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Annual Supreme Court Term in ReviewJune 26, 2020

Annual Supreme Court Term in ReviewJune 26, 2020

Adam G. Unikowsky

Partner, Co-Chair of the Appellate andSupreme Court PracticeWashington, DC | 202 639-6861

Matthew S. Hellman

Lindsay C. Harrison

Partner Washington, DC | 202 637-6327

Ishan K. Bhabha

Partner, Co-Chair of the Appellate and Supreme Court Practice Washington, DC | 202 639-6023

Jessica Ring Amunson

Former Acting Solicitor General Chair of the Appellate and Supreme Court Practice Washington, DC | 202 639-6869

Ian Heath Gershengorn



Our Panel

4

Our Appellate and Supreme Court Practice

20 oral arguments in the past five US Supreme Court Terms

Argued three cases this Term (including one telephonically)

Routinely appear in Federal and State appellate and trial courts and provide counseling on commercial and regulatory issues

More than a dozen members of the firm have argued before the US Supreme Court

Court During the Pandemic

Pandemic

“In keeping with public health precautions recommended in response to COVID-19, the Supreme Court is postponing the oral arguments currently scheduled for the March session. . . . The Court’s postponement of argument sessions in light of public health concerns is not unprecedented. The Court postponed scheduled arguments for October 1918 in response to the Spanish flu epidemic. The Court also shortened its argument calendars in August 1793 and August 1798 in response to yellow fever outbreaks.”

Polling Question #1

Do you think the Supreme Court should allow cameras in the courtroom?

1) Yes

2) No

Polling Question #2

Did you listen to any of the Supreme Court’s telephonic arguments?

1) Yes

2) No

Polling Question #3

Do you think Justice Thomas will retire at the end of this Term?

1) Yes

2) No

Pandemic Decisions

Republican National Committee v. Democratic National Committee Ballots must be received by election

officials by Monday April 13. Question presented is whether absentee ballots must be mailed and postmarked by election day, Tuesday, April 7, as state law would ordinarily require, or whether instead they may be mailed and postmarked after election day, so long as they are received by Monday, April 13, as the district court ordered to accommodate the coronavirus

Court holds 5-4 that district court order was unlawful

Polling Question #4

Do you think the Court will have to decide a case arising out of the presidential election this fall?

1) Yes

2) No

Pandemic Decisions

South Bay United Pentecostal Church v. Newsom California shutdown order that limited attendance at religious worship services to

25% of building capacity or 100 attendees, whichever is lower Court holds 5-4 order is constitutional

Backdrop to the 2019 Term

14

Justice Kennedy Retires – What’s at Stake?

Past four terms, Justice Kennedy joined Justices Ginsberg, Breyer, Sotomayor, and Kagan in 14 cases

Not business cases

Social issues

Abortion (Whole Women’s Health)

Affirmative Action (Fisher)

Racial Discrimination (Inclusive Communities, Peña-Rodriguez)

Capital Cases (Moore, Williams, McWilliams, Brumfield)

Same-sex Marriage (Obergefell)

Voting (Arizona Legislatures, Alabama Black Caucus)

15

An Independent Supreme Court

Confirmation votes have become increasingly partisan:

– Justice Scalia: 98-0– Justice Kennedy: 97-0– Justice Souter: 90-9– Justice Thomas: 52-48– Justice Ginsburg: 96-3– Justice Breyer: 87-9

– Chief Justice Roberts: 78-22– Justice Alito: 58-42– Justice Sotomayor: 68-31– Justice Kagan: 63-37– Justice Gorsuch: 54-45– Justice Kavanaugh: 50-48

“My hope is that one fine day, Congress will return to the bipartisan spirit that prevailed for my nomination.”

– Justice Ginsburg

16


Core to the Court and the Justices’ identity is the belief that they are non-partisan and independent of the President or party that appointed and confirmed them

“It’s my job to call balls and strikes and not to pitch or bat.”

– Chief Justice Roberts

“There’s no such thing as a Republican judge or a Democratic judge. We just have judges.”

– Justice Gorsuch

17


“This whole two-week effort has been a calculated and orchestrated political hit, fueled with apparent pent-up anger about President Trump and the 2016 election,….revenge on behalf of the Clintons, and millions of dollars in money from outside left-wing opposition groups”

Senate Testimony (9-26-2018)

“A good judge must be an umpire—a neutral and impartial arbiter who favors no political party, litigant or policy….Judges make decisions because the law and the Constitution compel the result….I do not decide cases based on personal or policy preferences”

Wall Street Journal Op-Ed (10-4-2018)

18


“It’s been extremely important for the court that in the last 40 years, starting with Justice O’Connor and continuing with Justice Kennedy, there has been a person who found the center, where people couldn’t predict in that sort of way. That’s enabled the Court to look as though it was not owned by one side or another and so it was indeed impartial and neutral and fair. And it’s not so clear that I think going forward that sort of middle position — it's not so clear whether we’ll have it.”

– Justice Kagan

“All of us need to realize how precious the Court’s legitimacy is. It's an incredibly important thing for the Court to guard this reputation of being impartial.”

– Justice Kagan

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“This was an Obama judge and I'll tell you what, it's not going to happen like this anymore.”

– President Trump

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.”


“Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country…”

– President Trump

20


Things are getting more heated, rather than less

“[In the last 13 years,] this Court issued 78 5-4 (or 5-3) opinions in which justices appointed by Republican presidents provided all five votes in the majority. In 73 of these 5-4 decisions, the cases concerned interests important to the big funders, corporate influencers, and political base of the Republican Party. And in each of these 73 cases, those partisan interests prevailed.”

“The Supreme Court is not well. And the people know it. Perhaps the Court can heal itself before the public demands it be restructured in order to reduce the influence of politics. Particularly on the urgent issue of gun control, a nation desperately needs it to heal.”

– Brief of Sen. Sheldon Whitehouse (Democrat) in Supreme Court

21


Things are getting more heated, rather than less

“Judicial independence is under assault. Democrats in Congress, and on the presidential campaign trail, have peddled plans to pack this Court with more justices in order to further their radical legislative agenda…These plans are a direct, immediate threat to the independence of the judiciary and the rights of all Americans.”

“For our part, we promise this: While we remain Members of this body, the Democrats’ threat to restructure the Court is an empty one. We share Justice Ginsburg’s view that “nine seems to be a good number.” And it will remain that way as long as we are here.”

– Letter of Senator Mitch McConnell (Republican) in Response

22

An Independent Supreme Court Court dismisses New York Gun case as moot

Justice Alito, dissenting (along with Justices Thomas and Gorsuch) Five United States Senators, four of whom are members of the bar of this Court,

filed a brief insisting that the case be dismissed. If the Court did not do so, they intimated, the public would realize that the Court is “motivated mainly by politics, rather than by adherence to the law,” and the Court would face the possibility of legislative reprisal.

“…motivated mainly by politics, rather than by adherence to the law,”

– Justice Alito, dissenting (along with Justices Thomas and Gorsuch)

23

An Independent Supreme Court The Court has been all too quick to grant the Government’s “reflexiv[e]” requests.

Perhaps most troublingly, the Court’s recent behavior on stay applications has benefited one litigant over all others. This Court often permits executions…to proceed, justifying many of those decisions on purported failures “to raise any potentially meritorious claims in a timely manner.” Yet the Court’s concerns over quick decisions wither when prodded by the Government in far less compelling circumstances…I fear that this disparity in treatment erodes the fair and balanced decision making process that this Court must strive to protect. (Justice Sotomayor)

“Sotomayor accuses GOP appointed Justices of being biased in favor of Trump. . . . This is a terrible thing to say. Trying to ‘shame’ some into voting her way? She never criticized Justice Ginsberg when she called me a ‘faker’. Both should recuse themselves on all Trump, or Trump related, matters!”

– President Trump

24

The Post-Kennedy Court – Year 1

21 5-4 decisions (30% of the docket)

Only 7 were the “traditional” 5-4

10 involved the “more liberal bloc” plus one more conservative Justice Justice Gorsuch – 4 cases Chief Justice Roberts – 3 cases Justices Thomas/Alito/Kavanaugh – 1 case each

25

The Post-Kennedy Court – Year 1

Major decisions

“Liberal” wins Census Apple Separation of Powers Death Penalty Ad Law

“Conservative” wins Takings Gerrymandering Arbitration Death Penalty

The 2019 Term

DACA at the Supreme Court

28

DACA: What it does

Eligibility for work authorization

Eligibility for social security number

Protection from removal

Eligibility for advance parole

Since 2012, nearly 800,000 young people have received deferred action.

29

DACA: TimelineJune 2012: Secretary Napolitano issues the DACA Memo

Sept 2017: Secretary Duke issues DACA Rescission Memo

Jan 2018: Injunction blocks DACA Rescission as to existing DACA recipients

April 2018: Judge Bates issues order vacating the DACA Rescission Memo

June 2018: Secretary Nielsen issues memo reaffirming DACA Rescission

Nov 2018: Trump Administration petitions for certiorari in Supreme Court

June 2019: Supreme Court grants certiorari

Nov 2019: Supreme Court hears oral argument

June 2020: Supreme Court announces decision

30

DACA: Three Consolidated Lawsuits

Plaintiffs

13 Individual DACA Recipients

Universities (Princeton University, University of California)

Corporations (Microsoft Corporation)

States (California, Maine, Maryland, Minnesota, New York, Massachusetts, Washington, Connecticut, Delaware, the District of Columbia, Hawaii, Illinois, Iowa, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Colorado)

Cities and Counties (San Jose, Santa Clara)

Unions (SEIU Local 521, American Federation of Teachers, AFL-CIO, United Food & Commercial Workers Int’l Union, AFL-CIO, CLC)

Non-Profit Organizations (NAACP, Make the Road New York)

31

DACA: Questions Presented

1. Whether the Trump Administration’s decision to rescind DACA is judicially reviewable.

2. Whether the Trump Administration’s decision to rescind DACA is lawful.

32

DACA: 5-4 Decision for Respondents

Majority: Chief Justice Roberts, Justices Breyer, Ginsburg, Kagan, and Sotomayor

Rescission of DACA is reviewable: getting rid of a major government program is reviewable

Nielsen Memo is a post-hoc rationalization: can’t make up new reasons after the fact (Chenery)

Rescission is unlawful:

Failure to disaggregate forbearance from removal and various ancillary benefits, such as work authorization

Failure to consider reliance interests

33

DACA: Bottom Line

34

DACA: Equal Protection

Chief Justice Roberts with everyone except Justice Sotomayor:

No claim that rescission was motivated by animus against immigrants of color

Justice Sotomayor dissents on this issue:

Quotes from President Trump calling Mexican immigrants “the bad ones,” and “criminals, drug dealers, [and] rapists” and comparing undocumented immigrants to “animals” responsible for “the drugs, the gangs, the cartels, the crisis of smuggling and trafficking, [and] MS13”

Redux of Trump v. Hawaii travel ban

Would allow claim to proceed to discovery

35

DACA: Dissents

Justice Thomas, joined by Justices Alito and Gorsuch

DACA was and is unlawful

Reliance interests irrelevant when policy itself is unlawful

Criticism of majority as wanting “to avoid a politically controversial but legally correct decision”

Justice Alito, solo

2 paragraphs: DACA was unlawful, and unreviewable as exercise of prosecutorial discretion

Justice Kavanaugh, solo

Nielsen Memo should be considered and explanation is sufficient

Congress should act

36

Bostock v. Clayton County

37


Title VII makes it unlawful to “discriminate against any individual … because of such individual’s…sex.”

Gerald Bostock and Donald Zarda were allegedly fired from their jobs because they were gay.

Aimee Stephens was allegedly filed from her job because she was a transgender woman.

The question: Did the employers discriminate against those individuals “because of such individual’s…sex”?

38


Held: An employer who fires an individual for being gay or transgender violates Title VII.

“[I]t is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”

Majority opinion by Justice Gorsuch, joined by Chief Justice Roberts and four Democratic appointees.

Dissent by Justice Alito, joined by Justice Thomas; Justice Kavanaugh also dissented separately.

39


Court holds that on a literal interpretation of Title VII, discrimination against a person for being gay or transgender is sex discrimination. “Consider, for example, an employer with two employees, both of whom are

attracted to men. The two individuals are, to the employer’s mind, materially identical in all respects, except that one is a man and the other a woman. If the employer fires a male employee for no reason other than the fact he is attracted to men, the employer discriminates against him for traits or actions it tolerates in his female colleague.”

“Or take an employer who fires a transgender person who was identified as a male at birth but who now identifies as a female. If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes a person identified as male at birth for traits or actions that it tolerates in an employee identified as female at birth.”

40


Court holds that it is adopting a textualist interpretation of Title VII: “These cases involve no more than the straightforward application of

legal terms with plain and settled meanings.”

It is irrelevant that legislators in 1964 did not predict this result: “Ours is a society of written laws. Judges are not free to overlook

plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations.”

41


Justice Alito, joined by Justice Thomas, dissented: “The Court tries to convince readers that it is merely enforcing the

terms of the statute, but that is preposterous. Even as understood today, the concept of discrimination because of ‘sex’ is different from discrimination because of ‘sexual orientation’ or ‘gender identity.’”

Justice Kavanaugh dissented: “To fire one employee because she is a woman and another employee

because he is gay implicates two distinct societal concerns, reveals two distinct biases, imposes two distinct harms, and falls within two distinct statutory prohibitions.”

42


Mystery: Why was the opinion assigned to Justice Gorsuch?

Typical practice: each Justice writes one opinion each month.

Justice Gorsuch had already written another significant October opinion (Ramos v. Louisiana), Chief Justice did not write in October, hence assumption was that Chief Justice would write.

Yet Justice Gorsuch wrote a second October opinion, while Chief Justice had no opinions that month.

Possible switch in outcome during long deliberation period?

43

Harris Oral Argument

Question from Justice Gorsuch

Polling Question #5

Who has the better of the textual arguments (not the policy arguments)?

1) The majority (Justice Gorsuch)

2) The dissents (Justice Alito, Justice Kavanaugh)

45

Bostock v. Clayton County: Reactions Justice Scalia would be disappointed that his successor has bungled textualism so

badly today, for the sake of appealing to college campuses and editorial boards. This was not judging, this was legislating—a brute force attack on our constitutional system. (Carrie Severino, President – Judicial Crisis Network)

If we've been fighting for originalism and textualism, and this is the result of that, then I have to say it turns out we haven't been fighting for very much. (Sen. Josh Hawley)

Everybody knows…that the laws in this country today [are] made almost entirely by unelected bureaucrats and courts. They're not made by this body…Why not? Because this body doesn't want to make law…Because in order to make law, you have to take a vote. In order to vote, you have to be on the record. And to be on the record is to be held accountable. That's what this body fears above all else. (Sen. Josh Hawley)

The Courts were never going to save us. Our project as conservatives is to curb their worst excesses, get them out of our way, and when that fails, seek the ultimate vindication of our convictions by defying them in the name of constitutional order. (Saurabh Sharma, columnist Daily Caller)

47

Mazars, Deutsche Bank, and more

“I could stand in the middle of Fifth Avenue and shoot somebody.”

President Trump

“[This case] appears to us highly unlikely to occupy any substantial amount of [the President’s] time.”

Clinton v. Jones

“Neither … separation of powers nor the need for confidentiality … can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances.”

United States v. Nixon

48


Many Disputes

Congressional subpoenas to private parties for President’s personal documents

State and local criminal investigations of the President’s personal actions

Congressional subpoenas to the Executive Branch for official documents

Subpoenas for impeachment testimony from former advisors

Long History

Washington

Nixon

Clinton

49


Q: “Do you concede any power in the House to subpoena personal papers of the President?”

A: “I think it is very hard to imagine that the House is ever going to have [that ] power.”

The Chief Justice and the President’s counsel in Mazars

Q: “Could you give me a plausible example of a subject you think is beyond any legislation Congress could write?”

A: “…No, Congress’s legislative authority is extremely broad.”

The Chief Justice and the House’s counsel in Mazars

“We’re mindful that as a state actor our office … cannot prosecute a president while in office. But, here, we’re talking about a subpoena sent to a third-party concerning private conduct.”

New York City’s counsel in Vance.

50

June Medical Services v. Russo

51

June Medical Services v. Russo

“I want to tell you Gorsuch. I want to tell you Kavanaugh. You have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions."

– Senator Charles Schumer (Democrat)

“Justices know that criticism comes with the territory, but threatening statements of this sort from the highest levels of government are not only inappropriate, they are dangerous. All Members of the Court will continue to do their job, without fear or favor, from whatever quarter."


52

June Medical Services v. Russo: Background

Louisiana’s Act 620 requires a physician to hold “active admitting privileges” at a hospital within 30 miles of the facility where an abortion is provided.

Materially identical to the Texas law ruled unconstitutional in Whole Women’s Health in 2016.

Only one doctor in Louisiana satisfied this requirement, per challengers.

53

June Medical Services v. Russo: SCOTUS

Key legal questions in the case

Do the abortion providers have standing to challenge the law?

Does the law put an undue burden on women’s right to have an abortion?

Key actual questions in the case

Will the Supreme Court use this case to restrict Roe or even overrule it?

Will the Court faithfully apply stare decisis and affirm Whole Women’s Health from just 4 years ago?

How will Gorsuch and Kavanaugh rule in their first major abortion case?

54

Seila Law v. CFPB: The Facts

CFPB created in 2010 as part of Dodd-Frank Act

The CFPB has substantial powers

Prescribes rules and regulations

Defines “unfair or deceptive or abusive” practices

Substantial enforcement powers

Not dependent on Congress for funding (Federal Reserve instead)

Led by a single director, 5 term, removable only for “inefficiency, neglect of duty or malfeasance in office,” i.e., not removal “at will”

Selia Law investigated for telemarketing, refuses to supply documents and instead responds by challenging CFPB’s structure

SG’s office refuses to defend CFPB, Paul Clement appointed

55

Seila Law v. CFPB: Legal Issues

Basic concern is about a vast “headless fourth branch of government” that is not democratically accountable and violates the President’s power under Article II

Does the appointment a director for 5 years impinge President’s authority to “take care that the laws be faithfully executed”?

DC Circuit rejected a similar challenge (with then-Judge Kavanaughdissenting) and Ninth Circuit followed suit

In 1935, Humphrey’s Executor rejected a challenge to the FTC on similar grounds. Although difference between 5 and 1 members, FTC “acts in part quasi-legislatively and in part quasi-judicially”

In 1988, Morrison v. Olson rejected a challenge to the Office of the Independent Counsel

56

Seila Law v. CFPB: Arguments, Predictions, and Remedies Argument set at 70 minutes, 3/4 lawyers arguing were Scalia clerks, House

of Representatives had its own lawyer

Case has an “academic” quality to it—investigative request was ratified by the acting director who does not challenge the President’s ability to remove her at will

Government argued that there was no limiting principle to Humphrey’s Executor, whereas House argued that Congress has never tried to place limits on President’s ability to control Cabinet

Initially Chief seemed willing to entertain a reading of flexible reading of “inefficiency” but seems more likely there are 5 votes for finding appointment of director is unconstitutional

That said, unlikely to get rid of CFPB, severability more likely

High stakes with other agencies and CFPB itself

57

Religion – Espinoza v. Montana Dep’t of Revenue Montana enacted taxpayer-funded school voucher program; over 90% of

funds went to religious schools

Montana Supreme Court invalidated program in its entirety under state constitutional providing stating that government aid will not go to religious schools

Petitioners (parents seeking vouchers): application of no-aid clause violated Free Exercise Clause

58

Religion – Espinoza v. Montana Dep’t of Revenue Likely 5-4 decision by Chief Justice Roberts

Chief Justice Roberts: Why – why does that explain why the race analogy is inapt? I mean, the legislature may say they built parks and pools, and they say funding those, but if a higher percentage of African Americans come and use the pools, then we're going to shut down the whole program. And you wouldn't defend that on saying they could have a judgment that it decreases tensions among the different races to keep them -- no, you would just look at the facial discrimination, right, and conclude the fact that -- that wouldn't be good under your view, would it? … How is that different than religion, which is also protected under -- under the First Amendment?

59

Religion – Our Lady of Guadalupe School v. Morrisey-Berru Agnes Morrisey-Berru and Kristin Biel were fifth-grade teachers at two

different Catholic schools

Taught secular subjects such as English, math, and science

Also taught daily religion classes

Accompanied students to Mass

Not required to be Catholic

Both teachers were fired from their jobs

Morrisey-Berru sued, alleging age discrimination; Biel sued, alleging disability discrimination

Question: Were Morrisey-Berru and Biel “ministers,” thus barring them from bringing employment discrimination claims?

60

Religion – Our Lady of Guadalupe School v. Morrisey-Berru Likely 5-4 decision

Justice Kagan’s hypotheticals: Math teacher who is told to teach Judaism 10 minutes a week (No) Math teacher who leads every class with the Shema (No) Math teacher who is told to infuse instruction with Jewish values (Maybe) Nurse at Catholic hospital who prays with patients (Yes) Communications staffer who writes press releases for church (Yes) Counselor at church-affiliated rehab clinic (Yes) Soup kitchen employee who leads grace before meals (No) Church organist (Yes) Cook who prepares Kosher-compliant meals (No)

Justice Gorsuch: “We don’t second-guess .. sincerely held religious beliefs. Why would we … second-guess who they deem a minister?”

61

Religion – Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania Third Supreme Court case on contraception mandate

Hobby Lobby: Lawfulness of contraceptive mandate

Zubik: Lawfulness of “accommodation” that used opt-out as trigger for contraceptive coverage

Round Three: Trump administration narrowed contraceptive coverage mandate. Third Circuit held that HHS lacked statutory authority to do so and violated APA. Case presents question of whether narrowed mandate is mandatory, or at least permitted.

Case also presents question on propriety of nationwide injunction

62

Religion – Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania Likely 5-4 decision

Chief Justice Roberts: “Well, the problem is that neither side in this debate wants the accommodation to work. The one side doesn't want it to work because they want to say the mandate is required, and the other side doesn't want it to work because they want to impose the mandate. Is it really the case that there is no way to resolve those differences?”

Justice Alito: “Hobby Lobby held that if a person sincerely believes that it is immoral to perform an act that has the effect of enabling another person to commit an immoral act, a federal court does not have the right to say that this person is wrong on the question of moral complicity. That's precisely the situation here. Reading the Third Circuit's discussion of the substantial burden question, I wondered whether they had read that part of the Hobby Lobby decision.”

63

The “Faithless Electors” Cases

Chiafalo v. Washington; Colorado v. Baca History of electors

Since 1796, 150 voters have not voted consistent with the democratic majority in their state

In 2016, there were 10 faithless electors Clinton lost 5, Trump lost 2, and 3 were invalidated by their states

Can states punish or remove a faithless elector? Washington imposes a fine on a faithless elector Colorado prohibits an elector from voting in conflict with state law

Square conflict among the courts on the issue The Washington Supreme Court held that the state was permitted to punish a

faithless elector because the elector possessed no First Amendment or discretionary right to vote independent of state law

The US Court of Appeals for the 10th Circuit invalidated the Colorado law, holding that Article II and the Twelfth Amendment give electors the discretion to vote for whomever the wish

64

The “Faithless Electors” Cases: Key Issues

Standing Have the electors suffered an “injury in fact” when their votes are cancelled by their

states? As with a number of standing issues, this really goes to the core of the right itself.

Article II and the Twelfth Amendment (10th Circuit reasoning) Article II states: “[e]ach State shall appoint, in such Manner as the Legislature thereof

may direct, a Number of Electors.” The Twelfth Amendment states that electors “vote by [distinct] ballot for president and

vice president,” and that the candidates receiving votes for president or vice president constituting a majority of the electors appointed are elected to those respective offices.

The 10th Circuit found that these provisions all demonstrate the right to make an individual choice as to whom an elector casts his or her ballot for.

First Amendment (Washington Supreme Court reasoning) “The First Amendment is not implicated when an elector casts a vote on behalf of the

State in the Electoral College … The power of electors to vote comes from the State, and the elector has no personal right to that role.”

“The people of the state do not vote for presidential electors. Rather, they vote for presidential candidates.”

A Look Ahead to the 2020 Term

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A look ahead to the 2020 term

Qualified immunity

Fulton v. Philadelphia

ACA

Google v. Oracle America

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Qualified Immunity Qualified immunity shields officials, including police officers, from civil liability –

predominately in Section 1983 cases, but also in Bivens and other constitutional cases – so long as their conduct “does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court has described the doctrine as balancing “two important interests—the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.” Pearson v. Callahan, 555 U.S. 223 (2009).

To determine whether immunity is warranted is a two-step question: The court must determine whether the facts the plaintiffs alleged (at the motion to

dismiss stage) or shown (at summary judgment) make out a violation of a constitutional right.

The court must decide whether the right at issue was “clearly established” at the time of the defendant’s alleged misconduct.

Order of operations matters.

69

Qualified Immunity

The doctrine was questioned from both sides of the ideological spectrum.

Justice Thomas’s concurring opinion in Ziglar v. Abbasi: “[O]ur analysis is no longer grounded in the common-law backdrop against which Congress enacted the 1871 Act,” and “[i]n an appropriate case, we should reconsider our qualified immunity jurisprudence.”

Justice Sotomayor’s dissenting opinion in Kisela v. Hughes: “This Court routinely displays an unflinching willingness ‘to summarily reverse courts for wrongly denying officers the protection of qualified immunity’ but ‘rarely intervene[s] where courts wrongly afford officers the benefit of qualified immunity in these same cases’” and that “one-sided approach to qualified immunity transforms the doctrine into an absolute shield for law enforcement officers.”

The Court scheduled 13 separate petitions to be heard together at its conference on May 15. It then relisted them multiple times before finally denying all of them on June 15.

“Most diverse group of amici ever assembled”

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Qualified Immunity

The Court ultimately ended up denying the petitions against the backdrop of the nationwide protests following the killing of George Floyd, AhmaudArbery, and Breonna Taylor.

Many of the petitions included truly egregious fact patterns of abuse by law enforcement officials.

Ultimately, only Justice Thomas dissented from the denial of certiorari. Justice Sotomayor did not pen a separate dissent. Justice Gorsuch did not join Justice Thomas’s dissent.

Lots of speculation about what happened.

71

Fulton v. City of Philadelphia: Facts

Philadelphia contracts with private foster-care agencies to place endangered children in safe families.

For the last 50 years, Catholic Social Services had contracted with the city to evaluate families for foster-care services, but it refuses to certify same-sex couples as appropriate.

CSS sued, claiming that the city’s refusal to place foster children through CSS violated the First Amendment Free Exercise Clause.

Under Employment Division v. Smith, a law that burdens religious exercise is not discriminatory provided it is neutral and generally applicable and a group is not being targeted explicitly for religious reasons.

CSS loses below.

72

Fulton v. City of Philadelphia

Issues before the Court Smith (1990) is a foundational First Amendment case – allows government to

promulgate and enforce laws that undoubtedly have an effect on religious groups so long as the laws are neutral and generally applicable and do not explicitly target religion

CSS asks that Smith be overruled: Text focuses on “prohibiting free exercise;”

RFRA, RLUIPA show no descent into “anarchy;”

Growing danger from administrative state and attacks on religion

Replace with strict scrutiny

SG says that city’s action fails under Smith: City has not applied its rule in a neutral manner—many exceptions

Singled out CSS with hostility

Respondent’s brief due August 13

73

The Return of The Affordable Care Act

California v. Texas Litigants challenge constitutionality of mandate to purchase insurance after

Congress sets penalty to $0

District court finds mandate unconstitutional – and concludes that the entire ACA must be invalidated as well

Fifth Circuit affirms but asks district court to explain its severability ruling better

United States – A House Divided Recurring motif – DOJ does not defend law; House supports

DOJ position on severability changes Just the exchanges?

Or the entire ACA?

Red states only?

Presents the fourth major ACA case for the Court

74

Google v. Oracle America: Background

Copyright case of the century.

Facts:

Google designed Android

Google wanted app developers to use Java to write apps.

App developer use “calls” to invoke Java “methods.” Calls don’t work unless developers use correct “declarations.”

E.g., java.lang.Math.max (5,10) determines whether 5 or 10 is the larger number.

Google wrote the implementing code from scratch, but copied the “declarations.”

75

Google v. Oracle America: Background

Declaring Code and Implementing Code

Line 1: public static int max (int x, int y) {

Line 2: if (x > y) return x;

Line 3: else return y;

Line 4: }

Extent of copying

Big in absolute terms – 11,500 lines of code

Small in relative terms – 0.5% of 2.86 million lines of code

Uses

Oracle used principally in desktops

Google applied to smartphones

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Round One:

District Court held that declarations were un-copyrightable under merger doctrine: declarations are the only way to write an operating system that is compatible with Java.

Federal Circuit reversed, reasoning that Google could have used different declarations.

Round Two:

Jury found that Google’s reusing of the declarations was “fair use.”

Federal Circuit reversed again, finding that Google’s use of the declarations in a commercial product was not “fair use.”

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First question: Are the declarations copyrightable?

Google: No, because “no other option would recognize the calls used by Java developers.”

Holding declarations copyrightable “would produce the result that the merger doctrine prohibits: It would forbid Google from reusing the declarations and would give Oracle an exclusive right to their function.”

Oracle: Yes, because Google could have written its own declarations.

“Google’s argument is not about necessity at all, but expedience: the desire to save time and make Android familiar to app developers for a commercial advantage.”

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Second question: Did Google engage in “fair use”?

Google: Yes, because “Google’s reuse of the declarations was consistent with the overarching purpose of the fair-use doctrine: avoiding the rigid application of copyright that would stifle creativity.”

Oracle: No, because Google used the declarations in a commercial product that competed with Java.

Supreme Court unexpectedly requested supplemental briefing on “the appropriate standard of review for the second question presented, including but not limited to the implications of the Seventh Amendment, if any, on that standard.”

Questions & Answers

Our Supreme Court Term in Review Panel

Mr. Gershengorn is chair of the firm’s Appellate and Supreme Court Practice and is one of the Nation’s premier Supreme Court and appellate advocates. He has argued 16 cases before the Supreme Court, including one of the telephonic arguments in May 2020. Before re-joining the firm in 2017, he served in the Office of the Solicitor General at the US Department of Justice, first as Principal Deputy Solicitor General and then as Acting Solicitor General of the United States, a position he held from June 2016 until the end of the Obama administration in January 2017. Mr. Gershengorn’s practice focuses on advising clients on a range of complex litigation and strategy problems, with particular emphasis on commercial disputes and challenges involving government, regulatory, and other public policy issues.

Since returning to the firm in the Fall of 2017, Mr. Gershengorn has appeared regularly in the state and federal appellate courts, arguing on behalf of clients such as McKesson Corporation, FanDuel, the Recording Industry Association of America, FirstTrust Bank, General Dynamics, and Charter Communications.

Prior to rejoining Jenner & Block, Mr. Gershengorn served in the Solicitor General’s Office. While there, Mr. Gershengorn argued thirteen cases at the US Supreme Court. He also supervised the government’s briefing in a range of high-profile cases, including those involving the Affordable Care Act, Dodd-Frank, election law and redistricting, immigration reform, the Fair Housing Act, Title VII, the Religious Freedom Restoration Act, and same-sex marriage.

Ian Heath GershengornPartner | Washington, DC | 202 639-6869 | [email protected]

Jessica Ring Amunson is co-chair of the firm’s Appellate and Supreme Court Practice and chair of the firm’s Election Law and Redistricting Practice. In 2018, she was named an “Appellate MVP” by Law360, which recognizes the five attorneys in the country “who had extraordinary wins and contributed most to their practice area in the past year.” An experienced litigator, Ms. Amunson has argued before the US Supreme Court and multiple federal and state courts of appeals and has authored hundreds of briefs. She has successfully represented clients in matters involving federal constitutional claims, statutory interpretation questions, administrative law issues, and large commercial disputes. Ms. Amunson also regularly counsels clients on appellate and Supreme Court strategy.

As chair of the firm’s Election Law and Redistricting Practice, Ms. Amunson represents clients, including elected officials, in matters involving redistricting, voting rights, and campaign finance in the US Supreme Court, before the Federal Elections Commission, and in courts around the country. She has litigated election law and redistricting matters in a number of states, including litigation involving disputed elections. She regularly represents clients on the merits and as amici in direct appeals to the US Supreme Court in redistricting and voting rights cases. Ms. Amunson has been repeatedly recognized for her extensive knowledge of election law and regularly speaks on panels regarding issues in redistricting and voting rights. She serves on the Advisory Committee to the Voting Rights Institute and is a member of the Litigation Strategy Council for the Campaign Legal Center.

Jessica Ring AmunsonPartner | Washington, DC | 202 639-6023 | [email protected]

Ishan K. Bhabha is a partner in the litigation department and a member of the Appellate and Supreme Court Practice. Since joining the firm in 2012, his practice has focused on complex issues of regulatory, constitutional, international, and commercial law.

Mr. Bhabha's practice has spanned a wide variety of substantive areas of law including energy, aviation and aerospace, education, media, communications, copyright, criminal and banking. Mr. Bhabha has extensive experience in helping companies navigate complex regulatory structures, both through internal counseling and in representation before administrative agencies. He has tried cases both in federal court and arbitration and has represented clients in all stages of litigation from the filing of an initial complaint through the appeal of a verdict. In addition, Mr. Bhabha has significant experience in the United States Supreme Court including presenting oral argument on behalf of the petitioner in Biestek v. Berryhill and serving as merits and amicus counsel in multiple other cases.

Mr. Bhabha also has an active pro bono practice in both criminal and immigration law. He has presented oral argument on behalf of criminal defendants three times in the US Court of Appeals for the Seventh Circuit and once in both the US Court of Appeals for the District of Columbia Circuit and the District of Columbia Superior Court. He has also represented clients in immigration law matters in the US Courts of Appeals for the Second and Tenth Circuit, as well as in various district courts. Mr. Bhabha was recently interviewed by C-SPAN concerning the retirement of Justice Kennedy.

Ishan K. BhabhaPartner | Washington, DC | 202 637-6327 | [email protected]

Lindsay Harrison is a litigator and Partner in the Firm’s Appellate & Supreme Court Practice. She is also a member of the leadership team for the Firm’s Complex Commercial Litigation group. Ms. Harrison’s practice spans a diverse range of matters and clients. Many of her matters involve high-stakes legal challenges under the Administrative Procedure Act. On behalf of Princeton University and Microsoft Corporation, Ms. Harrison recently won a legal challenge to the President’s rescission of the Deferred Action for Childhood Arrivals (DACA) program in the United States District Court for the District of Columbia. On behalf of the Union of Concerned Scientists (UCS), she is leading a legal challenge to an Environmental Protection Agency directive that limits the participation of scientists from academia and nonpartisan nonprofit organizations on federal science advisory committees.

In addition, Ms. Harrison regularly participates in appellate litigation matters before the federal appellate courts and the Supreme Court in a wide variety of subject matters, including Supreme Court victories in Welch v. United States, Kucana v. Holder, and Nken v. Holder. Corporations and individuals also turn to Ms. Harrison for help with litigation in federal and state trial courts, as well as in domestic and international arbitration.

The National Law Journal has selected her as a DC Rising Star—one of 40 “game-changing lawyers age 40 and under” who are “leaders in the law” in the nation’s capital. In 2014, Law360 named Ms. Harrison a "Rising Star" in the hospitality practice area, one of only four young attorneys chosen nationwide for this recognition.

Lindsay C. HarrisonPartner | Washington, DC | 202 639-6865 | [email protected]

Matthew S. Hellman is co-chair of the firm’s Appellate and Supreme Court Practice. He has presented arguments in the US Supreme Court and in federal and state appellate courts around the country. Clients such as Marriott, GE, Nomura and General Dynamics have sought his counsel on a variety of banking, hospitality, government contracts, copyright and business torts matters. He has successfully defended on appeal more than $1 billion in commercial claims. He has prevailed in significant Supreme Court matters in bankruptcy, copyright, First Amendment and administrative law cases.

In addition, he maintains a substantial pro bono practice, including matters with significant commercial implications, such as his win in the US Supreme Court in Law v. Siegel, a decision involving a key question of bankruptcy law. He serves as co-director of the firm's Supreme Court and Appellate Clinic at The University of Chicago Law School and is a former Supreme Court clerk for Justice David Souter.

Matthew S. HellmanPartner | Washington, DC | 202 639-6861 | [email protected]

Adam G. Unikowsky is a partner in the Litigation Department and a member of the Appellate and Supreme Court, Communications, and Technology Litigation Practices.. He also handles high-stakes appellate and district court litigation in numerous areas of law, including patent law, telecommunications law and securities law. In 2017, he was recognized as a Law360 “MVP of the Year.”

Mr. Unikowsky litigates cases in the US Supreme Court, appellate courts, trial courts, and administrative agencies. At the US Supreme Court, Mr. Unikowsky has won eight cases as lead counsel since 2016, while losing none. In six of those cases, Mr. Unikowsky represented the petitioner and filed a successful petition for certiorari. Mr. Unikowsky has been recognized by “Empirical SCOTUS” as the attorney in the United States with the highest statistical rate of success in Supreme Court merits cases; he has also separately been recognized by “Empirical SCOTUS” as the attorney in the United States with the highest statistical rate of success at obtaining grants of certiorari. In 2017, he argued three cases within a 28-day span, leading to unanimous victories in all three. Among those cases were Kokesh v. SEC, a case limiting the SEC’s power to obtain disgorgement, which led to Law360 recognizing him as a Securities Law “MVP of the Year.”

Adam G. UnikowskyPartner | Washington, DC | 202 639-6041 | [email protected]

THANK YOU!

Documents

CLE Relay | Annual Supreme Court Term in Review€¦ · Mr. Unikowsky litigates cases in the US Supreme Court, appellate courts, trial courts, and administrative agencies. At the