Publications

Greetings, Court Fans!

The Nine heard their last argument of OT21 yesterday, and one of them—Justice Breyer—the last of his nearly 30-year career on the Court. (His final question, since you ask? A very characteristic “Am I right or wrong?”) The Court also issued one opinion this week, holding in Cummings v. Premier Rehab Keller (No. 20-129) that damages for emotional distress are not available under the antidiscrimination provisions of the Affordable Care Act and the Rehabilitation Act of 1973. While that is a fairly significant decision in its own right, what could be even more significant is its author, Chief Justice Roberts. As Court Fan(atics) may know, the Court typically makes an effort to assign opinions evenly for each argument sitting. Cummings was one of nine cases argued in December, along with Dobbs v. Jackson (No. 19-1392), the case that many expect/hope/fear could overturn, or significantly curtail the protections of, Roe v. Wade. Those hoping Roe survives had pinned those hopes largely on the Chief Justice being in the majority and crafting a narrow, “institutionalist” compromise opinion. That he is (instead?) the author of Cummings suggests (though by no means confirms) that he may not be in the Dobbs majority. But enough speculation about unannounced decisions! Let’s get you caught up on those that have been decided: Cummings, and the habeas decision from last week, Brown v. Davenport (No. 20-826).

In Cummings v. Premier Rehab Keller (No. 20-129), the Court was asked to determine the scope of available relief for violations of the antidiscrimination provisions of two federal statutes. In previous decisions, it had held that a successful plaintiff could receive compensatory, but not punitive, damages. Here, the Court held (6-3) that plaintiffs cannot recover emotional-distress damages either.

Premier Rehab Keller, the respondent, provides physical therapy to patients. Because it receives reimbursement for its services through Medicare and Medicaid, it’s subject to the Rehabilitation Act of 1973 and the Patient Protection and Affordable Care Act, both of which prohibit discrimination on the basis of disability. Jane Cummings, the petitioner, is deaf and legally blind, and communicates primarily in American Sign Language (ASL). She sought therapy from Premier and requested an ASL interpreter. Premier declined to provide one and Cummings received therapy elsewhere. Cummings sued Premier in federal district court for violations of the antidiscrimination provisions of the Rehabilitation Act and ACA. The court dismissed the claims, reasoning that Cummings sought damages for “emotional harm,” which are not recoverable under either statute. The Fifth Circuit affirmed.

The Court affirmed in an opinion written by the Chief Justice. Because the Rehabilitation Act and ACA were passed under Congress’s spending power, he wrote, they differ from “ordinary legislation.” While Congress typically imposes its policies on regulated parties without their consent, legislation under the Spending Clause involves consent and resembles a contract—in exchange for federal funds, the recipient knowingly agrees to be regulated by federal policy. The recipient’s “knowledge” is critical. It must accept the funds understanding the penalties it will face for noncompliance with the statute. But it’s hard to determine what a recipient knows about possible penalties when it agrees to abide by the Rehabilitation Act and ACA. While it’s settled that individuals have a private right of action under the statutes, neither statute mentions available remedies. The Court has therefore looked to the contractual nature of Spending Clause legislation as a presumption regarding the remedies available for Spending Clause legislation. Thus, in Barnes v. Gorman (2002), the Court concluded that punitive damages were not recoverable for violations of Spending Clause statutes, because a recipient of federal funds would presume the available penalties for breaching its “contract” with the federal government were those “traditionally,” “generally,” or “normally” available for breach of contract: compensatory damages and injunctive relief, not punitive damages.

The Court declined Cummings’s invitation to go any further. Because damages for emotional distress are not traditionally available for breach of contract, Roberts wrote, they were unavailable under the Rehabilitation Act and ACA. The Court rejected Cummings’s argument that emotional distress damages were traditionally available in a narrow subset of cases where the breach was “particularly likely” to cause “serious emotional disturbance.” Not only were these types of damages exceedingly rare—i.e., not “normally” available—but there was also no clear rule for when they should be awarded: there was significant jurisdictional variation in whether, or to what extent, states applied the exception.

Justice Kavanaugh issued a one-page concurrence, joined by Justice Gorsuch. Rather than rely on the contract analogy to determine the existence and scope of implied causes of action, Kavanaugh would defer to Congress. The Court, he wrote, should not create any new implied causes of action; existing implied causes of action should remain as they are unless and until Congress intervenes.

Justice Breyer dissented, joined by Justices Sotomayor and Kagan, criticizing the breadth of the majority’s contract analogy. While the majority considered whether emotional distress damages were normally available for breach of all contracts, Breyer narrowed the field to specific types of contracts for nonpecuniary benefits that resemble the Rehabilitation Act and ACA. In other words, unlike with most contracts, a breach of a contract that prohibits invidious discrimination is “particularly likely” to cause “serious emotional disturbance.” Breyer disagreed with the majority’s conclusion that the rule allowing for recovery of emotional distress damages in these cases was too obscure or unsettled to be outside of a recipient’s expectations when it agreed to take federal funds. He also criticized the majority’s reliance on the Court’s earlier punitive damages case—emotional damages are simply a form of compensatory damages, which are recoverable; punitive damages, however, are intended to not to compensate a victim, but to punish a wrongdoer. Finally, Breyer noted that the incongruity between the majority’s ruling on damages and the type of harm that the statutes were designed to protect. Under the majority’s formulation, victims of discrimination can only recover for economic damages, even though the harm they will suffer is rarely economic.

In Brown v. Davenport (No. 20-826), the Court held in a 6-3 decision that a federal court cannot grant habeas relief to a state prisoner who has been convicted unless the prisoner shows that a trial error meets both the standard set forth in Brecht v. Abrahamson (1993) and the standard Congress created in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Because the Court had previously said that applying both tests was unnecessary, much of the decision turned on a debate over the role of stare decisis.

Davenport was tried and unanimously convicted for murder in Michigan state court. On appeal, he argued that this conviction should be set aside under Deck v. Missouri (2005), because he was sometimes shackled during the jury trial. The Michigan Supreme Court agreed that Deck was likely violated, but remanded to the trial court to evaluate whether the violation of Deck was harmless. On remand, the trial court held an evidentiary hearing in which some jurors testified that they had seen Davenport’s shackles during the trial, but all twelve testified that the shackles had no effect on the verdict. Based on that testimony, as well as substantial evidence of Davenport’s guilt, the Michigan courts concluded that the state had met its burden of showing beyond a reasonable doubt that any violation of Deck was harmless.

Davenport then sought federal habeas relief. Under AEDPA, Davenport was required to show that the decision was either (1) “contrary to” or an “unreasonable application of” U.S. Supreme Court precedent, or (2) based on an “unreasonable determination of the facts.” The district court denied his petition, holding that the Michigan courts’ harmless-error ruling was not contrary to or an unreasonable application of clearly established Supreme Court law. But the Sixth Circuit reversed, holding that the district court should have instead reviewed the case under the harmless-error standard of Brecht v. Abrahamson, which would require Davenport to show that error had a “substantial and injurious effect or influence” on the outcome of the trial. Finding this standard met, it directed Michigan to either release Davenport or retry him.

Justice Gorusch reversed, writing for a majority of six (all but the Court’s three liberal justices). He devoted much of his decision to a discussion of the historical development of federal habeas relief. In his view, federal habeas review of state criminal prosecutions was traditionally quite narrow, limited essentially to challenges to jurisdictional defects in a state proceedings. That changed in 1953, when (he contended), the Supreme Court expanded federal habeas relief from its traditional scope and turned it into a vehicle for reviewing possible violations of the federal constitution in state criminal proceedings. Because that expansion of habeas jurisdiction led to a significant expansion in the number of habeas petitions, the Supreme Court developed procedural tools to eliminate undeserving habeas petitions. One such mechanism was Brecht’s standard for harmless error, which ensures that a federal habeas challenge can only be successful if the constitutional violation during state criminal proceedings had a significant impact on the trial.

A few years after Brecht, Congress enacted AEDPA, which effected a “sea change” in federal habeas law. Most relevant here, Congress prohibited federal courts from granting habeas relief “unless” a state court’s resolution of the petitioner’s federal constitutional claim was either (1) “contrary to” or an “unreasonable application of” U.S. Supreme Court precedent, or (2) based on an “unreasonable determination of the facts.” But while Congress mandated this standard for granting federal habeas relief, it did not strip away federal courts’ discretionary authority over federal habeas relief, nor did it vacate the precedent the federal courts had developed in the exercise of that discretion. In other words, AEDPA left Brecht undisturbed. The two coexisted and a petitioner seeking federal habeas relief must satisfy both tests.

With this doctrinal backdrop, the Court rejected Davenport’s argument that the Brecht standard subsumes the AEDPAstandard, so that if he satisfied the former, then he automatically satisfied the latter. In the Court’s view, AEDPA and Brecht ask different questions: AEDPA asks whether “every fairminded jurist” would find the error prejudicial; Brecht asks whether the “court itself” did. And they involve different legal bases: AEDPA turns strictly on U.S. Supreme Court precedent; Brecht does not. The Court also rejected Davenport’s argument that the Court had already decided this question in Davenport’s favor. First, in Fry v. Pliler, the Court had stated that it “makes no sense to require formal application of both tests . . . when [Brecht] obviously subsumes [AEDPA].”Then, in Davis v. Ayala, it said that “the Brecht test subsumes the limitations imposed by AEDPA.” But these statements, the majority concluded, had to be read in light of the procedural postures specific to those cases and did not stand for the global proposition that Brecht subsumed AEDPA in every instance. Beyond the procedural details, Justice Gorsuch’s comments on stare decisis warrant also attention. Cautioning that “the language of an opinion is not always to be parsed as though we were dealing with [the] language of a statute,” he rejected Davenport’s reliance on “a handful of sentences” and “hope[d]” that future justices would not “comb these pages for stray comments and stretch them beyond their context.” “[R]espect for past judgments,” he wrote,” “also means respecting their limits.” With this issue out of the way, the Court quickly concluded that Davenport could not satisfy AEDPA’s standard, because he could not show that the Michigan courts’ harmless-error holding was an unreasonable application of harmless-error review.

Justice Kagan dissented, joined by Justices Breyer and Sotomayor. She began by criticizing Justice Gorsuch’s long discussion of the historical evolution of federal habeas relief as both wrong and irrelevant, suggesting that it was intended to lay the groundwork for future decisions by the Court’s conservatives pairing back federal habeas relief in other areas. Then she turned to the determinative issue: Davis and Ayala. Because Brecht is unquestionably harder to satisfy than AEDPA, Davis and Ayala understood that it was “obvious” that formally applying both tests was unnecessary. Not only was this compelled by logic, Justice Kagan wrote, but it also bore out in how courts had applied the two standards—no one had found a case in which a petitioner had satisfied Brecht, but not AEDPA. Thus, she concluded, the majority’s holding forced lower courts to engage in the formalistic ritual of applying both tests, with no practical difference.

That’s all for this week. We’re expecting more decisions on Monday, so we’ll be back soon to tell you about the latest.

Dave and Tadhg