SLS Faculty Weigh In on Recent SCOTUS Decisions in Roundup of the 2016 Term

In this roundup, Stanford Law School faculty members offer commentary on key SCOTUS decisions from the 2016 term (most issued in spring 2017), offering critical analysis.

CalPERS v. ANZ Securities Decision on June 26, 2017

Faculty News: David Freeman Engstrom Elected to American Law Institute

CalPERS v. ANZ Securities by Professor David Freeman Engstrom

Statutory procedure cases are strange animals.  Procedural matters are low political salience, so there’s rarely clean legislative history.  And we often lack ironclad empirical evidence about the consequences of rule choices before the Court fully adopts them.  As a result, the Court is effectively free to choose its own course.  Presupposition, speculation, and thinly veiled judgments about the social value of litigation often carry the day.  CalPERS v. ANZ Securities, decided on the last day of the Court’s term, is a case in point.

The question CalPERS presented was arcane even by lawyer standards.  Does the filing of a class action lawsuit asserting claims under Section 11 of the Securities Act toll the statutory three-year limitations period for a class member who seeks to proceed alone when class certification is denied?  The Court, in a 5-4 decision that cleanly split along conservative and liberal lines, said no. Read more »

Trinity Lutheran Church v. Comer Decision on June 26, 2017


Trinity Lutheran: A Welcome Reminder that Church-State Separation is a Principle of Neutrality by Professor Michael W. McConnell

The Supreme Court ended its 2016 Term with a case at the intersection of the two halves of the Religion Clause of the First Amendment: States may not penalize individuals or groups for their religious character (Free Exercise Clause), nor may they subsidize or promote religion (Establishment Clause). Neutral treatment of churches and other non-profits provided the common ground. A seven-Justice majority held that no one—whether individual, group, believer, non-believer, church, or other organization—can be penalized for their religion, or lack of it, by denial of a secular benefit to which they would otherwise be legally entitled. As the opinion by Chief Justice Roberts put it: “[T]he exclusion of [the petitioner] from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution, . . . and cannot stand.”

The decision was nearly—but not quite—unanimous. Two Justices thought it went too far; three Justices thought it did not go far enough. A footnote confined the reach of the holding to “express discrimination based on religious identity” and declined to address “religious uses of funding.” No doubt that footnote will inspire further litigation in the years to come. Read more »

William S. Koski

Trinity Lutheran Church v. Comer Decision: What Does It Mean for School Vouchers? by William Koski

Nowhere in the Trinity Lutheran Church v. Comer opinion are the terms “school voucher,” “tuition tax credit,” or “education savings account” mentioned. But let there be no doubt that school voucher advocates and opponents alike view this case as a marker for whether the Supreme Court will require states to allow parents and children to use publicly funded school vouchers for religious schools. In Trinity Lutheran, the Court held that denial of an otherwise available public benefit to religious institutions violated the Trinity Lutheran Church’s First Amendment free exercise rights, even in the face of state constitutional prohibitions on the use of public funds for religious purposes. While I will leave the broader implications of the Trinity Lutheran decision to my colleagues (such as Profs. McConnell and Sonne) who are experts in religious liberties, and despite the fact that in a footnote the plurality of the Court purports to limit the decision to the narrow facts of the case, Trinity Lutheran should provide cause for concern among those who oppose school vouchers generally and those who oppose vouchers for religious schools specifically. Read more »

James A. Sonne

Trinity Lutheran: Making Friends on the Playground by Jim Sonne

With a 7-2 ruling in Trinity Lutheran Church v. Comer, the Supreme Court extended its recent, yet largely unheralded, streak of bipartisanship in resolving religious-liberty cases. Indeed, with the exception of Hobby Lobby in 2014, the Court has acted with broad consensus in every free-exercise dispute it has decided in the past 20 years—from religious accommodations at work and in prison to the right of churches to hire and fire ministers free from government interference to faith-based limits on drug laws. And in its support for a church’s right to participate in a state playground-resurfacing program, Trinity Lutheran is no exception. Divisions linger under that surface, but the Court’s relative unity is notable in an area that needs it. Read more »

Davila v. Davis Decision on June 26, 2017

David Alan Sklansky 1

Unseemliness, Acute Unfairness, and Davila v. Davis by Professor David Alan Sklansky

In Davila v. Davis, the Justices against split 5-4 in a capital case, but this time they affirmed the dismissal of the defendant’s federal habeas claim. Erick Davila is on death row in Texas for a double murder committed in 2008. In 2014 he sought federal habeas relief, arguing in part that the trial judge had given the wrong instructions to the jury, over the objection of Davila’s trial counsel. The federal district court in Fort Worth rejected that argument, the Fifth Circuit concurred, and now the Supreme Court has concurred as well. What was decisive was that Davila hadn’t raised the jury instruction issue on direct appeal or when seeking state habeas relief.

It wasn’t Davila himself, of course, who had failed to raise the jury instruction argument; it was his appellate lawyer and his state habeas corpus lawyers. Davila’s federal habeas lawyers contended that this was a serious oversight. In effect, they claimed, Davila had been denied his constitutional right to effective assistance of counsel on appeal, and the violation was compounded, not excused, when his state habeas lawyers failed to complain about it. Read more »

Ziglar v. Abbasi Decision on June 19, 2017

Shirin Sinnar 1

The Ziglar v. Abbasi Decision: Unsurprising and Devastating by Professor Shirin Sinnar

The Supreme Court’s 4-2 decision in Ziglar v. Abbasi is both unsurprising and devastating. It is unsurprising because the Supreme Court has contracted damages suits against federal officials for constitutional violations for 30 years now, and with the recusals of Justices Sotomayor and Kagan in the case, it was predictable that the Court would do so again. The unsurprising nature of the outcome, however, shouldn’t detract from its significance: for certain kinds of constitutional violations, it throttles attempts to hold federal officials accountable. For the victims of human rights violations left without a legal remedy, it’s devastating.

Filed in 2002, Abbasi arose out of the mass detentions of immigrants following the September 11, 2001, terrorist attacks. FBI and immigration officials arrested hundreds of men, primarily from South Asian and Middle Eastern countries, often based on members of the public calling in vague tips about “suspicious” Middle Eastern men in their neighborhoods. According to a Justice Department Inspector General investigation, government officials indiscriminately labeled, and treated, these men as terrorism suspects, rather than as ordinary immigration detainees. As a result, many were confined for months under harsh conditions in a maximum-security prison and, worse, subjected to physical violence by prison guards. Following their eventual release, some of these detainees sued Attorney General John Ashcroft, FBI Director Robert Mueller, and a host of lower-level federal officials, accusing them of confining them under harsh conditions solely on the basis of their race or religion. Read more »

McWilliams v. Dunn Decision on June 19, 2017

David Alan Sklansky 1

Substance and Procedure in Capital Adjudication: The Supreme Court’s Decision in McWilliams v. Dunn by Professor David Alan Sklansky

The pervasive tension in the law between substantive justice and procedural regularity can be especially pronounced in death penalty cases. The high stakes in capital cases seem to cry out for attention to substantive justice, but the Justices of the Supreme Court—and Congress, too, to some extent—have spent decades trying to perfect the procedures in death penalty cases, striving to ensure fairness and reliability while still allowing executions to proceed. That effort may have been preordained for failure, and a growing number of Justices, past and present, have wound up finding it futile. But the Court continues to try to reconcile the death penalty with the demands of due process. Consequently it is called upon to decide, in case after case, how much to focus on whether substantive justice is being done, and how much to focus on process—whether the state and the defendant have been provided with adequate opportunities to develop and to present their respective sides of the story, and whether the machinery of adjudication has operated as intended. Often the line between substance and procedure gets blurred, and the tension is between different levels of procedural abstraction: should the question be whether the process was fair, or whether the process for assessing the fairness of the process was itself fair? Read more »

Town of Chester v. Laroe Estates Decision on June 5, 2017

Shirin Sinnar 1

Town of Chester v. Laroe Estates, Recent Unanimous SCOTUS Decision by Professor Shirin Sinnar

The decision may make it harder for parties that aren’t originally part of a lawsuit to participate in litigation, for better or for worse. Many cases affect people who aren’t part of the original lawsuit, and intervention provides a means for them to get involved to protect their interests. Sometimes this is in private disputes, as in the case before the Supreme Court, where the intervenor was a real estate developer with a financial stake in another developer’s dispute with the city. But it often occurs in public law contexts, where the outcome of the case may affect a lot of people beyond the original parties. This can be a good thing, in that it increases the information and perspectives available to the court, but it can also make the litigation more costly and burdensome, since intervening parties generally have the same rights to assert claims, demand discovery, and make motions as original parties. Read more »

Esquivel-Quintana v. Sessions Decision on May 30, 2017

Supreme Court Roundup: The Year Past and the Year Ahead

On Esquivel-Quintana v. Sessions by Professor Jeffrey L. Fisher

Juan Esquivel-Quintana is a lawful permanent resident who came to this country from Mexico with his family when he was a young boy. Several years later, he pleaded guilty in California to statutory rape—a result of having consensual sex with his 16-year-old girlfriend when he was 20 years old. The federal government then initiated deportation proceedings against him, alleging his crime constituted the “aggravated felony” of “sexual abuse of a minor” under the Immigration and Nationality Act.

Immigration judges agreed, as did the U.S. Court of Appeals for the Sixth Circuit, siding with several other courts that had previously held that low-level statutory rape offenses rendered people automatically deportable. Read more »

Impression Products, Inc. v. Lexmark Inc. Decision on May 30, 2017

Lisa Larrimore Ouellette 1

On Impression Products, Inc. v. Lexmark Inc. by Professor Lisa Larrimore Ouellette and Daniel Hemel

Judging by the media coverage, the Supreme Court’s decision yesterday in Impression Products, Inc. v. Lexmark Inc. will have dramatic implications for producers and consumers of patented products around the world. The decision places “sharp limits on how much control patent holders have over how their products are used after they are sold,” says the New York Times’s Adam Liptak. The ruling is a “sure-to-be-landmark decision,” reports Ronald Mann at SCOTUSblog. It “takes away an important tool used by companies to control the marketplace,” according to Bloomberg.

Well, maybe. But the Court’s opinion, authored by Chief Justice Roberts, also opens the door for creative contract lawyers to draft licensing agreements that severely restrict resale of patented products. The full impact of the Supreme Court’s decision won’t be known for years, but much will depend on how courts view the newfangled licensing agreements that are almost certain to follow in the wake of Impression Products. Read more »

TC Heartland v. Kraft Decision on May 22, 2017

Lisa Larrimore Ouellette 1

Supreme Court Venue Decision Will Limit Texas Patent Docket by Professor Lisa Larrimore Ouellette

First-year law students quickly learn that procedure matters, and the enormous impact of procedural rules is nicely illustrated by the patent venue dispute addressed by the Supreme Court last week. On the surface, TC Heartland v. Kraft simply concerned 28 U.S.C. § 1400, which states that a “civil action for patent infringement may be brought in the judicial district where the defendant resides, or where the defendant has committed acts of infringement and has a regular and established place of business.”

But what was really at issue was the ability of patent plaintiffs to forum shop, and the resulting concentration of patent cases in the Eastern District of Texas, which received 40% of all patent cases filed in 2015 or 2016. This was permitted under the Federal Circuit’s broad interpretation of “resides,” but the Supreme Court held that for purposes of § 1400, a corporation only “resides” in its state of incorporation—which will severely limit plaintiffs’ choice of forum. TC Heartland is thus a win for corporate defendants and a loss for many patent plaintiffs. Read more »

Cooper v. Harris Decision on May 22, 2017

SLS Professor Nathaniel Persily Awarded Carnegie Fellowship

On Race and Districting SCOTUS Decision by Professor Nathaniel Persily

The Court ruled that two of North Carolina’s congressional districts were unconstitutional because they excessively relied on race by overconcentrating African American voters. In District 1, the Court rejected the argument that the Voting Rights Act required the state to adopt a requirement of a majority minority district—that is, a district in which over fifty percent of the voters are African American. The Court ruled that the state cannot use blunt targets like “majority-minority,” but must look at what percentage (given the extent of racially polarized voting) would provide an equal opportunity for the African American community to elect its preferred candidates. Read more »

Lewis v. Clarke Decision on April 25, 2017

Gregory Ablavsky

Lewis v. Clarke: Limited Doctrinal Implications for Indian Law by Professor Gregory Ablavsky

Today [April 25, 2017], the U.S. Supreme Court issued its decision in Lewis v. Clarke, a case concerning whether tribal sovereign immunity extended to a tribal employee sued in his individual capacity in the wake of an off-reservation car accident. Reversing the Connecticut Supreme Court, a unanimous Court found that the tribal employee could not receive the benefit of the tribe’s sovereign immunity, and remanded.

Although a loss for the Mohegan tribe—and potentially disruptive for business practices in Indian Country in the immediate term, as Matthew Fletcher notes—the decision’s doctrinal implications for Indian law are relatively limited. Read more »

Moore v. Texas Decision on March 28, 2017

John J. Donohue III 2

Moore v. Texas and the Pathologies that Mar Capital Punishment in the U.S. by Professor John J. Donohue III

The Supreme Court’s decision in Moore v. Texas re-affirmed an earlier ruling in Atkins v. Virginia, holding that the “Constitution ‘restrict[s] … the State’s power to take the life of’ any intellectually disabled individual.” (Emphasis in the majority opinion in Moore.) Given that standard, the 5-3 decision was unsurprising, since the evidence of defendant Moore’s intellectual disability was strong. But the case also serves as a reminder of the abundant pathologies that mar capital punishment in the United States. Read more »

Peña-Rodriguez v. Colorado Decision on March 6, 2017

Robert Weisberg 1

On Juries and Racism and the Peña-Rodriguez v. Colorado Decision by Professor Robert Weisberg

In Peña-Rodriguez v. Colorado, decided by the Supreme Court this week, there was well-documented proof that racial prejudice played a role in the defendant’s conviction of sexual offenses. If we put the issue that broadly, who could disagree with the decision in Peña-Rodriguez’s favor? But we can’t just put the issue that broadly, because a lot turns on how that proof emerged and whose racism was proven. Read more »

Further Analysis

Pamela S. Karlan

Amicus with Dahlia Lithwick: Pamela Karlan Discusses Recently Completed Supreme Court Term

Professor Pamela Karlan discusses the Supreme Court’s 2016 term with Dahlia Lithwick for the Slate podcast Amicus. What cases stood out? What should we expect for next term?