Whole Woman’s Health v Hellerstedt

Texas passed a statute imposing admitting privilege requirements for abortion performing doctors and requirements that facilities where abortions are performed meet the standards for a surgical center. Health sued to enjoin the enforcement of the provisions. The 5th Circuit ultimately upheld the provisions. The court, 5-3, reversed. The majority held that there was no claim preclusion preventing review as health’s as applied challenge to the admitting privileges claim was different form the facial challenge it made in an earlier suit as there had been changes in fact, namely the closing of many abortion performing facilities and the fact that enforcement of the provisions had begun, and only a small amount of change is need in the context of important human values. It also held facial relief was appropriate here under the complaint requesting all just and equitable relief. It held there was no preclusion as to the surgical center claim as it had a different effective date, there is no requirement to challenge every provision of a statute in the same suit, rules had not been promulgated at the time of the first suit and the facts on the ground have changed. It held that the 5th Circuit misstated the controlling undue burden rule and held the correct understanding is to compare the burden on seeking an abortion with the benefits the obstacle creates and that courts, not legislatures, make these factual findings. It held the admitting privileges provision imposed an undue burden because abortion is a safe procedure, there is no evidence the requirement advances women’s health and the provision is a substantial obstacle as most of the facilities in the state closed as the provision was coming into effect and many hospitals would not provide the necessary privileges as insufficient admissions would result from abortion procedures and the closings increased distances for many women to travel. The majority held the surgical facilities provision imposed an undue burden as the requirements do not provide any benefit to women’s’ health, compliance would cost over $1 million per facility the requirements are not imposed on facilities doing procedures such as childbirth or colonoscopies which have significantly higher complication rates, the existing frailties were not grandfathered unlike general surgical facilities, many of the requirements are not appropriate to an abortion facility and the number of abortion performing facilities would fall to seven for a state with millions of child bearing age women  which would be inadequate for the demand of some 70,000 abortions per year. Ginsberg added a concurrence arguing statutes like the one here only target abortion providers in order to make access more difficult and thus cannot survive judicial review. Thomas dissented arguing the majority erred in allowing Health to raise the rights of the women seeking abortions and that the majority erroneously departed from the undue burden test announced I precedent and replaced with something akin to strict scrutiny as there was no balancing in earlier cases, legislatures were allowed to make law in areas of medical uncertainty in past cases and only a rational basis was required in those cases. He also argued the tiered review of rights is wrong as it favors some rights over others and allows judges to reach the outcomes they want as the tiers have no meaning and merely hide policy preferences and thus should be abandoned. Alito, joined by Roberts and Thomas, dissented arguing the admitting privileges claim was precluded as Heath raised eth dame issue in an earlier case, identified the same harms as in this case, lost on the merits at 5th Circuit and did not ask the court for review and thus it is barred form trying again to get relief. He argued that exceptions for abortion cases are inappropriate as preclusion rules operate on all cases. He argued the surgical facilities claim should also be precluded as Heath could have raised it in the earlier case but chose not to and the claim arises form the same operative facts. He also argued that Heath failed to prove the two provisions actually placed a burden on a large percentage of women in Texas or that the provisions caused the closures of frailties instead of decreased demand, restrictions of abortion though medication , the withdrawal of family planning funding or provider retirement. He argued that Heath failed to prove any material impact of facilities closing as new facilities have opened and the combined capacity of the now open facilities is equivalent or nearly equivalent to historical demand for abortion by Texas women and more than 95% of Texas women live within 150 miles of a facility and are thus not subject to a distance related undue burden. He argued that the severability provision in the statute should be followed here and relief denied where there is no undue burden which would include all of east Texas as to distance and would be limited to those surgical facilities requirements that Heath identified at the district court as problematic which in fact are unduly burdensome.

Fisher v University of Texas at Austin

After an earlier remand from the Court, the 5th Circuit upheld University’s race conscious admissions plan. The court, 4-3 with Kagan excused, affirmed. It first noted the Texas law requiring admission to the top 10% of high school students complicated the review while the limited three year period of data made evaluation difficult as well. The majority further noted University’s ongoing duty to evaluate its plan in light of its outcomes and the need for diversity in all its dimensions. The majority rejected Fisher’s arguments holding there was sufficient evidence to support the 5th Circuit’s conclusion that the compelling interest in a critical mass of minority students to create a diverse student body to facilitate cross racial learning, discussion and preparation for a diverse workplace is sufficiently concrete to allow judicial review, that the 10% plan did not create diversity on its own as demonstrated by the high percentage of classes with one or zero African-American students, that the holistic review process increased racial diversity over that achieved by the 10% plan, and University demonstrated that its race neutral efforts including outreach, holistic review without race involved and uncapping the 10% plan would capture true diversity as class standing is a single metric which does not capture important factors. Thomas filed a dissent reiterating his view that use of race in college admissions is per se unconstitutional. Alito, joined by Roberts and Thomas, dissented arguing University’s  interest of “critical mass” is amorphous and makes strict scrutiny analysis impossible, its interests as articulated during the litigation of demographic parity, classroom diversity, intraracial diversity and avoiding racial isolation do not advance the goal of critical mass and in any event rest on invidious assumptions about minority students, the plan as implemented discriminated against Asian-American students , lacks any kind of definitions for the various racial groups and does not account for multiracial applicants, is based on the view that the wrong kinds of minority students are admitted under the 10% plan as they come from low income communities and majority minority schools despite evidence that these students often come from homes with higher income and education attainment than Texas averages and there is no way to understand the isolation argument as University failed to offer any substance to it. He also argued the plan was not narrowly tailored as race neutral holistic review can be implemented and the effects of race conscious review are minimal. He also argued the majority wrongly placed the burden of proof on Fisher instead of University and to the extent there record is inadequate that is on University and it cannot win based on a lack of proof given its duty to develop evidence of a need for racial preferences before implanting the plan, showed bad faith through the litigation as evidenced by its less than candid statements about the plan and the goals of the plan and other issues.

Encino Motorcars, LLC v Navarro

Navarro sued Encino alleging overtime violations. The 9th Circuit ultimately allowed the suit to proceed holding auto service advisors are not exempt under 29 USC 2313(b)(10(A) under Labor Department regulations. The Court vacated and reversed 6-2. The majority held that the Labor Department failed to provide an adequate explanation or indeed any reasoning at all for why it changed its position on whether service advisors are exempt from nonexempt to exempt and failed to consider the reliance interests of dealerships in the decades old position that the advisors are exempt. The case was remanded for analysis of the statute with no deference to the labor department’s views. Ginsberg, joined by Sotomayor, added a concurrence arguing this decision did not change the law on agency changes of position. Thomas, joined by Alito, dissented arguing under the common meaning of 2313(b)(10)(A), service advisors are exempt as they sell services involving automobiles and this reading is confirmed by the regulation exempting parts men as they obtain parts but do not sell the cars.

Utah v Strieff

Strieff was stopped without reasonable suspicion, the stopping officer learned there was a warrant for Strieff’s arrest and drugs were found during a search incident to arrest. The Utah Supreme Court ultimately ordered the evidence suppressed holding the arrest warrant did not attenuate the connection between the stop and the search. Resolving the issue of how the attenuation doctrine applies when an officer learns about an arrest warrant, the Court, 5-3, reversed. The majority held that based on the factors of analysis of an attenuation claim (temporal proximity, intervening circumstances and purpose and flagrance of misconduct) lead to the conclusion suppression is inappropriate here because the arrest warrant breaks the causal chain as it was issued prior to the stop and was unconnected to the investigation  and the officer here was doing a legitimate investigation and made at most negligent errors in not knowing how long Strieff had been at a house and demanding to talk instead of merely asking to talk. Sotomayor, joined in part by Ginsberg, dissented arguing the stop and warrants check was fishing expedition and the behavior here is very common given the millions of outstanding arrest warrants in America. For herself only, Sotomayor also argued that this decision coupled with prior cases have set America on course to become a carceral state where her police can stop, frisk, humiliate and imprison anyone. Kagan, joined by Ginsberg, dissented arguing that the stop was a deliberate choice for investigative purpose and thus supports suppression and learning about the warrant was foreseeable and thus did not break he causal chain.

Cuozzo Speed Technologies v Lee

Speed sought review of the Federal Circuit’s decision that trademark office decision to initiate a third party sought review of a patent are not judicially reviewable and upholding the trademark office’s rule concerning how to construe the patent being examined. The Court, 6-2 as to reviewability and 8-0 as to the rule, affirmed. The majority held that 17 USC 312 bars judicial review of the decision to initiate a patent review as that is what the statue says and allowing judicial review would undermine congressional intent to vest authority to review patents in the office. The majority noted that this decision does not prevent review of constitutional claims or other claims of acts outside the statutory authority of the office. As to the rule setting out how to construe a patent, the Court held that the statute in question authorizes rulemaking, the review process is more like an administrative process than a court proceeding and there is no evidence that Congress intended to set the standard for constructing a patent. It held that the standard of broadest reasonable construction was reasonable as it encourages narrow patent drafting in the first instance, is applied by the office in other settings and patent holders can amend their claim during the review. Thomas added a concurrence arguing the Chevron doctrine should be reconsidered. Alito, joined by Sotomayor, dissented on the judicial review question arguing that the review process has several requirements, administrative decision are presumptively reviewable and the statute does not explicitly bar review of the review initiation decision after a final order and the majority decision will collapse the three tiered review system set up by Congress into one where al patents can be reviewed at any time.

RJR Nabisco, Inc. v European Community

Community sued RJR under RICO alleging money laundering in Europe. The 2nd Circuit ultimately allowed the claims to proceed holding RICO applies extraterritorially. The Court (Sotomayor recused), resolving a circuit split on the issue, held 18 USC 1962 (b) and (c) applies extraterritorially 7-0 and the private action under 18 USC 1964 does not, 4-3. As to 1962, the Court held that Congress intended RICO to apply outside the United States as evidenced by incorporating several predicate acts which occur overseas or can occur overseas, but, the scope of the extraterritorial reach s limited to acts which have the language including such overseas actions and does not reach domestic only predicates or factually domestic only acts. The Court rejected RJR’s arguments holding limiting RICO to domestic racketeering would immunize foreign gangs that operate in the United States and introduce difficult issues of determining what enterprises are domestic and which foreign and following congressional directions in its inclusion of some but not all federal offenses with a  foreign commerce component properly limits the reach of 1962. The majority held 1964(c) does not apply extraterritorially because the presumption against extraterritoriality applies separately to private causes of action, allowing private suits could cause international friction and there is nothing in 1964 to indicate Congress intended it to apply extraterritorially. As Community waived any claims based on domestic actions, all the claims are foreign only and thus must be dismissed. Ginsberg, joined by Breyer and Kagan, dissented from the 1964 decision and from judgment arguing that there is no textual requirement in 1964 for a domestic injury, cases interpreting the Clayton Act (which the Court has looked to to interpret RICO) allow suit without a domestic injury and international friction can be accommodated through inconvenient forum and other doctrines. Breyer added a dissent arguing this is not a purely foreign conduct case and rejecting the friction argument as unsupported by any facts.

Taylor v United States

Taylor appealed his Hobbs Act conviction arguing robbing marijuana dealers did not affect interstate commerce. The 4th Circuit affirmed. Resolving a circuit split on the issue, the Court, 7-1, affirmed. The majority held that marijuana dealing has been held to be interstate commerce as an economic activity that affects commerce in the aggregate, that the Hobbs Act covers robberies that affect any commerce over which congress has authority and thus proof of robbing a marijuana dealer is proof beyond a reasonable doubt of the jurisdiction element and the conclusions of circuits requiring prof of interstate transfer of the drugs in question were wrong as they limit the scope of the Act without any basis in Court precedent to do so. Thomas dissented arguing that robbery is not commerce and Congress has no power to punish purely intrastate activity like robbery unless there is a true obstruction of commerce among the states or other separate effect on commerce. Here, he argued there was proof that commerce was obstructed or any channel or instrumentality of interstate commerce was in any way affected by the robberies here and thus the convictions should have been reversed. He rejected the aggregation approach as this abandons any limits on congressional power to define crimes and relieves the federal government form proving jurisdiction beyond a reasonable doubt.

Mathis v United States

Mathis appealed his career criminal sentence arguing his Iowa burglary convictions were not generic burglary for purposes of the sentencing statute. The 8th Circuit ultimately affirmed holding that the normal categorical approach does not apply when a statute lists alternate ways the elements of a rime can be proven. The court, resolving a circuit split on the issue, reversed 5-3. The majority held that career criminal statute looks at elements not facts and this does not change when ways to prove an element are included in the statute. It held this approach is most faithful to the text of the statue, prevents 6th Amendment violations and protects defendants who do not contest legally irrelevant factual assertions at sentencing.  Here, the Iowa statute covers more conduct than generic burglary and the statute has been held by the Iowa Supreme Court to state different ways to commit burglary not create different crimes and thus Mathis’ conviction is not a violent felony and his sentence must be vacated.  Kennedy added a concurrence arguing the precedent barring fact finding beyond facts of conviction was wrongly decided and if Congress does not change the statute the court should revisit it. Thomas added a concurrence arguing the prior conviction fact finding by a judge precedent is wrong and should be overruled. Breyer, joined by Ginsberg, dissented arguing that the majority approach is not practical and Court precedent can be read to allow sentencing courts to consider charging documents to determine if the conviction is for a generic burglary or conduct outside the definition. Alito dissented arguing the whole categorical approach is wrongheaded and the majority approach will result in district courts struggling to answer the elements or methods question with no uniformity. He called for real world approach of looking at charging documents and plea transcripts to enhance sentences when Congress wanted them enhanced.

Birchfield v North Dakota

Birchfield and another defendant sought review of the North Dakota Supreme Court decision upholding North Dakota’s implied consent law, which criminalized refusal to take a breath or blood test, as to both breath tests and blood tests. A companion case challenged the equivalent Minnesota statutes. The Court, 6-2, affirmed as to breath tests and, 7-1, reversed as to blood tests. The five member majority held the founding era understanding of the search incident to lawful arrest did not provide an answer to the question and thus an analysis of privacy interests versus public interest must be undertaken. It held no privacy concerns arise from a breath test as there is no possessory interest in the breath, the breath has to come out eventually anyway, breath tests are not embarrassing and the test here only reveals blood alcohol content. It held blood draws do implicate privacy concerns because it involves puncturing the skin and  withdrawing a piece of the suspect, blood is not routinely expelled like breath  and blood can reveal much more about a defendant than blood alcohol content. It held the need to remove drunk drivers form the road and deterring others from drunk driving though criminal prosecution is compelling, that the search incident to arrest is a categorical exception instead of case by case and imposing a warrant requirement would overwhelm judiciaries particularly small rural states like North Dakota with little if any benefit for those to be searched. Thus, breath test were approved while blood test were held to require  a warrant and the implied consent by use of the roads does not apply when criminal sanctions are attached to refusal to give a blood sample. Applying, Birchfield’s conviction was reversed as it was based on a refused blood test, the Minnesota defendant’s conviction was affirmed as it was based on a refused breath test and the other North Dakota defendant’s case was remanded for voluntariness analysis taking into account an inaccuracy in the officer’s notification of criminal consequences. Sotomayor, joined by Ginsberg, dissented as to breath tests arguing the interest in protecting the public from drunk drivers is served by arresting the driver and there is usually plenty of time to obtain warrant given the need to transport the driver and follow the breath test protocol. She also argued that the exigent circumstances rule applied and could excuse the warrant requirement on a case by case basis, judges in North Dakota and Minnesota would face an additional burden of less than two extra warrants per week and mere convenience for officers can never justify an exception to the warrant requirement. Thomas dissented as to blood tests arguing the metabolism of alcohol over time justifies warrantless breath and blood tests.

Voisine v United States

Voisine sought review of the 1st Circuit decision upholding his conviction under 18USC 922(g)(9) arguing that reckless domestic assaults cannot provide a basis for a gun possession offense. Resolving a circuit split on the issue, the Court, 6-2, affirmed. The majority held that “use” in the definition section of the firearms statute means to employ and the word is indifferent to the mental state of the person employing physical force thus reckless acts meet the definition and this textual analysis is supported by the fact that 35 states criminalize reckless domestic assault and Congress was aware of this when it enacted 922(g)(9). The majority noted that adopting Voisine’s position would mean that convictions in almost all 35 states would not provide a basis for triggering (g)(9) and this would substantially undermine Congressional intent to remove firearms from the hands of domestic abusers. Thomas, joined in part by Sotomayor, dissented arguing that use is best understood as acting intentionally, force involves actual use of violence towards another and nearby provisions involving threats also require intent and the Maine statute here does not require intentional use of violence. He also argued the majority confused the mens rea for use of force and the mens rea for inflicting harm and improperly allowed recklessness as to both trigger 922(g)(9) when only intentional acts should do so. For himself, he argued that constitutional avoidance doctrine should apply so as to prevent lifelong loss of 2nd Amendment rights to those who technically violate an assault statute by texting while driving and hitting something causing injury to a child passenger which is patently unconstitutional.

McDonnell v United States

McDonnell sought review of his honest services fraud and bribery convictions arguing the government failed to prove he performed any official act in connection with the alleged bribery. The Court reversed. It held that 18 USC 201(a)(3)’s definition of official act does not reach activities such as phone calls, meetings or events because under the cannon of noscitar a soociis “question” and “matter” should be read consistent with the other terms “cause, suit, proceeding or controversy” all of which are formal legislative, judicial or administrative proceedings and narrowing the terms questions and matter in this way prevents superfluity. It also held that the acts must be connected to pending before or may by law be  brought before  a public official which should be understood to an item that can be put on an agenda, tracked for progress and checked off as complete and does not reach economic development or other general and unfocused matters and Court precedent requires the official must actually make a decision or promise to do so, directly or through influencing another public official, not merely show interest in the question or matter. The Court noted that the government position that any volitional act by a public official is an official act raises constitutional concerns as public officials will be deterred from meeting with and responding to the concerns of constituents, the government view does not provide fair notice as what actions will lead to indictment and raises federalism concerns as it would allow intrusion into the affairs of state and local governments. The Court held the jury instructions here failed to identify only those maters or questions which meet the definition of 201(a)(3), allowed the jury to consider broad policy objectives and failed to require a finding that McDonnell made a decision or agreed to do so on a question or issue which meets the definition in 201(a)(3). The case was remanded for analysis of whether the evidence presented was sufficient to convict under the correct construction of 201(a)(3).