SCOTUScast

On June 18, 2015, the Supreme Court issued two highly anticipated decisions in free speech cases, Walker v. Texas Division, Sons of Confederate Veterans, Inc., and Reed v. Town of Gilbert. -- Walker v. Texas Division, Sons of Confederate Veterans, Inc. concerned two First Amendment issues: the first was whether content displayed on specialty license plates issued by the state is government speech immune from First Amendment prohibition on viewpoint discrimination; the second was whether Texas engaged in viewpoint discrimination when it rejected a specialty license plate design which included an image of a Confederate Flag. -- In an opinion delivered by Justice Breyer, the Court held by a vote of 5-4 that Texas’s specialty license plate designs constitute government speech, and Texas was therefore entitled to reject the design proposed by Sons of Confederate Veterans. The decision of the Fifth Circuit to the contrary was reversed. Justices Thomas, Ginsburg, Sotomayor, and Kagan joined Justice Breyer’s majority opinion. A dissenting opinion was filed by Justice Alito, joined by Chief Justice Roberts and Justices Scalia and Kennedy. -- Reed v. Town of Gilbert involved a First Amendment challenge to the sign code for Gilbert, Arizona, which imposes more stringent restrictions on signs directing the public to meetings of nonprofit groups--including churches--than on other signs. By a vote of 9-0, the Court reversed the judgment of the Ninth Circuit (which had rejected the challenge) and remanded the case. Justice Thomas, joined by the Chief Justice and Justices Scalia, Kennedy, Alito, and Sotomayor, held that the Code’s sign provisions were content-based restrictions of speech that could not survive strict scrutiny. Justice Alito also filed a concurring opinion, joined by Justices Kennedy and Sotomayor. Justice Breyer filed an opinion concurring in the judgment. Justice Kagan, joined by Justices Ginsburg and Breyer, also filed an opinion concurring in the judgment. -- To discuss the case, we have Professor Eugene Volokh, the Gary T. Schwartz Professor of Law at the UCLA School of Law.

On May 26, 2015, the Supreme Court delivered its opinion in Wellness International Network, Limited v. Sharif. This case relates to the Court’s 2011 decision in Stern v. Marshall, in which the Court held that Congress violated Article III by authorizing bankruptcy judges to decide certain claims for which litigants are constitutionally entitled to an Article III adjudication. Here the question is whether Article III allows bankruptcy judges to adjudicate such claims with the parties’ consent. -- In an opinion delivered by Justice Sotomayor, the Court held by a vote of 6-3 that Article III permits bankruptcy judges to adjudicate Stern claims with the parties’ knowing and voluntary consent. The judgment of the Seventh Circuit was reversed and the case was remanded. -- Justice Sotomayor’s opinion was joined by Justices Kennedy, Ginsburg, Breyer, and Kagan, and by Justice Alito in part. Justice Alito filed an opinion concurring in part and concurring in the judgment. The Chief Justice filed a dissenting opinion, joined by Justice Scalia and by Justice Thomas as to Part I. Justice Thomas also filed a dissenting opinion. -- To discuss the case, we have Thomas Plank, who is the Joel A. Katz Distinguished Professor of Law at the University of Tennessee College of Law.

Equal Opportunity Employment Commission v. Abercrombie & Fitch Stores, Inc, decided on June 1, involves Title VII of the Civil Rights Act of 1964, which prohibits a prospective employer from (among other things) refusing to hire an applicant in order to avoid accommodating a religious practice that it could accommodate without undue hardship. The question here is whether this prohibition applies only where an applicant has informed the employer of his need for an accommodation. The Tenth Circuit had ruled in favor of Abercrombie, concluding that an employer could not be held liable until an applicant (or employee) provided the employer with actual knowledge of her need for an accommodation. -- In an opinion delivered by Justice Scalia, the Supreme Court reversed the decision of the Tenth Circuit by a vote of 8-1 and remanded the case for further proceedings. A request for accommodation, or the employer’s certainty that the practice at issue exists, the Court explained, may make it easier to infer the requisite motive, but it is not a necessary condition of liability under Title VII. -- The Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor and Kagan joined Justice Scalia’s majority opinion. Justice Alito filed an opinion concurring in the judgment. Justice Thomas filed a dissenting opinion. -- To discuss the case, we have Michael Rosman, who is General Counsel at the Center for Individual Rights.

On June 8, 2015, the Supreme Court decided Zivotofsky v. Kerry. This case concerns Section 214(d) of the Foreign Relations Authorization Act of 2003, which directs the Secretary of State, upon request, to record the birthplace of an American citizen born in Jerusalem as born in “Israel” on a Consular Report of Birth Abroad and on a United States passport. The question before the Court is whether the D.C. Circuit erred in holding Section 214(d) an unconstitutional infringement on the President’s power to recognize foreign sovereigns. -- In an opinion delivered by Justice Kennedy, the Court affirmed the judgment of the D.C. Circuit by a vote of 6-3 as to passports and 5-4 as to consular reports. The power to recognize foreign governments, the Court held, rests solely with the President. Because Section 214(d) would require the President to contradict his prior recognition determination in an official document issued by the Secretary of State, the Court explained, Section 214(d) is unconstitutional. -- Justices Ginsburg, Breyer, Sotomayor, and Kagan joined the opinion of the Court. Justice Thomas filed an opinion concurring in the judgment in part and dissenting in part. Chief Justice Roberts filed a dissenting opinion, which Justice Alito joined. Justice Scalia filed a dissenting opinion, which Chief Justice Roberts and Justice Alito joined. -- To discuss the case, we have Mr. Steven Bradbury, who is a Partner at Dechert.

On June 1, 2015, the Supreme Court issued its decision in Elonis v. United States. This case involves two questions. First, this case asks whether the First Amendment requires proof of the defendant’s subjective intent to threaten in order to convict someone of threatening another person under 18 U.S. C. § 875(c), or whether it is sufficient to demonstrate that a “reasonable person” would consider the statement to be threatening. The second question in this case is whether, as a matter of statutory interpretation, conviction of another person requires proof of the defendant’s subjective intent to threaten. -- In an opinion delivered by the Chief Justice, the Court held that general intent is not sufficient to support a conviction under 18 U.S.C. 875(c) and that the imposition of criminal penalties under the statute requires proof of a “guilty mind.” -- Chief Justice Roberts’ opinion for the Court was joined by Justices Scalia, Kennedy, Kagan, Ginsburg, Breyer, and Sotomayor. Justice Alito filed a separate opinion concurring in part and dissenting in part. Justice Thomas filed a dissent. -- To discuss the case, we have Kent S. Scheidegger, Legal Director & General Counsel, Criminal Justice Legal Foundation and John Elwood, Partner, Vinson & Elkins LLP.

On May 26, 2015, the Supreme Court issued its decision in Kellogg Brown & Root Services, Inc. v. United States ex rel. Carter. This case involves two questions. The first question is whether the statute of limitations for a claim of civil fraud against the federal government brought by a relator (private individual bringing suit on behalf of the government) can be indefinitely tolled by the Wartime Suspension of Limitations Act (WSLA). The second question asks whether the False Claims Act's "first-to-file" rule, which presents an incentive for relators to be the first to bring claims of fraud, simply requires that only one case can be pending at a time or requires that once a case has been filed, all cases based upon the same facts and alleging the same type of fraud are barred. -- Justice Alito delivered the opinion of a unanimous Court, which held that 1) the WSLA applies only to criminal, not civil, claims and 2) that the FCA’s first to file bar only keeps claims out of court while related claims are still active, not in perpetuity, and that petitioner’s reading of the term “pending” as being synonymous with first filed would improperly bar suits having nothing to do with the merits of the case. -- To discuss the case, we have Marcia G. Madsen, who is a Partner at Mayer Brown and Christopher A. Bowen, who is an Associate at Arent Fox LLP.

The Supreme Court recently issued two unanimous decisions in bankruptcy cases, Harris v. Viegelahn and Bullard v. Hyde Park Savings Bank. -- Harris v. Viegelahn, decided on May 18, involved the conversion of a Chapter 13 bankruptcy case into a Chapter 7 bankruptcy case. In Chapter 13 bankruptcy, the debtor is permitted to keep his assets but his postpetition wages are property of the bankruptcy estate and may be distributed to creditors. In Chapter 7 bankruptcy, the debtor’s assets are immediately liquidated and made available to creditors--but postpetition wages remain the debtor’s. The question in this case was whether, upon conversion from Chapter 13 to Chapter 7, postpetition wages still in the hands of the Chapter 13 trustee remain available to creditors, or must instead be returned to the debtor. In an opinion delivered delivered by Justice Ginsburg, the Court held unanimously that the debtor was entitled to the return of any postpetition wages not yet distributed by the Chapter 13 trustee. The contrary judgment of the Fifth Circuit was reversed and the case remanded. -- Bullard v. Hyde Park Savings Bank, decided on May 4, concerned whether a debtor could appeal a bankruptcy court's order denying confirmation of the debtor's proposed repayment plan. In an opinion delivered by Chief Justice Roberts, the Court held unanimously that the order denying confirmation was not a final order subject to immediate appeal. The judgment of the First Circuit, which had dismissed the debtor’s appeal for lack of jurisdiction, was affirmed. -- To discuss these cases, we have Zvi Rosen, who is a Visiting Assistant Professor of Law at the Hofstra University Maurice A. Deane School of Law.

On March 25, 2015 the Supreme Court decided Alabama Legislative Black Caucus v. Alabama, which was consolidated with Alabama Democratic Conference v. Alabama. -- These cases ask whether Alabama's 2012 legislative redistricting plans classify black voters by race in violation of the Fourteenth Amendment. A three-judge federal district court rejected plaintiffs’ challenge to the redistricting plan. By a vote of 5-4, the Supreme Court vacated that decision and remanded the case for further proceedings. -- In an opinion delivered by Justice Breyer, the Court determined that the district court made four key errors: (1) treating the racial gerrymandering claim as referring to the State “as a whole,” rather than district-by-district; (2) finding that the Alabama Democratic Conference lacked standing.; (3) improperly calculating “predominance” in the alternative holding that “[r]ace was not the predominant motivating factor” in the creation of any of the challenged districts; and (4) concluding that “the [challenged] Districts would satisfy strict scrutiny.” -- Justice Breyer's opinion for the Court was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan. Justice Scalia filed a dissent, which was joined by the Chief Justice and Justices Thomas and Alito. Justice Thomas also filed a separate dissent. -- To discuss the case, we have Stephen Davis, who is an associate at the Washington, D.C. office of Arent Fox.

On May 18, 2015, the Supreme Court issued its decision in City and County of San Francisco v. Sheehan. This case asks two questions. The first is whether law enforcement officers are required by the Americans with Disabilities Act to accommodate a mentally ill suspect who is armed and hostile while they are bringing the suspect into custody. The second question is whether it was clearly established that even where an exception to the warrant requirement applied, an entry into a residence could be unreasonable under the Fourth Amendment by reason of the anticipated resistance of an armed and violent suspect within. -- In an opinion delivered by Justice Alito, by a vote of 6-2, the Court dismissed the grant of certiorari on the first question as improvidently granted. On the second question, the Court held that the officers were entitled to qualified immunity from suit because they did not violate any clearly established Fourth Amendment rights. The Chief Justice and Justices Kennedy, Thomas, Ginsburg, and Sotomayor joined Justice Alito's majority opinion. Justice Scalia filed an opinion concurring in part and dissenting in part, joined by Justice Kagan. Justice Breyer took no part in the consideration or decision of the case. The judgment of the Ninth Circuit was reversed in part and the case remanded. -- To discuss the case, we have Tom Gede, who is a principal in Morgan Lewis Consulting LLC and of counsel to Morgan, Lewis & Bockius LLP.

On April 29, 2015, the Supreme Court issued its decision in Mach Mining v. Equal Employment Opportunity Commission. This case involves the Equal Employment Opportunity Commission's (EEOC) Title VII duty to investigate claims of discrimination levied against an employer and to make good faith efforts to eliminate discriminatory employment practices before filing suit against that employer. The question this case asks is whether and to what extent a court may enforce the EEOC's duty to conciliate discrimination claims before filing suit. -- In a unanimous opinion delivered by Justice Kagan, the Court held that courts have the authority to review whether the EEOC has fulfilled its statutory duty to conciliate discrimination claims prior to filing suit against an employer. The judgment of the Seventh Circuit was vacated and remanded. -- To discuss the case, we have Mr. Paul Mirengoff. Mr. Mirengoff is a retired attorney in Washington, D.C. and is a blogger at powerlineblog.com.