


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