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June 28, 2020 SCOTUS REVIEW


Summer 2020 Edition

Tanaya Sardesai, 2020 Summer Intern

Recent Decisions

LGBTQ+ Rights: Bostock v Clayton County

Heard on October 8, 2019; Decided on June 15, 2020

“An employer violates Title VII when it intentionally fires an individual employee based in part on sex.” (Opinion: Gorsuch)

Significance: LGBTQ+ individuals cannot be fired on the basis of their gender identity or sexual orientation.

Issue Presented: Does Title VII of the Civil Rights Act of 1964, which prohibits against employment discrimination “because of . . . sex” encompass discrimination based on an individual’s sexual orientation?

Facts and Holding: Gerald Bostock, a gay man, had a successful ten-year career with Clayton County, Georgia, receiving numerous accolades and positive performance evaluations. Shortly after joining a gay softball league, Bostock recieved criticism for his participation in the league and for his sexual orienataion. Around the same time, Clayton County notified Bostock that it would be conducting an internal audit of the program funds he managed. Shortly afterwards, Clayton County terminated Bostock allegedly for “conduct unbecoming of its employees.”

Immigration: Department of Homeland Security v Regents of the University of California

Heard on November 12, 2019; Decided on June 18, 2020

“Here the agency failed to consider the conspicuous is- sues of whether to retain forbearance and what if anything to do about the hardship to DACA recipients. That dual failure raises doubts about whether the agency appreciated the scope of its discretion or exercised that discretion in a reasonable manner.” (Opinion: Roberts)

Significance: The Deferred Action for Childhood Arrivals (DACA) program will remain intact, shielding hundreds of thousands of DACA recipients from deportation, for the time being.

Issue Presented: Is the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals (DACA) policy judicially reviewable? Is DHS’s decision to wind down the DACA policy lawful?

Facts and Holding: In 2012, the U.S. Department of Homeland Security (DHS) adopted a program—known as the Deferred Action for Childhood Arrivals (DACA)—to postpone the deportation of undocumented immigrants who had been brought to the United States as children and to assign them work permits allowing them to obtain social security numbers and pay taxes. In 2017, after the national election, when the Trump administration replaced the Obama administration, DHS began a phase-out of DACA. The plaintiffs in this case content that the Trump administration terminated DACA based on a conclusion that the Obama administration had created DACA “without proper statutory authority and with no established end-date” and thus that it was an “unconstitutional exercise of authority by the Executive Branch.”

Environmental Justice: United States Forest Service v. Cowpasture River Preservation Association

Heard on February 24, 2020; Decided on June 15, 2020

“The lands that the Trail crosses remain under the Forest Service’s jurisdiction and, thus, continue to be “Federal lands” under the Leasing Act.” (Opinion: Thomas)

Significance: The gas pipeline, now essentially approved for construction, will cut through parts of the Appalachian Trail, disrupting the land’s water supply and much of the United States’s biodiversity. 

Issue Presented: Does the U.S. Forest Service have the authority to grant rights-of-way under the Mineral Leasing Act through lands traversed by the Appalachian Trail within national forests?

Facts and Holding: The Appalachian Trail spans over 2,000 miles, crossing through lands within national forests. In 2017, the Federal Energy Regulatory Commission granted Atlantic Coast Pipeline LLC authorization to construct, operate, and maintain a natural gas pipeline that would cross the Trail. The Forest Service authorized the construction, finding it had authority under the Mineral Leasing Act to grant a right-of-way for the pipeline and that the pipeline “would have no long lasting impacts” on the Trail. Cowpasture River Preservation Association filed a petition for review of the Forest Service’s record of decision and special use permit. The court determined that the Forest Service lacked authority to grant pipeline rights of way.

Prisoner Rights: Lomax v Ortiz-Marquez

Heard on February 26, 2020; Decided on June 8, 2020

“The text of Section 1915(g)’s three-strikes provision refers to any dismissal for failure to state a claim, whether with prejudice or without.” (Opinion: Kagan)

Significance: The three-strike provision prevents a prisoner from bringing a suit against prison officials without paying the court fee if the prisoner has already had three or more prior suits dismissed. This ruling reinforces the financial obstacles that prisoners face in seeking legal recourse by expanding the definition of a “strike.” 

Issue Presented: Does a dismissal without prejudice for failure to state a claim count as a strike under the Prison Litigation Reform Act?

Facts and Holding: The Prison Litigation Reform Act of 1995 established what has become known as the three-strikes rule, which generally prevents a prisoner from bringing suit in forma pauperis (without paying the usual court fees) if they have had three or more prior suits dismissed on certain grounds. Arthur Lomax, an inmate in a Colorado prison, filed this suit against respondent prison officials to challenge his expulsion from the facility’s sex-offender treatment program. He moved for IFP status, but he had already brought three unsuccessful legal actions during his time in prison. Lomax argued that because the prior dismissals were without prejudice, they do not count as strikes.

HIV/AIDS: United States Agency for International Development v. Alliance for Open Society International, Inc. 

Heard on May 5, 2020; Decided June 29, 2020

“Because plaintiffs’ foreign affiliates possess no First Amendment rights, applying the Policy Requirement to them is not unconstitutional.” (Opinion: Kavanaugh)

Significance: The U.S. government can encourage the criminalization of sex work abroad by restricting funding to organizations that are fighting HIV/AIDS.

Issue Presented: Does the Court’s decision in U.S. Agency for International Development v. Alliance for Open Society International Inc.—which holds that the First Amendment prohibits Congress from enforcing a law that would have required U.S.-based organizations that receive federal funds to fight HIV/AIDS abroad to “have a policy explicitly opposing prostitution and sex trafficking”—imply that Congress may not enforce that law with respect to entities not directly involved in that case?

Facts and Holding: The Alliance for Open Society International and other organizations receive funding from the U.S. government to help with their mission of fighting HIV/AIDS abroad. The government provides the funds on the condition that “no funds be used to provide assistance to any group or organization that does not have a policy explicitly opposing prostitution and sex trafficking.” In U.S. Agency for International Development v. Alliance for Open Society International Inc., decided in 2013, the Court held that the condition compelled speech in violation of the First Amendment. The government continued to apply the condition to foreign affiliates of the Alliance for Open Society International, and the organization sued, asking for permanent injunctive relief. The district court granted the requested relief, and the U.S. Court of Appeals for the Second Circuit affirmed.

The Supreme Court of the United States, Washington, D.C.

The Supreme Court of the United States, Washington, D.C.

May 2020 Recap

Religious Freedom and Sexual Health: Little Sisters of the Poor v. Pennsylvania 

Heard on May 6, 2020

Significance: More organizations may be able to deny contraceptive care/coverage to their employees on the company’s group health insurance plan. These increased financial barriers will decrease access to and use of contraception and target minority, low-income communities that already have higher rates of unwanted pregnancies.

Issue Presented: Do the LSOTP have judicial standing, and did the federal government lawfully exempt religious objectors from the regulatory requirement to provide health plans that include contraceptive coverage?   

Facts and Holding: A case in which the Court will decide whether the federal government acted properly when it added extensive exemptions to regulations requiring employers to include contraceptive coverage in employee health plans. Ultimately, this case decides whether the Little Sisters of the Poor will have to provide contraception coverage for their health insurance plan. 

Native American Affairs: McGirt v Oklahoma

Heard on May 11, 2020

Significance: This case will address the differentiation between state and federal jurisdiction in the context of Native reservations, along with the specifics of conviction procedures on Native reservations.

Issue Presented: Can a state prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries?

Facts and Holding: Jimcy McGirt, a member of the Muscogee (Creek) Nation was convicted of sex crimes against a child by the state of Oklahoma within the historical Creek Nation boundaries. He argued that Oklahoma could not exercise jurisdiction over him because under the Indian Major Crimes Act, any crime involving a Native American victim or perpetrator, or occurring within recognized reservation boundaries, is subject to federal jurisdiction, not state jurisdiction.

October 2020 Term

Sexual Violence: U.S. v Briggs

Issue Presented: Did the U.S. Court of Appeals for the Armed Forces err in concluding – contrary to its own longstanding precedent – that the Uniform Code of Military Justice allows prosecution of a rape that occurred between 1986 and 2006 only if it was discovered and charged within five years?

Significance: This case will determine the additional obstacles military survivors of sexual abuse face when reporting and moving to prosecute their perpetrator.

Facts and Holding: In 2014, a military judge found Michael Briggs guilty of rape for conduct that occurred in 2005. Briggs did not raise the statute of limitations, and the military judge did not advise him that the statute of limitations might provide a basis for dismissal. The judge sentenced Briggs to a dismissal, confinement for five months, and a reprimand. Briggs first raised the statute of limitations when he appealed to the United States Air Force Court of Criminal Appeals, but that court rejected his challenge because he had not raised the statute of limitations at trial. Briggs appealed to the U.S. Court of Appeals for the Armed Forces. They reversed the lower court because the military judge had to inform the accused of the right to assert the statute of limitations. If the military judge had informed Briggs of a possible statute of limitations defense, he would have sought dismissal.

Fourth Amendment and Qualified Immunity: Torres v Madrid

Issue Presented: Must physical force used to detain a suspect be successful to constitute a “seizure” under the Fourth Amendment?

Significance: This case will address whether police officers will be entitled to qualified immunity if there is not a physical “seizure” during an incident. This may expand protections for police officers.

Facts and Holding: In 2014, Roxanne Torres was operating a vehicle under the influence of methamphetamine and, in the process of trying to get away, endangered the two officers pursuing her. One of the officers shot and injured her. Torres pleaded no contest to three crimes: (1) aggravated fleeing from a law enforcement officer, (2) assault on a police officer, and (3) unlawfully taking a motor vehicle. In October 2016, she filed a civil-rights complaint in federal court against the two officers, alleging claims including excessive force and conspiracy to engage in excessive force. The court concluded that the officers were entitled to qualified immunity. In the court’s view, the officers had not seized Torres at the time of the shooting, and without a seizure, there could be no Fourth Amendment violation. The U.S. Court of Appeals for the Tenth Circuit affirmed.

Immigration: Pereida v Barr

Issue Presented: Does a criminal conviction bar a noncitizen from applying for relief from removal when the record of conviction is ambiguous as to whether it corresponds to an offense listed in the Immigration and Nationality Act?

Significance: This case will clarify the ambiguity of certain offenses that may lead to the deportation of a noncitizen, per the Immigration and Nationality Act.

Facts and Holding: Clemente Avelino Pereida, a native and citizen of Mexico, pleaded no contest to a criminal charge in Nebraska, arising from his attempt to use a fraudulent social security card to obtain employment. The Department of Homeland Security initiated removal proceedings against Pereida, and Pereida sought cancellation of the removal application. At issue is whether Pereida's criminal attempt conviction qualifies as a crime involving moral turpitude; if so, under the Immigration and Nationality Act, Pereida would be ineligible for cancellation of removal. The U.S. Court of Appeals for the Eighth Circuit held that it was Pereida’s burden to establish his eligibility for cancellation of removal. However, the court determined that it was not possible to ascertain which statutory subsection formed the basis for Pereida's conviction, so Pereida failed to meet his burden. Because Pereida did not establish that he was eligible for cancellation of removal, the court upheld the Board of Immigration Appeals’ determination that he did not show such eligibility and denied Pereida’s petition for review.

Learn More

Curious about past Supreme Court terms and the status of case decisions? Check previous editions of our SCOTUS updates (January 2020, October 2019, July 2019, April 2019, January 2019) from the Section's quarterly e-Newsletter on cases related to civil rights and social justice. 

Additionally, the Section of Civil Rights and Social Justice routinely hosts webinars and panels, discussing social inequities and their legal connection. If interested in learning more about these issues, recordings of past webinars can be found on the Section’s YouTube channel. 

Please refer to the directory of Amicus Curiae Briefs on the Section’s website, which contains amicus briefs filed by the ABA pertaining to civil rights cases. 

For existing policy, check out the Policy Project, featuring a compilation of all policy drafted by the ABA relating to the committees of the Section of Civil Rights and Social Justice.