Supreme Court Update: Gamble v. United States (No. 17-646), Manhattan Community Access Corp. v. Halleck (No. 17-702), Virginia Uranium v. Warren (No. 16-1275), Virginia House of Delegates v. Bethune-Hill (No. 18-281)

June 20, 2019 Supreme Court Update

Greetings, Court Fans!

Four more decisions this morning, including a couple of biggies. In American Legion v. American Humanist Association (No. 17-1717), the Court reversed the Fourth Circuit’s decision holding that a memorial “peace cross” on public land violated the Establishment Clause, albeit in a highly fractured decision. Justice Alito wrote a partial-majority/partial-plurality opinion, joined in full by the Chief, Breyer, and Kavanaugh, and in part by Justice Kagan. Thomas and Gorsuch concurred in the judgment (for different reasons), making it a 7-2 decision, with only Ginsburg and Sotomayor in dissent. In Gundy v. United States (No. 17-6086), the Court rejected a nondelegation challenge to a provision of the Sex Offender Registration and Notification Act (SORNA) that delegates to the Attorney General the authority to specify the applicability of SORNA’s registration requirements to individuals convicted of sex offenses before its enactment. Justice Kagan wrote an opinion defending the Court’s longstanding practice of permitting delegation of legislative powers when Congress lays down an “intelligible principle” to which the executive is directed to conform. She was joined by the other liberals and (in a first) Justice Alito, who concurred only in the judgment and indicated that he would in fact support an effort to reinvigorate the nondelegation doctrine if a majority of the Court supported it. (Justice Kavanaugh was not on the Court when Gundy was argued, way back in October, so if Alito had gone the other way, it would have resulted in 4-4 nonprecedential affirmance.) In another unusual split, the Court held in McDonough v. Smith (No. 18-485) that the statute of limitations for a fabricated-evidence claim under section 1983 begins to run when criminal proceedings terminate in the plaintiff’s favor. Justice Sotomayor’s opinion for the Court was joined by the Chief, Ginsburg, Breyer, Alito, and Kavanaugh, with Justice Kagan joining Thomas and Gorsuch in dissent. Finally, in PDR Network, LLC v. Carlton & Harris Chiropractic, Inc. (No. 17-1705), the Court unanimously vacated a Fourth Circuit decision in a Telephone Consumer Protection Act case, concluding that whether a 2006 FCC Order broadly defining “unsolicited advertisement” binds lower courts may depend on the resolution of two preliminary sets of questions that were not aired before the Fourth Circuit, and should be addressed on remand.

We’ll have much more on these decisions soon. In the meantime, read on for coverage of Monday’s decisions in Gamble v. United States (No. 17-646), reaffirming the “dual-sovereignty” exception to the Double Jeopardy Clause; Manhattan Community Access Corp. v. Halleck (No. 17-702), holding that private corporations that run public-access TV stations are not state actors; Virginia Uranium v. Warren (No. 16-1275), on atomic federal preemption, and Virginia House of Delegates v. Bethune-Hill (No. 18-281), in which the Court kicked a racial gerrymandering case on standing grounds.

First up, in Gamble v. United States (No. 17-646), the Justices reaffirmed the so-called “dual-sovereignty” exception to the Constitution’s prohibition on double jeopardy—a corner of criminal law that has gained recent attention in view of the possibility that President Trump and his allies could still be prosecuted in state courts if pardoned at the federal level. With the Court’s decision this week in Gamble, essentially nothing changes: as was true under prior precedent, the federal Constitution does not prevent a state prosecutor and a federal prosecutor from each pursuing indictments arising from the same conduct. Still, there’s plenty to explore in the decision, not least the Justices’ airing of views on stare decisis—another hot topic in the Trump era.

The dual-sovereignty question was presented in this case because it is a crime under both Alabama law and federal law for individuals with prior felony convictions to possess a gun. In 2015, Terance Gamble was found with a loaded handgun during a traffic stop and, because of his prior robbery conviction, charged with unlawful possession of a firearm under Alabama law. After Gamble pleaded guilty to the state charge, federal prosecutors indicted him under the analogous federal statute, and Gamble moved to dismiss on the ground that the federal prosecution violated the Double Jeopardy Clause. Gamble’s argument was doomed to fail in the lower courts, since existing Supreme Court precedent expressly permitted successive state and federal prosecutions for the same conduct under the dual-sovereignty doctrine. His only hope was to convince the Court to overrule its precedent. When his cert petition was granted, it seemed the Justices might be open to reconsidering the doctrine.

In the end, however, it was not a close call for the Court, which ruled 7-2 that the dual-sovereignty doctrine remains the law of the land. Writing for the majority, Justice Alito framed the issue as fundamentally textual: since the Double Jeopardy Clause provides that no person shall “be subject for the same offence to be twice put in jeopardy,” what does it mean to be the “same offence”?  Unlike “the same conduct” or “the same actions,” the Court reasoned, the “same offence” is defined by criminal law, and each sovereign has its own criminal laws. States, as separate sovereigns under our federal system, can be “offended” in different ways by the same conduct, and therefore a crime under state law is not the “same offence” as a crime under federal law.  This principle, the majority observed, was applied in a line of Supreme Court cases reaching back to the 1840s, creating a strong interest in stare decisis that could be overcome only by “special justification.” Weighing against 170 years of Supreme Court precedent was, in the majority’s view, only “muddle[d], “spotty,” and “equivocal” historical evidence that English common law or early American case law barred prosecution following prior prosecution by another nation or state. Similarly, the Court was not persuaded by Gamble’s historical argument that the drafters of the Clause intended it to bar successive prosecution by a state and the federal government. The Court found the record of the drafters’ private intent to be debatable and, in any event, “shoddy evidence of the public meaning” of the text. Gamble also failed to persuade the Court that changing circumstances justified discarding the dual-sovereignty doctrine. The majority found “no logical reason” why incorporation of the Double Jeopardy Clause under the Fourteenth Amendment would have undermined dual sovereignty. Nor was the Court concerned by the increasing overlap between state criminal law and the expanding federal criminal code, given that few federal crimes actually qualify as the “same offence” as state crimes for double jeopardy purposes under the strict rule set out in Blockburger v. United States, 284 U.S. 299 (1932).

In a concurring opinion, Justice Thomas acknowledged that his “initial skepticism of the dual-sovereignty doctrine” had ultimately not been borne out by the historical record. The Founders had no reason to address the dual-sovereignty doctrine because they would not have foreseen the potential for overlapping criminal prosecutions given the federal government’s limited powers. He therefore agreed with the majority’s ruling because he saw no evidence that the dual-sovereignty doctrine is incorrect. But he definitely did not agree that adhering to stare decisis was a sound reason for reaffirming the doctrine. On the contrary, he wrote at length to decry the practice of invoking stare decisis to uphold “demonstrably erroneous precedent.” Instead, Thomas proclaimed that, “[w]hen faced with a demonstrably erroneous precedent, my rule is simple: We should not follow it.” To do so would be to elevate judicial decisions over the Constitution, itself, in violation of the Supremacy Clause. Justice Thomas specifically called out Planned Parenthood v. Casey (1992) in his concurrence, providing more fodder for those who fear he and other conservative justices are chipping away at the doctrine in order to set the stage for overturning Roe v. Wade (1973).

In dissent, Justice Gorsuch agreed with Justice Thomas’s dim view of stare decisis, but disagreed with his view on the historical support for the separate-sovereigns doctrine. The doctrine, he wrote, “finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history.” Because “[t]he separate sovereigns exception was wrong when it was invented, and it remains wrong today,” Justice Gorsuch would do away with it get rid of it, precedent be damned.

Justice Ginsburg also filed a solo dissent. She faulted the majority for drawing too simple an analogy between the dual sovereignty of two nations and the more nuanced structure of our federal system, which is designed to protect individual rights. The framers set up this dual system to protect liberty, not to provide additional opportunities for the government to take it away. She spent a fair amount of time decrying the expansion of federal criminal law, but considerably less than Justice Gorsuch (and Thomas) on side-eyeing stare decisis

Next up, in Manhattan Community Access Corp. v. Halleck (No. 17-1702), the Court held that a private nonprofit corporation that runs New York City’s public access television station is not a state actor subject to the First Amendment. 

The defendant Manhattan Community Access Corp (“MNN”), was a non-profit corporation designated by New York City to operate the Time Warner’s public access channels in Manhattan. The plaintiffs produced a film that was critical of MNN, which caused some controversy when it aired on the public access channels. As a result, MNN suspended the plaintiffs from using the public access channels. The plaintiffs sued MNN, claiming that it had suspended them based on the content of their film, in violation of the First Amendment. The District Court dismissed the complaint on the ground that MNN was not a state actor subject to the First Amendment. The Second Circuit reversed, holding that the City had delegated to MNN the traditional public function of regulating speech in a public forum, i.e., on the City’s public access channels, and MNN was therefore subject to First Amendment constraints.

The Supreme Court reversed, 5-4, in an opinion by Justice Kavanaugh, joined by the four other conservatives. Kavanaugh’s opinion emphasized that the “traditional, exclusive public function” doctrine is extremely narrow. It requires that the government have traditionally and exclusively performed the function at issue in order for the First Amendment to apply to a private entity. That wasn’t the case here. The public function of operating public access channels on a cable system has traditionally been performed by both the government and private entities, such as private cable operators, community organizations, and non-profits. For the majority, that was enough to compel the conclusion that MNN was not a state actor. The fact that the City designated MNN to run the public access channels made no difference, in Kavanaugh’s view. That is akin to the government granting a license or contract to a private entity, which doesn’t convert the licensee or contractor into a state actor. Similarly, New York’s regulation of public access channels does not render MNN a state actor under the Court’s precedents, as the government extensively regulates many private entities. Finally, the majority rejected the claim—embraced by the dissenters—that the public access channels are actually the property of the City. The City doesn’t own or lease either the cable lines or the public access channels and it does not have an easement or any other property interest in them. Therefore, it cannot be that MNN is managing the channels as government property on behalf of the City. Justice Kavanaugh underscored that the majority opinion preserves the right of private parties to use their property free from government control.  “By enforcing that constitutional boundary between the governmental and the private, the state-action doctrine protects a robust sphere of individual liberty.”

Justice Sotomayor led the charge for the dissenters. In her view, the City does have a property interest in the public access channels, which turns them into public fora. The State required the City to obtain public-access channels from Time Warner in exchange for giving it the cable franchise for the City. The City did so, and that, according to the dissent, created a governmental property interest in the channels. The State, moreover, required that the channels serve as a public forum, open to all on a first-come first-served, non-discriminatory basis. In operating that public forum, MNN stands in the shoes of the City and must comply with the First Amendment. This state of affairs distinguishes this case from precedents relied upon by the majority, in which a private entity simply enters the marketplace and is subject to government regulation, but is not considered to be a state actor. MNN is in a very different position, according to the dissent. When the City awarded a cable franchise, and in exchange obtained public-access channels to serve as a public forum, the City was obligated to run those channels consistent with the First Amendment. When the City handed the channels over to MNN run as a public forum, “the Constitution followed,” and “as long as MNN continues to wield the power it was given by the government, it stands in the government’s shoes and must abide by the First Amendment.” 

The Court also split 5-4 in Virginia House of Delegates v. Bethune-Hill (No. 17-281), though on unusual lines. In an opinion by Justice Ginsburg, joined by Justices Thomas, Sotomayor, Kagan, and Gorsuch, the Court dismissed an appeal of a three-judge District Court’s decision holding that 11 districts in Virginia’s state legislative map resulted from an unconstitutional racial gerrymander. The majority concluded that the House of Delegates (one half of its bicameral legislature) did not have standing on its own to purse an appeal of the District Court’s decision. It therefore dismissed the appeal, effectively leaving in place a replacement map drawn by a court-appointed expert, which is more favorable to Democrats than the gerrymandered map. So while the decision turns on a somewhat arcane standing issue, the case could have a significant political impact in Virginia and potentially beyond.

True Court Fans may remember that this case first came before the Court two years ago, as Bethune-Hill v. Virginia State Board of Elections (2017). At that time, the challengers targeted 12 districts that were drawn after the 2010 census, which they alleged were the result of a racial gerrymander. The District Court rejected the challenge for 11 of the districts because the plaintiffs had not shown that there was an “actual conflict between traditional redistricting criteria and race” that led to the subordination of legitimate criteria in favor of impermissible racial considerations. The Supreme Court reversed, holding that the plaintiffs did not need to demonstrate an actual conflict between race and permissible criteria in order to show that race was the “predominant factor” motivating the legislature’s decision. On remand, the District Court ruled that the 11 districts had been unconstitutionally gerrymandered. A few weeks later, Virginia’s Democratic Attorney General announced that the State would not pursue an appeal of the District Court’s decision. When the Republican controlled House of Delegates, which had intervened as a defendant in the case, filed its own appeal, the State defendants moved to dismiss for lack of standing.

An unusual coalition of Justices Ginsburg, Thomas, Sotomayor, Kagan, and Gorsuch agreed that the House of Delegates lacked standing to pursue the appeal, and therefore dismissed it. Writing for the majority, Justice Ginsburg recited the threshold requirements for standing, that a litigant show (1) a concrete and particularized injury, that (2) is fairly traceable to the challenged conduct, and (3) is likely to be redressed by a favorable decision. The House did not have standing to pursue the appeal on behalf of the State because, under Virginia law, the authority and responsibility for representing the State’s interests rest exclusively with the Attorney General, who declined to pursue the appeal (or designate the House to do so). Justice Ginsburg also concluded that the House did not have standing to pursue the appeal in its own right. The Court has never held that a judicial decision invalidating a state law inflicts a discrete, cognizable injury on each organ of government that participated in the law’s passage. Whereas the Court has previously recognized that both houses of a bicameral legislature acting together have standing to defend their laws, that does not go for just one chamber of the legislature. And while redrawing district lines may affect individual legislators within the House of Delegates, the House as an institution has no interest in the identity of its members; changes to its membership brought about by redistricting therefore inflicts no cognizable injury on the House for standing purposes. “In short,” Ginsburg concluded, “Virginia would rather stop than fight on. One House of it bicameral legislature cannot alone continue the litigation against the will of its partners in the legislative process.”

Justice Alito dissented, joined by the Chief, Breyer, and Kavanaugh. He did not quibble with the first part of the majority’s opinion, but argued that the House independently has standing because the new redistricting map inflicted a discrete institutional harm on it. A legislative districting plan “powerfully affects a legislative body’s output of work.” After all, “[i]f  the selection of a districting plan did not alter what the legislative body does, why would there be such pitched battles over redistricting efforts?” Alito squarely rejected the majority’s view that the House as an institution has no interest in the identity of its members. Surely any group consisting of members has an interest it the identity of those members. “Does a string quartet have an interest in the identity of its cellist? Does a basketball team have an interest in the identity of its point guard?” In other cases where the Court has found that individual legislators lack standing to challenge the constitutionality of a statute, the Court has been primarily concerned with the separation of powers, which Alito insisted is not at issue here, in part because the States are under no obligation to follow the Federal Constitution’s model when it comes to separation of powers in the first place. Because the replacement redistricting plan would undoubtedly affect the membership, and therefore the work, of the House of Delegates, Alito would hold that it had standing to appeal.

Finally, in another case out of the Old Dominion, Virginia Uranium, Inc. v. Warren, No. 16-1275, the Court upheld a state moratorium on uranium mining against a federal preemption challenge. In 1983, Virginia banned all uranium mining in the Commonwealth. A few decades later, after failing in its efforts to overturn the moratorium in the legislature, Virginia Uranium (owner of the largest uranium deposit in the U.S., which happens to be in southcentral VA), sued, arguing that the federal Atomic Energy Act preempted the Commonwealth’s mining ban. The District Court, and the Fourth Circuit, and now six justices of the U.S. Supreme Court disagreed. For uranium miners, the case has obvious significance. For the rest of us, the competing opinions are notable for their discussion of state legislative purpose in a preemption analysis.

But first, a primer on uranium processing, which turns out to be necessary to understanding the case. It’s actually surprisingly straightforward: First, a company uses conventional mining techniques to extract raw uranium ore. Second, it “mills” that ore into a usable form by grinding the ore into sand-sized grains and exposing the grains to a chemical solution that leaches out the pure uranium. It typically does this at the mining site. Third, the solution dries to form “yellowcake,” which the company sells to enrichment facilities to produce nuclear fuel. Finally, the company stores whatever uranium is left from the leaching process near the mining site. The industry calls this “tailings,” but the rest of us tend to call it “nuclear waste.”

Okay, back to the case. In a 3+3-3 decision, the Court held that the AEA did not preempt Virginia law. The lead opinion by Justice Gorsuch (joined by Thomas and Kavanaugh) rested heavily on the statutory language of the AEA. Gorsuch reasoned that the AEA does not expressly preempt state law, nor does it give NRC jurisdiction to regulate uranium mining on private lands. By contrast, the AEA does give the NRC the power to regulate uranium mills and tailings-disposal facilities, and requires those facilities to get an NRC license. In fact, the AEA says that the NRC’s powers arise only “after removal from its place of deposit in nature.” 42 U.S.C. § 2092. Virginia Uranium proposed a reading of a separate section of the statute—42 U.S.C. § 2021(k)—which permits limited cooperative federalism for regulating radiological hazards contains a savings clause. The company argued that a savings clause in this provision left Virginia unable to regulate mining on private land. Gorsuch disagreed, dismissing the strained reasoning and recognizing that the mining company’s interpretation would leave mining wholly unregulated. “Talk about squeezing elephants into mouseholes,” Gorsuch quipped. He then waded into the role of a state’s legislative purpose in the preemption analysis. The mining company argued that Virginia regulated uranium mining as a pretext for regulating a field that is pre-empted (uranium milling and tailings). It relied on an earlier case, Pacific Gas & Electric Co. v. Energy Resources Commission (1983), which looked at California’s reason for imposing a moratorium on new nuclear power plants. Justice Gorsuch tried to rein in an expansive reading of PG&E, characterizing the case as looking at the state’s legislative purpose only because the California moratorium affected “core federal powers reserved to the federal government by the AEA.” By contrast, Virginia’s moratorium on mining touched an activity “far removed from NRC’s historic powers.” Because inquiring into legislative purpose poses risks to state sovereignty and individual liberties, Justice Gorsuch said that the PG&E inquire should be limited to cases involving core powers. Finally, Justice Gorsuch provided a general attack on the property of inquiring into state legislative purposes. He believes that such an inquiry undermines open and rigorous democratic debate and instead encourages state legislatures to “resort to secrecy and subterfuge” He concluded that efforts to ascribe unenacted purposes and objections to any statute—federal or state—is unrealistic because a many-membered legislature might not have a singular purpose. Instead, Justice Gorsuch believes the only thing a court can be sure of is the law itself.

Justice Ginsburg (joined by Sotomayor and Kagan), agreed with Gorsuch’s statutory analysis, his efforts to distinguish PG&E, and his sole reliance on the statutory text. However, she and the others declined to join his sweeping condemnation of the reliance on legislative purpose. Ginsburg argued that this case didn’t require such a stark rule because Virginia’s moratorium wasn’t actually a pretext for regulating uranium milling and tailings, even though the ban makes it unlikely that such activities will take place within the state’s borders.

Chief Justice Roberts (joined by Breyer and Alito) argued that the majority (pluralities?) was ducking the real issue. He thought that a state cannot regulate a non-preempted field (mining) as a pretext for regulating a field that is preempted (uranium milling and tailings). The Chief explained that preemption occurs when the state’s “purpose is to regulate within a preempted field.” As a result, he believed there should be a burden-shifting test: Once there is an allegation of pretext, Virginia should have to put forward a non-pretextual reason for the mining ban. He recognized that a savvy state could have its yellowcake and eat it too by “try[ing] to regulate one activity by exercising their authority over another.” The purpose of the preemption analysis was to figure out if a state was trying to do just that. Chief Justice Roberts said that looking solely at the text of the statute turns a blind eye to a state’s real purpose.

That’s about enough for today, but we’ll be back tomorrow with the latest.

Dave and Tadhg