Ad Fontes: “Last Game of the Year, Brent, Can’t Hold Anything Back Now,” Part I–Orders

[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]

It’s the last official day of OT 2016, and we here at LDB are all like:

So let’s get right to it. Orders first, then per curiams, then opinions, in three separate posts.

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n

The Court finally granted certiorari in Masterpiece Cakeshop to answer “[w]hether applying Colorado’s public accommodations law to compel the 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.”

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The case involves a baker who refused to decorate a cake for an LGBT couple who wanted him to do so for their wedding. This case is sure to be closely watched, as a number of similar cases have come up in other fora. With this next foray in the culture wars on the Court’s docket for OT 2017, it seems like an all-but-nonexistent chance that Justice Kennedy retires anytime soon.

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Digital Realty Trust, Inc. v. Somers

The Court also granted cert in Digital Realty Trust to decide “[w]hether the anti-retaliation provision for ‘whistleblowers’ in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 extends to individuals who have not reported alleged misconduct to the Securities and Exchange Commission and thus fall outside the act’s definition of ‘whistleblower.'” Out of the gate, the case seems primed for what has already become a Justice Gorsuch hallmark: a robust textualist inquisition at oral argument and a subsequent opinion reasoning that the Court should “just follow the words of the statute as written.”

Johnson v. Alabama

The Court took the unusual step of granting certiorari and vacating the state court judgment in Johnson v. Alabama, remanding for reconsideration in light of another state court decision. This drew a dissent from the Chief Justice, joined by Justices Thomas, Alito, and Gorsuch, who observed that the petition

concerns state collateral review–purely a creature of state law that need not be provided at all. Whatever one’s view on the propriety of our practice of vacating judgments based on positions of the parties . . . the Court’s decision to vacate this state court judgment is truly extraordinary.

As LDB’s readership may recall from Federal Courts or from the bar exam, when a decision ostensibly raising a federal question nonetheless has a basis in adequate and independent state grounds, the Supreme Court has no jurisdiction over the case. We’ll keep an eye on this in case it percolates back up.

Hicks v. United States

The Court granted cert and vacated the judgment of the Fifth Circuit in Hicks. The case asked “[w]hether the petitioner should have been sentenced under the Fair Sentencing Act of 2010” and “[w]hether the court of appeals offered an insufficient explanation for denying the petitioner a certificate of appealability.” The reason for the reversal was that the government confessed error in part to the Supreme Court in a filing after the petition for certiorari was docketed.

Justice Gorsuch concurred in this disposition, concluding that “[a] plain legal error infects this judgment–a man was wrongly sentenced to 20 years in prison under a defunct statute.” His concurrence seems geared towards directing the Fifth Circuit on remand to rule that the errors infecting Hicks’s sentencing warrant revision of his sentence. “[W]ho wouldn’t hold a rightly diminished view of our courts if we allowed individuals to linger longer in prison than the law requires only because we were unwilling to correct our own obvious mistakes?” Here the task of correcting the error “is so easily done that in this case I cannot think why it should not be done.” The concurrence also seemed intended to respond to a hypothetical dissent from the ghost of Justice Scalia, given Justice Gorsuch goes out of his way to “agree with much in Justice Scalia’s dissent in Nunez v. United States, 554 U.S. 911, 911-13 (2008),” coming up with counter-arguments that sound like reasons to distinguish that dissent.

Justice Gorsuch’s concurrence also was probably intended to clarify why he did not join the dissent by Chief Justice Roberts, joined by Justice Thomas, who cites Justice Scalia’s Nunez dissent favorably. The Chief would not vacate and remand given that “[t]he Government does not contend that Hicks . . . satisfies prongs three and four of the test for plain error and that the judgment below rejecting Hicks’s claim was therefore wrong.” Acknowledging Justice Gorsuch’s view that “the outcome on remand is a no-brainer,” the Chief nevertheless thinks that “without a determination from this Court that the judgment below was wrong or at least a concession from the Government to that effect, we should not . . . vacate the Fifth Circuit’s judgment.”

Peruta v. California

The Court denied cert in Peruta, a closely-watched Second Amendment case that asked “[w]hether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.”

Justice Thomas, joined by Justice Gorsuch, dissented from the denial of certiorari. “[W]hether” the Second Amendment “protects the right to carry firearms in public for self-defense . . . . is [an issue] of national importance” and is one “that the courts of appeals have weighed in extensively.” In this case specifically, a panel of the Ninth Circuit ruled, in a detailed opinion, in favor of petitioners, recognizing that “the carrying of an operable handgun outside the home for the lawful purpose of self-defense . . . constitutes ‘bear[ing] Arms’ within the meaning of the Second Amendment.” Peruta v. California, 742 F.3d 1144, 1166 (9th Cir. 2014). The Ninth Circuit reversed the panel after ordering an en banc hearing sua sponte, though that decision drew a strong dissent (but alas, for conservatives, in the Ninth Circuit, no one can hear you scream).

Justice Thomas thought that “[t]he approach taken by the en banc court is indefensible.” The Ninth Circuit en banc dodged the broader Second Amendment challenge raised by petitioners’ complaint and appeal by holding narrowly that there was no Second Amendment right to concealed carry in public. But petitioners had challenged the regulatory scheme in California by asserting a broad, “general right to public carry.”

To Justice Thomas, this issue was open-and-shut, which perhaps explains why the en banc court dodged it. “This Court has already suggested that the Second Amendment protects the right to carry firearms in public in some fashion.” The definition the Court gave to “bear arms” naturally “encompasses public carry.” See District of Columbia v. Heller, 554 U.S. 570, 584 (2008); see also Drake v. Filko, 724 F.3d 426, 444 (3d Cir. 2013) (Hardiman, J., dissenting). “The relevant history appears to support this understanding” as well, as the panel opinion observed. And “the Second Amendment’s core purpose further supports the conclusion that the right to bear arms extends to public carry.”

Justice Thomas cited one of his previous dissents from denial of certiorari in another Second Amendment case to point out that this denial “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.” See Friedman v. Highland Park, 577 U.S. ___, ___ (2015) (Thomas, J., dissenting from denial of certiorari). “The Constitution does not rank certain rights above others, and I do not think this Court should impose a hierarchy by selectively enforcing its preferred rights.” (This is becoming a theme for Justice Thomas, as [shameless plug] I have written at greater length elsewhere).

Justice Thomas closed with this flourish:

For those of us who work in marbled halls guarded by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous. But the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand by idly while a State denies its citizens that right, particularly when their very lives may depend on it.

Bay Point Properties, Inc. v. Mississippi Trans. Comm’n

The Court denied cert in Bay Point Properties, which asked “[w]hether the just-compensation clause prohibits a legislature from limiting how just compensation for a taking is calculated” and “whether the just-compensation clause allows the jury to value the fee interest taken as if it were still encumbered by a discounted highway easement,” when that easement had been terminated by the state’s action in repurposing the land upon which the easement previously sat.

Justice Gorsuch issued a brief statement respecting denial of certiorari, joined by Justice Thomas, in which he urged the Court to soon address whether the state can limit, “by operation of statute, the compensation it must pay for that new taking,” when a state re-takes property previously “taken” by the state for an easement and then provides compensation calculated based on the value of the property as burdened by the easement, even though the easement had terminated and the holder of the title possessed it fully unencumbered.

As folks over at Cato observed, this case was about more than just some in-the weeds takings issue; rather, the lower court’s ruling

undermines due process’s general prohibition of retroactive lawmaking, undermines the separation of powers by usurping the fundamentally judicial function of ascertaining what constitutes just compensation, violates property owners’ Sixth Amendment right to have that determination made by a jury of one’s peers, and of course violates the Fifth Amendment’s demand that government entities only take private property for public use after the owner receives just compensation.

Especially in the wake of the Court’s decision last week that has been sharply critiqued as adverse to property rights, denial here feels like insult to injury. Hopefully, the Court will soon reverse its modern trend of treating property as a second-class constitutional right.

Mathis v. Shulkin

The Court also denied cert in Mathis v. Shulkin, which addressed the Board of Veterans’ Appeals practice of giving a presumption of competency to the findings of medical evaluators whose opinion the Department of Veterans Affairs relied on for purposes of deciding disabled veterans’ claims. The issue raised was significant because, given this practice, the burden was placed on claimants to rebut this presumption by challenging their evaluator’s qualifications when the evaluator makes findings adverse to the veteran’s claim. Given that most veterans pursue claims with the Department pro se, this is a significant hurdle that would be hard to overcome for most claimants, given their lack of legal expertise.

Two responses to this denial were issued. Justice Sotomayor issued a statement respecting the denial of certiorari, in which he highlighted the problems with this practice. “[T]he VA does not provide veterans with” information regarding the credentials of their medical evaluators “as a matter of course.” It also sometimes refuses to disclose that information even when it has been requested. Justice Sotomayor would like to review this practice when there is “a petition arising from a case in which the VA denied a veteran benefits after declining to provide the medical examiner’s credentials.”

Justice Gorsuch dissented from denial of certiorari. This presumption applied by the Board “enjoys no apparent provenance in the relevant statutes.” In fact, the statute explicitly undermines such a presumption by imposing an affirmative duty on the VA generally “to assist–not impair–veterans seeking evidence for their disability claims.”

[H]ow is it that an administrative agency may manufacture for itself or win from the courts a regime that has no basis in the relevant statutes and does nothing to assist, and much to impair, the interests of those the law says the agency is supposed to serve?

While the Federal Circuit seems inclined to gut this presumption, Justice Gorsuch “would not wait in hope.” If this issue does make it back before the Court, we’ll be keeping an eye on Justice Gorsuch, given the case raises issues suitable for disposition by a textualist and a skeptic of the Court’s deference on questions of administrative law.

The decision to deny cert, given the parties affected and the nature of the issue, does seem odd. The Court has elsewhere recognized that adjudication of veterans’ claims “is designed to function throughout with a high degree of informality and solicitude for the claimant.” Walters v. Nat’l Ass’n of Radiation Survivors, 473 U.S. 305, 311 (1985). Congress’s interest in the statutory “system for administering benefits” is for case management “in a sufficiently informal way that there should be no need for the employment of an attorney to obtain benefits to which a claimant was entitled, so that the claimant would receive the entirety of the award without having to divide it with a lawyer.” Id. at 321. The system is supposed to be “as informal and nonadversarial as possible.” Id. at 323.

In Walters, the Court rejected a constitutional challenge to an attorney-fee limitation built into the statute, the destruction of which “would bid fair to complicate a proceeding which Congress wished to keep as simple as possible.” Id. at 326. Additional complexities built into the system “engender greater administrative costs, with the end result being that less Government money reaches its intended beneficiaries.” Id.

In Mathis, a different complexity has been added into the statutory scheme by the Board adjudicating veterans’ claims, and that complexity seems likely to have a comparably disruptive effect on the intended design of the statutory scheme. Furthermore, the presumption at issue makes it harder, rather than easier, for veterans to adjudicate claims of entitlement to benefits, contrary to the statute (and, frankly, sound public policy). As Justice Gorsuch stated, hopefully “the presumption’s days are numbered.”


  1. […] were announced and various pending matters were otherwise disposed of (deets on that can be found here and other forthcoming summaries). It was a pretty typical end-of-term day, what with big cases […]

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