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Supreme Court Review: October Term 2020

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Supreme Court Review: October Term 2020

The Supreme Court’s October Term 2020 included important decisions in many areas of law, including free exercise of religion, freedom of speech, intellectual property, and voting rights. The lecture will describe the most important cases from October Term 2020 and explain their significance for the law and for society.


Erwin Chemerinsky
Dean and Jesse H. Choper Distinguished Professor of Law
The University of California, Berkeley, School of Law


Erwin Chemerinsky: My name is Erwin Chemerinsky, I'm the Dean of law school at the University of California, Berkeley. And it's my pleasure to talk about the Supreme Court's October 2020 term. I think the most significant development in the Supreme Court in the last year was obviously the death of Justice Ruth Bader Ginsburg on Friday, September 18th, 2020. And then the confirmation, swearing in of her successor, justice Amy Coney Barrett on Monday, October 26th, 2020.

I neither want to overstate the significance of this change on the court or underestimate its importance. I think a statistic from a year ago, October term, 2019 is particularly revealing what the shift in the composition of the court is likely to mean. A year ago, on October term, 2019, the Supreme Court decided 53 cases with signed opinions after briefing and oral argument. That was the fewest number decided in a year since 1862. Over those 53 cases, 14 were five-four decisions. In 10 of the 14, the majority was Chief Justice Roberts and Justice Thomas, Alito, Gorsuch and Kavanaugh.

In those cases, if Justice Barrett had been on the bench rather than Justice Ginsburg, the margin likely different, but not the result. From all we know about Justice Barrett from her writings as a law professor, her time as a judge on the United States Court of Appeals for the Seventh Circuit, a year on the Supreme Court, she's quite conservative. Had she been in the court a year ago, those five-four decisions I referred to would have likely been six-three rulings. There were two cases a year ago that were five-four, where the majority was Roberts, Ginsburg, Breyer, Sonia and Kagan.

They were both important cases. One struck down a Louisiana law imposing restrictions on abortion. The other said that President Trump could not rescind DACA. The Deferred Action of Childhood Arrival program. Had Barrett been on the court rather than Ginsburg, those cases likely to come out five-four, the other way. Well, based on these decisions, I would've made a couple of predictions about this term of the court, October term 2020. One is we would see a lot more six-three decisions. The other is that we see very few cases that are five-four with the liberal justice the majority, simple arithmetic explains why.

Now the three liberal justices need to get two votes rather than just one. And then you get two votes on a court that has five staunch conservatives in Thomas, Alito, Gorsuch, Kavanaugh and Barrett. And both of these predictions came true. In October term, 2020, the Supreme Court decided 54 cases with signed opinions after briefing an oral argument. It's the fewest numbers since 1862, except for a year ago, that was one less. And there were 12, six-three decisions and six, five-four decisions. And there wasn't any case in the term that was five-four with the three liberal justices, Breyer, Sonia and Kagan in the majority.

It's important to recognize that this is not a short-term phenomenon. It's likely to be true for a long time to come. When Barrett was sworn in on October 26, she was 48 years old. If she stays on the court until she's 87, the age which Justice Ginsburg died, then it means that she would be a justice into the year 2059. When she was sworn in, Gorsuch was 53, Brett Kavanaugh 55, John Roberts 65, Samuel Alito 70, Clarence Thomas 72. I've long thought that one of the best predictors of a long lifespan has been confirmed for a seat on the United States Supreme Court. Justice Stevens didn't retire until he was 90 years old.

So it's easy to imagine five or six of these justices being on the court for another decade or two. So in that sense, October term, 2020, gave us a glimpse of the terms to come. But it's also a year in which the Supreme Court is in transition. Many have remarked that every time there's a new justice, it's a different court. In this term, we had a new justice effective in three new justices in the last four years.

I want to talk about what I regard as the most important cases of the term. I was trying to decide the best order to cover them in. And I decided just to do it alphabetical by topic. And of course there is a handout that's available to you, the list of cases in the order in which I'll discuss them. So the first area starting alphabetical is with A, it's the Affordable Care Act. And the case is California versus Texas. Sure you remember that in 2012 in National Federation and Business versus Sebelius, the Supreme Court had before it a challenge to the Affordable Care Act. The issue in that case was whether the individual mandate was constitutional. Does it require that people purchase insurance or pay a tax penalty.

And the Supreme Court five to four upheld the individual mandate and also the Affordable Care Act. Chief Justice Roberts wrote the majority opinion driven by justice Ginsburg, Breyer, Sonia and Kagan. Chief Justice Roberts said that the individual mandate was a tax unless fit within Congress's broad power to tax for the general welfare. He explained that people had to report on their income tax forms each year, where they had insurance. If they didn't, they had to pay penalty as part of their tax payments. It went to the federal treasury, like all tax dollars.

Four justices, Scalia, Kennedy, Thomas and Alito would have declared the entire Affordable Care Act unconstitutional. In December, 2017, is part of the tax reform bill, Congress eliminated the penalty for not purchasing insurance. The requirement to have insurance still exists, but no longer are there any consequences. Congress set the penalty for not having insurance at zero. The state of Texas then filed a lawsuit in federal district court in Texas, arguing that this makes the Affordable Care Act unconstitutional. Texas said that the Supreme Court had held the Affordable Care Act as an excess of Congress's taxing power. But if there's no tax, then it's unconstitutional.

The Trump administration came into the lawsuit on the side of Texas, arguing that this makes the Affordable Care Act unconstitutional. It's unusual for the justice department to argue that a federal law is unconstitutional. California intervened with the suit to defend the Affordable Care Act. The federal district court agreed with Texas and the Trump administration that the individual mandate was unconstitutional and expressed the view that that likely made the whole law unconstitutional. The fifth circuit and the two to one decision affirm that the individual mandate was unconstitutional and remanded the case to the district court to decide whether this provision was severable from the rest of the law.

But before the district court could hear the matter and remand, the Supreme Court granted review. The Supreme Court asked for briefing and argument on three questions. First, does Texas and do the other plaintiffs has standing? Second, if so, is the individual mandate unconstitutional? And third, if it is unconstitutional, is it severable from the rest of the law? The Supreme Court in a seven to two decision order that the case be dismissed for lack of standing.

Justice Breyer wrote the opinion for the court, Justice Alito joined by Justice Gorsuch dissented. Justice Breyer writing for the court began by noting that in order for there to be a suit in federal court, the plaintiff must have standing that requires that there be an injury that was caused by the defendant and is likely remedied by a favorable federal court decision. Justice Breyer said none of the plaintiffs could meet that requirement. As for the individuals who were plaintiffs, Justice Breyer said they suffered no injury. There's no consequences to them not purchasing health insurance, so they can't claim a harm. He said, "It's the taxes, it could show only incidental and indirect effects. It couldn't show any monetary harms directly caused by the Affordable Care Act. Thus the challenged by Texas, the Trump administration had to be dismissed."

Justice Alito wrote a strong dissent. He lamented the Supreme Court for the third time upholding the Affordable Care Act. He said, "The plaintiffs here met the standing requirement and that he would declare the entire Affordable Care Act unconstitutional." This is one of those Supreme Court cases that's most important for what the Supreme Court didn't do. There are 21 million people receiving their health insurance through the Affordable Care Act. We're still in the midst of the worst public health crisis in over a century. The Supreme Court's declaring this law unconstitutional would have been a devastating effect on people's lives. But instead the court dismissed the challenge. I think it also likely ends before the Supreme Court challenges that would invalidate the Affordable Care Act. So now it's a matter to be dealt with just through the political process.

The second area that I want to talk about concerns antitrust. And the case is NCAA versus Alston. This is a lawsuit that was begun seven years ago as a class action by division one college football players and basketball players. They were challenging a whole range of restrictions that the National Collegiate Athletic Association imposes on compensation that could be given to student athletes. The federal district court judge in San Francisco, Claudia Wilken, ruled in favor of the plaintiffs and against the NCAA with regard to what she called educational benefits. Under NCAA rules, college universities can give to athletes, scholarships, compensation for room and board, money for books, but couldn't pay for educational benefits like a laptop, computer or musical instruments or post-graduate fellowships. And she said, "This restriction imposed by the NCAA violated antitrust law." She ruled against the players in terms of other compensation that they're prevented from having by NCAA rules.

The Ninth Circuit affirmed the district court and the Supreme Court unanimously agreed, Justice Gorsuch wrote the opinion for the court. There was a concurring opinion by Justice Kavanaugh, this is worth noting. Justice Gorsuch was emphatic in holding the traditional antitrust principles apply to the NCAA. He was obviously unsympathetic to the NCAAs claim that this is all about preserving amateur athletics. He noted, for example, the amount that football coaches get paid at major universities. He noted the amount that commissioners of conferences get paid. He talked about the huge amount of money that's involved with regard to college sports. He said the usual so-called rule of reason and antitrust case applies and here used it to say that the restriction educational benefits was impermissible.

He said, "If there's to be an exemption for the NCAA from the antitrust law, it's going to have to come from Congress, not from the Supreme Court." But he was clear that this case is narrow in the sense that it's just about educational benefits and not about the other compensation that athletes can't receive. The athletes hadn't appealed to the Supreme Court on that part of Judge Wilken's ruling. Justice Kavanaugh wrote a powerful dissent. He left no doubt that he would find that all of the restrictions with regard to compensation and college athletes violate the antitrust law. He says, "This is blatant price fixing." He ended his opinion by saying, "The NCAA is not above the law."

I have no doubt that this case is going to lead to challenges by college athletes, to all of the other restrictions on compensation that are imposed. And especially as I read Justice Kavanaugh's opinion, I think they're not going to have a sympathetic audience in the Supreme Court and trying to defend the restrictions.

The third area that I want to talk about concerns civil rights litigation. Taylor versus Riojas is an important case, but it's escaped the attention many judges and lawyers perhaps because that's came down without briefing and oral argument, came down just on the basis of the petition for certiorari, and the opposition to petition for certiorari. There's always a few instances each year a court decides the case that way. It's still a decision on the merits and yet it doesn't have the benefit of the full briefing and oral argument.

Taylor versus Riojas has particularly gruesome and horrific facts, involves a prisoner in Texas. He was put in a cell that was terribly unsanitary. There was urine and feces all over. For a few days he's moved to an even worse cell. He was placed in that cell naked even though it was very cold, there was no working toilet or drain. He had to sleep on the floor on his own urine and feces. For seven days, he was moved out of that cell. Brought a lawsuit arguing that his treatment was cruel and unusual punishment in violation of the eighth amendment. The United States Court of Appeals for the Fifth Circuit agreed that the cell placing him there was cruel and unusual punishment. But the fifth circuit said, "The prison officials who were sued were protected by qualified immunity." All government officials who are sued for money damages have an immunity defense, some get absolute immunity, judges for the judicial acts, legislators for their legislative acts, prosecutors for their prosecutorial acts have absolute immunity.

All other government officials who don't have absolute immunity get qualified immunity. The test for qualified immunity is that a government officer has immunity unless he or she violates clearly established law that every reasonable officer know, has to be a right established beyond dispute. The court initially articulated this test in 1982 in Harlow versus Fitzgerald. Between 1982 in November, 2020, there were 32 Supreme Court cases dealing with qualified immunity. 30 of them ruled in favor of the defendant officer finding qualified immunity. Part of what makes Taylor versus Riojas important is it's the 33rd qualified immunity case in the last 39 years, only the third to rule in favor of the plaintiff. It was per curiam opinion, opinion of the court. It was seven to one with only Justice Thomas dissenting though he didn't write a dissenting opinion.

The per curiam opinion stressed that there doesn't have to be a case on point to overcome qualified immunity. So long as the defendant has fair notice that the conduct violates the constitution, that's sufficient to overcome qualified immunity and to hold the officer liable. And the court said here that the officers would have fair notice that this was impermissible. In case after case in recent years, the Supreme Court found qualified immunity based on the absence of a case in point. This is such an important victory for this plaintiff and civil rights plaintiffs, because it is the court saying that doesn't have to be a case on point so long as the defendant officers had fair warning that their conduct violated the constitution. Maybe this is the court becoming more lenient to go to qualified immunity were friendly to civil rights plaintiff's, in response to all the criticisms of qualified immunity in recent years, or maybe this is an aberrational case because of truly awful facts.

The fourth area that I want to talk about concerns criminal law and procedure. And I've subdivided this into two parts. The first concerns the eighth amendment and the case is Jones versus Mississippi. In 2012 in Miller versus Alabama, the Supreme Court held that there cannot be a mandatory sentence of life without parole for homicide committed by a juvenile. In 2016 in Montgomery versus Louisiana, the Supreme Court said this applies retroactively to those who were convicted and sentenced before 2012. Brett Jones, when he was 15 years old, killed his grandfather. He was given a mandatory sentence with life without parole. He's now challenging that sentence and he argued that the court should be required to find that he was quote incorrigible, or could beyond rehabilitation to oppose the sentence of life without possibility of parole.

The Supreme Court in a six to three decision ruled against Jones. Here Justice Kavanaugh wrote the opinion for the court. Justice Sotomayor wrote the dissent that was joined by justices Breyer and Kagan. Justice Kavanaugh explicitly said, "There doesn't have to be a finding of incorrigibility or the ability to rehabilitate." Justice Kavanaugh said, "All that's required is a showing that the sentencing judge took into account the defendant's age in imposing the punishment." Justice Sotomayor said, "That effectively overrules Miller versus Alabama, that was the law before Miller versus Alabama, that the judge had to take the used age into account."

The court did not express to overrule Miller versus Alabama, but it's important to remember that Miller versus Alabama was five-four, the decisions that proceeded on the topic, Roper versus Simmons, that there can't be the death penalty for crimes committed by juveniles. Regan versus Florida, that there can't be life without parole for non-homicide by juvenile were five-four. And all of these cases, the majority was Kennedy, Ginsburg, Breyer, Sonia and Kagan. Without just Kennedy and Ginsburg on the court, it's unclear there would be the same result. In fact, I think quite likely the cases would have come out differently. And I think what we're seeing in Jones vs Mississippi is a court that's backing away from those earlier holdings.

The other area they listed with regard to criminal procedure concerns the Fourth Amendment, searches and seizures, and there's three cases here. The first is Torres versus Madrid. Police came to an apartment building to investigate something. They saw a woman walking in the parking lot. The woman, Roxanne Torres, wasn't a suspect for anything, but the police wanted to talk to her. She clearly didn't see the officers and got into her car. She was startled when she saw an officer on each side of her car and she thought maybe she was being carjacked. She started to pull the car out of the parking lot, the garage of apartment building. The officers ordered her to stop, she kept going. They fired a gun at her and they kept firing 13 bullets and all were fired. A couple hit her, many hit the car and severely damaged it.

Torres drove to a nearby shopping center where there was a parking lot. In it she saw a car that was unoccupied with the motor running. Since her car was seriously damaged, she abandoned it and stole this other car. She drove 75 miles to a hospital where she went for treatment for her bullet wounds. The next day she was arrested. The question is when was she seized by the police? The Supreme Court said in Graham versus Connor in 1989, that excess of police force is a seizure and it violates the Fourth Amendment. But that just asked the question, when is somebody seized? The Supreme Court in a five to three decision held that Torres was seized by the police. Chief Justice Roberts wrote for the court, the opinion was joined by Breyer, Sonia, Kagan and Kavanaugh. Justice Gorsuch wrote the dissent joined by Justice Thomas Alito, Justice Barrett didn't participate.

Chief justice Roberts said, "The application of physical force to the body of a person with the intent to restrain as a seizure, even if the person doesn't submit, even if the person's not subdued, when the bullet struck Roxanne Torres, she was seized. Now the court said in the sense that she drove 75 miles, how could you say she was seized during this time? But the Supreme Court ruled in her favor.

The second case with regard to the Fourth Amendment is Caniglia versus Strom. It involves the war requirement of the Fourth Amendment. And specifically the question is, is there an exception to the warrant requirement for so-called community care-taking? The case that suggested a community care-taking exception of warrant requirement was Cady versus Dombrowski a few decades ago. Cady versus Dombrowski involved an off duty police officer who was arrested for driving under the influence. The arrested officer was taken to the station house and in custody. Another police officer worried that the arrested officer had left his service revolver in his car. So the other police officer went to the car to search. When he did the search, he found evidence that the arrested officer committed a murder. The question was, was the evidence that was found in that search admissible, would it have to be excluded?

And the Supreme Court said that the evidence was admissible under the community care-taking exception. Court said the reason the officer went to the car was not to search for evidence but for safety of the community. How far does that extend? Well, that's what Caniglia versus Strom was about. I mean, a married couple got in an argument. The woman left the house and checked into a hotel that night. He kept trying to call her husband and he didn't answer and she was worried that he might be hurting himself, he'd threatened to do that, so she called the police.

Police come to check it out, he's fine, his wife is there. But the police decided to take him into custody on a mental health hold. The police later come back to the house, they entered without a warrant and they seize his guns. The question is, did the police violate the Fourth Amendment in entering without a warrant? The First Circuit said since it was community care-taking it didn't violate the Fourth Amendment under Cady versus Dombrowski. But the United States Supreme Court unanimously reversed, Justice Thomas wrote for the court. He said, "Cady versus Dombrowski was a limited case because it's about automobiles and there is an automobile exception to the Fourth Amendment warrant requirement. So it doesn't extend to searches to the homes." But there's another exception to the warrant requirement, exigent circumstances, and the court left open the question of exigent circumstance supply in a situation like this. Court just focused on what was before it and said community care-taking didn't apply.

One more Fourth Amendment case I would mention, Lange versus California. It too involves an exception to the warrant requirement. This is for hot pursuit. If police are chasing somebody and the individual being pursued enters a dwelling, the police can enter too in hot pursuit. But the cases that articulated this, Warden versus Hayden and Payton versus New York, both involved hot pursuit of somebody suspected a felony. What if the underlying crime is a misdemeanor, that's Lange versus California. Arthur Lange was driving in Sonoma county, California, and he was blaring his radio and honking his horn. Well, such excess of noise on the road is a misdemeanor in California.

An officer observed this and wanted to pull Lange over. The officer put the lights on top of the squad car on, but before he could pull Lange over, Lange pulled into his driveway and into his garage. The officer then entered the garage and he noticed that Lang was clearly intoxicated, arrested him for driving under the influence. The question is, did the police officer violate the Fourth Amendment in entering the home in hot pursuit when the underlying crime excess of noise is a misdemeanor? Justice Kagan wrote the opinion for the court finding that this violated the Fourth Amendment, it was unanimous in result, but not in reasoning. Justice Kagan said, "The court was not going to articulate a bright-line rule. The police never can enter in hot pursuit nor bright-line rule that the police can always enter in hot pursuit." She said, "With misdemeanors, they range from the trivial to the very serious." She said, "In general, police can't enter if they're chasing in hot pursuit if the crime is a misdemeanor." But she said, "If it's a situation where there's a serious risk of danger to others or there's a serious risk of flight or serious risk of destruction of evidence, then either if it's a misdemeanor, the police can enter without a warrant."

So the court says, "Generally police can't enter if it's in hot pursuit, somebody with regard to a misdemeanor, but in these situations the police can." Chief Justice Roberts concurred in the judgment and said, "We should always allow the police to enter when it's hot pursuit and misdemeanor. We shouldn't ask police to make split second choices in the field based on the nature of the crime." Justice Kavanaugh wrote in court and said, "It's not that different between what Justice Kagan says and Chief Justice Roberts says because in most instances police are going to be able to enter even if the crime is a misdemeanor." I guess the bottom line here is sometimes, but not always, police can enter when they're chasing somebody in hot pursuit if the crime is a misdemeanor.

The fifth area that I want to talk about concerns the First Amendment. Now I've sub divided this into two parts, free exercise of religion and speech. With regard to free exercise of religion, it's clear that we now have a majority of the justices who are going to be much more aggressive in protecting free exercise of religion. Let us start with a couple of cases that involve religious challenges to governor's closure orders to impose to limit the spread of COVID. I actually want to start before the one case on the handout with a couple from the end of last term. In May of 2020, the South Bay Pentecostal Church versus Newsom, Governor Gavin Newsom, California, as part of his closure orders said, "There couldn't be more than 25% of usual capacity at a place of worship or more than a hundred people at a time."

A church in Southern California sought an injunction and it lost in the district court. It lost in the Ninth Circuit. It went to the Supreme Court for an injunction. This is part of the Supreme Court's so-called shadow docket, where it doesn't come to the court for briefing and arguments. Instead it comes to the court on an emergency basis where somebody is seeking injunction or a stay of an injunction. The Supreme Court denied the injunction here. It was five to four with the majority being Roberts, Ginsburg, Breyer, Sonia and Kagan. There was no opinion for the court. Chief Justice Roberts wrote an opinion for himself urging deference to government officials. Just as Kavanaugh wrote the dissent, Justice Thomas, Alito and Gorsuch also dissented.

Then in July, 2020, there was Calvary Chapel Dayton Valley versus Sisolak. This involved the governor of Nevada who had imposed restrictions to stop the spread of COVID and a church there brought a challenge. It sought an injunction. The district court ruled against it. The Ninth Circuit ruled against it. And the Supreme Court five to four ruled against it. No opinion for the majority, the five and the majority, once more Roberts, Ginsburg, Breyer, Sonia and Kagan. Justice Alito wrote an angry, sarcastic dissent, also descending, which is Thomas, Gorsuch and Kavanaugh.

Well, that then brings me to the case that I've listed here, Roman Catholic Diocese of Brooklyn versus Cuomo. Governor Andrew Cuomo of New York imposed restrictions based on the prevalence of COVID in an area, where COVID was most prevalent, the red zone, there were many restrictions, including there couldn't be more than 10 people gathered for religious worship. And the next area, the orange zone, no more than 25 people for religious worship and so on another zones. Some Catholic churches in Brooklyn, some Orthodox Jewish synagogues in Brooklyn brought a challenge to this. They sought an injunction. They lost in the district court. They lost in the Second Circuit. But on November 25th, few minutes before midnight, the night before Thanksgiving, they won in the Supreme Court. It was five-four, the five in the majority, Thomas, Alito, Gorsuch, Kavanaugh and Barrett.

There was a per curiam opinion, an opinion of the court for these justices saying that even in a pandemic free exercise of religion must be followed, saying that this was discrimination against religion. Chief Justice Roberts dissented, Justice Breyer dissented joined by Justice Kagan. Justice Sotomayor dissented joined by Justice Kagan. And then in April, 2021, there was Tandon versus Newsome. California governor Gavin Newsome limited the number of people could gather in a home and said, "There can not be more than three households of people gathered in a home at any point in time. Didn't matter if they were gathered for secular reasons like watching the Superbowl or religious reasons, worship." Some people who wanted to gather for religious worship with more people than that brought a challenge inside an injunction. They lost in the district court. They lost in the Ninth Circuit, but they won in the Supreme Court five to four.

And again, the majority is Thomas, Alito, Gorsuch, Kavanaugh and Barrett. Again, the dissent is Roberts, Breyer, Sonia and Kagan. And here the per curiam opinion was emphatic, that religion must be treated the same as all comparable secular activities here because certain stores could open, but the restrictions on religious worship is enough to violate for exercise of religion. Just as Kagan wrote a strong dissent, she said, "Equality means treating likes alike, unlikes unalike. Said, "Gathering in a store is different than gathering in a home. People stay in a home for a longer time. The ventilation isn't as good. They're engaging in activities more likely to spread COVID."

Well, what's the difference between the first two case I mentioned and the latter two? In the first two Justice Ginsburg was on the court and she was in the majority. In the latter two Justice Breyer was on the court and she joined the dissenters to create the majority. I think what the court is saying here is that religion must be treated as favorably as the most leniently regulated secular activity. They said, "The court pretty much protecting free exercise of religion."

The other religion case here was Fulton versus City of Philadelphia. The city of Philadelphia contracts with private social service agencies to place children in foster homes. It requires that the private social service agencies not discriminate on the basis of race, sex, religion, sexual orientation. Catholic Social Services said it could not place children and same sex couples, as same sex couples, because of their religious beliefs. Catholic Social Services brought a challenge to this. It lost in the federal district court and it lost in the Third Circuit. Both of those courts said, "In 1990, in Employment Division versus Smith, the Supreme Court held that the free exercise clause cannot be used to challenge a neutral law of general applicability. So long as the law is neutral, not motivated by desire to interfere with religion. And so long as it applies to everyone, the free exercise clause can't be used to challenge it."

That opinion is written by Justice Scalia. And he stressed that we usually do not give exceptions for religion from laws that are on the books. He said, "In a society that's as diverse as ours with regard to religion, we can't give religious exceptions. Also once we start giving exceptions for religion, there's the difficult questions, how to define religion. What's a sincerely held religious belief?" Both the district court and the Third Circuit and Fulton said, "The city requirement against discrimination is a neutral law of general applicability." But the Supreme Court unanimously reversed and ruled in favor of Catholic Social Services.

Chief Justice Roberts wrote an opinion for the court. He said, "Under Employment Division versus Smith, a lot is not of general applicability, if it gives any discretion to government officials to create exceptions." The Philadelphia law did give an exception to government officials to create an exception. Now they never used that discretion. They'd never created an exception. They've no plans to create an exception. There's no discrimination against religion. But Chief Justice Roberts said, "So long as the law has discretion, it can't be treated as a law of general applicability. If it abandons religion it has to meet strict scrutiny." And that's the bottom line from this case, any law that burdens religion that gives discretion to government officials get exceptions. It's going to have to meet strict scrutiny. And he found it failed strict scrutiny.

Justice Alito wrote an opinion concurring in the judgment joined by Justice Thomas and Gorsuch, which he urged the overruling of Employment Division versus Smith. He said, "Any law that burdens religion should have to meet strict scrutiny." Justice Barrett wrote a per curiam opinion, joined full by Justice Kavanaugh, which he said, "Justice Alito makes many persuasive points, but the court doesn't need to decide today whether it overrule Employee Division versus Smith." She said, "When we do there's a lot of hard questions we'll have to answer." I think you see again a court that's going to be very aggressive and safeguarding free exercise of religion.

The other sub area with regard to the First Amendment concerns freedom of speech. Two cases here, the first is Mahanoy Area School District versus B.L. Brandi Levy was a rising sophomore at a public school in Pennsylvania. She tried out for the varsity cheerleading team. She was upset when she learned she didn't make it. And again was assigned to the junior varsity. She was furious when she found out a freshman had made the varsity ahead of her. She went on the social media platform, Snapchat, and she posted a video where she had raised both of her middle fingers and repeatedly used the profanity that starts with the letter F. She then posted another video that didn't have the profanities. The cheerleading coach saw this and said violated the code of conduct for cheerleaders. She was removed from the team for the year, so she could try out again the next year.

She and her parents sued in federal district court saying this violated her free speech. The district court ruled in her favor and gave her an injunction putting her back on the cheer team and the Third Circuit affirmed. And the United States Supreme Court agreed in an eight to one decision. Justice Breyer wrote for the court, only Justice Thomas dissented. Justice Breyer said, "Schools have much less authority to punish speech out of school over social media than they would in terms of speech in school." He said, "Parents are responsible what children do out of school. So we don't want to give school officials chance to monitor and punish student behavior 24 hours a day, seven days a week." He said, "Besides we want to encourage students to speak and to appreciate the importance of free speech under the First Amendment. He said, "There was no proof of disruption of school activities in terms of what Brandi Levy did."

Now, he was clear. There are times when schools can punish students speech off school over social media. If it was, for example, bullying behavior or harassing behavior or cheating. But the court said, "Generally, schools can't punish students speech over social media that goes on out of school." I think this is important, if nothing else. This is the first time the Supreme Court has ruled in favor of students, the student speech case since Tinker versus Des Moines board of education in 1969. But I also think this gives real guidance to school districts and principals and teachers that they can't punish speech over social media out of school, unless it really is something like bullying or harassing or cheating behavior.

The other case is Americans for Prosperity versus Bonta. Not for profit organizations, charities, have to file a statement with the federal government, with the list of all their donors who have given more than $5,000. The California attorney general under California law required the charities operating in this state give to the attorney general the forms that they turned over to the federal government. They weren't required to fill out an additional form. They just had to give the state what they'd given to the federal government. Couple of conservative not-for-profit groups, the Americans for Prosperity Foundation and the Thomas More Society brought a challenge to this. They said that this disclosure would show their association. They won in the Supreme Court in a six to three decision.

Chief Justice Roberts wrote the opinion for the court. Now, in part, it was just a plurality. The justices disagreed as to the level of scrutiny that should be used. Chief Justice Roberts said, "It should be exacting scrutiny. The government action should have to be substantially related to sufficiently important government interest." Justice Thomas said, "It should have to be strict scrutiny necessary to achieve a compelling interest." Justice Alito said, "We don't need to decide today the level of scrutiny." But all of the justice agree that this requirement violated the first amendment.

Chief Justice Roberts said, "Disclosure can chill association." He said, "There doesn't have to be any proof that association is actually chilled, the likelihood of chill is sufficient." And therefore this was declared unconstitutional. Well, this could put any disclosure requirement in jeopardy because of the court's reasoning, any disclosure requirement could chill association. I expect we're going to see large number of challenges to disclosure requirements in the campaign finance context and elsewhere. We usually see where the Supreme Court draws this line.

The sixth area that I want to talk about concerns intellectual property. And I think the Google versus Oracle is the most important copyright case of the internet era. Google was developing the Android phone. It wanted to use some lines of code from the Java software program developed by Sun Microsystems. And it felt that by using the Java code that was familiar to software developers, it would help encourage the creation of apps and other things for the Android phone. Google tried to negotiate with Sun Microsystems to be able to use these lines of code. The negotiations broke down. Google decided to go ahead on its own and just copy the code without having a license. Sun Microsystems was purchased by Oracle rather, and Oracle then sues Google for copyright infringement.

The litigation went on for a long time. It was truly a long and winding road. But ultimately it makes its way to the Supreme Court and review is granted on two issues. The first issue is, are such lines of code copyrightable? And if so, second, is what Google did fair use. The Supreme Court in a seven to two decision ruled in favor of Google and against Oracle. Here Justice Breyer wrote the opinion for the court. Justice Thomas dissented joined by Justice Alito. Justice Breyer said that the court would not address the first issue, whether or not such code is subject to copyright. That remains an open unresolved issue. But Justice Breyer said, "The case would be decided based on whether it's fair use."

Now under the copyright law under section 107, there's four factors that are looked to with regard to fair use. One is the purpose and character of the defendant's use. The more transformative the defendant's use, the more likely it is to be fair use. And Justice Breyer stressed that what Google was doing in using this code was truly transformative, new use. Second, what's the nature of the copyrighted work? The more creative the copyrighted work, the more protective the court is going to be. And obviously the Java software program was quite creative. Third, what's the amount in substantiality of the defendant's use. How much did the defendant take from the plaintiff? Here, Justice Breyer's opinion talks about the relatively small percentage of the Java program that Google had copied. And forth, what's the effect on the market for the plaintiff's work?

Interestingly Justice Breyer's opinion says relatively little about the harm to the market for the Java software program. He does put emphasis on the fact that Google had engaged in a transformative use of it. But he especially focused on the public benefit, the public gain from the development of the Android phone. Justice Breyer said explicitly in assessing fair use, "It's important to compare the public benefit gained versus the harms." And here the public benefit in the eyes of the court justified the conclusion this was fair use.

Justice Thomas in his dissent had a very different approach. Justice Thomas clearly was offended that Google had just copied the Java software program rather than get a license, which obviously it could have done. Justice Thomas focused an enormous amount on the effect on the market of the plaintiff's work and on the basis of it would have denied fair use. I think that's a key difference between the majority and the dissent. The majority wanted to look primarily at the public benefit of what was happening in saying the public benefit means it's fair use. The dissent wanted to focus much more on the cost to the plaintiff, the cost to Oracle of what was taken from them. I think this provides important guidance to federal courts, to lawyers in the future with regard to copyright litigation, especially in stressing the need to focus on the public benefit from the alleged infringement, and also to consider it relative to the costs that are imposed on the defendant.

The seventh area that I want to talk about concerns personal jurisdiction, and the case is Ford Motor Company versus Montana Eighth Judicial District. We all study personal jurisdiction in first-year civil procedure. We all read the international shoe case where the Supreme Court said, "Absent a defendant's consent, an out of state defendant can be sued so long as he has minimum context with the forum state." Over the years, the Supreme Court devised two ways finding minimum context, general jurisdiction and specific jurisdiction. In recent years, the Supreme Court has narrowed both generally and specific jurisdiction.

With regard to general jurisdiction, the court said it exists only where the defendant is home or corporation is deemed home where it's incorporated as principal place of business. And for specific jurisdiction, the court has said it has to be that the defendant's contacts give rise to the cause of action and the state. To illustrate the courts in narrowing of personal jurisdiction, I pointed the decision four years ago in Bristol-Myers Squibb versus Superior Court. The major drug company Bristol-Myers Squibb was sued for a heart drug. There was a claim about side effects from that drug.

Many of the plaintiffs in California, some of the plaintiffs from out of state, Bristol-Myers Squibb moved to dismiss the out of state plaintiff's claims. The Supreme Court eight to one ruled there was no personal jurisdiction over the out-of-state plaintiff's claims. Justice Alito wrote for the court, only Justice Sotomayor dissented. Justice Alito said, "There's no general jurisdiction over Bristol-Myers Squibb in California. It's not incorporated, doesn't have its principal as business in California." He said, "There's not specific jurisdiction because the defendant's context didn't arise to the cause of action in California. The drugs were purchased by the plaintiffs out of state taken out of state, they were hurt out of state, thus no personal jurisdiction."

Well, this brings me to Ford Motor Company versus Montana Eighth Judicial District. It was actually two cases that came to the Supreme Court together. This one involved a man from Montana who went out of state to buy a used Ford vehicle, came back with it into his state. He was in a tragic accident. He was killed. His state sued Ford for a design defect. The other case came out of Minnesota, involved a man in that state and went out of state and bought a used Ford car, brought it home. Was in an accident, suffered serious brain damage. Again, they were suing Ford for a design defect. Ford moved to dismiss both cases for lack of personal jurisdiction. The Minnesota and Montana courts ruled against Ford and the Supreme Court affirmed, it was unanimous. Justice Kagan wrote the opinion for the court.

She rescinded the familiar law but minimum context, in general the specific jurisdiction. She said, "There's no claim of general jurisdiction here. Ford was not incorporated, didn't have its principal as a business in Montana and Minnesota. But she said, "It's the specific jurisdiction. There's two key factors. One is purposeful of element and the other is relatedness." She said, "Ford purposely involved itself in Montana and Minnesota by marketing, selling, servicing cars there. She said it was related because it was marketing, selling, servicing the same cars that were involved in these accidents and thus personal jurisdiction was found to exist."

Now I still wonder about how to distinguish this from Bristol-Myers Squibb versus Superior Court. There was individuals from out of state who bought the drugs out of state. Here are those people who purchased the cars out of state. Justice Kagan addresses this in a majority opinion and said that in Bristol-Myers Squibb, the plaintiffs were all from out of state, they were just forum shopping. Here the plaintiffs were injured in their home state. But up until now, personal jurisdiction has always focused on the defendant, that's why a defendant can consent to personal jurisdiction even if it wouldn't otherwise be appropriate. The court seems to be adding an important additional factor, the plaintiff.

This is the first time in a couple of decades where the Supreme Court has found personal jurisdiction, that makes it significant. The court saying the factors for specific jurisdiction, purposeful involvement and relatedness make it significant. But I also think the court leaves open this interesting question, what is the role of the plaintiff in personal jurisdiction analysis?

The other theory I want to talk about concerns the takings clause. In the case of Cedar Point Nursery versus Hassid. California law requires that agricultural employers allow union organized to the access to their property three hours a day, 120 days a year. Their cultural employers said that this was a taking of their property without just compensation. The Supreme Court in a six to three decision ruled in favor of the agricultural employers. Chief Justice Roberts wrote for the court here. And it was Justice Breyer who wrote the dissent joined by Justice Sotomayor and Kagan.

Here, Chief Justice Roberts says that the essential aspect of property ownership is the right to exclude others. He said, "This was a possessory, a per se taking, because it was depriving the owners of their ability to exclude others. Now there will still be the question of what just compensation requires, but it's crucial that the Supreme Court held that this acquirement is a possessory, a per se taking." Justice Breyer and his dissent said, "At most this is a regulation. We have to analyze whether it's a regulatory taking. Does it go too far?" But Justice Breyer was especially concerned that this is going to put in jeopardy other laws that require that private property owners make their property available. What about all of the instances where private property owners have to allow building inspectors or health inspector enter property. Are all of these possessory takings too?

Chief Justice Roberts responded to this by saying, "Well, in those instances, the ability to operate the property is conditioned by allowing the inspector onto the premises. But why couldn't one say the same thing about the California law that said operating the agricultural enterprise, the farm, required allowing the union organizers to have access. So I think this case too is going to lead to a great deal of litigation in terms of, well, when are requirements for access, like for inspections a possessory taking." Overall I think that the Roberts court is a pro-business court. It's a court that is not a friend to labor. And I think you're seeing that play out in this case.

My ninth and final area concerns voting rights. I think that the Voting Rights Act of 1965 is one of the most important federal laws adopted in my lifetime. It did two major things. First, it said for jurisdictions with the history of race discrimination and voting, they would have to get pre-approval, pre-clearance before there's a significant change in their election practices. The pre-clearance would need to come either from the attorney general or three judge federal district court. In 2013, in Shelby County versus Holder, the Supreme Court declared the provisions with regard to pre-clearance unconstitutional. But the Supreme Court said there's still the other mechanism under the Voting Rights Act.

Section two says that state and local governments cannot have election practices that discriminate on the basis of race. Congress had amended this in 1982, to say that proof of a discriminatory impact in the grounds of race is enough to demonstrate a violation. For the case in this term was Brnovich versus Democratic National Committee. It involves two Arizona requirements with regard to voting. One said that a person would have to cast the ballot in his own precinct in order to be counted. The other said that an absentee ballot would have to be turned in by the personal relative, no one else could turn it in. Ballot harvesting in other words was eliminated.

The United States Court of Appeals for the Ninth Circuit in an en banc decision found that this violated the Voting Rights Act, that the evidence demonstrated had racially discriminatory effect against [inaudible] voters. The Supreme Court on July 1st in a six to three decision reversed. Justice Alito wrote the opinion for the court. Here Justice Kagan wrote the dissent and it was an emphatic dissent. Justice Alito in writing for the court said, "The prior cases about section two of the Voting Rights Act, it all involved to challenge the so-called dilution of the vote, challenges to how election districts have been drawn. So this is the first case about the time, place and manner of voting."

And he said, "We have to look at the totality of the circumstances." He then identified five factors for courts to look at. First, the extent of the burden imposed on voters. He said, "All laws impose some burden on voting, so it would have to be a significant one to violate the law." Second he said, "What's the extent to which the rules depart from practice followed in 1982." Why 1982, because that's when the Voting Rights Act was last amended. Third, what's the scale of the racially discriminatory impact. Said, "We have to accept some different space than race. So just showing some disparity isn't enough to show a violation of the Voting Rights Act."

Fourth, what other opportunities are provided to vote? The more there are other opportunities to vote, the less it can be shown that any particular restriction violates the law. This is fifth, what's the strength of the state's interest? You talk about the state's interest in preventing voter fraud. Justice Alito explicitly said that the usual standards for disparate impact don't apply when it comes to section two of the Voting Rights Act.

As I mentioned Justice Kagan wrote [inaudible] dissent. She said, "None of these requirements are found in section two of the Voting Rights Act." Said, "This is conservative majority that wants to emphasize focusing on the plain language of the statute, but none of them are there." She said, "The court is abandoning its usual role for finding disparate impact, even though Congress clearly wanted to apply that under the Voting Rights Act." She said, "This is going to make it very difficult to bring successful challenges under the Voting Rights Act."

She pointed recent laws adopted in states like Georgia and Florida. And she says, "All of these are going to make it much harder to bring challenges to win under the Voting Rights Act." There are two different narratives about voting in the United States today. There's the Republican narrative that voter fraud is a significant problem and we need laws that limit voting like Arizona's. There's the Democratic narrative that says the main problem is voter suppression, particularly voters of color and that fraud is minimal and unproven.

There's six justices on the court appointed by Republican presidents, three appointed by democratic presidents. And it's clear that the court split along those lines with the six appointed by Republican presidents choosing the Republican narrative narrowing the Voting Rights Act and the three appointed by democratic presidents strongly limiting it. So that's my review of the Supreme Court's October 20 year. It was a court in transition.

Next year, the court has on the docket already case about whether Roe versus Wade should be overruled. An important case about whether it's right to have guns outside the home. There might be a case the court takes with regard to affirmative action. I think even more next year than this, we'll get a clear glimpse of the ideology of the newly constituted Roberts court. Thank you.

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