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Purdue Pharma’s bankruptcy deal, which will reach the Supreme Court for oral argument on Monday, is just one of many examples of recent unorthodox civil procedure maneuvers in public harms litigation. From the Catholic Diocese and Boy Scouts in their respective abuse cases to Johnson & Johnson’s talc litigation, 3M’s earplug case, and Revlon’s hair straightener case, corporations are turning to bankruptcy court over the traditional civil litigation process. Bankruptcy and its special powers are being used to compensate for what some court filings call the “failure” of tort litigation to efficiently and fully resolve all pending claims.

But can bankruptcy court solve a public health crisis? And should the parties in a tort litigation be permitted to bypass discovery and the adjudication of legal liability in the interest of reaching a global settlement and getting money to victims, cities, and states?

The question on which the court granted review in Purdue Pharma’s case looks deceptively narrower: whether, as part of the bankruptcy deal for Purdue, the manufacturer of OxyContin, the owners of the company, the Sackler family, could be shielded from all civil liability in exchange for a $6 billion contribution to the settlement. As William Harrington, the U.S. Trustee, puts it, the Sacklers “presumably think the agreed contribution of up to $6 billion is less costly than the litigation risk associated with the released claims.” The permissibility of this so-called nondebtor release is the precise issue before the court.

But, regardless of how the court comes out on that particular question, the case is also about how much procedural leeway the court is willing to grant as a way to resolve such lawsuits brought by large groups of people who have been similarly harmed, known as mass torts. Just last week, Justice Clarence Thomas authored what appears to be the first ever opinion (a dissent from the denial of review) on the question of the propriety of preclusion in the context of another procedural vehicle that has been repurposed in modern times to serve as a method of mass aggregation and settlement — multidistrict litigation. Thomas warned that “[w]e should not sacrifice constitutional protections for the sake of convenience.”

The critical background here is that the court’s precedents on class-action certification of nationwide harms have set a very difficult bar to reach, which is why the national opioid litigation was not filed as a class action in the first place. Instead, it originally proceeded as a multidistrict litigation, with thousands of plaintiffs and dozens of industry defendants consolidated before a single judge in federal district court in Ohio.

The MDL statute, enacted in 1968 to address antitrust litigation involving the electrical-equipment industry, has since been transformed by lawyers and courts into the most potent aggregating mechanism on the federal civil docket. MDL now comprises 54% of cases on the federal civil docket (a figure that surprises most). Although the statute formally allows for only pre-trial consolidation, 99% of cases consolidated into MDL settle. The opioid MDL came under scrutiny, including by the U.S. Court of Appeals for the 6th Circuit, for its own creative efforts to reach a global settlement — much as Justice Ruth Bader Ginsburg in 1997 rejected earlier efforts to expand the reach of the Rule 23 class action settlement in Amchem v. Window, an important ruling that helped raise the bar for class-action certification.

Despite its ambition, the opioid MDL failed to reach a global settlement, and Purdue filed for bankruptcy. Bankruptcy in Purdue’s case came after the company participated in the traditional tort process; it is the Sacklers’ third-party involvement that the U.S. Trustee argues is different. Like Johnson & Johnson — whose effort to avoid tort liability, in litigation alleging that talc found in some of its products (most notably, baby powder) caused ovarian cancer and mesothelioma, through a creative bankruptcy maneuver was recently rejected by the U.S. Court of Appeals for the 3rd Circuit — the Sacklers were not insolvent and would not have filed for bankruptcy themselves.

In the end, because of the bankruptcy court’s unique power to centralize and finally resolve all pending litigation — regardless of whether such litigation is filed in state or federal court (a power no other kind of federal court has) – the Purdue settlement had enormous leverage over the sprawling case, which included state attorneys general, cities, individuals, and other entities in courts across the country. A sufficient number of plaintiffs were ultimately persuaded to incorporate the Sacklers into their deal.

As to the broader implications, the U.S. Trustee argues that, by allowing the Sacklers to bypass the tort process, the release implicates due process, as it “ contravenes the ‘deep rooted historic tradition that everyone should have his own day in court.’” The government also raises federalism concerns, noting that the releases allow a single bankruptcy judge to permanently “enjoi[n] state-law claims by nondebtor third parties.”

From a public health perspective, choosing bankruptcy over first going through traditional litigation also prevents information from being elicited from powerful industry defendants — one of the most commonly touted reasons that litigation can contribute productively to a public health crisis. In cases ranging from tobacco to the gun industry, even just pre-trial process has proved especially powerful in generating information that can lead to policy reform.

Purdue, in turn, emphasizes the comprehensive power that the Bankruptcy Code gives to the court and the urgent need for the “life-saving funds” the settlement would distribute to victims and opioid recovery programs. Rather than wading through a vast array of separate litigation, they argue, the bankruptcy plan would get money to victims imminently.

The extent to which bankruptcy procedures could be made more trial-like is not directly before the court. But the ability to streamline process in bankruptcy is in large part what makes it attractive, and trials that produce detailed discovery or law development, while permitted, as a practical matter are rare.

One big question is whether the system should be focused on the need for global peace in the first place. A federalist system like ours — with state and federal court systems and jurisdictional boundaries between them — is structured to produce redundancy, not centralization. Yet pressure exerted by mass torts, including the needs of victims, has led lawyers on both sides of the “v” to innovate in the name of resolution.

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The Supreme Court will hear oral arguments on Monday in one of the highest-profile bankruptcies in recent memory: Harrington v. Purdue Pharma, a challenge to the approval by the U.S. Court of Appeals for the 2nd Circuit of a multi-billion-dollar bankruptcy plan for Purdue Pharma, the maker of the opioid OxyContin. A division of the Department of Justice objects to provisions in the plan that release members of the Sackler family, which principally owns the company and controlled it until recently, from civil liability for opioid-related claims. But the plan has wide support from creditors, municipalities, and victims, who see it as the only way to ensure that they will receive compensation and funding for opioid recovery projects from the family.

At the same time, the dispute also raises broader questions about whether and when it is appropriate to resolve mass tort cases – that is, lawsuits brought by a group of people who have been harmed in a similar way, such as in a plane crash or by a defective product – through the bankruptcy system.

Purdue Pharma’s blockbuster opioid OxyContin first came on the market in 1996. The company conducted an aggressive marketing campaign for the drug, selling it as a relief option for a broad array of pain, from cancer to long-lasting sports injuries, and generating some $35 billion in revenue. The company suggested that because the drug was made with an outer coating to slowly release its active ingredient, it was less susceptible to abuse. But OxyContin proved to be highly addictive, leading to a serious public health crisis. Between 1999 and 2019, nearly a quarter-million people died from overdosing on prescription opioids like OxyContin, outstripping car accidents and gunshots as the leading cause of accidental death in the United States.

Purdue Pharma has twice pleaded guilty to federal criminal charges relating to its marketing of OxyContin. Along with members of the Sackler family, some of whom were actively involved in the development and marketing of the company’s drugs, it was also a defendant in thousands of lawsuits, seeking more than $40 trillion, accusing them of having deceptively marketed the drug.

Facing those civil lawsuits, Purdue Pharma filed for bankruptcy in 2019. In Oct. 2019, a bankruptcy court in New York put lawsuits against the company and the Sacklers on hold. And in Sept. 2021, the bankruptcy court confirmed a reorganization plan that would remake the company as a nonprofit devoted to addressing the public-health problems created by the opioid epidemic – by, for example, funding the development of an OTC nasal spray to treat opioid dependence, as well as a drug to reverse opioid overdoses. The company also agreed to create a public repository of documents related to its sales and marketing practices, and the Sacklers agreed to stay out of the opioid business going forward.

Members of the Sackler family – who had taken pre-tax distributions of $11 billion from Purdue Pharma between 2008 and 2016 – agreed to contribute up to $6 billion to the plan. In exchange, the plan contained provisions that shielded members of the Sackler family, who have not filed for bankruptcy, from future civil liability relating to the opioid crisis. U.S. Bankruptcy Judge Robert Drain called the settlement a “bitter result” but noted the costs and risks of continuing to litigate rather than settle the disputes.

In Dec. 2021, a federal district court in New York vacated the bankruptcy court’s decision confirming the plan. It ruled that nothing in the Bankruptcy Code allows the kind of protection from liability that the plan provides to the Sacklers.

On appeal, the 2nd Circuit reversed. It held that when read together, two provisions of the Bankruptcy Code give bankruptcy courts the power to approve the kind of nonconsensual third-party releases found in the Purdue Pharma plan. First, the court of appeals explained, 11 U.S.C. § 105(a) provides that the bankruptcy court can issue “any order, process, or judgment that is necessary to carry out the provisions of” the Bankruptcy Code. Second, the court noted, 11 U.S.C. § 1123(b)(6) – known as the “catch-all” provision – indicates that a bankruptcy plan may “include any other appropriate provision not inconsistent with the applicable provisions of” the Bankruptcy Code. Moreover, the court of appeals concluded, the provisions shielding the Sacklers from civil liability were appropriate in this case.

But U.S. Trustee William Harrington – a Department of Justice official appointed by the attorney general to oversee bankruptcy cases in (among other places) New York – objected to the provisions in the plan shielding the Sackler family from civil liability. After the court of appeals declined to put its order on hold, Harrington came to the Supreme Court, which agreed to stay the implementation of the plan and weigh in.

There are two main questions before the Supreme Court. The first is whether Harrington, as the U.S. Trustee, and the federal government have a right to challenge the confirmation of the plan at all. Purdue Pharma and the Official Committee of Unsecured Creditors, a committee appointed by the trustee to represent the interests of creditors who do not hold a share of Purdue Pharma’s property, insist that they do not. The trustee, Purdue Pharma writes, has “zero concrete stake in this bankruptcy” and therefore has “nothing to lose if he destroys the plan.” Because the trustee is merely an “interloper” who lacks the right “to destroy a plan that the actual victims crafted and overwhelmingly support,” Purdue Pharma insists, the justices should dismiss the case without ruling on the merits, leaving the 2nd Circuit’s decision in place.

Both the U.S. Trustee and a group of Canadian creditors – made up of Canadian cities and First Nations –counter that it doesn’t matter whether the U.S. Trustee has a right to challenge the plan because the Canadian creditors do have such a right. The Sacklers, the Canadians observe, contend that the plan’s provisions releasing the family from liability apply to the Canadian creditors’ claims against them, despite an exemption for Canadian claims, because their claims are based on the conduct of Purdue Pharma USA. “If the Sacklers prevail,” the Canadian creditors contend, “then the Canadian creditors will lose valuable property rights to some or all of these claims.” But at the very least, they “will have to spend time and money litigating that disputed question.”

In any event, the U.S. Trustee adds, he has a right to challenge the plan because Congress gave him the power to “raise” and “be heard” on any issue – including, he says, the right to object to a plan’s confirmation.

The second question before the court centers on the legality of the plan itself. Arguing that the plan should not have been confirmed, the U.S. Trustee characterizes bankruptcy as a “basic quid pro quo”: In exchange for getting virtually all of its debts cleared, the bankrupt debtor complies with a variety of obligations – for example, to disclose information regarding its creditors and its income, and to dedicate its assets to paying its creditors’ claims. But in this case, the trustee contends, the Sacklers are able to “shield billions of dollars of their fortune” and obtain a release from civil liability for opioid-related claims without having to personally declare bankruptcy.

Moreover, the trustee continues, except for a single provision (that is not relevant to this case because it deals with asbestos), nothing in the Bankruptcy Code suggests that courts have the power to provide the Sacklers with releases from personal liability to creditors and victims. One of the provisions on which the 2nd Circuit relied, Section 105(a) of the Bankruptcy Code, does not, standing alone, allow third-party releases unless another provision of the Bankruptcy Code authorizes it, the trustee writes. And Section 1123(b)(6), Harrington argues, does not authorize a plan to release claims such as those against the Sacklers but is instead a “catchall” that allows “the inclusion of ‘any other appropriate provision not inconsistent’” with the Bankruptcy Code. The Supreme Court, the trustee says, has interpreted the provision “as embodying the ‘traditional understanding that bankruptcy courts … have broad authority to modify creditor-debtor relationships.’” If the 2nd Circuit’s interpretation of these two provisions were correct, the trustee warns, courts could grant sweeping relief under the guise of a bankruptcy plan – anything from post-conviction relief to corporate officers in prison to rewriting “a property settlement agreement in a divorce pending in state court, so long as it found such actions to be ‘appropriate’ in ensuring the debtor’s successful reorganization.’”

At the very least, the trustee concludes, there would be serious constitutional questions about allowing the releases of the Sacklers to stand. Among other things, the releases eliminate the potential causes of action for creditors and victims outside the plan, without giving them a chance to either affirmatively agree to the releases or opt out of them.

Purdue Pharma counters that all of the claims released by the plan – including those against the Sacklers – depend on conduct by Purdue Pharma and therefore would directly affect the funds available in the bankruptcy estate. Without the releases, the company emphasizes, as the bankruptcy court found, there probably would not be a settlement, and many victims probably would not recover anything. By contrast, the company stresses, “[w]hen the plan takes effect, over $1.3 billion will be disbursed immediately.”

While the U.S. Trustee argues that nothing in the Bankruptcy Code permits the releases of the Sacklers, Purdue Pharma argues that nothing in the code prohibits such releases. Section 1123(b)(6), it reasons, allows a bankruptcy plan to include “any other appropriate provision” as long as it is “not inconsistent” with other provisions of the Bankruptcy Code. In enacting this provision, the company writes, “Congress unambiguously gave courts the catchall authority to approve Chapter 11 plan provisions necessary to make reorganizations work in the infinitely varied world of complex bankruptcies.” There are, however, “important limits” on that authority, the company added, because the provisions of the plan “must at least be necessary to the success of the reorganization.”

The Official Committee of Unsecured Creditors notes in its brief that it was among a “broad array of stakeholders” that “painstakingly negotiated” the plan, which had “historic” support from creditors. The creditors wanted the liability releases at the center of this case, the committee explains, “to ensure that no creditor could recover disproportionately at the expense of others;” without the third-party releases, they argue, the plan would fall apart, leaving everyone but the federal government with “substantially less (if anything) years later (if ever).”

Like Purdue Pharma, the Official Committee maintains that the plan should be confirmed. The Supreme Court’s bankruptcy cases, the committee writes, give courts “comprehensive power to deal efficiently and expeditiously with all matters connected to the bankruptcy estate.” At the very least, the committee continues, liability releases like the ones provided to the Sacklers are appropriate when “(as here) the overwhelming majority of creditors agrees (and the court finds) that it presents the only viable path to a fair, meaningful, and timely recovery.”

Harrington criticizes the plan more broadly as “a roadmap for corporations and wealthy individuals to misuse the bankruptcy system to avoid mass-tort liability.” The kinds of releases provided to the Sacklers, he argues, not only “deprive tort victims of their day in court without consent,” but they also “erode public confidence in the bankruptcy system, which Congress established to restructure a debtor’s relationship with its creditors in a case of true financial distress — not to resolve mass-tort liability against non-debtors by terminating claims belonging to other non-debtors.”  

But interest-group briefs supporting the confirmation of the plan push back against this argument. One brief, filed by the American Bankruptcy Institute – which spent two years studying possible changes to the Bankruptcy Code – tells the justices that releases like the ones provided to the Sacklers drive “settlements essential to complex reorganizations, particularly in, but not limited to, mass tort cases.” “If nonconsensual third-party releases are prohibited,” the institute contends, “tort victims will suffer the most.”

And briefs from two groups that have been the targets of litigation relating to sexual abuse allegations argue that releases from liability, in these cases of institutions rather than private individuals, are or have been essential to their survival. The U.S. Conference of Catholic Bishops describes “dozens of dioceses” that have filed for bankruptcy in the wake of sexual abuse allegations. “The judicially supervised releases that these entities receive in exchange – almost always with the overwhelming support of abuse claimants – provide the only viable means for the Catholic infrastructure in many communities to survive what has become decades of mission-crippling litigation,” the conference writes.

Similarly, the Boy Scouts of America recently emerged from bankruptcy with a reorganization plan that included releases of claims against third parties, such as local Boy Scout councils, that contributed to the settlement. If the trustee’s “reading of the Bankruptcy Code had been applied in the BSA bankruptcy,” the Boy Scouts assert, “then most survivors of Scouting-related abuse would get nothing, and Scouting as an organization would likely be finished.”

This article was originally published at Howe on the Court. 

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The justices and retired justices of the Supreme Court have issued statements regarding the death of Sandra Day O’Connor, the first woman to serve on the court. O’Connor, who stepped down from the court in 2006, died on Friday in Phoenix, Arizona. She was 93 years old.

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Sandra Day O’Connor, a self-described “Arizona cowgirl” who made history as the first woman to serve as a Supreme Court justice, died on Friday in Phoenix, Arizona. She was 93.

The cause was complications related to advanced dementia, probably Alzheimer’s disease, and a respiratory illness, the Supreme Court announced.

Chief Justice John Roberts said in a press release announcing O’Connor’s death that O’Connor “blazed a historic trail as our Nation’s first female Justice. She met that challenge with undaunted determination, indisputable ability, and engaging candor. We at the Supreme Court mourn the loss of a beloved colleague, a fiercely independent defender of the rule of law, and an eloquent advocate for civics education.”

Nominated by President Ronald Reagan in 1981, O’Connor served 24 years on the court before stepping down to take care of her husband, who also battled Alzheimer’s. During that time, she was the court’s key vote on a wide range of issues, including abortion, affirmative action, and religion. She was known less for an overarching judicial philosophy than for crafting opinions that were often narrow and practical – sometimes to the disappointment of conservatives.

But if O’Connor proved disappointing to conservatives, they were delighted with her successor, Justice Samuel Alito. Alito’s confirmation in 2006 kicked off a shift to the right that accelerated with the arrival of three justices – Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – nominated by former President Donald Trump. During the 17 years that followed O’Connor’s retirement, the court overturned some of her best-known decisions, chipping away at her judicial legacy.

A formative childhood on the Lazy B

O’Connor was the oldest of three children born to Harry and Ada Mae Day. She grew up on the family’s Lazy B Ranch, which sat astride the border between Arizona and New Mexico and occupied about 250 square miles – almost four times the size of Washington, D.C. The area was an unforgiving environment, receiving 10 inches or less of rain each year. The land was rocky, and the wildlife included coyotes, bobcats, and rattlesnakes. “It was no country for sissies, then or now,” O’Connor wrote in Lazy B, the 2002 memoir about life on the ranch that she co-authored with her brother, Alan Day.

The Lazy B, O’Connor explained proudly, was the “largest and most successful ranch in the region,” thanks to Harry Day, whom his children described as “exceedingly kind to everyone” but also a perfectionist who could be critical. “His children,” O’Connor acknowledged, “never heard him admit he was wrong about anything.”

Once, in the summer before her senior year in high school, Sandra got a flat tire while driving the ranch’s pick-up truck to bring lunch to a round-up crew working two and a half hours away. It took her over an hour, working alone in the hot sun, to change the tire, making her late to meet the crew. When Sandra explained to her father what had happened, his response was that she “should have started earlier.” Sandra countered that she “didn’t expect a flat,” but he retorted that she should “expect anything out here.” She wrote in Lazy B that although she “had expected a word of praise for changing the tire,” she instead “realized that only one thing was expected: an on-time lunch. No excuses accepted.”  

Sandra’s mother, Ada Mae, was the college-educated daughter of a prosperous Texas merchant and rancher. Ada Mae Day worked just as hard as her husband, in a household that lacked running water and electricity until Sandra was 7, but according to Lazy B she “never stopped trying to dress well and take care of herself.”

Sandra’s first babysitters were cowboys, she wrote, including one who “took me up on his saddle and rode around the yard with me on horseback” as soon as she was able to sit up. She explained that during her years on the Lazy B she “developed a love for the land and for the way of life on the ranch that has stayed with me.” More broadly, life on the ranch prepared her for other experiences in later years, as she noted that until she began to ride with the cattle drives, “it had been an all-male domain. Changing it to accommodate a female was probably my first initiation into joining an all-men’s club, something I did more than once in my life.”

The Lazy B was so remote that Sandra’s parents sent her to live with her grandparents in El Paso, Texas, a four-hour train ride away, to attend school, beginning in first grade and continuing (except for one year) through high school. “I was always homesick when away from the ranch,” O’Connor wrote.

Encountering barriers as a young female lawyer

In September 1946, then 16-year-old Sandra Day enrolled at Stanford. She wrote in Lazy B that she “felt poorly prepared compared to the other freshmen,” but she was admitted to a program that allowed her to start law school at Stanford in her senior year, as one of only four women in her class.

While at Stanford, Sandra was a top student who earned a place on the law review and finished as the runner-up in the school’s moot court competition with her partner, William Rehnquist, who would become a justice and then the chief justice of the United States. She and Rehnquist dated for a while, and she even brought him home to the Lazy B before breaking up with him in December 1950. But author Evan Thomas, in his 2019 biography of O’Connor, reported that in March 1952, after Rehnquist had left Stanford for a clerkship at the Supreme Court with Justice Robert Jackson, Rehnquist proposed to Sandra in a letter from Washington.

Sandra, Thomas noted, “temporized. She did not say no” to Rehnquist, “and she did not tell her old beau that she was now seeing someone else”: John O’Connor, another fellow law student, whom she met when they were both assigned to work on the same article for the law review. Sandra married John in a ceremony at the Lazy B in December 1952.

John O’Connor proved to be an extraordinarily supportive spouse in an era in which women – especially married women with children – were generally not expected to have career ambitions, much less wind up on the nation’s highest court. In that way, he bore a strong resemblance to Marty Ginsburg, the husband of Ruth Bader Ginsburg, who in 1993 joined O’Connor on the court as the second female justice.

Also like Ginsburg, O’Connor was unable to find work at a law firm even though she was at the top of her class and an editor of the law review. One California-based firm, Gibson Dunn, did offer O’Connor a job – as a legal secretary.

Instead, O’Connor applied for a job with the San Mateo County government, where she agreed to work for free until the office could find funding for her. She stayed there until 1954, when she moved to Germany with her husband, who served as an Army lawyer. In Germany, O’Connor worked as a civilian lawyer for the Army Quartermaster Corps.

The couple returned to the United States in 1957. While John took a job with a law firm in Phoenix, Sandra was once again unable to find a job at a firm. Instead, she hung a shingle at a shopping center with another young lawyer, taking on all kinds of cases.

The O’Connors had three sons. Although Sandra often made life as a working mother look effortless, she later told an oral history project that maintaining a balance between her work and her family was “desperately hard.” After her second child was born, she temporarily stepped away from the full-time workforce because of a common problem: lack of childcare. “I had a wonderful babysitter,” O’Connor told the co-authors of a book on career re-entry for women. “But she left after my second child was born. It was a disaster for me because there were no daycare centers in those days and I tried, but I could not find another competent sitter.” For the next five years, O’Connor juggled caring for her children with a hodgepodge of legal jobs, ranging from grading bar exams to bankruptcy appointments. She also did volunteer work, becoming president of the local Junior League and, with her husband, got involved in Arizona Republican Party politics.

A varied career path to the country’s highest court

The time that O’Connor had invested in local politics paid off when she decided to return to full-time work in 1965. She spent four years as an assistant state attorney general until she was appointed to the Arizona State Senate after the incumbent stepped down. O’Connor ran for the seat in her own right in 1970; she won and was re-elected again in 1972. That same year, she became the Republican majority leader – the first woman in the country to hold that job. In 2013, O’Connor told the Harvard Business Review that her experience as a legislator taught her to “work with people because you want to have as many on board for your position as you can.”

O’Connor opted not to seek reelection in 1974. Instead, she ran for – and won – a trial-court judgeship in Maricopa County, the state’s largest jurisdiction. In 1979, she was appointed to the Arizona Court of Appeals by Gov. Bruce Babbitt, a Democrat.

During his campaign for president in 1980, Ronald Reagan had promised to nominate a woman to the Supreme Court. Shortly after taking office, he had an opportunity to do that, with Justice Potter Stewart’s announcement in June 1981 that he would retire in early July. As a little-known judge who had served for only a short time on Arizona’s intermediate appellate court, O’Connor was not an obvious choice to succeed Stewart. But there were relatively few conservative female judges, and O’Connor had friends in high places – most notably, Chief Justice Warren Burger, whom O’Connor had met during a houseboat vacation with mutual friends a few years before. And when O’Connor met with Reagan, a fellow westerner who liked to retreat to his ranch in California’s Santa Ynez mountains as often as possible, Reagan was immediately impressed.

In his remarks announcing the nomination, Reagan described O’Connor as a “person for all seasons, possessing those unique qualities of temperament, fairness, intellectual capacity, and devotion to the public good which have characterized” the justices who preceded her. Reagan fielded questions from reporters about O’Connor’s views on abortion and the opposition to her nomination that had already formed among anti-abortion groups. Reagan assured reporters that he had “interviewed her personally” and was “completely satisfied” with O’Connor’s “right-to-life position.” 

O’Connor’s three-day confirmation hearing began on Sept. 9, 1981. It was the first time that a Supreme Court confirmation hearing had been televised. O’Connor was confirmed by a vote of 99-0.

Pivotal role at the center of the court

During her nearly quarter-century as a justice, O’Connor wrote 645 opinions. In her interview with the Harvard Business Review after leaving the court, she said that “[i]t’s good if you can get agreement among your colleagues” when drafting opinions. But if not, she continued, “you want to write narrowly so that you don’t decide too much in that one situation.” She acknowledged that she tried to “avoid sweeping rulings that would affect things we just didn’t know about, things that hadn’t been described. Otherwise,” she said, “you might be taking giant steps you’ll live to regret.”

Others (including some of her colleagues) sometimes saw O’Connor’s jurisprudence differently. In a 2001 article, law professor Jeffrey Rosen complained that with her “refusal to commit herself to consistent principles, O’Connor forces the court and those who follow it to engage in a guessing game about her wishes in case after case. Each of her decisions is a ticket for one train only.”

Despite Reagan’s professed confidence in O’Connor’s stance on abortion in 1981, 11 years later O’Connor joined two other Republican appointees in reaffirming a constitutional right to an abortion. In Planned Parenthood v. Casey, the court considered a challenge to a Pennsylvania law that imposed a variety of restrictions on women seeking an abortion, including a requirement of “informed consent” for all women, parental consent for minors, and mandatory spousal notification for married women.

In his memoir, the late Justice John Paul Stevens reported that he believed the court would use the Pennsylvania case as an opportunity to overrule Roe v. Wade, the court’s landmark 1973 opinion establishing a fundamental right to an abortion. Indeed, Stevens noted, Rehnquist had even drafted an opinion that would do so. But O’Connor, along with Justices Anthony Kennedy and David Souter, “surprised us,” Stevens wrote, with a rare joint opinion that stressed that “the essential holding of Roe v. Wade should be retained and once again affirmed.” At the same time, their opinion made it easier for states to regulate abortions by scrapping Roe’s focus on the trimester framework, which barred the state from virtually any regulation during the first trimester of pregnancy. Stressing that “not every law which makes a right more difficult to exercise” is necessarily a violation of that right, they explained that such regulations would be unconstitutional only if they imposed an “undue burden” on a woman’s right to choose an abortion. Applying this new test, the court struck down Pennsylvania’s spousal-notification provision but upheld the other provisions of the law.

Casey stood for 30 years. But in June 2022 – in an opinion written by O’Connor’s successor, Justice Samuel Alito – the court’s reinvigorated conservative majority ruled that the Constitution does not protect a right to obtain an abortion at any stage of pregnancy. Roe and Casey, Alito wrote in Dobbs v. Jackson Women’s Health Organization, “represent an error that cannot be allowed to stand.”  

Deep commitment to federalism

O’Connor was a strong proponent of states’ rights and played a key role in one of the Rehnquist court’s most significant doctrinal shifts: limiting the power of the federal government. Law professor Stephen Wermiel wrote in 1991 that federalism was a “unifying theme” for O’Connor. She was, Wermiel contended, “strongly motivated by her own abiding faith in good government at the state level and her belief that the Framers of the Constitution envisioned a genuine partnership of shared powers between the federal government and the states.” O’Connor’s “experience as a state legislator and judge,” Wermiel suggested, gave “her a degree of trust in state government and state courts that goes well beyond that of her colleagues.” (O’Connor’s skepticism of the federal government may have also been colored by her time on the ranch; in Lazy B, she referred to the “paper-pushing bureaucrats” at the federal Bureau of Land Management and the agency’s focus on developing “new rules and regulations,” rather than “on-site range improvements.”)

During her tenure on the court, O’Connor was, as Linda Greenhouse observed, Rehnquist’s “loyal ally” “in the court’s continuing reappraisal of the relationship between the states and the federal government.” That “reappraisal” began in 1992, when O’Connor authored the court’s opinion in New York v. United States, a challenge to a federal law that required states to arrange for the disposal of radioactive waste generated within their borders or take responsibility for the waste. New York argued that the law violated the 10th Amendment, which reserves for the states all of the powers that the Constitution does not specifically give to the federal government.

By a vote of 6-3, the court agreed that Congress cannot require the states to take responsibility for the waste. Although “Congress has substantial power under the Constitution to encourage the States to provide for the disposal of the radioactive waste within their borders,” O’Connor explained, the Constitution does not give Congress the power to “simply compel the states to do so.” Indeed, O’Connor continued, requiring the states to take action would reduce the accountability of both federal officials – who are responsible for the obligation but would not face any political fallout for doing so – and state officials, who would face political repercussions even though they had no role in creating the obligation.

O’Connor later provided the key vote in two more important federalism cases. In 1995, she joined Rehnquist’s 5-4 decision in United States v. Lopez striking down a federal law that made it a crime to have a gun within 1,000 feet of a school. The ruling was the first time in nearly six decades that the court invalidated a federal law on the ground that it exceeded Congress’ powers under the commerce clause.

And five years later, in United States v. Morrison, O’Connor joined Rehnquist’s 5-4 decision striking down the federal Violence Against Women Act, which allowed private lawsuits for gender-based violent crimes.

A “common sense” view of money in politics

O’Connor’s stint as a legislator also may have influenced her decision in the 2003 campaign-finance case McConnell v. Federal Election Commission, a challenge to the constitutionality of the Bipartisan Campaign Reform Act of 2002, also known as the McCain-Feingold Act. O’Connor co-authored an opinion with Stevens that largely upheld two titles of the act, including a provision that limited campaign spending by corporations and unions.

O’Connor and Stevens pushed back against the suggestion, made by Kennedy, that Congress should be able to regulate only the kind of quid pro quo corruption that arises from direct contributions or coordinated expenditures. Kennedy, O’Connor and Stevens stressed, would not allow Congress to regulate any other spending or contribution “regardless of its size, the recipient’s relationship to the candidate or officeholder, its potential impact on a candidate’s election, its value to the candidate, or its unabashed and explicit intent to purchase influence.” “This crabbed view of corruption,” O’Connor and Stevens concluded, “ignores precedent, common sense, and the realities of political fundraising exposed by the record in this litigation.”  

Just seven years later, Kennedy’s view would prevail. In Citizens United v. Federal Election Commission, the court overruled McConnell (as well as a 1990 campaign-finance decision, Austin v. Michigan Chamber of Commerce) and struck down the federal ban on political spending by corporations and unions. Independent expenditures by outside groups like corporations and unions, Kennedy explained, “do not give rise to corruption or the appearance of corruption.”

Second thoughts on Bush v. Gore

The normally disciplined O’Connor had a momentary lapse during an election-night party in 2000 that led to public attention and criticism after the Supreme Court became involved in a post-election dispute. When the networks initially called Florida for Democratic presidential candidate Al Gore, O’Connor reportedly declared that “this is terrible” and walked away. Her husband told party guests that she was upset because she wanted to step down so that the couple could return to Arizona, but she wouldn’t be able to do that with a Democratic president in office.

In their unsigned opinion in Bush v. Gore, the justices stopped the manual recount of ballots in Florida, over a month after the election. The court divided along ideological lines, with five conservative justices (including O’Connor) voting to halt the recount, which settled the election in favor of George W. Bush.

In a 2013 interview with the editorial board of the Chicago Tribune (seven years after she left the court), O’Connor suggested that the justices should have declined to intervene. Observing that the dispute “stirred up the public” and “gave the court a less-than-perfect reputation,” she said that “[m]aybe the court should have said, ‘We’re not going to take it, goodbye.’”

A landmark ruling on affirmative action

With the possible exception of the joint opinion in Casey, O’Connor’s signature achievement as a justice was probably her landmark opinion that retained affirmative action in higher education – if only temporarily and in a limited form. In 2003, she wrote for a divided court in Grutter v. Bollinger, upholding the University of Michigan Law School’s consideration of race in its admissions process. In an opinion that was joined by Stevens, Souter, Ginsburg and Justice Stephen Breyer, O’Connor explained that having a diverse student body creates educational benefits and is the kind of essential interest that can justify a university’s consideration of race. The law school’s admissions process, O’Connor added, merely “considers race as one factor among many, in an effort to assemble a student body that is diverse in ways broader than race.”

O’Connor, however, reached a different result in a case – decided on the same day – involving the University of Michigan’s undergraduate admissions policy. In that case, Gratz v. Bollinger, O’Connor joined Rehnquist’s majority opinion striking down the policy, and in a concurring opinion, she explained how it differed from Grutter. The undergraduate policy, unlike the law school’s, did “not provide for a meaningful individualized review” of each applicant but instead gave each minority applicant “the same, automatic 20-point bonus, without consideration of the particular background, experiences, or qualities of each individual applicant,” O’Connor wrote.

Even Grutter itself was not an unmitigated endorsement of individualized and “holistic” race-conscious admissions. Rather, O’Connor emphasized that the use of race in higher education should not continue indefinitely. Because the 14th Amendment to the Constitution, which prohibits states from denying “equal protection of the laws,” was intended to “do away with all governmentally imposed discrimination based on race,” she reasoned, race-conscious policies like the law school’s “must be limited in time.” O’Connor observed that it had been 25 years since the court first upheld a race-based admissions policy in University of California Board of Regents v. Bakke. During that time, she noted, “the number of minimum applicants with high grades and test scores has indeed increased.” Therefore, O’Connor made clear, “[w]e expect that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today.”

Less than 25 years later, the court effectively ended the use of race in college admissions. In a decision by Chief Justice John Roberts, the court ruled that the race-conscious admissions programs used by the University of North Carolina and Harvard College violate the 14th Amendment.

Although the court did not explicitly overrule O’Connor’s decision in Grutter, it made clear that programs similar to North Carolina and Harvard’s also would not survive. The “core purpose” of the 14th Amendment’s equal protection clause, Roberts explained, is to abolish “all governmentally imposed discrimination based on race.” So although the court’s ruling did not prohibit universities from ever considering the role that race has played in a particular applicant’s life or the effect that it will have on that specific applicant’s contribution to the university, the admissions policies used by UNC and Harvard did not pass muster. Those programs, Roberts stressed, have “concluded, wrongly, that the touchstone of an individual’s identity is not challenges bested, skills built, or lessons learned but the color of their skin.”

A valued colleague at the court

In a 2018 response to O’Connor’s announcement that she had been diagnosed with dementia, Ginsburg emphasized that O’Connor had “done more to promote collegiality among the Court’s members … than any other Justice, past or present.”

In an interview with Joan Biskupic, the author of an O’Connor biography, Justice Clarence Thomas elaborated on Ginsburg’s point, telling Biskupic that (among other things) O’Connor was responsible for the justices’ practice of having lunch together after oral arguments. Thomas tried to decline the invitations from O’Connor. “I was not inclined to do so. I was really tired. I wanted to get my work done. We had mail piled up. I wanted to spend time with my law clerks. But she kept insisting.” As a result, Thomas explained, he joined the group, as did Ginsburg and Breyer after him. “Now you have a group of people who really enjoy each other’s company. And I think it’s because of Justice O’Connor’s insistence.”   

Although the two had relatively little in common beyond their gender, O’Connor welcomed the arrival of Ginsburg, the second woman on the court, when she was confirmed in 1993. Ginsburg told Biskupic that she went to O’Connor when Rehnquist gave her a tough first assignment – writing the opinion for a complex pension case – rather than the straightforward unanimous opinion that new justices traditionally receive as their first task. O’Connor’s response, Ginsburg said, was no-nonsense: “Ruth, you just do it, and” send your draft out to the rest of the court “before he makes the next set of assignments.” When Ginsburg later announced the opinion from the bench, she told an audience in 2015, O’Connor sent her a note praising the opinion.

Family responsibilities lead to retirement announcement

In the spring of 2005, O’Connor authored yet another 5-4 ruling, in a case brought by an Alabama physical education teacher and basketball coach who alleged that the school system had retaliated against him when he complained about unequal treatment of the girls’ basketball team. The lower courts dismissed the lawsuit, holding that the right to sue created by federal laws prohibiting gender discrimination in schools that receive federal funding does not allow private lawsuits complaining about retaliation. The Supreme Court reinstated the teacher’s case, explaining that retaliating against someone who has complained about gender discrimination is “another form of intentional sex discrimination encompassed by” the law’s private cause of action.

O’Connor’s opinion in Jackson v. Birmingham Board of Education would be one of her final 5-4 decisions. In a letter to President George W. Bush on July 1, 2005, O’Connor announced her decision to retire “effective upon the nomination and confirmation of my successor.” Describing it as “a great privilege” to have served as a justice, O’Connor wrote that she would leave “with enormous respect for the integrity of the Court and its role under our Constitutional structure.”

O’Connor’s announcement came, Biskupic reported in her biography of O’Connor, as a surprise to at least some of the justice’s colleagues. O’Connor was then just 75 years old – practically middle-aged by Supreme Court standards. But John O’Connor had been diagnosed with Alzheimer’s disease years before. When John’s condition worsened, Sandra said later, she “often took him to the court with me because he could not be left alone.” And after John’s condition further deteriorated, Evan Thomas reported, Sandra told a friend that “John gave up his position in Phoenix to come with me, so now I am giving up my job to take care of him.”

In June 2005, Jan Crawford reported for ABC News, Sandra Day O’Connor had met with Rehnquist, then 80, who had missed four months of oral arguments while being treated for thyroid cancer. O’Connor knew that Rehnquist did not want the court to have two vacancies, so she expected that he would retire soon, and she planned to serve for one more term before announcing her retirement. Rehnquist instead told O’Connor that he planned to stay for one more year, Crawford related, prompting her to submit her own retirement letter.

Bush quickly nominated John Roberts, then a judge on the U.S. Court of Appeals for the District of Columbia Circuit, to succeed O’Connor. But when Rehnquist died on Sept. 3, 2005, Bush opted to nominate Roberts to replace Rehnquist instead.

On Oct. 3, Bush nominated his White House counsel, Harriet Miers, to replace O’Connor. Miers withdrew her nomination less than a month later, leading Bush to nominate Samuel Alito, a judge on the U.S. Court of Appeals for the 3rd Circuit. O’Connor remained on the court until Alito was confirmed at the end of January 2006.

Although O’Connor had stepped down from the court to take care of her husband, it was, as Evan Thomas observed, “already too late.” By July 2006, John moved into a care facility for Alzheimer’s patients in Arizona. In 2007, an Arizona TV station reported that John had formed a romantic relationship with another patient at the facility where he lived. The O’Connors’ son Scott told reporters that Sandra was “thrilled that Dad was relaxed and happy and comfortable living here and wasn’t complaining.” John O’Connor died in November 2009.

That same year, O’Connor lent her voice and star power to efforts to combat Alzheimer’s disease more broadly. She served as an honorary chair of a nonpartisan panel that created a plan to fight Alzheimer’s, which the report described as a “grave and growing challenge to our nation.” O’Connor also testified before Congress, warning that “in the next 20 years, the numbers of people with Alzheimer’s will increase more than 50%. And without some basic action in this country, ultimately one in two people over 80 are going to have this disease. That’s too many.” She was diagnosed with dementia just a few years later.

Post-retirement advocacy

During the early years of her retirement, O’Connor was characteristically active. Describing herself as “distressed” by “persistent efforts in some states to politicize the bench and the role of our judges,” O’Connor spearheaded a plan, released in 2014, for the selection and retention of state judges. The plan sought to replace partisan judicial elections with a four-step process that, O’Connor wrote, “we believe best balances the dual goals of impartiality and accountability.”

O’Connor’s other major retirement project was iCivics, a program to support civics education by providing free interactive lesson plans and video games. In a 2012 interview with The Washington Post, O’Connor explained that “[i]f we don’t take every generation of young people and make sure they understand that they are an essential part of government, we won’t survive. We don’t teach our own kids. It’s insane.” According to the iCivics website, O’Connor considered the program – which reaches over 5 million students in all 50 states – “to be her most important work and greatest legacy.”

As a retired justice, O’Connor also sat as a judge on federal courts of appeals all over the country approximately 180 times, writing 33 decisions. As Stephen Wermiel noted on SCOTUSblog, six of those decisions were appealed to the Supreme Court, which declined to review them. O’Connor, Wermiel observed, appeared to have stopped sitting on appellate panels after June 2014.

The court shifts to the right

With O’Connor’s retirement and the confirmation of the more conservative Alito, the court quickly shifted to the right. In 2000, in Stenberg v. Carhart, O’Connor had provided the key vote to reaffirm Casey and strike down Nebraska’s ban on so-called “partial-birth” abortions, a procedure commonly used in the second trimester of pregnancy. But in 2007, only a year after Alito took the bench, he joined the court’s four other conservatives to uphold a federal ban on partial-birth abortions in Gonzalez v. Carhart. In her dissent in Gonzales, Ginsburg – joined by the remaining members of the Stenberg majority – argued that the court’s ruling “refuses to take Casey and Stenberg seriously.”

Two months later, the court began carving a new path on the issue of racial diversity in education. In Parents Involved in Community Schools v. Seattle School District No. 1, the court held that public school systems could not use race as a factor to assign students to a school as part of their efforts to promote integration. In his opinion for the court, Chief Justice John Roberts famously concluded that “[t]he way to stop discrimination on the basis of race is to stop discriminating on the basis of race.” In a part of his dissent from the bench that did not appear in his written opinion, Breyer alluded to the impact of Alito and Roberts. “It is not often in the law that so few have so quickly changed so much,” he said.

At a 2009 event, O’Connor faced questions about the court’s rightward shift, away from decisions in which she had played a pivotal role. Her response was pragmatic – but, for O’Connor, also telling. She answered, “What would you feel? I’d be a little bit disappointed. If you think you’ve been helpful, and then it’s dismantled, you think ‘Oh, dear.’ But life goes on. It’s not always positive.”

Thirteen years later, the sea change on the court that Reagan and his supporters had envisioned finally came to fruition. Reagan appointees O’Connor and Kennedy, along with George H.W. Bush appointee Souter, had voted to reaffirm Roe. But in Dobbs, three justices appointed by President Donald Trump – Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett – joined Thomas and Alito in voting to overrule Roe and Casey. One year later, those same justices, along with Roberts, would effectively overturn Grutter.

With her own diagnosis, O’Connor exits public life

O’Connor had no public response to the Dobbs decision in June 2022. Four years earlier, O’Connor had announced that she had been diagnosed with dementia, “probably Alzheimer’s disease.” Therefore, the then-88-year-old O’Connor explained, she would no longer “participate in public life.”

O’Connor used her final communication with the public to promote iCivics, writing that it was “time for nationwide civics education initiative.”

O’Connor explained that she would “continue living in Phoenix, Arizona, surrounded by dear friends and family.” She acknowledged that “the final chapter of my life with dementia may be trying,” but she emphasized that “nothing has diminished my gratitude and deep appreciation for the countless blessings in my life.” “As a young cowgirl from the Arizona desert, I never could have imagined that one day I would become the first woman justice on the U.S. Supreme Court.”

O’Connor is survived by her three sons – Scott, Brian, and Jay – and six grandchildren, as well as her brother, Alan Day.

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Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Friday morning read:

• Supreme Court weighs hearing Jan. 6 cases that could affect Trump prosecution (Lawrence Hurley & Ryan J. Reilly, NBC News)
• Senate Democrats authorize US Supreme Court ethics subpoenas (John Kruzel & Andrew Chung, Reuters)
• A $6 Billion Settlement Threatens to Upend US Bankruptcy Deals (Jonathan Randles, Bloomberg) 
• Supreme Court seems poised to limit power of SEC (Ariane de Vogue, CNN)
• Why the Fifth Circuit Keeps Making Such Outlandish Decisions (Stephen Vladeck, The Atlantic)

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Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Thursday morning read:

• Supreme Court Looks Poised to Curb SEC Enforcement Powers (Jess Bravin & Dave Michaels, The Wall Street Journal)
• Supreme Court signals support for hedge fund manager who wants to gut SEC enforcement (John Fritze, USA Today)
• Review of agency adjudication leaves Supreme Court with a puzzle (Kelsey Reichmann, Courthouse News Service)
• US Supreme Court is again asked to block Illinois assault weapons ban (Andrew Chung, Reuters)
• Liberals Are Wrong to Trash the Supreme Court’s New Code of Ethics (Simon Lazarus, The New Republic)

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The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.

The Supreme Court is still slowly making inroads on the still-sizable number of lingering relists from the end-of-summer “long conference.” The court finally denied review on Nov. 20 in six-time relist E.I. du Pont de Nemours & Co. v. Abbott, involving a challenge to the use of nonmutual offensive collateral estoppel to hold that issues resolved in bellwether tort trials bind the defendant in later cases. There, a judge held that chemical giant du Pont was bound by legal determinations made in three trials involving the discharge of acid into the Ohio River. Justice Brett Kavanaugh noted (without an opinion) that he would grant the petition. Justice Clarence Thomas wrote an opinion dissenting from the denial of certiorari, arguing that it “seems illogical and unfair” to relax the common-law requirement that collateral estoppel bind litigants in later litigation only when both parties are the same. Remarkably, six petitions still remain from the long conference.

As anticipated, the court agreed last week to take up both of the issues that were newly relisted. The court granted review in Becerra v. San Carlos Apache Tribe and Becerra v. Northern Arapaho Tribe and consolidated them for argument. Both cases involve what contract support costs the Indian Health Service is obligated to pay to Native American tribesthat manage their own health care programs. And the court granted review in Erlinger v. United States, involving whether juries must make the determination whether qualifying predicate offenses “were committed on occasions different from one another” under the Armed Career Criminal Act sentencing enhancement scheme. Because the government now agrees with petitioner Paul Erlinger that judges cannot constitutionally make that finding, the court appointed Nick Harper, former clerk to Justice Amy Coney Barrett, to argue in support of the judgment below.

That brings us to this week. The court will be considering 214 petitions and applications at this week’s conference. Four cases – or maybe three and a half – are new relists.

Bias response and the First Amendment

The highest-profile case is undoubtedly Speech First, Inc. v. Sands, involving whether state university bias-response teams – and specifically, the bias-response team at Virginia Polytechnic Institute and State University, better known as Virginia Tech – objectively chill students’ speech in violation of the First Amendment.

Bias-response teams are made up of school officials who receive reports of incidents reflecting bias, investigate them, and, when they deem warranted, refer them for formal discipline. Virginia Tech instituted a “bias‐​related incidents” policy, under which students could report to the university’s bias-response team “bias incidents,” defined as “expressions against a person or group because of the person’s or group’s age, color, disability, gender, gender identity, gender expression, genetic information, national origin, political affiliation, race, religion, sexual orientation, veteran status, or any other basis protected by law.” 

The nonprofit group Speech First sued the university in federal court on behalf of several anonymous students, contending that the policy chilled free speech in violation fo the First Amendment. It argued that Virginia Tech’s policy was broad and vague, encompassing “words or actions that contradict the spirit of the [university’s] Principles of Community,” “jokes that are demeaning to a particular group of people,” “assuming characteristics of a minority group for advertising,” and “posting flyers that contain demeaning language or images.” The district court denied Speech First’s motion for a preliminary injunction against the university’s policy.

On appeal, a divided panel of the U.S. Court of Appeals for the 4th Circuit affirmed. The majority agreed with the district court that the Speech First lacked standing – that is, a legal right to sue – because Virginia Tech’s bias-response team has no “authority to discipline or otherwise punish students” and therefore no “objectively reasonable student would self-censor to avoid encountering it.” The majority noted that the U.S. Court of Appeals for the 7th Circuit had likewise concluded that Speech First lacked standing to challenge bias-response programs. While the majority acknowledged that the U.S. Courts of Appeals for the 5th, 6th, and 11th Circuits had concluded that the group did have standing, it said those courts had done so “only after seemingly ignoring the factual findings of the respective district courts.”

Judge J. Harvie Wilkinson dissented, arguing that “pressure and intimidation lurk behind the [university’s] policy,” chilling speech.

Speech First now seeks review, arguing that there is a three-to-two circuit split on whether bias-response programs are sufficiently chilling to give the organization standing. It is supported by 10 amicus briefs filed by more than 20 organizations.

The university argues in opposition that the case is moot, noting that shortly after its 4th Circuit win Virginia Tech discontinued the bias protocol in an action “not prompted by the litigation.” Moreover, the university added, the school’s president signed an affidavit pledging that the university will not re-institute the bias protocol. The university urges the court to vacate the 4th Circuit’s judgment under what is known as Munsingwear vacatur, a remedy that holds that parties should not be bound by decisions they were unable to challenge on appeal because they became moot. Usually, that remedy is sought by a petitioner – the party that lost below – rather than by the party that prevailed. The university also argues that Speech First, whose clients are all anonymous, lacks associational standing because it did not identify a named client who was injured. And the university disputes that there is actually a split among the circuits, saying each of the cases in which standing was found are distinguishable. The justices are evidently taking a close look.

Mootness

If you’re a fan of Munsingwear, you’re in luck, because it is also at the center of our second new relist. There are already two cases before the Supreme Court involving the continuing validity of decisions made moot by the COVID-19 pandemic wind-down. As regular readers know, six-time relists Payne v. Biden and Biden v. Feds for Medical Freedom involve conflicting decisions of the U.S. Courts of Appeals for the 5th Circuit and the D.C. Circuit, addressing whether federal employees seeking to challenge COVID-19 vaccination requirements could proceed in federal court (as the 5th Circuit held) or rather could only proceed through the Merit Systems Protection Board after adverse employment action (as the D.C. Circuit held). Both cases were rendered moot when the Biden administration revoked the vaccination requirement as part of a broader wind-down. But because the Biden administration – a party to the litigation – was responsible for the cases becoming moot, the challengers in those cases contend the cases fall within an exception to Munsingwear vacatur.

The new candidate for Munsingwear vacatur is Kendall v. Doster. In 2021, the Secretary of Defense ordered all military servicemembers to be vaccinated against COVID-19. The 6th Circuit affirmed orders preliminarily enjoining the Air Force from applying the COVID-19 vaccination requirement to plaintiffs who had unsuccessfully sought to invoke religious exemptions to vaccination. Only a few weeks after the 6th Circuit entered judgment, Congress engaged in a rare act of lawmaking, passing legislation directing the Secretary of Defense to rescind the vaccination requirement, which he promptly did. The government now contends that Munsingwear vacatur is warranted because the case became moot through no fault of its own.

The respondents in the case, members of the Air Force, contend that the case is not moot because they face collateral consequences – such as effects on promotions and assignment decisions – for refusing vaccination. They also argue that the secretary voluntarily mooted the case by going beyond simply revoking the vaccination requirement and instead revoking punishments imposed for refusing vaccination, and by seeking rehearing in the 6th Circuit rather than proceeding directly to the Supreme Court. Lastly, they argue that the 6th Circuit’s decision is valuable, and would not present res judicata concerns against the secretary in the future because the entry of preliminary injunction has a lesser res judicata effect than entry of final judgment.

Harrow v. Department of Defense raises the question of what the consequences are if an employee seeking review misses the deadline to file a petition seeking review of an Merit Systems Protection Board decision under 5 U.S.C. § 7703(b)(1)(A), which provides that “[a] petition from a final decision shall be filed within 60 days after the Board issues notice of the final order or decision of the Board.” Stuart Harrow, a Defense Department employee, was furloughed because of budget shortfalls. He challenged that action, an administrative judge rejected his challenge, and the MSPB affirmed. After the 60-day period to file a petition for review before the U.S. Court of Appeals for the Federal Circuit had passed, Harrow sought an extension of time to file his petition. The Federal Circuit rejected the request under circuit precedent holding that the 60-day time limit is jurisdictional.

In the past few years, the Supreme Court has time and again held that procedural requirements for filing (such as time limits) are only jurisdictional if Congress clearly states that they are. Harrow seeks review of the Federal Circuit’s decision denying his extension request on jurisdictional grounds, arguing it is contrary to an unbroken line of recent Supreme Court precedents. The government opposes, mainly relying on older cases to argue that the jurisdictional holding is correct, and it also argues that Harrow’s case is a poor vehicle because he was not eligible for equitable tolling anyway. Even if the justices believe this case to be a poor vehicle, I wouldn’t be shocked to see a separate opinion respecting denial noting that the Federal Circuit’s precedent appears to be out of step with recent decisions, to either spur the Federal Circuit to reconsider or to encourage other disappointed litigants to bring the Supreme Court a better vehicle.

Remember when I said there were three-and-a-half relists? Here’s the half. The court already agreed to review Murthy v. Missouri, involving constitutional challenges to the Biden administration’s efforts to communicate with social media companies about their content moderation policies. The Biden administration argues that it is seeking only to “mitigate the hazards of online misinformation” by flagging content that violates the social media platforms’ policies. But two states and several individuals contend that the government “coerced, threatened, and pressured social-media platforms to censor” them, in violation of the First Amendment. The court last month agreed to take up the case.

The justices appear to have relisted the case to consider an application to intervene recently filed by the “Kennedy Plaintiffs” – presidential candidate Robert F. Kennedy, Jr., the nonprofit Children’s Health Defense, and others who are plaintiffs in the same consolidated district court action alleging that the Biden administration’s contacts with social media companies are depriving them – as consumers of social media – of information. The district court did not act on their case after granting an injunction in favor of the states. The district court also denied the Kennedy Plaintiffs’ motion to intervene for purposes of gaining access to discovery.

The Kennedy Plaintiffs argue they should be allowed to intervene because they could ensure (they say) that a plaintiff has standing even if the states do not. The federal government opposes the motion, arguing it is untimely, because the Kennedy plaintiffs never sought to intervene on appeal and sought to intervene in the Supreme Court only after review was granted. Moreover, the government adds, the Kennedy Plaintiffs have not shown that the states will not adequately protect their interests. The states challenging the Biden administration’s efforts also oppose intervention, arguing (among other things) that consumers of social media who have identical interests are already part of the case. It is very rare for the Supreme Court to relist motions of this sort.

That’s all for now. Until next time, stay safe!

New Relists

Harrow v. Department of Defense, 23-21
Issue: Whether the 60-day deadline in 5 U.S.C. § 7703(b)(1)(A) for a federal employee to petition the U.S. Court of Appeals for the Federal Circuit to review a final decision of the Merit Systems Protection Board is jurisdictional.
(rescheduled before the 11/9 conference; relisted after the Nov. 17 conference)

Kendall v. Doster, 23-154
Issue: Whether, pursuant to United States v. Munsingwear, Inc., this court should vacate the court of appeals’ judgment and remand with instructions to direct the district court to vacate its orders granting preliminary injunctions as moot.
(relisted after the Nov. 17 conference)

Speech First, Inc. v. Sands, 23-156
Issue: Whether university bias-response teams — official entities that solicit, track, and investigate reports of bias; ask to meet with perpetrators; and threaten to refer students for formal discipline — objectively chill students’ speech in violation of the First Amendment.
(relisted after the Nov. 17 conference) 

Returning Relists

Tingley v. Ferguson, 22-942
Issues: (1) Whether a law that censors conversations between counselors and clients as “unprofessional conduct” violates the free speech clause of the First Amendment; and (2) whether a law that primarily burdens religious speech is neutral and generally applicable, and if so, whether the court should overrule Employment Division v. Smith.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

Thornell v. Jones, 22-982
Issue: Whether the U.S. Court of Appeals for the 9th Circuit violated this court’s precedents by employing a flawed methodology for assessing prejudice under Strickland v. Washington when it disregarded the district court’s factual and credibility findings and excluded evidence in aggravation and the state’s rebuttal when it reversed the district court and granted habeas relief.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

74 Pinehurst LLC v. New York, 22-1130
Issues: (1) Whether a law that prohibits owners from terminating a tenancy at the end of a fixed lease term, except on grounds outside the owner’s control, constitutes a physical taking; and (2) whether allegations that such a law conscripts private property for use as public housing stock, and thereby substantially reduces its value, state a regulatory takings claim.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

335-7 LLC v. City of New York, NY, 22-1170
Issues: (1) Whether New York’s Rent-Stabilization Laws and accompanying regulations effect a per se physical taking by expropriating petitioners’ right to exclude; (2) whether the laws effect a confiscatory taking by depriving petitioners of a just and reasonable return; and (3) whether the laws effect a regulatory taking as an unconstitutional use restriction of petitioners’ property.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

Glossip v. Oklahoma, 22-6500 
Issues: (1) Whether a court may require a defendant to demonstrate by clear and convincing evidence that no reasonable fact finder would have returned a guilty verdict to obtain relief for a violation of Brady v. Maryland; and (2) whether suppressed impeachment evidence of the state’s key witness is per se non-material under Brady because that witness’ credibility had been otherwise impeached at trial.
(rescheduled before the Mar. 17, Mar. 24, Mar. 31, Apr. 14, Apr. 21, Apr. 28, and May 11 conferences; relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences) 

Glossip v. Oklahoma, 22-7466
Issues: (1) Whether the state’s suppression of the key prosecution witness’ admission that he was under the care of a psychiatrist and failure to correct that witness’ false testimony about that care and related diagnosis violate the due process of law under Brady v. Maryland and Napue v. Illinois; (2) whether the entirety of the suppressed evidence must be considered when assessing the materiality of Brady and Napue claims; and (3) whether due process of law requires reversal where a capital conviction is so infected with errors that the state no longer seeks to defend it.
(relisted after the Sept. 26, Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

Payne v. Biden, 22-1225 
Issues: (1) Whether the judgment below should be vacated and the case remanded for dismissal as moot under United States v. Munsingwear, Inc; and (2) alternatively, whether the judgment below should be vacated and the case remanded for further consideration in light of Axon Enterprise v. Federal Trade Commission.
(relisted after the Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

Biden v. Feds for Medical Freedom, 23-60
Issue: Whether, pursuant to United States v. Munsingwear, Inc., this court should vacate the court of appeals’ judgment and remand with instructions to direct the district court to vacate its order granting a preliminary injunction as moot.
(rescheduled before the Sept. 26 conference; relisted after the Oct. 6, Oct. 13, Oct. 27, Nov. 3, Nov. 9 and Nov. 17 conferences)

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Wednesday’s argument in Securities and Exchange Commission v. Jarkesy was oddly distant from the decision of the lower court and the briefs and arguments of the parties. The decision of the U.S. Court of Appeals for the 5th Circuit – vigorously defended by George Jarkesy, the target of long-running SEC proceedings – accepted three separate constitutional challenges to the SEC’s apparatus. Specifically, it held that the Seventh Amendment right to a jury trial does not tolerate the imposition of civil penalties in an SEC administrative proceeding; that Congress cannot properly delegate to the SEC the decision whether it should use administrative action, rather than a civil action in a court, to redress alleged misconduct; and that the statutory procedures for appointment of the SEC’s administrative law judges violate the Constitution’s appointments clause. The justices said not a word about the second challenge, and they made only one offhand comment about the third challenge, when Justice Brett Kavanaugh suggested in passing that the administrative law judges’s appointments won’t pass muster with him.

The rest of an unusually long argument (more than two hours) was devoted to the first question. On that point, the justices are deeply divided. To give some context for the dispute, the Supreme Court has decided several cases over the last half century considering the extent to which Congress can call for adjudication of disputes before administrative agencies, where a jury is not available. One of the earliest of those cases, Atlas Roofing Co. v. Occupational Health and Safety Review Commission, validated the proceedings under which OSHA imposes penalties for workplace hazards in administrative proceedings. Several later cases, though, all involving disputes between private parties, have rejected various aspects of statutory schemes, most prominently the Bankruptcy Code, that shifted adjudication of disputes away from traditional civil courts (with juries).

As expected, some of the justices were wholly unsympathetic to the SEC. Justice Clarence Thomas, for example, has staked out a position in prior cases that the “public rights” doctrine – the idea that agencies can adjudicate “public” rights without a jury – cannot apply to any matter depriving an individual of property, so it would be surprising if he accepted the government’s argument here.

The other justice clearly dissatisfied with the non-jury administrative proceeding was Neil Gorsuch. He repeatedly ridiculed the argument of Principal Deputy Solicitor General Brian Fletcher, representing the SEC, that the jury trial right is wholly inapplicable to agency proceedings whenever the public rights doctrine permits Congress to authorize agency adjudication. For Gorsuch, that amounted to the view that “the Seventh Amendment would, on your account, dissipate, disappear, whatever verb you want to use.” For him, accepting that result would allow Congress to “overrule the preexisting Seventh Amendment right” simply by transferring an action to an agency.

By the end of the argument, Gorsuch had staked out his position with no ambiguity: because the elements of the administrative proceeding are similar to the elements of common-law fraud – “those elements all match up” – Congress can’t move the dispute to an agency (without a jury): “Congress is free to proscribe [fraud] and extend [the common-law action] any way it wants. It just can’t take away a person’s right to be heard before his peers.”

Having said that, another group of justices found the case just as easy on the other side. The leader here was Justice Elena Kagan. For her, Atlas Roofing made this an easy case. “Atlas Roofing says numerous times, it could not have been clearer, the Seventh Amendment is no bar to the creation of new rights or to their enforcement outside the regular courts of law.” When S. Michael McColloch, the lawyer for Jarkesy, rejected that understanding, she explained: “Congress is not required by the Seventh Amendment to choke the already crowded federal courts with new types of litigation or prevent it from committing some new types of litigation to administrative agencies with special confidence. …. [T]hat’s the issue. That’s the result. The Seventh Amendment is no bar.”

McColloch, understandably enough, did not concede to Kagan that he should lose. The result, though, was that Kagan repeatedly and with increasing acerbity cut him off to reiterate her position. So, a few minutes later she characterized McColloch’s reliance on the Court’s more recent cases as misguided because “[w]e’ve actually never had since Atlas Roofing another … public/private case, where there’s a government entity on one side of the V, and the reason that we’ve not had those in 50 or 60 years is because those have been thought the easy cases. …. Nobody has had the … chutzpah, to quote my people, to bring it up since Atlas Roofing.”

Justices Sonia Sotomayor and Ketanji Brown Jackson pretty clearly came out on the same side as Kagan. Jackson, for example, offered up the same straightforward reliance on Atlas Roofing as Kagan, insisting that the kind of claim at issue in Jarkesy’s caseis “not even purporting to be common-law fraud. I understood that the Seventh Amendment protects private rights of action that the common law has created and given to private parties to enforce. …. But when Congress has created a new right, a new duty, you know, the duty that exists under the Securities and Exchange Act, that is created by law, I thought Atlas Roofing was saying you’re not worried about stealing a common-law claim and putting it into a non-Article III tribunal.”

For her part, Sotomayor emphasized the differences between the SEC’s statutory claim and a common-law fraud claim: “There are big differences between a common-law fraud claim and a claim under the [securities laws]? The remedies were different, but so are the elements of the fraud. It’s actually not even fraud in all circumstances.” She also pressed the point that the SEC’s action is not pressing a remedial interest of the injured private party, but rather “an interest that’s possessed by the sovereign, to protect the [securities markets]. And that would include actions that have nothing to do with fraud, like a failure to disclose, registration requirements, et cetera, et cetera.”

It is hard to read the justices in the middle. Justice Samuel Alito’s brief comments seemed, if anything, to agree with Gorsuch. But the three remaining justices (Kavanaugh, Chief Justice John Roberts, and Justice Amy Coney Barrett) seemed open to the possibility of accepting the statutory apparatus. Roberts asked a long series of respectful hypotheticals trying to probe the logic and limits of the government’s argument. Barrett asked several questions trying to identify exactly how much the statutory action differs from the common-law action, and questioning how different it needs to be. Finally, Kavanaugh had several questions about the practical consequences that might flow from a decision that might “scale back” or “narrow a precedent of ours.”

The argument covered so little of the topics in the briefing that it is hard to predict outcomes. On the one hand, it is difficult to believe that the justices would hold a federal statute unconstitutional on the basis of a claim that did not interest them enough to motivate a single question of the government’s counsel. To be sure, they’ve written so many cases in recent years about the appointments clause problem (including an earlier case about the SEC’s administrative law judges) that several of them may think there is little to learn from further discussion.

On the question they did want to discuss, it is hard to imagine that they will not be sharply divided. Kagan spoke at such length and with such an authoritative tone that it is hard to imagine she won’t write something explaining her views; it is almost impossible to believe that Gorsuch and Thomas would agree with almost anything she might have to say. The key question for the final outcome, though, will be which way the rest of the justices fall.

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The Petitions of the Week column highlights a selection of cert petitions recently filed in the Supreme Court. A list of all petitions we’re watching is available here.

In June, the Supreme Court issued a landmark ruling that struck down the admissions programs at Harvard and the University of North Carolina. By a vote of 6-3, the justices held that the programs violated the 14th Amendment’s equal protection clause because they explicitly took an applicant’s race into account in admissions decisions. In his opinion for the court, Chief Justice John Roberts cautioned that universities should not try to circumvent the court’s decision “through application essays or other means,” emphasizing that “‘what cannot be done directly cannot be done indirectly.’” This week, we highlight petitions that ask the court to consider, among other things, whether a high school admissions policy that considers socioeconomic factors “indirectly” discriminates against applicants because of their race.

Nestled in a well-to-do suburb of Washington, D.C., Thomas Jefferson High School for Science and Technology is consistently ranked as one of the top public high schools in the country. Known locally as TJ, the northern Virginia school until recently had admissions requirements more extensive than some universities, evaluating a pool of 8th-grade applicants based on a competitive entrance exam as well as grades, essays, and letters of recommendation.

In 2020, the Fairfax County School Board instituted a new admissions policy at TJ. Gone was the entrance exam, replaced by a holistic, two-track system. Under the new policy, after admitting the top students from each public middle school in the area, TJ allocates its remaining seats based not only on academic performance but also on socioeconomic factors, such as whether an applicant comes from a low-income family or a historically underrepresented middle school, or is learning English as a second language. Admissions officers do not know an applicant’s name or race.

In 2021, a group of parents and alumni went to court to challenge the constitutionality of the new admissions policy. They argued that the board established the policy expressly to decrease the number of Asian American students at TJ. Under the new system, the percentage of offers of admission made to Asian American students fell from 73% to 54%, while the percentage of offers made to students of other races increased: from 2% to 8%, for Black students; from 3% to 11%, for Hispanic students; and from 18% to 22%, for white students.

A federal district court in Virginia agreed with the challengers and ordered TJ to stop using the new admissions policy. The school board asked the U.S. Court of Appeals for the 4th Circuit to allow the school to continue admitting students under the policy while it prepared to appeal that ruling. The 4th Circuit granted that request in March 2022.

The parents then came to the Supreme Court on an emergency basis, asking the justices to reinstate the district court’s order preventing TJ from using the new admissions policy. In a one-sentence, unexplained order in April 2022, the court refused. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch – two votes shy of the threshold needed for emergency relief – indicated that they would have granted the parents’ request.

The 4th Circuit issued a full ruling in May, a month before the justices’ high-profile decisions in the Harvard and University of North Carolina cases. A divided court of appeals upheld TJ’s new admissions policy. Because the policy does not openly discriminate against applicants based on race, the court held, the parents had to show either that it nonetheless had a racially disparate impact against Asian American applicants, or that the school board had implemented it to intentionally discriminate against those applicants. The 4th Circuit concluded that the facts before it supported neither conclusion.

In Coalition for TJ v. Fairfax County School Board, the parents ask the justices to grant review and reverse the 4th Circuit’s ruling. They urge the justices to take up the question teed up by the chief justice in his opinion in the Harvard case: whether, and when, race-blind factors in admissions nonetheless act as a mere proxy for race and thus violate the equal protection clause. This question is of “national importance,” the parents explain, in light of “several ongoing challenges to competitive K-12 admissions criteria that seek to accomplish a racial objective ‘indirectly.’”

A list of this week’s featured petitions is below:

Daves v. Dallas County, Texas
23-97
Issues: (1) Whether Younger v. Harris and its progeny require federal courts to abstain from adjudicating petitioners’ constitutional challenges to respondents’ pretrial detention of many thousands of presumptively innocent people; and (2) whether, under this court’s precedent, legislation enacted during a lawsuit renders the asserted claims moot if the legislation does not provide the relief sought in the litigation, such that the courts could still provide the plaintiff with effectual relief.

Intel Corporation v. Vidal
23-135
Issue: Whether 35 U.S.C. § 314(d), which bars judicial review of “[t]he determination … whether to institute an inter partes review,” applies even when no institution decision is challenged to preclude review of U.S. Patent and Trademark Office rules setting standards governing institution decisions.

Coalition for TJ v. Fairfax County School Board
23-170
Issue: Whether the Fairfax County School Board violated the 14th Amendment’s equal protection clause when it overhauled the admissions criteria at Thomas Jefferson High School for Science and Technology.

Gonzalez v. United States
23-226
Issue: Whether a district court must recalculate a movant’s sentencing range as if Sections 2 and 3 of the Fair Sentencing Act of 2010 were in effect at the time of the offense before exercising its discretion to reduce the movant’s sentence for a covered offense under the First Step Act of 2018.

Little v. Doguet
23-291
Issue: Whether Younger v. Harris and its progeny require federal courts to abstain from adjudicating petitioner’s constitutional challenges to respondents’ pretrial detention of many thousands of presumptively innocent people.

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In the second installment of our new feature on advocates arguing before the court, Nate Mowry interviews Rick Simpson of Wiley Rein, who argued on Tuesday in the double jeopardy case McElrath v. Georgia. 

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SCOTUSblog is delighted to introduce a new feature, headed by Nate Mowry: Videos in which lawyers arguing at the Supreme Court discuss their cases and their argument preparation. The series kicks off with Nate’s interview with Jaime Santos of Goodwin Proctor, who argued the immigration case Wilkinson v. Garland at the court on Tuesday. 

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The justices will hear oral argument today in Securities and Exchange Commission v. Jarkesy. Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. Here’s the Wednesday morning read:

• SEC’s in-house enforcement powers at risk in US Supreme Court case (Andrew Chung, Reuters) 
• Supreme Court questions Ga. decision to retry suspect after acquittal (Robert Barnes, The Washington Post)
• Justices Set to Broaden Judicial Review in Deportation Cases (Kimberly Strawbridge Robinson, Bloomberg Law)
• The Stakes of Idaho Asking the Supreme Court to Allow Near-Total Abortion Ban (Nik Popli, Time)
• An unusually high-spirited day at the Supreme Court. (Laughter.) (Chris Geidner, Law Dork)

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The double jeopardy clause of the Fifth Amendment generally says that the government gets only one chance to convict a defendant of a crime: If a jury finds a defendant not guilty, then the government has lost its chance to convict that defendant of that offense. McElrath v. Georgia, in which the justices heard argument on Tuesday, presents an unusual twist on that rule. The jury in this case faced a defendant, Damian McElrath, with a substantial background of mental health issues who committed a horrific crime (stabbing and killing his mother). Faced with a variety of charges, the jury found on the one hand that McElrath was not guilty by reason of insanity on the most serious charge (“malice murder” under Georgia law) but at the same time guilty on the lesser charge of felony murder (causing death in the commission of a felony).

Ordinarily, the acquittal on the most serious charge, malice murder, would mean that Georgia never could try McElrath again on that offense. In this case, though, the Georgia Supreme Court said that the two verdicts were so inconsistent that it could throw them both out and let the state have a second try at prosecuting McElrath. Tuesday’s argument suggests that few if any of the justices are going to accept the state’s argument.

The dominant feature of the argument was Justice Neil Gorsuch’s fervent and repetitive insistence that Georgia’s approach could not be reconciled with the Constitution and centuries of American tradition. Among other things, he explained that for“230 years in this country’s history, we have respected acquittals without looking into their substance and without looking into how they fit with other counts and said a jury is a check on judges, it’s a check on prosecutors, it’s a check on overreach, it’s part of our democratic system, and we do not ever talk about whether they make sense to us.”

For Gorsuch, the impropriety of second-guessing acquittals is foundational: “They may be products of compromise. They may be inconsistent with verdicts on other counts. We don’t question them.”

To be sure, Gorsuch was far from alone in his assessment. Justice Sonia Sotomayor, for example, told Georgia Solicitor General Stephen Petrany bluntly: “I don’t know how this doesn’t fit [our] definition of what an acquittal is,” reasoning that she could not countenance invalidating anything that rose to the level of an acquittal.

For Justice Elena Kagan, the central point was the jury’s basic right to compromise or offer leniency. At one point, she commented to Petrany that “[o]ne possibility is that the jury made a humdinger of a mistake. And another possibility is that the jury made no mistake at all but instead decided to compromise something out or decided to show leniency of a kind that it is within the right of a jury to show. …. It’s the exact same thing that you’re asking us to look into, which we always said we will not look into.”

 When Justice Kavanaugh suggested a general agreement with that perspective, Gorsuch swept in again, commenting that he agreed with Kavanaugh that“Justice Kagan has put her finger on it. The minute you admit it could be a product of leniency or compromise, we’re done, aren’t we?…. Because then we have to respect that verdict regardless of whether we think it’s rational or what we would do. It’s supposed to be a check on us judges and you prosecutors.”

That’s not to say it is absolutely clear that every justice will agree that the case is this simple. Justice Samuel Alito, for example, asked a lot of questions about a Missouri procedure (apparently common in several Midwest states) in which a trial judge responds to an apparently inconsistent verdict by sending the jury back for more deliberations. That of course did not happen in McElrath’s case, in which the jurors were thanked for their service, dismissed, and sent on their way with every reason to think that the trial had concluded.

My pretty strong expectation is a relatively short and unanimous opinion reversing the Georgia decision, casting no doubt on the constitutionality of the “Missouri” procedure or the various other hypotheticals the justices raised at the argument. With no obvious support for what Georgia did in this particular case, it would seem an easy task to craft an opinion narrow and simple enough to dispose of the case without protracted debate.

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Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. The justices will hear oral argument in McElrath v. Georgia and Wilkinson v. Garland this morning. Here’s the Tuesday morning read:

• Justices Search for Middle Ground on Mandatory Sentences for Gun Crimes (Adam Liptak, The New York Times)
• Ex-Hedge Fund Boss Fights SEC at Supreme Court With Musk’s Help (Greg Stohr, Bloomberg Law)
• Bad Facts, Bad Law (Duncan Hosie, The New York Review of Books)
• The Supreme Court Considers the Right to Trial by Jury (The Editorial Board, The Wall Street Journal)
• The Lockwood Bill and the Supreme Court Bar’s Glass Ceiling (Steve Vladeck, One First)

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The Supreme Court on Monday afternoon denied a request from the leaders of the Arizona legislature to put on hold an order that would require them to be deposed about the legislature’s enactment of voting laws that make it more difficult to register to vote. In a brief unsigned order without any noted dissents, the justices turned down an emergency filing from Ben Toma, the speaker of the Arizona House of Representatives, and Warren Petersen, the president of the Arizona Senate.

The laws at the center of the dispute were enacted in 2022. They require would-be voters to provide proof of U.S. citizenship or face penalties, such as a ban on voting in most elections or an outright bar on voting by mail. The Biden administration and other plaintiffs, including the Democratic National Committee and the Arizona Democratic Party, went to federal court to challenge the laws, arguing that they violated (among other things) the 14th Amendment’s guarantee of equal protection and federal voting laws.

Toma and Petersen joined the case to defend the laws after the state’s attorney general, Democrat Kris Mayes, declined to do so in full. The challengers then sought discovery from them, including to depose them about the legislature’s intent in passing the laws. Toma and Petersen argued that an order requiring them to appear for a deposition would violate the legislative privilege – that is, the idea that legislators are shielded from both criminal and civil liability, as well as being compelled to answer questions or produce documents, regarding anything that is an integral part of the legislative process.

The district rejected that argument, ruling that Toma and Petersen had waived their privilege when they opted to join the case, and both the district court and the U.S. Court of Appeals for the 9th Circuit held that the depositions could go forward.

Toma and Petersen came to the Supreme Court on Nov. 20, asking the justices to put the depositions and discovery on hold to give them time to file a petition for a writ of mandamus – an order directing the lower court to reverse its order on the legislative privilege question. They told the justices that the district court’s “unprecedented ruling will chill both the atmosphere for all legislators to freely express their views during the legislative process and the ability and willingness of present and future legislative leaders to participate in litigation to defend the constitutionality of state laws.”

The Democratic National Committee and the Arizona Democratic Party urged the justices to turn down the request. They emphasized that the discovery requests do not seek information about the legislators’ personal motives, but instead about the legislature’s intent, which “is a proper subject for discovery because plaintiffs’ claims in this litigation include that the challenged laws violate the Equal Protection Clause; one element of such a claim is discriminatory intent or purpose by the legislature.”

And Toma and Petersen have other options besides a writ of mandamus, the Democrats argued. For example, they could decline to “comply with the discovery order and then appeal any resulting sanctions or contempt order.”

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Tuesday’s argument in McElrath v. Georgia will take the justices back to law-school basics – the case could be a question on a law-school examination in criminal law. The facts are simple. Damian McElrath was prosecuted for several crimes after he stabbed his adoptive mother, Diane McElrath, to death in 2012. The case went to trial, where the jury returned a verdict that, among other things, found McElrath not guilty by reason of insanity on a charge of malice murder – the most serious murder charge in Georgia, and the rough equivalent of a first-degree murder charge in most states, requiring the intent to kill someone. At the same time, the jury found McElrath guilty but mentally ill on charges of felony murder (for felonies that result in a death, even if the defendant did not actually kill anyone) and aggravated assault. Now, recognizing that reasonable minds (and jurors) could differ about the quality of a person’s insanity or mental illness at any given time, it is not possible under the applicable definitions for someone at the same time both to be so insane as to be immune from criminal responsibility for a specific act and to suffer from a sufficiently mild mental illness to be criminally responsible for the same act. To be sure, it is possible that the jury wanted to acquit McElrath on the more serious offense and hold him responsible for the less serious offense, but the findings the jury returned did not offer a coherent factual justification for that result. The state courts responded by characterizing the inconsistent verdicts as “repugnant,” vacating both verdicts, and authorizing a second trial on all counts.

McElrath’s argument is as simple as you would expect if you’d ever read any Supreme Court decisions about double jeopardy: Once a jury has acquitted a defendant, the same sovereign cannot ever retry the same defendant for the offense of which the jury acquitted him. Period, full stop. Because that is what happened here, he says, the decision of the Georgia Supreme Court should be reversed.

To be sure, you could say that there is not a case precisely like this one, but McElrath can quote a long line of Supreme Court opinions that state the rule without any apparent qualification. Moreover, as it happens, several of those cases involve inconsistent verdicts, which necessarily reflected (like this one) logically inconsistent factual findings. Although the Supreme Court often validated outcomes that limited the effects of a set of inconsistent verdicts, none of those cases permitted a retrial on a charge for which a jury had rendered a verdict of acquittal, however factually implausible that verdict might have been.

For Georgia’s part, it points to the state’s undoubted right to define its own criminal law and procedural system. Georgia contends – although it doesn’t match very well with what its state supreme court said – that under Georgia law the twin findings of the jury are so “repugnant” that they don’t amount to a verdict at all, but are rather just another step in the trial process that has not yet been completed by a verdict of guilty or not guilty. Because the jury has not yet returned a verdict, Georgia reasons, the double jeopardy rule does not apply.

To my mind, that argument has a little of an Alice in Wonderland feel to it – the word “verdict” means just what Georgia chooses it to mean, no more and no less. So, in this case the state can tell us that in Georgia the word “verdict” does not include the ruling that a jury makes when a foreperson stands up in open court and tells the assembled audience that “We find the defendant not guilty.” Of course, as Humpty Dumpty responded to Alice, the ultimate question is “which is to be master” of the word in the end. My sense is that the justices are likely to think that they are “master” on this particular question and that they will regard the jury’s finding that McElrath is not guilty as the kind of “verdict” to which the double jeopardy protection attaches.

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The argument on Wednesday in Securities and Exchange Commission v. Jarkesy will present a remarkable spectacle of three entirely distinct constitutional challenges to wholly disparate attributes of the SEC. Ordinarily, the ability of the justices to control their docket would allow them to wait on each question for the development of a circuit conflict and select a suitable case in which to resolve each issue. But in this case a bold (I did not say “rogue”) panel of the U.S. Court of Appeals for the 5th Circuit accepted all three arguments and invalidated three aspects of the SEC’s operations. To leave the decision unreviewed would force Congress to revise substantially the affected portions of the securities laws solely based on the opinion of one divided lower court panel – hence, the Supreme Court’s buffet of constitutional law topics on Wednesday morning. Because the arguments are so far-ranging and distinct, an article of reasonable length can offer only the barest summary of the principal arguments on each point. Suffice it to say that both sides have support from large groups of prominent amici.

The case stems from an administrative proceeding that the SEC brought against hedge fund founder and investment adviser George Jarkesy in 2013. The SEC’s in-house enforcement proceedings eventually found that Jarkesy and his firm had committed securities fraud, and it ordered them to pay $300,000 in fines and to repay nearly $700,000.The first question before the justices is whether Congress constitutionally authorized the agency to adjudicate administrative proceedings that impose monetary penalties. That raises a question under the court’s deeply fraught doctrine of “public rights,” which offers an exception to the Seventh Amendment jury trial requirement. Under the Seventh Amendment, most defendants in civil cases seeking monetary damages have a right to a jury trial; the exceptions generally require establishing that the type of action in question could have been brought in the 18th century (when the Seventh Amendment was ratified) in an equity court without a jury. Within that framework, the public rights doctrine is the doctrine that allows administrative agencies, operating without a jury, to impose monetary penalties. When it applies, it is because the right in question is a “public” right that would not have required the kind of “[s]ui[t] at common law” to which the Seventh Amendment applies.

The government’s view in this case is that the Constitution affords Congress a broad authority to create new obligations by statute, and that because those statutory obligations were unknown to the common law, they are public rights that Congress can assign to an administrative tribunal without a jury. It should be enough to validate the congressional scheme that the features of the securities cause of action here do not match the elements of the 18th century cause of action for fraud.

In contrast, Jarkesy broadly calls for the eradication of the public rights doctrine, arguing that one of the main “catalysts” and “flashpoints” for the American Revolution was the British crown’s practice of trying claims for statutory penalties in admiralty courts without a jury. Jarkesy does contend in passing that the particular features of the government’s claims against him are much more similar to common-law fraud claims than those in the early public-rights cases. But his principal argument is that the Supreme Court in recent years has rejected those cases (“wiping out the[ir] last vestiges”) in a line of cases involving the bankruptcy code, so that now Congress’s power to assign new statutory causes of action to administrative tribunals (without juries) is limited to cases in which requiring a jury trial would “dismantle the statutory scheme.”

The second question is whether Congress can delegate to the SEC the power to decide whether a case should be pursued as an administrative proceeding or as a civil enforcement action – that is, within the agency or  in a federal district court. The government contends that the court’s decisions repeatedly and firmly have recognized congressional power to vest decisions about the enforcement of civil and criminal proceedings in the executive branch. For the government, Congress’s legislative power under Article I of the Constitution is “to determine the range of enforcement mechanisms” that should be available to the agency, while the executive branch’s power under Article II is “to choose among permissible enforcement mechanisms in particular cases.”

Jarkesy’s discussion of that point is remarkably concise – less than five pages of a 73-page brief. He reasons that the power to assign a particular claim to an Article I (that is, administrative) tribunal is “quintessentially legislative in nature.” Thus, Congress could create two separate causes of action, assigning one to an Article I tribunal and another to an Article III tribunal (a court), but it cannot create a single cause of action and allow the agency to decide in which tribunal it should be brought. Because the statute provides “no intelligible principle to constrain” the agency’s decision between tribunals, it impermissibly delegates the legislative power to the agency.

The third question in the case is whether the Constitution allows Congress to give the SEC’s administrative law judges protection from removal. Here, the key authority is the Supreme Court’s 2010 decision in Free Enterprise Fund v. Public Company, which held that Congress impermissibly limited the president’s executive power when it imposed “multiple” levels of tenure protection – so that an inferior officer could only be removed for cause by a principal officer, who could also be removed only for cause. Chief Justice John Roberts reasoned for the majority in that case that the president “cannot” fulfill his constitutional obligation to “‘take Care that the Laws be faithfully executed’ if he cannot oversee the faithfulness of the officers that execute them.”

Jarkesy has a simple argument here, because it is difficult to contest that the SEC’s administrative law judges have two tiers of protection against removal without cause. The government’s argument, essentially, is that Free Enterprise Fund applies only to “policymakers,” not to “adjudicators.” Roberts left that question open in Free Enterprise Fund, and the government pleads for an answer in its favor in this case, arguing that Congress surely can offer the agency more “leeway” to protect adjudicators. In substance, it is a plea that the administrative state requires tenure protection for adjudicators to provide any semblance of a fair process for adjudicating claims brought by the agency. The government pointedly notes that administrative law judges have had such protections since the original adoption of the Administrative Procedure Act shortly after World War II, and it decries the widespread disruption affirmance would wreak.

The summary above should make it clear that a complete affirmance of the 5th Circuit’s decision probably would be the most important administrative law decision of the last half-century. That suggests of course a pretty strong likelihood that several of the justices will be reluctant to go nearly so far. The argument should give a lot of insight as to which of the three challenges is likely to survive.

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Each weekday, we select a short list of news articles, commentary, and other noteworthy links related to the Supreme Court. The justices will hear oral argument in Brown v. United States today. Here’s the Monday morning read:

• Federal Defenders Combine Forces to Argue at US Supreme Court (Kimberly Strawbridge Robinson, Bloomberg Law)
• The Case That Could Destroy the Government (Noah Rosenblum, The Atlantic) 
• This lawsuit could disrupt the U.S. tax system. Key facts are in dispute. (Ann E. Marimow & Julie Zauzmer Weil, The Washington Post)
• The Supreme Court case seeking to shut down wealth taxes before they even exist (Ian Millhiser, Vox)
• Supreme Court Needs a Real Ethics Code (The Editorial Board, Bloomberg)

The post The morning read for Monday, November 27 appeared first on SCOTUSblog.

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Charles Gardner Geyh is Distinguished Professor and John F. Kimberling Chair in Law, Indiana University Maurer School of Law.

There are things to like about the Code of Conduct that the Supreme Court promulgated earlier this month. It is a bona fide code of conduct—one that, in the main, tracks the Code of Conduct for U.S. Judges. It follows the same structure, features the same five canons, and includes most of the same provisions that are worded in the same way. Some rules (like the duty to afford litigants their full right to be heard according to law, and exceptions to the duty to avoid communicating with one party to the case without the other party’s knowledge) have reasonably been excluded because they are relevant primarily to the lower courts. And it is not fair to condemn the new code as toothless because it includes no enforcement mechanism.  Like the ABA Model Code, the most that codes do is cross-reference separately established disciplinary processes and highlight the role that codes play in those processes. One can debate the virtues of creating a disciplinary process for the Supreme Court, but its absence here is no fault of the code itself.

That said, there are some problematic differences between the new SCOTUS Code and the Code of Conduct for U.S. Judges. Although the latter code does not (and need not) include disciplinary processes as such, Canon I declares that judges should “maintain and enforce” high standards of conduct, while Canon 3(B)(6) adds that “[a] judge should take appropriate action upon receipt of reliable information indicating the likelihood that a judge’s conduct contravened this Code.” The new SCOTUS Code, in contrast, states that its justices should “maintain and observe” high standards of conduct and omits any duty to take action in response to known code violations by other justices. Such rules may have been omitted to preserve collegial relations among the justices, but they did so at the expense of diminishing confidence in the court’s commitment to taking its code seriously.

The new code does not impose a duty to “be faithful to…the law,” as required by Canon 3(A)(1) of the Code of Conduct for U.S. Judges. It is possible that this duty was thought redundant of the Canon 2(A) obligation to “respect and comply with the law” (which the court retained). The obligation to respect and comply with the law, however, concerns the duty to abide by the law in a judge’s daily life, while the duty to be faithful to the law concerns a duty to uphold and apply the law when deciding cases. For justices under increased fire for ideological, partisan-seeming decision-making, the optics of the court exempting itself from a duty to uphold and apply the law is unfortunate. 

Perhaps most controversial are the SCOTUS Code tweaks to the disqualification rules, tweaks that are largely consistent with a statement that the court submitted to the Senate Judiciary Committee in April.  Federal law imposes disqualification requirements on the Supreme Court, the constitutionality of which Chief Justice John Roberts has called untested and Justice Samuel Alito has rejected. Whereas the Judicial Conference accedes to those statutory requirements by importing them into its Code as mandatory “shalls,” the new SCOTUS Code frames them as hortatory “shoulds.”

The SCOTUS Code’s disqualification provisions begin with new language that a “Justice is presumed to be impartial,” which, while consistent with precedent, has no logical place in a code designed to guide judges on their ethical responsibilities. The next clause in the same sentence adds that a justice “has an obligation to sit unless disqualified,” which is redundant of a clause in the previous section that a justice “should participate in matters assigned, unless disqualified,” but highlights the court’s ongoing interest in resurrecting the “duty to sit” as a turn of phrase that Congress sought to abrogate in 1974.

The new SCOTUS Code qualifies the statutory duty to disqualify when a justice’s “impartiality might reasonably be questioned” by adding language interpreting it to mean that “an unbiased and reasonable person who is aware of all relevant circumstances would doubt that the Justice could fairly discharge his or her duties.” While consistent with interpretive precedent, this clause is cherry-picked to omit guidance that the “reasonable person” is not a judge but an outside observer, who is less inclined than a judge to credit the judge’s impartiality. 

Finally, the new SCOTUS Code adds that “[t]he rule of necessity may override the rule of disqualification.” While consistent with precedent in the abstract, the court’s commentary accompanying the code strongly implies that the rule of necessity has some bearing on minimizing the need for tie votes on the court. The rule of necessity has been interpreted to mean that “when all are disqualified, none are disqualified”—meaning, for example, that when all justices have a disqualifying interest in the outcome of a case, the need for judicial review trumps the need for disqualification. Four-to-four ties are minimized by the duty to preside unless disqualified, but there is no “necessity” for nine justices to participate, because there are well-established procedures in place to resolve cases that end in a tie vote. To imply that the rule of necessity adds heft to non-disqualification on the Supreme Court because of the “need” for all nine justices to participate is deeply troubling. It invites the alarming spectacle of the decisive vote in a 5-4 case being cast by a justice whose impartiality is so deeply in doubt that it would force the disqualification of a circuit or district judge subject to the identical statutory standard. 

Ultimately, whether the SCOTUS Code will diminish the frequency with which its justices are embroiled in controversies over their conduct depends on whether the court takes its new code seriously. It does not bode well that the court omitted from its code the wealth of commentary included in the Code of Conduct for U.S. Judges, which offers important guidance to judges serious about their ethical responsibilities. Nor does the preamble to the new SCOTUS Code inspire confidence: it asserts that the code simply summarizes ethical restrictions that the court has long followed and seeks to “dispel” a “misunderstanding” to the contrary.  Juxtaposed against this disheartening claim that the code’s raison d’être is to get everybody off its back, the SCOTUS Code concludes in a more productive vein, listing steps that the court is taking and will take to provide guidance and training on “recurring ethics and financial disclosure issues.” These subtly mixed messages betray an ongoing tension within the court itself over the limits of Supreme Court exceptionalism and the extent to which its justices perceive themselves as a part of or apart from the rest of the American judiciary.

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The justices will kick off the December argument session on Nov. 27 with oral argument in a pair of consolidated cases, Brown v. United States and Jackson v. United States, involving the Armed Career Criminal Act. The ACCA extends the minimum sentence – from 10 years to 15 – for an individual who had been convicted of a felony and possesses a firearm when that person has at least three “serious drug offenses.” The question before the justices is how to define “serious drug offense” for purposes of the ACCA. Eugene Jackson and Justin Rashaad Brown argue that the definition should incorporate the federal drug schedules that were in effect either when the individual committed the federal firearm offense (Jackson) or at the time of sentencing for that offense (Brown), while the federal government argues that it should instead incorporate the schedules that were in effect at the time of the state drug offenses.

On Tuesday, the justices will confront double jeopardy issues in the case of Damian McElrath, a Georgia man who was found not guilty by reason of insanity on one murder charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on a different murder charge (as well as an aggravated assault charge).

On appeal, the Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on all charges. It concluded that the verdict was “repugnant”: McElrath’s acquittal on one murder charge required the jury to find that he was insane when he killed his mother, but he could only be convicted on the other charges if the jury found that he was not insane.

(Torri Madden)

When the case returned to the lower court, McElrath argued that the Constitution’s ban on double jeopardy barred the state from trying him again on the murder charge on which he had been acquitted. But the Georgia Supreme Court rejected that argument. It explained that a “repugnant” verdict is essentially “void” and therefore does not create a double jeopardy problem.

McElrath renews that argument in the Supreme Court, while the state defends the Georgia Supreme Court’s ruling. Under state law, Georgia contends, there was never a valid verdict in McElrath’s case, and he can therefore be retried.

The justices will then hear the first immigration case of the term. Under federal immigration law, the federal government can cancel the deportation of a non-permanent resident – that is, a non-U.S. citizen who has received permission to live in the United States on a temporary basis – if that person can show, among other things, that deportation would create an “exceptional or extremely unusual hardship” for an immediate family member who is either a permanent resident or a U.S. citizen.

Federal law also generally prohibits federal courts from reviewing decisions about whether to cancel deportation, except for “questions of law.” In 2020, the Supreme Court ruled that the term “questions of law” includes a mixed question of law and fact, such as the application of a legal standard to undisputed facts.

(Tori Madden)

In Wilkinson v. Garland, on Nov. 28, the justices will weigh in on the interaction between these two provisions – that is, whether federal courts have the power to review an agency’s determination that a noncitizen did not meet the “exceptional and extremely unusual” hardship requirement to cancel deportation.

The question comes to the court in the case of Situ Wilkinson, who traveled to the United States from his home in Trinidad and Tobago in 2003 and overstayed his tourist visa. Wilkinson argued that deporting him would be an “exceptional and extremely unusual” hardship for his elementary-school-aged son, for whom he serves as the sole provider of support; the child’s mother, his former girlfriend, suffers from depression and does not work. But an immigration judge rejected that argument, and the U.S. Court of Appeals for the 3rd Circuit ruled that it did not have the power to review the immigration judge’s determination.

On Nov. 29, the justices will hear oral argument in Securities and Exchange Commission v. Jarkesy, a case presenting two different themes of the court’s 2023-24 term – efforts to limit the power of federal administrative agencies and decisions arising from the U.S. Court of Appeals for the 5th Circuit.

Events leading up to the case now before the court began in 2013, when the SEC brought an in-house enforcement action against George Jarkesy, who launched and served as an investment adviser to two hedge funds, eventually finding that he had committed securities fraud. The SEC ordered Jarkesy to pay $300,000 in fines and ordered his firm to repay almost $700,000 in gains.

(Tori Madden)

Jarkesy appealed to the 5th Circuit, arguing that the SEC’s structure and enforcement powers violate the Constitution. The 5th Circuit agreed. It held first that the SEC’s use of in-house judges to seek civil penalties violates the Seventh Amendment’s guarantee of a jury trial. Second, it held, by giving the SEC broad authority to choose between in-house proceedings and going to federal court, the SEC violated a principle known as the nondelegation doctrine, which requires Congress to provide an “intelligible principle” when delegating regulatory power. Third, the court of appeals concluded, the protections from removal provided to the SEC’s in-house judges violates the separation of powers.

The SEC asked the justices to weigh in, telling them that allowing the 5th Circuit’s decision to stand would have “massive” and “substantial” practical consequences.

The justices will hear oral argument on Dec. 4 in one of their highest-profile bankruptcy cases in recent memory: Harrington v. Purdue Pharma, a challenge to the approval by the U.S. Court of Appeals for the 2nd Circuit of a bankruptcy plan for Purdue Pharma, the maker of OxyContin.

Faced with thousands of lawsuits accusing it of having deceptively marketed the highly addictive drug, Purdue Pharma filed for bankruptcy in 2019. It proposed a reorganization plan that would remake the company as a nonprofit devoted to addressing the public health problems caused by the opioid epidemic. But the plan would also release members of the Sackler family, which owned the company and had taken billions of dollars out of the company in recent years, from any future liability for claims against them.

(Tori Madden)

The U.S. Trustee, the division of the Department of Justice that oversees the administration of bankruptcy cases, came to the Supreme Court over the summer, asking the justices to put the plan on hold. The justices agreed to do so and set the case for oral argument in December.

There are two main questions before the court. The first is whether the U.S. Trustee or the Canadian creditors challenging the plan have a right to do so at all, while the second question is whether the court of appeals was correct to confirm the plan. And more broadly, the case raises questions about whether and when it is appropriate to resolve mass tort cases – that is, lawsuits brought by a group of people who have been harmed in a similar way, such as in a plane crash or by a defective product – through the bankruptcy system.

On Dec. 5, in Moore v. United States, the court will hear argument in a challenge to the constitutionality of a provision of the 2017 Tax Cuts and Jobs Act known as the “mandatory repatriation tax,” which required U.S. taxpayers who owned shares in foreign corporations to pay a one-time tax on their share of the corporation’s earnings, even if those earnings were reinvested in the corporation and the taxpayers did not receive them.

Article I of the Constitution requires Congress to apportion any “direct taxes” among the states. The 16th Amendment carves out an exception to that rule, allowing Congress to tax “incomes, from whatever source derived,” without apportioning that tax among the states.

Charles and Kathleen Moore went to federal court to challenge the tax. They own a 13% stake in an Indian corporation that supplies power tools to small Indian farms. The corporation reinvested its earnings rather than distributing dividends, and the Moores never received any income from their shares. The couple contended that the mandatory repatriation tax – which increased their tax liability by approximately $15,000 – violated the 16th Amendment. Under the Supreme Court’s cases interpreting the 16th Amendment, they argued, income must be distributed before it can be taxed, and therefore the mandatory repatriation tax is a direct tax that is not apportioned among the states.

After the U.S. Court of Appeals for the 9th Circuit rejected that argument, the Moores asked the justices to weigh in.

(Tori Madden)

The Biden administration counters that invalidating the tax could cost the government hundreds of billions of dollars in revenue. It argues that the tax is an income tax and therefore constitutional, because both the history and the text of the 16th Amendment make clear that Congress can tax undistributed corporate earnings. But in any event, the government continues, the tax is also constitutional because it is an excise tax – that is, a “tax upon the privilege of doing business through a” foreign corporation controlled by U.S. taxpayers.

In Muldrow v. City of St. Louis, on Dec. 6, the justices will consider whether Title VII of the Civil Rights Act, which prohibits employment discrimination, bars discrimination in decisions about transfers without a separate determination by a court that the transfer decision caused a significant disadvantage to the employee.

The question comes to the court in the case of Jatonya Muldrow, a sergeant with the St. Louis Police Department. She filed a lawsuit against the department, alleging that she was the victim of sex discrimination when she was involuntarily transferred from her position in the Intelligence Division to a patrol position because her supervisor wanted to hire a man for her job. The U.S. Court of Appeals for the 8th Circuit ruled for the police department, reasoning that Muldrow’s transfer had not resulted in a significant employment disadvantage for her.

The city of St. Louis echoes that reasoning in the Supreme Court. It points to the text of Title VII, arguing that it requires a “significant disadvantage in the form of material, objective harm” to the plaintiff.

But Muldrow counters that the whole purpose of Title VII is to eliminate discrimination. Nothing in Title VII requires showing the type of material disadvantage that the city would read into the text, she says. Instead, the Supreme Court’s cases, the history and structure of Title VII, and the longstanding views of the Equal Employment Opportunity Commission all make clear that it is enough that she was the victim of discrimination because of her sex.

This article was originally published at Howe on the Court. 

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