Supreme Court

  • January 10, 2017
    Guest Post

    by Stephen I. Vladeck, Professor of Law, the University of Texas School of Law and Author of the New ACS Issue Brief, “The Bivens Term: Why the Supreme Court Should Reinvigorate Damages Suits Against Federal Officers

    It is, of course, a coincidence that the very last oral argument the Supreme Court will hear during the Obama administration and one of the first it will hear during the Trump administration both involve remedies for constitutional violations by federal government officers. And yet, the fortuitous timing only underscores why these two cases—Ziglar v. Abbasi and Hernández v. Mesa—are, as my new ACS Issue Brief explains, likely the most important cases the Justices have heard in decades on the scope of so-called “Bivens suits,” and could well turn out to be among the most significant rulings the Court hands down this Term. [Full disclosure: I am co-counsel to the Petitioners in Hernandez. This post, like the Issue Brief, reflects my personal views, and not necessarily those of the Petitioners or their counsel.]

    The facts of Abbasi and Hernandez are sharply different. In Abbasi, a group of immigrants are seeking to challenge their allegedly unconstitutional treatment while detained as part of the post-9/11 roundup of Muslim and Arab non-citizens in and around New York City. Specifically, the plaintiffs allege that senior government officials—including Attorney General Ashcroft and FBI Director Mueller—knew that they had no connection to terrorist activity and nevertheless chose to subject them to especially harsh, punitive and allegedly unconstitutional conditions of confinement otherwise reserved for terrorism suspects. Hernández, in contrast, arises out of a single Customs and Border Patrol agent’s allegedly unprovoked cross-border shooting of an unarmed 15-year-old Mexican boy. But whereas the cases raise different facts (and other legal questions, including, in Hernández, whether the Fourth Amendment even applies to such a cross-border shooting), both raise a basic question about remedies—and whether the courts can and should recognize damages claims for constitutional violations by federal officers even though Congress has never expressly authorized such suits.

    The “Bivens doctrine” is named after a 1971 case in which the Supreme Court held that, in at least some circumstances, the answer was yes—that courts could infer a cause of action for damages against federal officers directly into the Constitution, at least in the absence of adequate alternatives or what Justice Brennan called “special factors counseling hesitation.” But as the Issue Brief explains in more detail, Bivens was not a bolt from the blue. Going all the way back to the Founding, federal officers had routinely been liable for damages to victims of constitutional violations. It’s just that the pre-1971 practice was to leave such suits to the vagaries of state tort law—a practice that became increasingly incongruous as new constitutional protections lacking state law analogues were recognized and as federal courts more regularly asserted the similar (if not more coercive) power to enjoin unconstitutional federal official action without express statutory authorization. Bivens, then, reflected the Supreme Court’s conclusion that there would be circumstances in which prospective relief or retrospective state-law remedies would be insufficient to vindicate individuals’ constitutional rights—and so retrospective federal remedies would be necessary. In Bivens itself, that meant a cause of action for damages to vindicate Webster Bivens’s Fourth Amendment right to be free from unreasonable searches and seizures.

  • January 9, 2017
    Guest Post

    by Marissa Brown, Director, Coalition for a Better Court

    Since 1970 every New Year’s Eve at 6:00 p.m., the Chief Justice releases a Year-End Report on the Federal Judiciary. As Chief Justice John Roberts pointed out in 2009, Chief Justice Warren Burger established the report “to discuss the problems that federal courts face in administering justice.”

    In 2016, the spirit of this almost 50-year tradition was broken.

    The most recent Year-End Report on the Federal Judiciary is most notable for failing to discuss the big problems. It is silent on the unprecedented obstruction of a highly-qualified nominee to the Supreme Court of the United Sates.  It did not mention that more than 10 percent of the federal bench is vacant due to the U.S. Senate majority’s failure to perform their duties to give advice and consent to many of President Obama’s judicial nominees. And most damaging of all, it did not address the perception that the court has become polarized and partisan.

    Despite the Chief Justice ignoring the problem in his 2016 report, legal scholars across the political spectrum are concerned about the court’s perception of bias.  Now a more than 200-year old debate is quietly awakening again. One side likes to quote Alexander Hamilton’s writing in Federalist Paper No. 78, presenting a case for permanent tenure of Supreme Court justices as a way to ensure judicial independence. However, reality has smashed this idea that life tenure of justices protects against the politicization of the federal bench.

    Fortunately, there is another compelling proposal articulated by legal scholars that instead of life tenure, each justice should be nominated for staggered, 18-year terms so that each president, regardless of party affiliation, would nominate a Supreme Court justice every two years during the court’s summer recess in non-congressional-election years. With periodic nominations, the justices would more accurately reflect the changes and judgments of society.

  • November 30, 2016

    by Caroline Fredrickson

    President-elect Trump posted one outlandish tweet after another all the way to the White House. But his latest tweet on flag-burning topped most of the others.

    On Nov. 29, Trump tweeted:

    Nobody should be allowed to burn the American flag – if they do, there must be consequences – perhaps loss of citizenship or year in jail!

    The tone and text of the post read like something that a ruler from a bygone era without the checks and balances of the U.S. Constitution would say.  Most alarming is the sweeping and ominous part about “consequences.” Fortunately, a chorus of critics checked Trump.

    The very next day, both The New York Times and The Washington Post editorialized against Trump’s tweet.  The headline in the Post’s View summed up the problem, “In one tweet, Trump trashes two constitutional amendments.”

    In 140 characters, the next president knocked the First and 14th Amendments. The Supreme Court ruled almost three decades ago that burning a flag is protected speech under the First Amendment. Ironically, Trump’s model of the ideal Supreme Court Justice, the late Antonin Scalia, joined the majority decision in the 1989 case, Texas v. Johnson.

    Even Senate Majority Leader Mitch McConnell (R-Ky.) and House Majority Leader Kevin McCarthy (R-Calif.) chimed in right after the tweet to educate the public and president-elect about the First Amendment protection. Both members of Congress felt compelled to voice their support for this protected speech. McCarthy tried to shut down the debate by stating the unlikelihood of congressional action.

  • November 23, 2016
    Guest Post

    by Lawrence O. Gostin, Founding O'Neill Chair in Global Health Law at Georgetown Law, Faculty Director of the O'Neill Institute for National and Global Health Law, Director of the World Health Organization Collaborating Center on Public Health Law & Human Rights, and University Professor at Georgetown Law

    Since 2002, the Supreme Court has banned the execution of people with intellectual disability. Writing for the Court, Justice John Paul Stevens looked to the clinical understanding of intellectual disability and explained that people with that condition bear diminished culpability “by definition” and are “categorically excluded from execution,” lest cruel and unusual punishment be imposed.

    In spite of this categorical ban, people with intellectual disability still face execution in the U.S. because Texas – the state that carries out far more executions than any other state – has disregarded the Supreme Court’s directive that intellectual disability evaluations in death penalty cases must be informed by the medical community’s diagnostic framework. The Supreme Court will soon have an opportunity to address Texas’s unusual and bizarre approach.

    Texas is a global outlier when it comes to its method for evaluating intellectual disability claims in death penalty cases. Remarkably, Texas prohibits the use of current medical standards. It is difficult, if not, impossible to locate any other jurisdiction in any country where it is forbidden to use current medical standards in evaluating intellectual disability. As with any field, when policy makers or courts not only defy scientific evidence or standards, but also disregard them, the results can be catastrophic—in this case, literally a matter of life or death. And briefs in the Supreme Court show that no other jurisdiction in the U.S. follows that practice.

  • November 14, 2016
    Guest Post

    by Arthur Bryant, Chairman, Public Justice

    While everyone waits to see how the election changes the Supreme Court, one thing is clear: workers’ rights hang in the balance. The Court is soon going to have to decide whether employers can use mandatory arbitration clauses in employment contracts to ban—and eliminate—workers’ collective and class actions.

    Four cases now up for review raise that question. All involve employees claiming they were cheated out of overtime pay—and employers arguing they cannot be sued because mandatory arbitration clauses in their employment agreements prohibit collective and class actions.

    Two federal circuits held employers can ban those actions. Two ruled they cannot. If the Court does not review any of these decisions, more are on the way. Suits raising the question are pending in five more federal courts of appeal.

    The four cases now before the Court show the arguments and the issues.

    In National Labor Relations Board v. Murphy Oil USA, Inc., the NLRB says the Fifth Circuit made an enormous mistake when it held the employer could use its mandatory arbitration clause to bar all workers at over 1,000 stores in 21 states from pursuing collective actions against it under the Fair Labor Standards Act and class actions in federal and state court. The clause says each worker has to proceed individually and alone.

    The NLRB insists that violates section 7 of the National Labor Relations Act, which gives employees “the right to…engage in…concerted activities for the purpose of…mutual aid and protection.” The Supreme Court previously said these “concerted activities” include actions pursued in “administrative and judicial forums.” Because the NLRB is charged with enforcing America’s labor laws, its interpretation is entitled to substantial deference. That interpretation stresses the importance of what is at stake: “the right to engage in collective action – including collective legal action – is the core substantive statutory right protected by the NLRA and the foundation on which the Act and Federal labor policy rest.”