SCOTUS News, 6/23/2017: BMS, Bivens, and the First Amendment

The Supreme Court issued a per curiam opinion in Jenkins v. Hutton, a habeas case. Hutton committed kidnapping and murder, and received the death penalty decades ago. Lower courts denied Hutton’s habeas petition on procedural grounds. The Sixth Circuit granted Hutton’s habeas petition, though, after reviewing Hutton’s claim that his jury was given erroneous instructions. The Supreme Court rules here that they cannot reach the merits due to the procedural default of Hutton’s habeas petition. In addition, the lower courts appropriately considered the nature of Hutton’s crimes when they sentenced him to death.

The Supreme Court released five other opinions early this week, including a long-anticipated ruling in Ziglar v. Abbasi and its associated cases. There are also two different free speech cases. Exciting and important rulings abound as we reach the end of the 2016 term. Let’s take a look.

Bristol-Myers Squibb v. Superior Court of California

A group of plaintiffs took Plavix, a drug manufactured by Bristol-Myers Squibb (BMS). These plaintiffs sued for damages in California, though many of them are not residents of California. BMS is also not headquarted in California, and the dispute here arose from this incongruity. The plaintiffs originally tried to claim California as a proper venue because of BMS’ ties with other businesses headquartered there. BMS filed a motion to quash the case due to improper jurisdiction. The California Supreme Court dismissed the motion, claiming California had jurisdiction over BMS.

In this venue case, the Supreme Court rules along similar lines as other recent cases. There is not an adequate link between the nonresidents’ claims and California’s personal jurisdiction. BMS is not headquartered in California, and has limited operations there. There must be a stronger connection.

The nonresident plaintiffs have the same claims as the California plaintiffs, but SCOTUS does not grant them such a wide extension of jurisdiction. The opinion of the 7-member majority, authored by Alito, states that nothing is stopping the nonresidents from bringing suit against BMS in their home states. And there is little precedent to suggest a loosening of jurisdiction restriction. SCOTUS thus reverses and remands the California Supreme Court’s ruling.

In a lone dissent, Sotomayor argues that BMS does fall under California’s specific (case-based) jurisdiction. Her reasons include the fact that BMS advertised and distributed Plavix in all fifty States; and that BMS has facilities and employees based in California. Additionally, she furthers the idea that plaintiffs with identical claims should not be barred from collective action due to residence in different States. It would be less burdensome, and still consistent with the law, to allow all plaintiffs’ claims to proceed together in one State court (or a Federal court), rather than be adjudicated in several dozen separate States.

McWilliams v. Dunn

This case concerned proper access to mental health experts during a criminal trial that led to a death sentence. The psychiatric experts in McWilliams’ original trial could not reach strong conclusions about his mental state. At times they thought he exaggerated his neuropsychological symptoms. At other times, different doctors thought McWilliams definitely demonstrated a serious disorder.

If that uncertainty weren’t enough, a larger issue dominates SCOTUS’ decision here. Is a criminal defense counsel entitled to their own expert? Or is a court-appointed expert sufficient? And how much time is enough time to prepare an ample defense? In this case, court-appointed experts presented their findings to both parties in the courtroom. The trial judge gave the defense counsel little time, however, to consult their own expert for a proper analysis of McWilliams’ psychosis. The majority, led by Breyer, holds that the expert in this case did not adequately assist with the “evaluation, preparation, and presentation” of the defense. Furthermore, the trial court did not give defense counsel ample time to organize their defense around this information.

This case split the Court, 5-4. The majority holds that McWilliams’ defense did not have the benefit of an expert who could help evaluate, prepare, and present evidence to aid the defense. Because of this, the Supreme Court reverses and remands the case back to the lower courts.

Alito writes a dissent, joined by Roberts, Thomas, and Gorsuch. They take issue with the legal questions the majority chose to answer. There is much disagreement, and precedent is ambiguous on these sorts of claims. Additionally, the dissent argues that the majority answered a different question from the one for which the Court originally granted review. Alito also makes mention of the various psychiatrists’ differing assessments at the original trial. They had various opinions about the extent of McWilliams’ impairment, versus his attempts to feign his impairment.

Packingham v. North Carolina

In the first of two cases concerning free speech this week, the Supreme Court expresses reserve on the nature of modern, internet-connected lives. Packingham was convicted of crimes that necessitated his registration as a sex offender. Some time later, he posted on a personal Facebook account about an unrelated situation. A North Carolina law makes it illegal for a convicted sex offender to access a social networking site. He was charged in violation of this law.

Packingham successfully appealed the ruling to the State Court of Appeals, but the State Supreme Court reversed. SCOTUS reverses in turn. The North Carolina law impermissibly restricts free speech. SCOTUS writes, in an opinion by Kennedy, that social networking has become too pervasive and integral to day-to-day social functioning to make the North Carolina law’s restrictions permissible. Kennedy makes a passionate case for how important social networks are to learning, talking about, and spreading ideas. In essence, then, barring social network use severely inhibits a citizen from exercising their First Amendment rights. Additionally, this restriction would hamstring a convicted criminal’s ability to effectively rehabilitate and reintegrate back into lawful society.

Alito writes a separate concurrence, joined by Roberts and Thomas. Their main difference of opinion concerns only the majority’s rhetoric, not the opinion’s First Amendment grounding. Alito actually goes farther than the majority at times, citing additional case law to show how detrimental upholding Packingham’s violation would be to First Amendment jurisprudence. Alito uses several examples to illustrate the absurdity of the North Carolina law’s inherent overreach. (including a hypothetical ban from buying goods on Amazon because it too operates like a social network.) The North Carolina law is just too broad. Alito uses little more reserve than Kennedy, and argues just as vehemently about the constitutional breach.

Matal v. Tam

In the other First Amendment case (formerly Lee v. Tam), respondent originally sought a trademark on his band name, “The Slants”. The government prohibited this because the racial epithet violated the disparagement clause of the prevailing trademark law, the Lanham Act. Tam countered. His band, comprised of Asian-Americans, uses the name to reappropriate a racial slur, not as offensive or malicious speech.

SCOTUS favors Tam’s arguments, weighing in with overlapping opinions from several different combinations of the eight Justices who heard this case. Alito writes the main bulk of the opinion, a consensus on the First Amendment’s importance. A registered trademark does not constitute government speech, which is an important distinction here. The Lanham Act only forbids the government from using disparaging speech. But trademarks are very obviously private speech, and First Amendment case law clearly shows this. The wording of the disparagement clause in the Lanham Act thus cannot apply to the Free Speech clause of the First Amendment.

On top of this, Alito continues onward with Roberts, Thomas and Breyer joining. They further state that the public expression of ideas cannot be prohibited just because some people may not like the ideas expressed.

Piling on, Kennedy writes with Ginsburg, Sotomayor, and Kagan: “With few narrow exceptions, a fundamental principle of the First Amendment is that the government may not punish or suppress speech based on disapproval of the ideas or perspectives the speech conveys.” To do so, they state, is tantamount to government censorship.

The Federal Circuit, the court that originally ruled in Tam’s favor, is affirmed.

Ziglar v. Abbasi

This case (together with Ashcrost v. Abbasi and Hasty v. Abbasi) delves into the Bivens rule.

Relief under Bivens v. Six Unknown Named Agents established a relief mechanism that has expanded over time to include wrongful government violation of Fourth, Fifth, or Eighth Amendment rights. Respondents in this case were detained in the aftermath of 9/11. They were held in extremely terrible conditions, subjected to abuse by prison guards. SCOTUS explains in their ruling that none of these claims are contested.

The issue is not whether the respondents suffered the treatment they allege. The issue is what they are entitled to. Petitioners (Hasty, Ashcroft, Ziglar) have qualified immunity for their actions. This is because they may not have known their actions immediately after 9/11 were unlawful. Qualified immunity has come up before, and then as now the Court is loathe to breach the prerogative. Respondents allege that the federal officials participated in a conspiracy to subject them to their abuses. If true, this conspiracy would violate equal protection. But the Supreme Court is skeptical about labeling concerted government action a “conspiracy”. Information-sharing is ubiquitous within and between governmental departments, and this has never been categorized as a conspiracy.

This is not the only line of attack the majority makes as they disassemble respondents’ claims. Respondents’ detention occurred for national security reasons, and national security is under the purview of Congress and the President. This means the Courts cannot lawfully decide a remedy. Furthermore, if Congress wanted to, they could have established a clearer form of remedy in situations such as this. Also, Bivens is not designed to hold officials accountable for their subordinates’ actions. This would expose higher officials to litigation detrimental to the performance of their duties, particularly in sensitive situations such as the aftermath of 9/11. Additionally, the majority points out other more appropriate forms of relief. (i.e. habeas relief, which would have removed respondents to better prison conditions much quicker than the 16 years that have passed).

Kennedy writes for the majority, here comprised of Roberts, Thomas, and Alito. Kennedy raises the possibility of Bivens relief only against Hasty, the warden of the prison in question. They do not pass judgment on the merits of relief, instead vacating and remanding the Second Circuit’s ruling so that a special factors analysis can be conducted on Hasty. They reverse the Second Circuit with respect to the claims against the federal officials, Ashcroft and Ziglar.

Sotomayor and Kagan both recused, and Gorsuch did not hear this case. Breyer and Ginsburg dissented. Breyer writes the dissent, pointing out that qualified immunity is broad enough that Bivens’ power should not be reduced in the way the majority says. Everyone must have the ability to receive legal redress when their rights are violated. National security emergency or not, Bivens provides that right. In other words, the circumstances of this case fall within Bivens’ criteria, and do not expand the Bivens rule despite the majority’s warning to the contrary. Rather, Bivens provides exactly the legal redress that anyone in these circumstances should have.

The Crowd and the Algorithm

The Crowd got the BMS case nearly perfect, with a relatively weak prediction that Sotomayor might vote to reverse the lower court ruling. The Algorithm did not fare quite so well.


Bristol-Myers Squibb v. Superior Court of California

The Crowd and the Algorithm both did well on McWilliams, though. This case was a conventional 5-4 split, with Kennedy on the generally liberal wing. Meanwhile, Gorsuch settled into his foreseen role on the conservative side of criminal litigation. That said, the Algorithm appeared almost cautious (if an algorithm can ever be “cautious”) in predicting which way each individual Justice would swing.

McWilliams Dunn

McWilliams v. Dunn

In Packingham, it is little surprise that both the Crowd and the Algorithm expected Thomas and Alito to rule against a criminal defendant. Also no surprise: close scrutiny in any First Amendment case, particularly concerning the internet’s ascendant importance in day-to-day life.

In Matal v. Tam, the Crowd easily felt which way the wind was blowing. The Algorithm, too, barely missed this one, with softer predictions.

The three consolidated cases of Ashcroft v. Abbasi, Ziglar v. Abbasi, and Hasty v. Abbasi were all reversed as predicted. The cases got a lot of attention in the media, but neither the Crowd nor the Algorithm lost sleep over how the Court would vote without Sotomayor and Kagan balancing out the spread. Interestingly, the Crowd predicted a unanimous reversal, instead of only a plurality.


The Court is kicking into fourth gear. The opinions are flying fast. We will post another update in a few days, with the cases just released this past Thursday. Meantime, here’s the scoreboard:

Crowd: 48/56 cases; Accuracy Rate: 85.71%
{Marshall}+: 33/56 cases; Accuracy Rate: 58.92%

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