September 30, 2019 NEWSLETTER

SCOTUS Spotlight - Fall 2019

Rachel Hvasta, 2019 Fall Intern
The Supreme Court of the United States, Washington, D.C.

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

Cases You May Have Missed

With the persistence of the 24-hour new cycle, you may have missed some of these cases from the 2018-2019 Supreme Court arguments. For other cases previously covered in the SCOTUS Update, check past newsletters in the SCOTUS Term in Review section (July 2019, April 2019, January 2019).

Civil Rights and Equal Opportunity - Voting Rights

Virginia House of Delegates v. Bethune-Hill

Argued: March 18, 2019  |  Decided: June 17, 2019  |  5-4 in favor of Respondents     

Alleging violation of the Equal Protection Clause of the Fourteenth Amendment, twelve Virginian voters filed this civil action case on the basis of racial gerrymandering. The Supreme Court was first presented this case in 2017, following a Federal district court’s determination that the districts did not appear to violate the Equal Protection Clause. The Supreme Court instructed the lower court to reevaluate their ruling with deliberate reconsideration of the district’s divisions with respect to racial gerrymandering. The lower court found that the districting was in fact unconstitutional as there was insufficient evidence to prove that, as drawn, the districts complied with federal regulations on voting protections. Consequently, the Virginia House of Delegates appealed the lower court’s decision to the Supreme Court.

The Supreme Court found, in a 5-4 ruling, that the House of Delegates lacked the ability to pursue litigation on behalf of the state; this power lies in the state’s attorney general.

In the dissenting opinion by Justice Alito, joined by Chief Justice Roberts, Justice Breyer, and Justice Kavanaugh, by virtue of the harm that redistricting would cause to the House of Delegates by their alteration of their existing constituencies, they asserted the House of Delegates should have been able to proceed with their appeal.

Following the Supreme Court’s affirmation of the lower court’s decision, Virginia must redraw their districts to remedy the existing racial gerrymandering. Senator Emmett Hanger of Virginia’s 24th district has proposed an amendment to Virginia’s state constitution to utilize independent, non-partisan commissions to draw state districts in order to avoid partisan gerrymandering. The proposal passed the General Assembly in 2019 and needs only to pass once more in 2020 to be incorporated into state law.

Death Penalty

Bucklew v. Precythe

Argued: November 6, 2018  |  Decided: April 1, 2019  |  5-4 in favor of Respondents     

Due to a congenital illness, Russell Bucklew, a death-row inmate, petitioned that administration of Missouri’s standard lethal injection would potentially result in an excruciating death, violating the Eighth Amendment’s Cruel and Unusual Punishments Clause.

The Supreme Court found, in a ruling of 5-4, that Bucklew did not meet the two requirements necessary for a change in execution method; he did not provide an alternative that could be “readily implemented” and he failed to show that the state’s denial of his request was with lack of reason, as the respondents asserted that nitrogen hypoxia was “untried and untested”. Additionally, the Court ⁠⁠—upholding the majority opinions from Baze v. Rees and Glossip v. Gross⁠— posited that the Eighth Amendment does not guarantee a painless death and that only an alternative that significantly removed the potential for unnecessary pain would be permissible; the Court found Bucklew provided insufficient evidence to pass the Baze-Glossip test. Further, Justice Gorsuch commented that often death penalty cases are derived from the intention of delaying the actual incidence of execution, as opposed to true concern for the petitioned issue.

In the dissenting opinion by Justice Breyer, joined by Justices Ginsberg, Sotomayor, and Kagan, Breyer showed disdain for the high standard and burden put on the inmate to find sufficient evidence. Additionally, Kagan submitted a secondary dissenting opinion specifically addressing Justice Gorsuch’s commentary. She suggested that the rights of the individual should supersede concerns regarding an expedient execution.


Rehaif v. United States

Argued: April 23, 2019  |  Decided: June 21, 2019  |  7-2 in favor of Petitioner     

While studying at the Florida Institute of Technology, Hamid Mohamed Ahmed Ali Rehaif was academically dismissed, resulting in the termination of his F-1 student visa. Following the termination of his student visa, Rehaif remained in the US, during which time, he went to a shooting range and purchased ammunition. When federal investigators visited his hotel and conducted a search, they found the remainder of the ammunition; additionally, Rehaif allegedly admitted to being aware of the status of his visa and shooting guns at the shooting range.

In a decision of 7-2 in favor of Rehaif, the Court posited that it is the burden of the prosecution to prove that the defendant was aware of their status and "knowingly" was in violation of the restrictions their status entailed at the time of the alleged crime.

In a dissenting opinion penned by Justice Alito and joined by Justice Thomas, the critique lied in the Court manipulating the “knowingly” provision to be aligned with the terms of scienter.

Further, Alito’s dissent delineated a possible ramification; this ruling may radically change the capacity to enforce gun regulations, as it is an incredibly arduous task to prove knowledge of status and intent of an individual.

Native American Concerns

Carpenter v. Murphy

Argued: November 27, 2018     Decided: Pending     Scheduled for re-argument     

The foundation of this case originates from a 1999 murder committed by Patrick Murphy, a member of the Creek Nation, prosecuted in an Oklahoma state court. Murphy pursued post-conviction relief, arguing the Major Crimes Act gave the federal government exclusive jurisdiction to prosecute murders committed by Native Americans in “Indian Country,” which Murphy’s legal team argued the land Murphy committed the murder on qualifies as, based on the established boundaries of the Creek Nation from 1866.

Following the initial argument of this case on November 27, 2018, the Supreme Court scheduled the case for re-argument.

The implications of this case are vast and widely penetrating. If the Supreme Court sides with Murphy, the lands of the Cherokee, Seminole, Choctaw, Chickasaw, and Creek Nations could be restored to reservations, which would include a large majority of the eastern half of Oklahoma and Tulsa. Additionally, this would result in the Oklahoma state justice system losing jurisdictional control of these lands, with the corollary effects of many past rulings levied by Oklahoma state courts being called into question. Conversely, if the Supreme Court sides with the state, they would have to, using loosely existing evidence, determine at which point the land passed from the ownership of the tribes to the state.

Potentially to avoid pursuing either course of action, the Supreme Court pressed for supplementary evidence to be provided, allowing a circumstance that would avoid deciding ownership of the land, but would still offer state prosecutorial jurisdiction of this particular case.

Washington State Department of Licensing v. Cougar Den, Inc.

Argued: October 30, 2018  |  Decided: March 19, 2019  |   5-4 in favor of Respondents   

Drafted by the United States, the Yakama Treaty of 1855, stipulated that members of the Yakama nation have "the right, in common with citizens of the United States, to travel upon all public highways." The Yakama nation and the Washington Supreme Court have adapted this to apply to taxation laws, stating that the treaty preempts any legislature that would levy taxes against tribal members or businesses that travel on state highways, including those off the reservation; this would include Cougar Den, Inc., a Yakama-owned fuel company which uses state highways to import and subsequently deliver their fuel.

In a decision of 5-4 in favor of the respondents, the Court ruled that the treaty preempts taxation laws.

In a dissenting opinion by Chief Justice Roberts, joined by Justices Thomas, Alito, and Kavanaugh, the language of the treaty should be interpreted to mean that as the Yakama have the right to travel on roadways like other citizens, they should be subject to taxation like other citizens.

In an opinion authored by Justice Gorsuch and joined by Justice Ginsberg concurrent with the Court’s holding, the treaty was subversive in its origin as the United States drafted it in a language the Yakama did not understand and resulted in the unknowing relinquishment of a considerable amount of their land. As such, Justice Gorsuch argued that treaty should be interpreted as the Yakama nation understood it, considering the treaty was designed in an ostensible fashion with caveats inaccessible to the Yakama Nation. This ruling upholds long-standing precedents of courts offering more deference to tribes in interpretation of treaties due to the nature of their construction.

On the Docket for October and November: Upcoming Cases and Further Impact

Civil Rights and Equal Opportunity

In Comcast Corp. v. National Association of African American-Owned Media, Entertainment Studios Network, owned by the National Association of African American-Owned Media, claims that Comcast Corp.’s decision to not carry their network stems from racial motivation. 

The impact of this case lies in deciding the extent to which racial discrimination is a determinant in a discrimination lawsuit; more specifically, if but-for causation must be identified or if potential racial motivation, along with additional factors, is sufficient for establishing legal harm. The potential peril of this case manifests if the justices choose to interpret the law via disparate treatment theory, as opposed to disparate impact theory. Affording validation to disparate treatment theory will result in the burden of providing proof of discriminatory intent and but-for causation being vested in the defendants. Placing the onus of proving discriminatory intent, of which it is notoriously difficult to find substantial evidence, will greatly impact employment and civil rights litigation. However, if the justices choose to align their opinion with disparate impact theory, they will allot for the capacity of employment and civil rights litigators to argue that while the terms of agreements may be drafted with seemingly inclusive text, the subsequent impact may result in discriminatory exclusion. 

This case tests Section 1981 of the 1866 Civil Rights Act, which does not give deference to either perspective. In setting the precedent for interpretation of racial discrimination in contractual agreements, employees of private employers and labor unions may be subject to the effects of subversive discrimination and exclusion based on race, color, and ethnicity. 

Criminal Justice

Mathena v. Malvo tackles sentencing offenders, who were minors at the time of committing their offense, to life in prison without the potential for parole. As supported by existing ABA policy, in Miller v. Alabama, the Court asserted that “mandatory life without parole for those under the age of 18 at the time of their crimes violates the Eighth Amendment’s prohibition on ‘cruel and unusual punishments.’”  Later, in Montgomery v. Louisiana, the Court ruled that the decision in Miller must be retroactively applied as it was a “substantive rule of constitutional law.”

If the ruling must be applied retroactively and state discretion is not viable, Malvo may be able to petition for resentencing or a new trial.

On August 27, 2019, the ABA filed an amicus brief, urging the Supreme Court to uphold the ruling in Miller v. Alabama.

Ramos v. Louisiana probes the requirement of the Fourteenth Amendment’s Due Process Clause for state and local government adherence to a vast majority of the Bill of Rights. The Supreme Court has interpreted the Sixth Amendment to mandate unanimity of juries in Federal criminal justice cases. Ramos was sentenced to life without parole by a vote of 10-2.

Justice Thomas has long been critical of the interpretation of the Due Process Clause to afford protections against punitive and restrictive state practices. Following the retirement of Justice Kennedy, a recognized advocate of substantive due process, this case may serve to establish the direction of the coming Supreme Court era relative to their consideration of this mechanism for the protection of individual rights.

Death Penalty

Kahler v. Kansas will decide the capacity for state discretion relative to the insanity defense.

Currently, Idaho, Kansas, Montana, and Utah, at their independent discretion, have eliminated the insanity defense, and Alaska has diminished the defense to be loosely admissible in very few circumstances.

Existing ABA policy supports the use of the insanity defense to support offenders suffering from mental health conditions that impacted their state of mind at the time of the crime. Further, on June 7, 2019, the ABA filed an amicus brief urging the Supreme Court to protect the insanity defense. The brief propagated the thorough research the ABA has conducted regarding people with mental health illnesses.

Without explicitly stating so, the precedent set by this case may serve to establish the general tone of the nation regarding the perceived legitimacy of mental health illnesses and how they should be treated in spheres of criminal justice, as well as in health care policy, societal evaluations and resulting stigmas, and politics.

Environmental Justice

In County of Maui, Hawaii v. Hawaii Wildlife Fund, the County of Maui, Hawaii introduced a pollutant into ground water, which eventually reached navigable waters. The dispute in this case lies in whether the entity from which the pollutant originates is at fault or if the method by which the pollutant reaches the navigable water abstracts the responsibility of the entity. The Court’s decision in this matter could undermine jurisdictional authority of the Environmental Protection Agency.

On May 10, 2019, the ABA published an article, authored by ABA member Norman A. Dupont, which provided an in-depth analysis of the various facets in this matter.


The immigration cases scheduled for the upcoming docket encompass a wide array of issues. Barton v. Barr, Attorney General addresses caveats of the Stop-Time rule, which stipulates that the accumulation of seven years as a continuous resident of the US for green card holders which would result in their capacity to fend off deportation attempts is interrupted upon committing a felony that would render someone ineligible for admittance into the United States.

Whereas Department of Homeland Security v. Regents of the University of California, Trump v. NAACP, and McAleenan, Secretary of Homeland Security v. Vidal addresses the Delayed Action for Childhood Arrivals program, enacted by the Obama administration. If the Court decides the Department of Homeland Security’s decision is subject to judicial review, it will evaluate the legality of their efforts to eliminate the program. On September 5, 2017, former ABA President Hilarie Bass released a statement, urging Congress to develop legislative procedures to aid young people that will be affected by the cancellation of this program. Later, on February 5, 2018, the ABA passed a resolution which concurrently supported the capacity of DACA recipients and DREAMers to be able to apply for permanent legal status and residency while also urged the DHS to refrain from removal or detainment of DACA recipients or DREAMers who have remained compliant with the law. Additionally, the ABA has accumulated a series of resources, documents, and statements on their website to provide more information about the effects of cancellation and measures to take to assist those affected.

In Hernández v. Mesa, the Court will decide on whether a US Border Patrol Agent Jesus Mesa violated the Fourth and Fifth Amendment rights of a 15 year old Mexican boy, Sergio Hernández, by shooting him after he had crossed the border into Mexico where Mesa lacked jurisdiction. Hernández’s family is arguing the violation of the Fourth Amendment’s prohibition on unreasonable seizure and the Fifth Amendment’s requirement of due process. The 5th circuit court that initially reviewed the case contended that Hernández lacked Fourth Amendment rights due to his status as a Mexican citizen and his presence in Mexico at the time of the shooting. However, the court found that since Mesa was unaware of Hernández’s status at the time of the shooting, the argument of Fifth Amendment violation may be applicable, though they maintained Mesa should be offered qualified immunity from being sued by Hernández’s family through use of the model established by Bivens v. Six Unknown Named Agents

An additional facet for consideration in Hernández v. Mesa is the implication of the Court potentially re-evaluating the 5th Circuit’s decision regarding the relevance of the Fourth Amendment. Andrew Kent, Professor of Law at Fordham University Law School, wrote an article that addressed the potential for the decision of the Court to set a precedent which may impact US deployment of extraterritorial national security measures, including drones and electronic surveillance.

In Kansas v. Garcia, the issue up for debate is whether federal law preempts state law in the usage of information found on I-9 forms, including a stolen Social Security number, to convict an individual of a crime. The federal government has filed an amicus brief that asks the Court to not find “explicit preemption” of the section of the Immigration Control and Reform Act of 1986 which addresses the I-9 requirement. In fact, the federal government would like the Court to set a precedent in this case which would remove implicit preemption as well, allowing states to develop immigration legislation and authority at their own discretion. The potential ramifications of this ruling may be incredibly limiting and variable from state to state.

Sexual Orientation and Gender Identity

In Bostock v. Clayton County, Altitude Express v. Zarda, and R.G. & G.R. Harris Funeral Homes Inc. v. Equal Employment Opportunity Commission, the Court will address employment discrimination based on expressed sexual orientation and gender identity, as protected by Title VII of the Civil Rights Act of 1964. This case arises at a time where the contentious Equality Act is in review which would provide protections from discrimination for individuals based on sex, sexual orientation, and gender identity; the ruling in this case could potentially impact the viability of the proposed legislation.

The ABA has released many resolutions regarding the prevention of employment discrimination based on sex, sexual orientation, and gender identity, the restoration and preservation of Title VII, expanding Title VII to include those who identify as transgender, and in support of passage of the Equality Act.

Newly Scheduled December Cases

In December, the civil rights cases will primarily be focused on death penalty sentencing standards, the authority and preeminence of the Environmental Protection Agency, and gun control regulations.

McKinney v. Arizona, much like Kahler v. Kansas, ultimately relates to the mental health of the convicted. At the time of assigning his death sentence, Arizona state statutes did not allow consideration of mental health illnesses or the ramifications of traumatic upbringings, which may have resulted in McKinney’s diagnosed PTSD. However, in Eddings v. Oklahoma, the Supreme Court required that all mitigating evidence must be considered in capital sentencing hearings. On the basis of that holding, McKinney is petitioning for the reevaluation of his sentencing.

Atlantic Richfield Co. v. Christian will determine if the Comprehensive Environmental Response, Compensation, and Liability Act preempts state law and grants the EPA primary jurisdiction in environmental cases after the agency designates consequences and required remedies for the offending entity.

NY State Rifle & Pistol Association, Inc. v. City of New York, NY addresses New York City’s strict gun ownership laws, which, since the filing of this case, have been changed in compliance with the desires of the NY State Rifle & Pistol Association, Inc., in an attempt to nullify the need for the Court’s proceedings. Regardless of whether this trial progresses, this is the first time in almost ten years that the Supreme Court has agreed to hear a gun control case, perhaps signaling to an increased capacity for reception of these cases in the future.

Learn More

Interested in learning more about the issues addressed in these cases? The Section of Civil Rights and Social Justice routinely hosts webinars and panels, discussing the legal intersection of social inequities; recordings of past webinars are available through the Section’s YouTube channel.  On October 3, 2019, we will be hosting a webinar, Rolling Back Disparate Impact and the Repercussions for Civil Rights, which will  discuss “Disparate Impact” legal theory and its use as a crucial legal tool for exposing and addressing discrimination and upholding civil rights in a wide range of areas of life, including housing, education, employment, healthcare, the environment, transportation, and the criminal justice system.

For more resources, look to the directory of Amicus Curiae Briefs on the Section’s website, which contains amicus briefs 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.

Further questions or want to get involved? Contact Section Director, Paula Shapiro, at