Ad Fontes: SCOTUS’s Week in Review

June 20, 2017 · by · in Ad Fontes, Constitutional Law, First Takes, Judiciary

[Ad Fontes was an early Renaissance and Reformation credo. Literally meaning “to the fountains,” the phrase embodied these movements’ emphasis on studying the original, primary sources in religious, philosophical, and scientific pursuits. This same commitment animates our efforts to follow our state and federal judiciaries’ decisionmaking in key cases being decided therein, given how these opinions shape the legal environment in which we live and work. As such, this periodic series seeks to provide quick but insightful summaries of recently issued decisions by courts across the country, with brief commentary on the potential implications or consequences of the decisions. Enjoy!

–LDB Editors]

On Monday, June 19, the Supreme Court released six opinions. Notably, the Court has still taken no action on two highly anticipated cases:

  • Masterpiece Cakeshops  (Question Presented: whether application of a state public accommodations law compelling petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the Free Speech or Free Exercise Clauses of the First Amendment) and
  • Peruta (Question Presented: whether the Second Amendment protects a right to carry handguns, concealed or open, outside of the home, when open carry is forbidden under state law).

Packingham v. North Carolina

In Packingham v. North Carolina, the Court held unconstitutional a state law making it a felony for registered sex offenders to access “a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”

Justice Kennedy, writing for the Court, recognized that “the Court must exercise extreme caution before suggesting that the First Amendment provides scant protection for access to vast networks” online. Accordingly, the Court held that the law fails even intermediate scrutiny for not being “narrowly tailored to serve a significant governmental interest.”

The statute at issue “enacts a prohibition unprecedented in the scope of First Amendment speech it burdens.” To “foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment Rights. . . . convicted criminals . . . might receive legitimate benefits from these means for access to the world of ideas . . . .” According to the briefs, North Carolina has prosecuted over 1,000 people for violating the statute.

Justice Alito, joined by the Chief Justice and Justice Thomas, concurred in the judgment, unable to “join the opinion of the Court . . . because of its undisciplined dicta.” Alito was “troubled by the implications of the Court’s unnecessary rhetoric,” arguing “[t]he Court is unable to resist musings that seem to equate the entirety of the internet with public streets and parks.”

As Georgetown’s Shon Hopwood points out:

In the Washington Examiner, Cato’s Ilya Shapiro applauds the decision:

The very purpose of the First Amendment is to protect the speech of disfavored minorities. Signaling out this speech for prosecution—without any allegation that it relates to conduct or even motive—has earned the Tar Heel State a big “dislike” from the Supreme Court.

Ziglar v. Abbasi 

In an interesting four-two decision in Ziglar v. Abbasi, the majority decided Bivens could not be extended to allow for a cause of action challenging the confinement conditions imposed on the plaintiffs pursuant to formal policy adopted in the wake of September 11. The Court relied on separation of powers principles, the executive branch’s national security prerogatives, and longstanding congressional inaction regarding the scope of federal civil rights causes of action in order to abstain from extending the judicially-crafted federal concomitant to 42 U.S.C. § 1983. Kennedy once again wrote the opinion, littered with themes typical of his writing:

When a party seeks to assert an implied cause of action under the Constitution itself, just as when a party seeks to assert an implied cause of action under a federal statute, separation-of-powers principles are or should be central to the analysis. The question is ‘who should decide’ whether to provide for a damages remedy, Congress or the courts? . . . The answer most often will be Congress.

In an exciting development for qualified immunity skeptics, Justice Thomas wrote separately (concurring in part and concurring in the judgment) to note his “growing concern with our qualified immunity jurisprudence.” Over at the Volokh Conspiracy, Professor Will Baude, said he is “glad to see somebody on the court asking whether the qualified immunity doctrine is legally justified in its current form.” Professor Baude has previously suggested that the Court’s modern qualified immunity doctrine is probably not justified. As Baude explains, Justice Thomas’s concurring opinion comes at an interesting time, given that another case on petition for certiorari, Surratt v. McClaran, might be the “appropriate case” for the Court to reconsider its qualified immunity doctrine.

Justice Breyer dissented, joined by Justice Ginsburg. He wrote that plaintiffs’ claims in this case “fall within the scope of longstanding Bivens law” and do not require any extension of that jurisprudence, notwithstanding the majority’s reasoning to the contrary. Recognizing that the Court “has been reluctant to extend Bivens liability to any new context or new category of defendants,” Justice Breyer nonetheless admonished that “the Court has made clear that it would not narrow Bivens‘ existing scope,” which he felt occurred in this decision.

Justice Kagan took no part in the case, as she was in the executive branch when it began. Justice Sotomayor took no part in the case, as she was on the Second Circuit (the court below) when it first came up there. Justice Gorsuch took no part in the case, as he was not yet on the Court when the case was heard.

McWilliams v. Dunn 

For the criminal procedure/AEDPA/death penalty wonks among LDB’s readership comes McWilliams v. Dunn, in which the Court decided that Alabama did not abide by the requirements of Ake v. Oklahoma, 470 U. S. 68 (1986), in denying McWilliams a mental health expert to assist in his murder trial. The Supreme Court’s Ake decision had instructed that, when a “defendant demonstrates . . . that his sanity at the time of the offense is to be a significant fact at trial, the State must” provide “access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense.”

Justice Breyer wrote the McWilliams opinion for the Court, concluding:

[s]ince Alabama’s provision of mental health assistance fell so dramatically short of what Ake requires, we must conclude that the Alabama court decision affirming McWilliams’s conviction and sentence was ‘contrary to, or involved an unreasonable application of, clearly established Federal law.’ 28 U.S.C. § 2254(d)(1).

Justice Alito dissented, joined by the Chief, Justice Thomas, and Justice Gorsuch. Alito quibbled with the Court’s treatment of the question presented and its interaction with the procedural posture of the case (on federal appeal under AEDPA), stating that the Court’s decision comes “by means of a most unseemly maneuver” insofar as it “declines to decide the question on which we granted review” but “decid[es] a separate question on which we expressly declined review.”

According to the grant of cert, the two questions presented were:

(1) When this Court held in Ake that an indigent defendant is entitled to meaningful expert assistance for the ‘evaluation, preparation, and presentation of the defense,’ did it clearly establish that the expert should be independent of the prosecution?

(2) Did the Alabama courts unreasonably apply Ake in finding that McWilliams’s rights were satisfied when the only mental health expert he was provided distributed his report to all parties just two days before sentencing and was unable to review voluminous medical and psychological records?

The Court explicitly only granted cert to review the first question, but Justice Alito felt that the Court essentially skipped the first question and resolved the second question. Because AEDPA restricts federal courts’ power to grant habeas relief to situations where the state court’s decision “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” and because the question presented addressed a widespread split of authority as to the application of Ake, which “provides no clear guidance one way or the other” on the question presented, Justice Alito took issue with the Court’s resolution on the merits in finding that Alabama offended a “clearly established” federal procedural requirement.

“[T]he Court feels free to disregard our Rules and long-established practice,” wrote Justice Alito. “We do not tolerate this sort of bait-and-switch tactic from litigants, and we should not engage in it ourselves.”

Matal v. Tam 

In Matal v. Tam (formerly known as Lee v. Tam), the Court held that the Patent and Trademark Office unconstitutionally denied Simon Tam a trademark for his rock band “The Slants.”

Former Vermont Governor Howard Dean had a succinct prediction on the case:

Professor Eugene Volokh notes that both Justice Alito’s and Justice Kennedy’s opinions reaffirm, contrary to Gov. Dean’s claim, that there is no “hate speech” exception to the First Amendment. Per Justice Alito, who delivered the opinion of the Court, trademarks are private, not government, speech, as holding otherwise “would constitute a huge and dangerous extension of the government-speech doctrine.”

In an opinion joined by three other justices, Alito also concluded that the case is not controlled by the Court’s government-subsidized-speech jurisprudence, and that the PTO’s policy denying registration to any “disparaging” trademarks does not survive Central Hudson review, let alone strict scrutiny, thereby avoiding the need to decide whether trademarks are commercial speech or pure private speech. Justice Alito wrote:

[S]peech expressing ideas that offend . . . strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

Also, congratulations to Ilya Shapiro and the Cato Institute for getting a nice citation in the majority opinion to the “Brief of the Cato Institute and A Basket of Deplorable People and Organizations” (a hysterical brief, we might add).

Screen Shot 2017-06-19 at 11.01.54 AM

From page 7.

Justice Kennedy, joined by Justice Ginsburg, Justice Sotomayor, and Justice Kagan, concurred, reasoning that the PTO’s policy constitutes viewpoint discrimination and that heightened scrutiny applies whether or not trademarks are considered commercial speech. Typical of a First Amendment Kennedy opinion comes memorable quips such as: “In the realm of trademarks, the metaphorical marketplace of ideas becomes a tangible, powerful reality.” In a great ending to the concurring opinion, Justice Kennedy summarized:

A law that can be directed against speech found offensive to some portion of the public can be turned against minority and dissenting views to the detriment of all. The First Amendment does not entrust that power to the government’s benevolence. Instead, our reliance must be on the substantial safeguards of free and open discussion in a democratic society.

*In case you, like me, feel compelled to tweet such an awesome quote*

Bristol-Myers Squibb Co. v. Superior Court of Calif.

Joining the Court’s OT 2016 civil procedure cases is Bristol-Myers Squibb Co. v. Superior Court of Calif., another case, like BNSF v. Tyrell (which Joel wrote about in May), involving a door left open in Daimler AG.

Daimler and BNSF both addressed — and sharply narrowed — the extent to which the 14th Amendment’s Due Process Clause allows state courts to assert general personal jurisdiction over a defendant — i.e., a state court’s ability to assert personal jurisdiction over a particular defendant for any claim, by virtue of that defendant’s continuous and systematic contacts with the state. Bristol-Myers, however, addressed the issue of specific personal jurisdiction — i.e., a court’s ability to assert personal jurisdiction over a defendant who is not “at home” in the forum state, because the claim at issue relates to the contacts the defendant does have with the state.

Bristol-Myers involved a lawsuit brought in California state court by numerous plaintiffs, alleging that the defendant’s pharmaceutical Plavix had damaged their health. While the defendant company conducts business in California, it is not incorporated in California and it does not have its principal place of business there — in other words, the defendant is by no means “at home” in California, which effectively foreclosed the plaintiffs’ ability to plead general jurisdiction in the wake of Daimler (an intervening decision while Bristol-Myers was on appeal in the California state court). Additionally, many of the plaintiffs in the action were not residents of California and did not allege that they received the drug in California.

The California state court therefore asserted jurisdiction over the defendant with respect to the claims by all plaintiffs (in-state and out) based on an idiosyncratic theory of specific jurisdiction that employed a sliding-scale measuring: 1) a defendant’s general contacts with the form and 2) the nexus between such general contacts and the claims at issue. The California Supreme Court ultimately affirmed the lower state court’s assertion of specific jurisdiction because, while the out-of-state plaintiffs’ claims were not directly related to the defendant’s contacts with California, the extent of the defendant’s unrelated contacts made up for this tenuous relationship.

In other words, the California courts found that the defendant’s general contacts with the state fell short of justifying general jurisdiction under Daimler, but were weighty enough to justify specific jurisdiction despite the out-of-state plaintiffs’ claims lacking a connection to these general contacts.

The Court reversed 8-1, with Justice Alito writing for the Court, concluding that “settled principles regarding specific jurisdiction control this case” and compel the conclusion that “specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.” Justice Alito pointed out that certain “plaintiffs are not California residents and do not claim to have suffered harm in that State” and “all the conduct giving rise to the nonresidents’ claims occurred elsewhere.” The Court reasoned that to assert “specific jurisdiction” in such a context is to simply conflate the principles of specific and general jurisdiction, writing more directly that

the California Supreme Court’s ‘sliding scale approach’ is difficult to square with our precedents. Under the California approach, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claims. Our cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction.

The Court left unresolved “whether the Fifth amendment imposes the same restrictions on the exercise of personal jurisdiction by a federal court,” an issue stemming back as far as the fractured 1987 decision in Asahi Metal Indus. Co.

Justice Sotomayor dissented alone, disagreeing with the proposition “that a corporation that engages in a nationwide course of conduct cannot be held accountable in a state court by a group of injured people unless all of those people were injured in the forum State.” Justice Sotomayor thought the Court should concern itself more simply with what constitutes “fairness” (“[a] core concern in this Court’s personal jurisdiction cases”). According to Justice Sotomayor, it is not unfair to subject “a massive corporation to suit in a State for a nationwide course of conduct that injures both forum residents and nonresidents alike.”

At any rate, in light of Daimler, BNSF, and now Bristol-Myers, it is clear that litigants must be very precise in how they plead the facts they expect to justify personal jurisdiction. For general jurisdiction, a defendant must be essentially at home in the forum. For specific jurisdiction, the defendant’s relevant contacts are those relating to the claims at issue — and no amount of unrelated contacts can overcome that specific requirement. Daimler‘s dicta about the possibility of a defendant being “at home” despite lacking either incorporation or a principal place of business in the forum appears to be slowly evaporating as adventurous plaintiffs test novel jurisdictional theories and the Court repeatedly rebuffs them in doing so.

Jenkins v. Hutton

In a per curiam opinion, the Court reversed and remanded Jenkins v. Hutton to the U.S. Court of Appeals for the Sixth Circuit, holding the Sixth Circuit incorrectly held that it could review Percy Hutton’s claim under the miscarriage of justice exception to procedural default in a habeas proceeding.

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