Merits Cases

In a narrow opinion, the U.S. Supreme Court held yesterday that a Kansas police officer had reasonable suspicion to stop a vehicle about which he knew nothing more than that its registered owner had a revoked driver's license. Justice Clarence Thomas wrote for the court in Kansas v. Glover; Justice Elena Kagan wrote a concurrence stressing the narrowness of the decision, which was joined by Justice Ruth Bader Ginsburg. Justice Sonia Sotomayor was the lone dissenter.

On April 28, 2016, Douglas County Deputy Sheriff Mark Mehrer was on routine patrol when he saw a 1995 Chevrolet 1500 pickup truck and decided to run its plate number through the Kansas Department of Revenue database. According to the database, the truck was registered to Charles Glover Jr., who had a revoked Kansas driver's license. Mehrer stopped the truck, which was indeed being driven by Glover. Glover was charged with being a habitual violator, but the Kansas Supreme Court ultimately upheld his motion to suppress the evidence resulting from the traffic stop on Fourth Amendment grounds.

What made this case unusual was that there were no witnesses at trial. Instead, the trial was based on a short stipulation of facts stating that Mehrer assumed the truck was being driven by the registered owner, that he did not observe any traffic infractions and that he did not attempt to identify the driver.

In a 7-2 decision announced today, the Supreme Court held that a safe berth clause in a particular maritime charter party agreement constituted a warranty of safety, making the charterer, who designated the unloading berth, liable for costs to clean up an oil spill. In concluding that the charter party agreement allocated such a risk to the charterer (collectively referred to as CARCO), the court umpired a dispute involving more than $130 million dollars between the parties, resolved a circuit split between the U.S. Courts of Appeals for the 2nd and 3rd Circuits on one side and the 5th Circuit on the other, and announced a default rule regarding the form contract at issue in the case.

Today, the Supreme Court issued its decision in the consolidated cases of Guerrero-Lasprilla v. Barr and Ovalles v. Barr. The court ruled in favor of the noncitizens who were challenging the U.S. Court of Appeals for the 5th Circuit’s denial of their motions to reopen their removal cases. The 5th Circuit had said it lacked the ability to review their cases. With the court’s decision, Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles will now be able to continue their legal efforts to come back into the United States.

This morning the Supreme Court issued its opinion in an important race-discrimination case. The justices unanimously ruled that a lawsuit brought under 42 U.S.C. § 1981, a part of the Civil Rights Act that prohibits racial discrimination in contracts, requires the plaintiff to show “but for” causation – that is, that the defendant would have made a different contracting decision were it not for the plaintiff’s race. The decision was a significant victory not only for Comcast, the defendant in the case, which had been sued for billions of dollars, but for the business community more broadly.

The case began several years ago, when Entertainment Studios Network, owned by African American entrepreneur Byron Allen, and the National Association of African American-Owned Media filed a lawsuit against Comcast in federal court in California. ESN and the NAAAM alleged that Comcast’s decision not to carry several television channels that ESN had offered to it was motivated by racial discrimination and therefore violated Section 1981. The district court threw out the case, but on appeal the U.S. Court of Appeals for the 9th Circuit allowed the lawsuit to go forward. The court of appeals held that ESN only needed to show that race was one “motivating factor” in Comcast’s decision not to carry the channels offered by ESN; ESN did not need to show that Comcast would not have turned ESN down if it were not for Allen’s race. Comcast went to the Supreme Court, which agreed last year to review its appeal.

A state cannot be sued for copyright infringement because Congress did not validly abrogate sovereign immunity when it enacted the Copyright Remedy Clarification Act of 1990, the Supreme Court held Monday in Allen v. Cooper. Justice Elena Kagan wrote the opinion for six justices; Justice Clarence Thomas joined the opinion in part; and Justice Stephen Breyer, joined by Justice Ruth Bader Ginsburg, concurred in the judgment.

The case arose from a salvage operation for Blackbeard’s flagship Queen Anne’s Revenge, which sank off the coast of North Carolina in 1718 after a “reign over the seas” that was “short-lived.” Petitioner Frederick Allen was hired to document the salvage operation. He sued North Carolina when the state published some of his photos and videos without his permission and without payment.

The court held that Allen’s argument that the CRCA validly abrogated state sovereign immunity was foreclosed by the court’s 1999 decision in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, which held that the Patent Remedy Act of 1990, enacted at the same time as the CRCA, did not validly abrogate sovereign immunity. Florida Prepaid held that Congress could not abrogate sovereign immunity using its powers under the intellectual property clause of Article I, Section 8 of the Constitution, which empowers Congress to secure to authors and inventors the exclusive rights in their writings and discoveries. The power to protect copyrights and patents derives from one constitutional source. If Congress cannot abrogate for patents, as Florida Prepaid established, it cannot abrogate for copyrights, and for the same reasons.

Until 1979, every jurisdiction in the United States allowed mentally ill defendants to assert what was traditionally regarded as an insanity defense – that is, to argue that because they did not understand that their actions were wrong, they cannot be held criminally responsible for those actions. Since then, five states, including Kansas, have abolished that defense. Today, by a vote of 6-3, the Supreme Court ruled that a state’s failure to allow a mentally ill defendant to raise such a defense does not violate the Constitution.

The ruling came in the case of James Kahler, who in November 2009 shot and killed four members of his family: his estranged wife, the couple’s two daughters and his wife’s grandmother. At Kahler’s trial on four counts of first-degree murder, the prosecution’s expert testified that Kahler could have formed the kind of premeditated intent to kill required for a death sentence, while an expert for Kahler countered with testimony that at the time of the shooting Kahler had been so depressed that he could not help himself. But Kahler could not defend himself by arguing that he was insane: In 1995, Kansas had abolished the traditional insanity defense, replacing it with a new law that allows defendants to argue only that they could not have intended to commit the crime because of their mental illness. Kahler was convicted and sentenced to death.

On appeal, the Kansas Supreme Court rejected Kahler’s argument that the state’s failure to allow him to raise an insanity defense violated the Constitution. Today the Supreme Court, in an opinion by Justice Elena Kagan, upheld that ruling.

Editor’s note: On March 16, the Supreme Court postponed oral argument in United States v. Briggs and the other cases scheduled for the March sitting, and “will examine the options for rescheduling those cases in due course.”

When the Supreme Court entertains argument in United States v. Briggs, which had been scheduled for Monday, March 23, it will be asked to decide whether three men convicted of military rape should not have been prosecuted in the first place because of the statute of limitations. And, should each side's principal argument fail, the court may be forced to decide a bigger question: whether the Eighth Amendment prohibition against capital punishment for non-homicide rape applies to rape in the military.

This litigation consists of three consolidated cases, which all involve male military personnel convicted of raping female military personnel. Michael Briggs, Richard Collins and Humphrey Daniels claim that the statute of limitations should have barred their prosecutions. The government argues that there is no statute of limitations for military rape because Congress exempted all military crimes punishable by death from limitations. The defendants counter that the cruel and unusual punishments clause of the Eighth Amendment prohibits the death penalty for all rapes not involving fatalities, including military rapes. That, in turn, means there is a statute of limitations for military rape, and it expired before any of the three men were prosecuted. The U.S. Court of Appeals for the Armed Forces agreed with the defendants.

The argument yesterday in Liu v. Securities and Exchange Commission revealed a surprisingly unified bench, as the bulk of the discussion suggested sympathy for a compromise decision that would accept fully the views of neither side. The case involves the scope of relief in enforcement actions that the Securities and Exchange Commission brings in federal court (as opposed to its internal administrative proceedings). The specific problem concerns the availability of a general remedy of “disgorgement” of a defendant's profits from an unlawful scheme, in addition to specific provisions for penalties and injunctive relief. [caption id="attachment_292306" align="aligncenter" width="500"] Gregory G. Rapawy for petitioners (Art Lien)[/caption]

In 2016, the Supreme Court struck down a Texas law that (among other things) required doctors who perform abortions in that state to have the right to admit patients at nearby hospitals. In that case, Justice Anthony Kennedy joined the court’s four more liberal justices in concluding that the law made it harder for women to obtain abortions while not doing anything, despite the state’s argument to the contrary, to protect the health of pregnant women. Today the Supreme Court considered the constitutionality of a similar law from Louisiana. But with Kennedy now retired, the law’s fate seemed likely to hinge on the vote of Chief Justice John Roberts or perhaps Kennedy’s successor, Justice Brett Kavanaugh. [caption id="attachment_292296" align="aligncenter" width="500"] Julie Rikelman at lectern arguing for petitioners (Art Lien)[/caption]