Supreme Court Update: Trump v. Int'l Refugee Assistance Project (16-1436), Trump v. Hawaii (16-1540), Masterpiece Cakeshop v. Colorado Civil Rights Comm'n (16-111), Digital Realty Trust, Inc. v. Somers (16-1276), Parvan v. Smith (16-992), Hicks v. United States (16-7806), Peruta v. California (16-894), Bay Point Properties v. BP Properties (16-1077), and Mathis v. Shulkin (16-677)

June 26, 2017 Supreme Court Update

Greetings, Court Fans!

It is finished. October Term 2016, that is. This morning, the Court handed down decisions in four of its six remaining cases for OT16 (with two cases that were argued before Gorsuch joined the Court being scheduled for reargument in the Fall, meaning it will be up to him to break an apparent 4-4 split in Jennings v. Rodriguez (No. 15-1204) and Sessions v. Dimaya (No. 15-1498), both immigration cases).

Here's how the final four went down: In Trinity Lutheran Church of Columbia v. Comer (No. 15-577), the Court held (7-2, but with some additional disagreement about the scope of the opinion) that a Missouri Department of Natural Resources policy of offering state grants to secular schools and organizations for the purchase of rubber playground surfaces made from recycled tires, but withholding these grants from otherwise qualified churches and religious organizations, violates the Free Exercise Clause of the First Amendment. In California Public Employees Retirement System v. ANZ Securities (No. 16-373), the Court held (5-4) that "American Pipe tolling," whereby the filing of a class action lawsuit can serve to toll the statute of limitations for class members' individual claims, does not apply to the three-year statute of repose in the Securities Act, because statutes of repose are generally not subject to equitable tolling. In Davila v. Davis (No. 16-6219), the Court held (5-4) that ineffective assistance of postconviction counsel does not provide cause to excuse the procedural default of an ineffective-assistance-of-appellate-counsel claim. And in Hernandez v. Mesa (No. 15-118), a Bivens case involving interesting questions of the Fourth Amendment's extraterritorial application, the Court issued a per curiam opinion (over disparate dissents from Thomas and Breyer) vacating the lower court's decision and remanding for reconsideration in light of Ziglar v. Abbasi, the decision handed down last week limiting the scope of Bivens actions.

We'll have more fulsome summaries of these decisions, as well as those outstanding from last week, in short order. But the final day of the term was so jam packed with other news that we must pause from our regularly schedule programming to bring you this special "orders only" Update.

The biggest news coming out of One First Street this morning was the Court's grant of the Government's cert petitions in Trump v. Int'l Refugee Assistance Project (No. 16-1436) and Trump v. Hawaii (No. 16-1540), aka the "travel ban" cases. The cases will be consolidated and put on an expedited briefing schedule so that they are argued during the first session of October Term 2017. In addition to granting cert, the Court granted the Government's applications to stay the preliminary injunctions against enforcing implementing Executive Order No. 13780 (referred to by the Court as EO-2) "in part." And it's the "in part" part that resulted in 13-page per curiam opinion, and a 3-page dissent.

As our non-troglodyte readers are no doubt aware, EO-2 is President Trump's second attempt at suspending the entry of foreign nationals while executive agencies review visa-adjudication procedures. (It's either a "Muslim ban" or an "immigration pause" depending on your perspective, but we're just going follow the Court's lead and call it EO-2.) E0-2 attempted to get around some of the infirmities of the first order by providing specific justifications for barring entry of foreign nationals from six countries—Iran, Libya, Somalia, Sudan, Syria, and Yemen—whose nationals, the Administration determined "continue to present heightened risks to the security of the United States." Section 2(c) of the Order suspends entry from these six countries for 90 days from the effective date of the order (identified in § 14 as March 16, 2017). Section 2(a) directs the Secretary of Homeland Security to conduct a global review to determine whether foreign governments provide adequate information about nationals applying for U.S. visas. Section 6(a) suspends the entry of refugees for 120 days following the effective date and orders the Secretary of State to review the vetting of refugees. Meanwhile, § 6(b) separately reduces the U.S. refugee quota to 50,000 for the fiscal year.

For some reason, EO-2 did not satisfy critics and, like the first order, it was immediately challenged in courts throughout the country, both as a violation of the Establishment Clause (in that it targets majority-Muslim nations) and as a violation of certain provisions of the Immigration and Nationality Act. (Disclosure: In coordination with Yale Law School's Rule of Law Clinic, Wiggin and Dana represents a group of former national security officials as amici curiae in cases challenging EO-2, including the cases accepted for review.) In Int'l Refugee Assistance Project v. Trump (IRAP), a district judge in Maryland concluded that the challengers were likely to succeed on their Establishment Clause claim with respect to § 2(c) (the entry ban) and issued a nationwide preliminary injunction barring the Government from enforcing § 2(c) against any foreign national seeking entry to the U.S. In Hawaii v. Trump (Hawaii), a district judge in Hawaii also invoked the Establishment Clause, but issued a broader preliminary injunction, barring (nationwide) the enforcement of all of §§ 2 and 6, including the provisions pertaining to executive review of visa adjudication and the provisions relating to refugee admission and the refugee cap. The Fourth Circuit affirmed the preliminary injunction in IRAP, and the Ninth Circuit largely affirmed in Hawaii, albeit on alternate grounds, ruling that EO-2 exceeded the President's authority under the INA. The Ninth Circuit also narrowed the lower court's injunction so that it would not bar the Government from undertaking the executive reviews described in § 2(a) and elsewhere, but left in place the injunction on § 2(c) and all of § 6.

The Government filed cert petitions in both cases and sought stays of the preliminary injunctions entered in the lower courts. Meanwhile, a new issue came to the fore. As the respondents in IRAP pointed out, § 2(c)'s entry ban was to expire on its own terms 90 days after the Order's "effective date" (i.e. June 14) even though it had never actually gone into effect thanks to the preliminary injunctions. Therefore, the respondents argued, the cases would be moot before the Court could weigh in. President Trump reacted to this argument by issuing a memorandum to Executive Branch officials on June 14 declaring the effective date of the enjoined provisions of EO-2 to be the date on which the injunctions are lifted or stayed with respect to each provision.

Which brings us, at last, to today's order. The Court has granted the Government's petitions for certiorari (no surprise) and will consider the following questions next term: (1) Whether certain respondents lack standing; (2) Whether § 2(c)'s suspension of entry violates the Establishment Clause; (3) whether the temporary injunctions are impermissibly overbroad; and (3) (a question added by the Court), "[w]hether the challenges to § 2(c) became moot on June 14, 2007."

With respect to the stay applications, the Court granted the Government's applications to stay the lower courts' injunctions to the extent they prevent enforcement of § 2(c) with respect to "foreign nationals who lack any bona fide relationship with a person or entity in the United States" but left the injunctions in place "with respect to respondents and those similarly situated." As the Court explained, "[i]n practical terms, this means that §2(c) may not be enforced against foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States. All other foreign nationals are subject to the provisions of EO-2" while the case remains pending. That's easy enough to understand with respect to foreign nationals with relatives in the United States (like John Doe's wife and Dr. Elshikh's mother-in-law), but a little trickier with respect to entities. According to the Court, "for entities, the relationship must be formal, documented, and formed in the ordinary course, rather than for the purpose of evading EO-2." So foreign students already admitted to U.S. colleges can come in, as can workers who had already accepted offers of employment from U.S. companies or lecturers already invited to address U.S. audiences. But "[n]ot so someone who enters into a relationship simply to avoid §2(c): For example, a nonprofit group devoted to immigration issues may not contact foreign nationals form the designated countries, add them to client lists, and then secure their entry by claiming injury from their exclusion." A similar logic applies to the injunction of § 6's refugee provisions: "An American individual or entity that has a bona fide relationship with a particular person seeking to enter the country as a refugee can legitimately claim concrete hardship if that person is excluded." So the injunction remains in effect as to those individuals and entities, but not those "who lack any such connection to the United States."

Writing separately, Justice Thomas (joined by Alito and Gorsuch) would have granted the Government's stay applications in full. Perhaps reading a bit more into the per curiam opinion than the rest of the Court intended, Thomas registered his agreement "with the Court's implicit conclusion that the Government has made a strong showing that it is likely to succeed on the merits," one of the requirements for granting a stay application. And, in his view, the Government had the more compelling case on the equities, when weighing its "interest in preserving national security against the hardships caused to respondents by temporary denials into the country." He therefore saw no reason to keep the injunctions in place with regard to an "unidentified, unnamed group of foreign nationals abroad." The Court's decision to do so, Thomas maintained, will simply result in further litigation over who has a sufficiently "bona fide relationship" with a person or entity in the U.S. to gain admission notwithstanding the partial implementation of § 2(c).

To be clear, the Court did not decide the constitutionality of the "travel ban" order today; it merely granted certiorari to consider that question (among others) in October and partially stayed lower-court injunctions on the implementation of the Order in the meantime. Strictly speaking, by granting the Government's stay application in part the Court has indicated that the Government has shown a "likelihood of success on the merits" (which may be why @realdonaldtrump tweeted today that he is "Very grateful for the 9-O decision from the U.S. Supreme Court"), but given how much of the injunctions remain in place it seems premature to be celebrating if you're the kind of person who refers to it as an "immigration pause" or weeping if you believe it's a "Muslim ban." Whatever your views, the Court's decision to grant cert, while not surprising, sets the stage for a momentous October showdown on executive power and the Establishment Clause.

The decision to grant cert in the travel-ban cases overshadowed two other cert grants, one of which would be headline news on any other day. After a record 14 relists (i.e. occasions when the Court neither granted or denied cert at a conference, but instead relisted the case for consideration at the following conference), the Court finally granted cert in Masterpiece Cakeshop v. Colorado Civil Rights Comm'n (No. 16-111), which asks whether applying Colorado's public-accommodations law to compel a self-identified "cake artist" to create wedding cakes for same-sex marriage celebrations violates his sincerely held religious believes in violation of the Free Speech or Free Exercise Clauses of the First Amendment. The issue of whether States can compel "creative" wedding vendors to cater to same-sex couples has made headlines in recent years, but the Court had previously declined to weigh in on a similar challenge by a New Mexico wedding photographer. The delay in taking action in Masterpiece led many to believe a denial with a lengthy dissent was in the works. But instead the Court has agreed to take the case, teeing up another potential blockbuster for OT17.

The other case accepted for argument next term is no slouch, either. In Digital Realty Trust, Inc. v. Somers (No. 16-1276), the Court will decide the Dodd-Frank Act's anti-retaliation provision for whistleblowers extends to individuals who have not reported alleged misconduct to the SEC and thus fall outside the Act's definition of "whistleblower."

The Court also granted cert—but immediately reversed and remanded—in Parvan v. Smith (No. 16-992), holding that an Arkansas state law that requires the name of a married woman's male spouse to be included on her child's birth certificate, but does not similarly require the name of a married woman's female spouse to be included, violates the Constitution. As the majority noted in a per curiam opinion, Obergefell v. Hodges (2015) established that the Constitution entitles same-sex couples to civil marriage ‘on the same terms and conditions as opposite-sex couples." The Court concluded that the differential treatment of same-sex spouses from opposite-sex spouses in the rules governing birth certificates "infringes Obergefell's commitment to provide same-sex couples the ‘the constellation of benefits that the States have linked to marriage.'" The Court therefore summarily reversed the opinion of the Arkansas Supreme Court, which had upheld the rules, notwithstanding Obergefell, as having to do with the status of biological fathers, not the marital relationship between spouses.

Justice Gorsuch dissented, joined by Thomas and Alito (but not the Chief, the third surviving dissenter in Obergefell). In the dissenters' view, this was hardly a case that cried out for summary reversal, which is generally reserved for cases where the law is "settled and stable . . . and the decision below is clearly in error." While Obergefell definitively addressed the question whether a State must recognize same-sex marriages, it did not speak to the question presented in this case, which asked whether a statute establishing rules meant to ensure that the biological parents of a child are listed on the child's birth certificate are unconstitutional merely because they make a presumption that a married woman's spouse is the father of her child. (Gorsuch was not persuaded that the fact that the rules required naming the male spouse as the father even in cases of artificial insemination revealed any unconstitutional discrimination.)

There was another GVR in Hicks v. United States (No. 16-7806), accompanied by an interesting exchange between the Chief and Justice Gorsuch the appropriate role of the Court in facilitating a just resolution in criminal cases where there is undisputed error. Hicks pleaded guilty to selling 50 grams or more of crack and, because of a prior conviction, sentenced to a whopping twenty years in the slammer. After he was sentenced, but before he took his appeal, the Supreme Court decided Dorsey v. United States (2012), which held that the Fair Sentencing Act's reduction of the crack:cocaine disparity applied retroactively to people (like Hicks) who had been convicted but not yet sentenced at the time of the FSA's enactment. But Hicks's appellate lawyer failed to raise the issue and failed to advise him of his right to seek certiorari. On collateral review, with a new lawyer, Hicks argued that Dorsey applies to him, so he should be resentenced. The Government agreed that Hicks should have been sentenced pursuant to the FSA and urged the Court to grant, vacate, and remand to the Fifth Circuit to consider whether the error satisfies the Olano "plain error" standard, i.e. whether it affected Hicks's substantial rights and implicated the fairness, integrity, or public reputation of judicial proceedings. Dissenting, the Chief (joined by Thomas) did not believe that the Government's position was enough to warrant the Court's action. Inasmuch as the Government did not concede that the plain-error test was satisfied (only that the Court should remand to the Fifth Circuit to take up that question), there was no basis for vacating the Fifth Circuit's judgment. Justice Gorsuch disagreed, in an opinion concurring in the GVR. In his view, if everyone agrees that there was an error, there is no reason not to remand to the lower court's to consider the effect of the error, as is routinely done in cases in the ordinary course. And, while the Government had not expressly conceded as much, it is obvious that the plain error in sentencing did affect Hicks's substantial rights (remember that 20 year sentence?) and does impact the fairness and integrity of the judicial proceedings.

That covers all the cert grants, but there were more fireworks in the denial section of the Order List. In Peruta v. California (No. 16-894), the Court denied certiorari in a case asking whether the Second Amendment protects the right to carry firearms in public for self-defense. The case arose out of a challenge to a California law generally prohibiting the carrying of firearms in public (whether in the open or concealed), subject to an exception for individuals with "good cause" to carry. The state law authorizes counties to set rules for when an applicant has shown "good cause" to carry a firearm in public. In San Diego, the sheriff has interpreted the provision to require a particularized, documented need to carry a firearm for self-defense. A Ninth Circuit panel struck down the law, concluding 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." But an en banc panel of the same court reversed, finding that the challengers had really only challenged the regulatory scheme to the extent it prohibited carrying concealed weapons (which it held is not protected by the Second Amendment) and declining to review the broader question of whether the Second Amendment might protect the right to carry firearms openly in public. That procedural blemish probably gave the Court reason enough to deny cert. But Justice Thomas penned a lengthy dissent from denial (joined by Gorsuch) excoriating the en banc Ninth Circuit's "indefensible" approach to the case and insisting that there was no reason to wait for a cleaner case raising the general question of whether the Second Amendment protects the right to carry firearms in public. (No surprise, but Justice Thomas also previewed his views on that question.)

Thomas and Gorsuch teamed up again in Bay Point Properties v. BP Properties (No. 16-1077), a case challenging a Mississippi law limiting the compensation that the State must pay in cases where it negotiates an easement limited to one purpose but later uses the land for an entirely different purpose. Though he did not dissent from the denial, Gorsuch, joined by Thomas, issued a statement urging the Court "take up [this question] at its next opportunity." (We suspect there are plenty of libertarian think tanks who would be happy to furnish the Court with that opportunity.)

Gorsuch was at it again in Mathis v. Shulkin (No 16-677), where the Court denied review in a case challenging a Federal Circuit ruling creating a presumption of competency for all Veterans Affairs medical evaluators to render expert opinions against veterans seeking compensation for disabilities they've suffered during military service. Dissenting from the denial, Justice Gorsuch argued that there is no statutory basis for this presumption and, in practice, places an extremely onerous burden on veterans to disprove these medical opinions without even having access to the information upon which the opinions are based. He would have granted cert in recognition of the importance of the issue to many injured veterans. Justice Sotomayor, meanwhile, issued a "statement . . . respecting the denial of certiorari" agreeing that the petition "raises important questions about how the Government carries out its obligations to our veterans," but concluding that, because the petitioner in this case did not ask the VA to provide his examiner's credentials, the record was inadequate for review. "Full review would require a petition arising from a case in which the VA denied a veteran benefits after declining to provide the medical examiner's credentials." (Again, we suspect such a petition will be making its way to One First Street forthwith.)

Well, that takes care of today's Orders. But finally, a clarification. We indicated at the outset that the biggest news coming out of the Court today was the decision granting cert in the travel-ban cases. Strictly speaking, that's true, but surely the biggest non-news was the lack of any announcement from Justice Kennedy that he would be retiring from the Court. There had been much speculation throughout the term (fueled in part by the accelerated scheduling of a semi-annual Kennedy clerk reunion) that Justice Kennedy might hang up his robes at the end of the term. While he could certainly make an announcement at any time over the summer (as Justice O'Connor did, for example), it seems likely that we'll see him robe up again in October with the rest of the Nine. And, really, given what's already on the docket for next term, how could he resist?

We'll be back (in all likelihood) several times before next term, to bring you up to speed on the last decisions of OT16. Stay tuned!