Matel v Tam

The government sought review of the Federal Circuit decision that the prohibition on registering disparaging trademarks in 15 USC 1052(a) is unconstitutional. The Court, with Gorsuch not participating, affirmed with eight justices joining on one issue, seven on another issue, part of the main opinion joined by four justices, four justices concurring in part and in judgment and Thomas concurring in part and in judgment. Seven justices held that while Tam’s argument that racial and ethnic groups are not protected by 1052(a) was not raised below and was not part of the grant of certiorari, in the interests of constitutional avoidance the metis should be addressed and that the argument was without merit because any disparagement of a racial or ethnic group will disparage many “persons”, the statute also reaches “institutions” and “beliefs”, there is no support of the argument in the legislative history and past practice of the registration office is better explained by prejudice and volume of applications that the interpretation argued here. All eight justices held that trademarks are private speech and registration does not change that reality because trademarks do not traditionally covey government messages, viewpoint has been irrelevant as to registration except for 1052(a) and the public does not associate the contents with the federal government. Alito, Roberts, Thomas and Breyer argued that registration is not subsidized speech as the government is not paying registrants to register, is not similar to union dues and the ban in 1052(a) is viewpoint based and, even if trademarks are only protected commercial speech, the ban cannot stand as it is premised on preventing disparaging speech which is not a government interest let alone and important one and it does not advance the asserted interest of preventing disparagement from impeding the flow of commerce as the ban also prevents registration of marks that condemn bigots including dead bigots. Kennedy, Ginsberg, Sotomayor and Kagan argued that 1052(a) discriminates against certain messages, distorts the marketplace of ideas, protecting an audience is just another name for viewpoint discrimination and however the trademark is characterized, the viewpoint discrimination must survive heightened scrutiny and the government failed to present any interests which would allow 1052(a) to survive that scrutiny. Thomas argued the statutory argument should not have been aggressed and further argued that strict scrutiny should apply even for commercial speech when the government seeks to suppress ideas in truthful speech.

Nelson v Colorado; Madden v Colorado

Nelson and Madden sought review of the Colorado Supreme Court decisions that thy were not entitled to return of fines, restitution costs and other expense after their convictions were overturned and Nelson was acquitted and Madden was not retried. The Court, 7 (six justice majority plus Alito concurring in judgment)-1 with Gorsuch not participating, reversed. It held that Colorado’s requirement that defendants whose convictions have been reversed prove actual innocence before they can get the fines and other monies paid as a consequence of the now vacated conviction violates due process as the defendants are presumed innocent once the conviction is reversed, Nelson and Madden have an interest in getting their money back as there is no basis now to take it from them, the requirement to prove actual innocence creates a risk of wrongful deprivation of the money as Nelson and Madden are presumed innocent  and therefore cannot be required to prove anything and Colorado has zero interest in keeping the wrongly retained moneys. Alito concurred in judgment arguing that historical practice was fines and costs were returned to defendants if a conviction was reversed, Colorado’s scheme heavily burdens defendants by excluding misdemeanor convictions entirely and limiting reimbursement to actual innocence and thus the scheme violates fundamental fairness. He also argued that restitution is different from fines and costs and sit goes to victims and thus the pronouncement that reversal mandates return of restitution should be revisited to account for the different interests at stake. Thomas dissented arguing that Nelson and Madden have no right under state law or under the Constitution to the monies paid pursuant to their convictions and thus the majority errs in ordering Colorado to return the monies.

Perry v Merit System Protection Board

Perry sought review of the DC Circuit decision that review of his mixed claim of violation of his civil service rights on discriminatory gourds was in the Federal Circuit. The Court resolved a circuit split on the issue and reversed 7-2. The majority held that a nonfrivolous allegation of jurisdiction is sufficient at the start of a case, review when a mixed claim is either rejected or dismissed on procedural grounds is in district court and the language of 5 USC 7703, EEOC regulations and circuit precedent all point to unified review in the district court when dismissal is for lack of jurisdiction. The majority rejected the government positon that the appeal must be split between district court and the Federal Circuit because how to characterize a decision can be problematic if not unworkable and national uniformity here must give way, as otherwise appellants will have to split inextricably bound claims and prosecute appeals in two forums to secure their rights. Gorsuch, joined by Thomas, dissented arguing 7703 plainly requires the civil service aspect of the case to be appealed to the Federal Circuit and the discrimination portion to the district court, failure to require this approach in other settings had led to differing outcomes on standards of review and even proper forum and if the two forum approach should be abandoned, it is up to Congress, not the courts, to make the change.

Sessions v Morales-Santana

The government sought review of the 2nd Circuit decision that the longer residency requirement for fathers to give citizenship to their foreign-born children violates equal protection and the short period for mothers controls and thus Morrales-Santana cannot be deported. The Court, with two justices concurring in judgment in part and Gorsuch not participating, resolved a circuit split on the issue and reversed. It held Morales-Santana had standing as there is a close connection between a father’s ability to pass citizenship and the child and the inability to pass citizenship would hinder the child’s ability to defend his interests such as not being deported. The majority held the differing rules for fathers and mothers was unconstitutional as it was premised on the superiority of women as caretakers and reflected views of bygone era which routinely discriminated against women and the residency requirement is different from paternal acknowledgement procedures upheld by the Court as the need for time to transfer American values to his foreign born child is the same for men and women. It held the interests argued by the government were insufficient to saving the different time periods because the assumption that foreign unwed fathers do not care about their children and thus need more time in the United States to overcome his foreignness reflects are the kind of stereotypes long held invalid and there is no evidence the different treatment was done in order to prevent statelessness particularly as the risks to unwed fathers are at least as great as those to unwed mothers. As to remedy, the majority held that it could only require equal treatment not rewrite the statute to allow all to benefit from the shorter residency requirement for mothers as congressional intent is best served by retaining the general requirements which are aimed at inculcating American values and thus the longer period applies to all children prospectively. The case was remanded for further proceedings. Thomas, joined by Alito, concurred in judgment in part arguing that the majority correctly concluded it could not grant the relief requested by Morales-Santana and thus the entire constitutionality discussion was unnecessary.