It’s back to business for the court today after the excitement of last Thursday’s special session for the investiture of Justice Neil Gorsuch. Retired Justice John Paul Stevens, who was present for the investiture, is back in the courtroom this morning, taking a seat next to Reporter of Decisions Christine Fallon.
Going into today, there are 17 pending merits decisions, and some uncertainty about whether the court will add an additional opinion day or two this week. We’ll get an answer at the very end of today’s session.
All nine justices take the bench on time this morning, in contrast to the delayed start to the investiture, which may have been caused by the various pictures and other behind-the-scenes activities involving President Donald Trump and first lady Melania Trump.
On this day after Father’s Day, Chief Justice John Roberts seems to be still basking in the glow of the proud father. In recent days, the Cardigan Mountain School in Canaan, New Hampshire, released a YouTube video of Roberts’s speech earlier this month at the 9th grade commencement ceremony for his son, Jack.
Roberts’ remarks were gracious, inspiring, funny — and brief. He urged the boys (it’s an all-boys school) to write a note once a week — on paper, not in email — to an adult, such as a past teacher. He told them they were privileged but they shouldn’t act like it, and he urged them to introduce themselves to those who clean and shovel the walks at their new schools. And he closed by quoting lyrics from Bob Dylan’s “Forever Young.”
Back on the bench, Roberts announces that Justice Samuel Alito “has the opinion of the court in two cases.”
The first one is Matal v. Tam, Alito says. He mentions “trademark” and the “Lanham Act” and that “we affirm” the ruling below, but not much more before he is announcing the complicated lineup, which is a unanimous judgment among participating justices but with only parts of his opinion signed by a majority.
If one didn’t know that Michelle Lee had recently left as director of the U.S. Patent and Trademark Office, and been replaced by interim Director Joseph Matal, one might not immediately recognize this as one of the bigger cases of the term, argued under the caption Lee v. Tam. This is the big fight over the Lanham Act’s disparagement clause and its effect on the Asian-American rock band called The Slants.
In the courtroom, it is not immediately clear why Alito is giving such an expedited announcement. Is it because he doesn’t want to delve publicly into some of the disparaging names that have been raised in the case? Or is it just because the judgment is too complex to lend itself to easy summary?
Before we can even finish pondering that, Alito is on to his second case, Bristol-Myers Squibb Co. v. Superior Court of California. He doesn’t spend much more time than he did on the Tam summary to explain the ruling that California’s courts lack specific jurisdiction to hear the claims of nonresidents over injuries allegedly caused by the pharmaceutical giant’s drug Plavix. Alito says the Supreme Court has reversed the judgment of the “court of appeals” before correcting himself to say that it is the California Supreme Court that has been reversed and remanded.
Justice Stephen Breyer is next with the opinion in McWilliams v. Dunn, which holds that under certain circumstances the state must provide a criminal defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to assist in preparing and presenting a defense.
The vote is five to four along the lines of “the usual suspects,” to cite a phrase Breyer has mentioned in recent speeches. He means the liberal versus conservative blocs, and in this case it is Justice Anthony Kennedy joining him and Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, while the newly constituted conservative bloc of Roberts and Justices Alito, Clarence Thomas, and Gorsuch are in the minority.
The chief justice announces that “Justice Kennedy has the opinion of the court in two cases.”
Packingham v. North Carolina is first, about that state’s law that bars those on its sex offender registry from accessing commercial social-media sites. Based on the tenor of oral arguments in the case, and Kennedy’s opening lines about “cyberspace” being one of the “most important places for the exchange of views,” things do not look good for the state statute.
Kennedy tosses out the names of social-media sites such as Facebook, Twitter, and LinkedIn, explaining that they are places for users to exchange political and social views with others, including petitioning their representatives on Twitter.
He explains that the “Cyber Age may be a revolution of historic proportions” and thus the court should proceed cautiously. Still, the North Carolina law was not sufficiently narrowly tailored to survive First Amendment scrutiny because it bars those on the sex offender registry from “vast realms of human thought and knowledge.” He stresses that the states may be able to enact more specific, narrowly tailored laws that prohibit a sex offender from “engaging in conduct that presages a sexual crime,” such as contacting a minor or using a website to gather information about a minor.
Kennedy explains that Alito has filed an opinion concurring in the judgment, joined by Roberts and Thomas, and that Gorsuch did not participate.
Kennedy’s second opinion is in Ziglar v. Abbasi, about whether a so-called Bivens civil rights action is available to six people of Arab or South Asian descent detained after the Sept. 11, 2001, terrorist attacks who challenged the conditions of their confinement.
Kennedy’s opinion for a four-justice majority (out of six participating) holds that most of the Bivens actions brought by the detainees should not have been allowed to go forward.
“Judicial inquiry into the national security realm raises serious separation-of-powers concerns,” Kennedy says. He is joined in full by Roberts and Alito, and for the most part by Thomas. Sotomayor and Kagan did not participate for unspecified reasons of recusal, and Gorsuch did not participate because he was not on the court when the case was argued.
Breyer has written a dissent, joined by Ginsburg, which he will read from at some length from the bench. It is the first dissent from the bench in a term in which some were predicting we might not see any at all.
“The majority concludes that the plaintiffs cannot or may not be able to bring their suit, even if they prove their allegations and even if the defendants violated clearly established constitutional commands,” Breyer says. “Justice Ginsburg and I disagree. In our view, Bivens actions should continue to provide appropriate compensation for those deprived of important constitutional rights and in times of special national-security need.”
Breyer goes on for a good 15 minutes. Alito mostly looks down or out toward the crowded courtroom, as do the other justices.
“We understand the majority’s basic concern, namely that federal officials might hesitate in carrying out their security-related responsibilities if they fear future lawsuits for damages with an attendant risk of judicial second-guessing of decisions,” Breyer says.
In time of war or national-security emergency, Bivens actions “may be particularly needed,” he adds. “History warns of the risk to liberty in times of national crisis.” He cites the Alien and Sedition Acts, the suppression of civil liberties during World War I, and the internment during World War II of “70,000 American citizens of Japanese origin.”
While the majority points to suits for injunctive relief that may be brought to challenge government overreach, those are filed during national emergencies when the courts may be hesitant to interfere. “A damages action, however, is typically brought after the emergency is over, after emotions have cooled, and at a time when more factual information is available,” Breyer says.
He closes by citing Lord Atkins, a British judge who wrote during World War II that “amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace.”
“The court should say the same here,” Breyer concludes.
With that, the chief justice signals to Clerk of the Court Scott Harris to begin today’s bar admissions. They are the last scheduled bar admissions of the term, and they include groups from the U.S. Department of Justice, George Washington University Law School, and Georgetown University Law Center.
Once the new Supreme Court Bar members are sworn in, Marshal Pamela Talkin bangs her gavel and announces that the court will return to the bench on Thursday.
Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Bristol-Myers. The author of this post, however, is not affiliated with the firm.