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This week’s opinions in plain English

To all of the Court watchers out there:  It’s June! For those of us who love the Court, June is our post-season, March Madness, and November sweeps all rolled into one.  In short, you know it’s June when it is getting hot and muggy in Washington, school is out (or at least almost out), and there are still tons of opinions to come before the Justices take off for their summers around the globe.

And this June does not disappoint.  On Tuesday, the Court handed down opinions in five cases and granted cert. in another.  It’s no surprise that we got so many opinions in one day – June is a short month, and the Court has yet to announce its decisions in twenty-six more argued cases – approximately one-third of the Court’s docket for the Term.  Included in this list of as-yet-undecided cases are controversies over the First Amendment, privacy in text messaging, sentencing, patents, and other (perhaps more arcane) issues.

But let’s start with this week’s opinions, even as we anticipate those to come.  Making the biggest splash was Berghuis v. Thompkins, a case about Miranda rights.  If you have ever watched Law & Order, you already know all about Miranda – the police must advise a suspect in custody that he has the right to remain silent and the right to an attorney before they can ask him questions, or “interrogate” him.  We have known for a while that the right to an attorney is not automatic:  if a defendant does not explicitly ask for an attorney, the police can continue to interrogate him.  But in an opinion that some have already criticized as going against common sense, the Court in Berghuis held that the same rule applies to the right to remain silent.  In other words, a criminal defendant cannot merely remain silent, but must advise the police that he intends to do so; if he does not, the police may continue to question him.  That’s what happened in this case:  After several hours of questioning during which the defendant remained silent, he answered only one question, and his answer was used against him in his trial.

In Carr v. United States, the Justices took a look at the national sex offender registry, established by Congress in 2006.   The petitioner in the case was Thomas Carr, who had been convicted of a sex crime in Alabama; after his release from custody, he moved to another state but did not register as a sex offender there.  Although both his conviction and his move happened before the Sex Offender Registration and Notification Act (SORNA) went into effect, he was still charged with violating the Act by failing to register in his new state.  In deciding the case in Carr’s favor, the Court looked to the text of SORNA:  in its view, the words that Congress had used in the law suggested that it did not intend the law to apply to sex offenders convicted before SORNA’s passage.

This case is a classic example of the Court parsing the language in a law to glean Congress’s intent.  For example, Justice Sotomayor noted in her majority opinion that Congress used the present tense – “travels” – when it was talking about sex offenders who move from state to state.  Had Congress used the past tense (“traveled”), it could more properly have been construed to include sex offenders convicted before the statute was passed.  Statutory language is important, because it’s only through the text of the statute that people know what the law requires them to do (or not do, as the case may be).  So Congress could go back here and amend the language of the statute if it wants to cover sex offenders convicted before SORNA, but the Court can only interpret the language before it.

One other important thing about this case is that it involves Congress’s invocation of its power under the Constitution to regulate activities involving interstate commerce.  That’s why it’s important that Carr traveled between states; otherwise, Congress could not properly regulate his actions.

In Samantar v. Yousuf, the Court held that the Foreign Sovereign Immunities Act – a law that protects foreign countries from being sued in U.S. courts – did not shield an official from Somalia from suit in the United States.  [Disclosure:  Akin Gump and Howe & Russell represented the respondents in the case.]  The former Prime Minister, Mohamed Ali Samantar, was accused of brutal torture of Somali citizens, but he asserted that he could not be sued because the Act prohibited suits against foreign officials in U.S. courts.  Again using tools of statutory interpretation to read the statute closely, the Court disagreed, concluding that the language of the statute prevented suits against foreign states, but not against officials of those states.  The torture victims’ suit against Samantar can continue – leading to a result that many regard as in the best interests of justice – although the Court left open the possibility that Samantar could still avoid being held liable on some other grounds.

One other thing to note about Samantar is that the Court’s decision was unanimous.  It’s interesting to note that an awful lot of people think that the Court is split five-to-four pretty much all of the time, with Justice Kennedy casting the deciding vote.  That’s one predictable scenario, but unanimity is another.  For example, in the forty-six argued cases the Court has decided this Term, it has been unanimous in twenty, or almost half.  Even more typical is that all nine Justices agreed on the outcome in the case, but they didn’t agree on how to get there, resulting in a number of concurring opinions.

The Court also decided an original action, which is a case that begins in the Supreme Court rather than ending up there through the appellate process.  The most typical original case is one like Alabama v. North Carolina, in which a state is suing a state.  This controversy involved the location of a nuclear waste facility.  North Carolina, under a contract with six other states, agreed to locate the facility within its boundaries, but it relied on a promise from the other states to give it the money to do so.  Although North Carolina accepted funds from the group of states but never built the plant, the Court held that it did not need to repay the group, in part because the contract between the states did not provide for monetary sanctions and because North Carolina did not breach the contract or act in bad faith.

Finally, in Levin v. Commerce Energy, the Court held that state courts, rather than federal courts, should decide claims of discriminatory state taxation – a principle known as “comity.”

What’s next?  Well, we’re still looking for decisions in some of the most exciting cases of the Term, including Bilski (the biggest patent case to come along in years), Christian Legal Society (a case about funding to school clubs that discriminate on the basis of religious beliefs), and Doe v. Reed (a case involving disclosure of signatures on referendum petitions).  Stay tuned!