While some people may idolize the latest rock star, appellate nerds—like me—fawn over brilliant legal minds and constitutional academics. Erwin Chemerinsky is today’s constitutional law rock star. In addition to serving as Dean and the Jesse H. Choper Distinguished Professor of Law at the University of California Berkeley School of Law, Dean Chemerinsky is a renowned author and frequent flyer at the U.S. Supreme Court. I am proud to admit that my beloved copy of Dean Chemerinsky’s Constitutional Law: Principles and Policies looks like it lost a battle against several packs of rainbow tabs and highlighters.
If you are also a fan of Dean Chemerinsky, then you would fit right in with the appellate nerd crowd who regularly attends the Annual Summit of the Appellate Judges Education Institute (“AJEI”). As an added bonus, Dean Chemerinsky is a staple speaker at the AJEI’s Annual Summits. (Hint: Now would be a good time to mark your calendars for AJEI’s Summit in 2022, which will be held between November 10-13, 2022 in Scottsdale, Arizona.) To hold you over in the meantime, the following article recaps the highlights from the “U.S. Supreme Court: Civil Update” session that Dean Chemerinsky presented at the AJEI’s 2021 Summit in Austin, Texas.
Commentary Regarding the Current Makeup of The U.S. Supreme Court
Dean Chemerinsky opened his remarks by asserting that “the most important development in the Supreme Court in the last two years was the death of Justice [Ruth Bader] Ginsburg on September 18, 2020, and the confirmation of Justice [Amy Coney] Barrett on October 26, 2020.”
“Based on everything we know about Justice Barrett, the newest addition to the Supreme Court, she is likely to be quite conservative,” Dean Chemerinsky said. Therefore, he explained “there is every reason to believe that if Justice Barrett had been on the bench, rather than Justice Ginsburg, these two cases would have come out differently.”
“In terms of the consequences of Justice Ginsburg’s death and Justice Barrett’s confirmation,” Dean Chemerinsky commented that “two years ago, during Justice Ginsburg’s last term, [Justice] John Roberts was the ideological median justice.” “There were four more conservative (Thomas, Alito, Gorsuch, and Kavanaugh),” Dean Chemerinsky explained, “and four more liberal (Ginsburg, Breyer, Sotomayor, and Kagan).” “It truly was the Roberts Court,” Dean Chemerinsky said, “but now no longer is [Justice] Roberts the ideological median.” Dean Chemerinsky explained that today, “there are now five Justices more conservative [than Justice Roberts], and it very well may be that [Justice] Brett Kavanaugh now is the ideological median justice.”
Dean Chemerinsky further noted that Justice Kavanaugh is “of course, more conservative than the justice he replaced (Kennedy), and [Justice] Barrett is vastly more conservative than the justice she replaced (Ginsburg).” Taken together, Dean Chemerinsky explained, the Supreme Court now leans “significantly further to the right.” So far, since Justice Barrett joined the Supreme Court, Dean Chemerinsky explained, there have already been “significantly more 6-3 decisions than the prior year” when Justice Ginsburg was still on the bench. “And so many of the most important cases of this past year” were 6-3 decisions that were “split along the ideological lines,” Dean Chemerinsky explained.
Dean Chemerinsky then opined that the current conservative makeup of the Supreme Court will likely remain for years to come, since “when Justice Barrett was sworn in last October 26, she was 48 years old.” “If she remains on the Court until she’s 87—the age when Justice Ginsburg died,” Dean Chemerinsky theorized, Justice Barrett will remain a Supreme Court Justice until the year 2059. Additionally, the day that Justice Barrett was sworn in, Dean Chemerinsky explained, “Justice Gorsuch was 53, [Justice] Kavanaugh was 55, [Justice] Roberts was 65, [Justice] Alito was 70, and [Justice] Thomas was 72.” Dean Chemerinsky then jokingly remarked that “the best predictor of a long lifespan is being confirmed for a seat on the United States Supreme Court.” “Therefore,” Dean Chemerinsky predicted, “it is likely that five or six of these Justices will be together for another decade or two.”
“So as you think about the Supreme Court, what it did the last Term and what’s ahead for the foreseeable future,” Dean Chemerinsky stated, “here’s the bottom line—if you are politically conservative, it’s time to be jubilant.” “And if you are politically liberal,” he explained, “maybe the most encouraging thing I can say is that perhaps the Supreme Court will continue to decide fewer and fewer cases each year.”
Civil Cases Decided in The U.S. Supreme Court’s 2020 Term
Although a significant amount can be said about each of the Supreme Court’s below-listed opinions, the following discussion focuses solely on the commentary that Dean Chemerinsky shared during his 2021 AJEI Summit “Civil Update” presentation. For a more detailed discussion of Dean Chemerinsky’s analysis of each of these cases, please refer to one of Dean Chemerinsky’s latest publications: The Supreme Court in Transition: October Term 2020.
Formatting Note: Hereinafter, quotation marks are used to designate Dean Chemerinsky’s direct quotations, and the rest of the following content reflects a summary of Dean Chemerinsky’s commentary.
1. Affordable Care Act
California v. Texas, 141 S. Ct. 2104 (2021), arose in the wake of the Supreme Court’s 2012 precedent regarding the “Patient Protection and Affordable Care Act.” “In 2012, the Court upheld the constitutionality of the Patient Protection and Affordable Care Act, but the crucial issue [addressed in 2012] was whether the ‘individual mandate’ was constitutional.” “The ‘individual mandate’ was a requirement that everyone purchase insurance or pay a tax penalty.” In 2012, “the Supreme Court upheld the individual mandate as a valid exercise of Congress’s broad power to tax and spend for the general welfare.”
This matter arose when, “as part of the Tax Reform Act, Congress repealed the penalty for not purchasing insurance,” in December 2017. Thereafter, the Affordable Care Act still required people to purchase insurance, but there was no longer any consequence for failing to do so. “Congress set the penalty, literally, at $0.”
The State of Texas and several individual plaintiffs then filed a lawsuit in a federal district court in Texas, again claiming that the Affordable Care Act was unconstitutional. More specifically, Texas argued that the U.S. Supreme Court only upheld the Affordable Care Act as constitutional in 2012 because the Court concluded the individual mandate reflected a valid exercise of Congress’s taxing power, but now, Congress has effectively dictated that the individual mandate “is no longer a tax.” Texas contended that Congress’s actions undermined the “linchpin” of the Supreme Court’s 2012 decision, and thus, the Affordable Care Act is unconstitutional under these new circumstances.
The underlying federal district court partially agreed with Texas, declared the individual mandate to be unconstitutional, and expressed—without deciding—that the Affordable Care Act may also be unconstitutional in its entirety. The Fifth Circuit considered the individual mandate to be unconstitutional, but remanded the matter back to the district court to decide whether this provision was severable from the rest of the law. Before the district court could hear the remand, however, the Supreme Court granted review to address three questions: (1) whether the plaintiffs had standing to sue; (2) whether the individual mandate was constitutional; and, if so, (3) whether the individual mandate was severable from the rest of the Act.
“In a 7-2 decision, the Supreme Court dismissed the case for lack of standing.” As to the individual plaintiffs, the Court found that they lacked standing because there was “no consequences to them from the Act—if they don’t purchase insurance, there is no penalty, and therefore no injury to them.” Additionally, the Court concluded that any harm to the state of Texas is “at best incidental or indirect,” and therefore, there is no standing for Texas either.
“Why does this case matter so much since it was dismissed on standing grounds?” Twenty-one million people are currently receiving their health insurance through the Affordable Care Act, and we are still in the midst of the worst public health crisis in over a century. It would have had a “devastating effect” if the Supreme Court had instead chosen to strike down the Affordable Care Act. Thus, “it was enormously important” that the Supreme Court effectively upheld the Affordable Care Act by dismissing this matter for lack of standing.
NCAA v. Altson, 141 S. Ct. 2141 (2021), “began as a class action lawsuit on behalf of Division I, college football and basketball players,” who claimed that the NCAA violated antitrust laws by only permitting colleges and universities to compensate student-athletes for tuition, books, and room and board. On appeal, the Supreme Court was solely tasked with assessing whether colleges and universities should also be allowed to provide student-athletes with other non-academic compensation, “such as laptops, musical instruments, and post-graduate fellowships.”
In a 9-0 decision, the Supreme Court ruled against the NCAA. From the outset of its opinion, the Court made clear that it “regards the NCAA as a big money business,” and it believes that those responsible for the revenue (the players) should receive a share of that revenue. In so holding, the Court rejected the NCAA’s counterargument that they were exempt from the antitrust laws, and noted that only Congress could enact such an exemption but has yet to do so.
3. Civil Rights Litigation
Taylor v. Riojas, 141 S. Ct. 52 (2020), “involves the doctrine of qualified immunity,” which protects certain government officials from liability for money damages, “unless the officer violates clearly established law that every reasonable officer should know.”
Why is this particular qualified immunity case important? Since 1982 (when the U.S. Supreme Court articulated this test), 33 Supreme Court cases have addressed qualified immunity defenses. In 30 of these 33 cases, the Supreme Court concluded that the officer was protected under this immunity after determining that “there was not a case on point—the law was not established with enough specificity—to allow for the creation of officer liability.”
“This Taylor v. Riojas matter is significant” because it reflects one of the only three instances since 1982, when the Supreme Court found for the plaintiff and rejected the officer’s qualified immunity defense. This matter “has horrific facts.” A Texas prisoner was placed, “naked even though it was cold, in a terribly unsanitary cell, with no working toilet or drain.” This prisoner “had to sleep on the floor in his own urine and feces.” The prisoner sued, arguing that his treatment was cruel and unusual punishment.
“The U.S. Court of Appeals for the Fifth Circuit concluded that it was cruel and unusual punishment, but found that the officials were protected by qualified immunity.” In so holding, the Fifth Circuit reasoned that “there wasn’t a case on point that said holding a prisoner in these conditions for six days was cruel and unusual punishment.”
“The Supreme Court, in a per curium, 7-1 opinion, reverses.” (Justice Barrett did not participate.) “What is so significant about this opinion is that the Supreme Court stresses that there doesn’t have to be a case on point.” “The Supreme Court says, ‘so long as an officer has fair notice, fair warning that the conduct is impermissible, that is enough to overcome qualified immunity.’”
In two subsequent, per curium opinions regarding police excessive force claims—Rivas-Villegas v. Cortesluna, 142 S. Ct. 4 (2021), and City of Tahlequah, Oklahoma v. Bond, 142 S. Ct. 9 (2021), however, the Supreme Court clarified that “Taylor v. Riojas is still the exception.” “Especially when it comes to police excessive force cases,” the Supreme Court still “insists” that a claimant can only overcome a qualified immunity defense if their claim is supported by case law “with very similar, if not identical facts.”
4. Federal Court Jurisdiction
TransUnion, LLC v. Ramirez, 141 S. Ct. 2190 (2021), “is the case that I regard as the sleeper of the Term, and it has implications in both federal and state courts.” In this case, Ramirez tried to obtain a loan to buy a car, but he was unable to do so because his credit report listed him as a suspected terrorist. “It turns out that this was a mistake; he was confused with someone else with the same name.” Thereafter, Ramirez joined a class action lawsuit under the Fair Credit Reporting Act.
On appeal the Supreme Court held, in a 5-4 decision, that “those like Ramirez, whose [inaccurate] credit report had been disseminated, had standing to sue.” However, the other members of this class action, whose credit reports had not yet been disseminated, did not have standing to sue even though “the Fair Credit Reporting Act gave them a statutory cause of action.” In so holding, the Supreme Court recognized that Congress, by statute, can generally create rights, and an infringement of those rights reflects an injury sufficient for standing. In TransUnion, LLV v. Ramirez, however, the Supreme Court clarified that in order to establish this standing, the right that Congress created by statute must “have existed at common law or have a close analogue historically.”
“Why do I think that this is the sleeper case of the Term?” Think about the Federal Freedom of Information Act, which says that “every person has the right to all documents possessed by the federal government, unless they fit the one of nine categories of exception.” Until now, no one has ever questioned whether a person has standing to sue if their FOIA request is denied. “This is because FOIA creates a right, albeit a right that otherwise wouldn’t exist, and the infringement of that right is enough for standing.” However, “the right created by FOIA is not one that existed at common law,” so does this mean that under TransUnion, LLV v. Ramirez people cannot sue under FOIA? There are dozens of examples of federal statutes that may similarly be affected by this holding.
Additionally, this case may implicate both federal and state courts because if a case cannot be brought in federal court due to lack of standing, then the question becomes whether the litigation can instead be brought in state court under the state’s rules governing standing.
5. First Amendment—Free Exercise of Religion
Tandon v. Newsom, 141 S. Ct. 1294 (2021), arose when people, who wished to gather for religious reasons, challenged a COVID-related closure order that was entered by California’s governor. This California order prohibited more than three households of people to gather at any point in time in a single home. This Order “didn’t speak of religion” or even specify why the three households were gathering. The federal district court and the Ninth Circuit both refused to deem this order an unconstitutional infringement on the challengers’ freedom to exercise religion. The Supreme Court reversed in a 5-4 decision. In its “strongly worded” per curium opinion, the Supreme Court explicitly stated that “religious activities must be treated as favorably as the most leniently regulated secular activity.”
Fulton v. City of Philadelphia, 141 S. Ct. 1868 (2021), “is certainly the most high-profile case of the last Term.” This matter arose when the City of Philadelphia refused, pursuant to a local ordinance, to engage in foster care services with Catholic Social Services (“CSS”) unless CSS agreed that it would not discriminate against foster parents on the basis of their race, sex, religion or sexual orientation. CSS challenged Philadelphia’s refusal and argued that their religious beliefs prohibited CSS from placing foster children with same-sex couples.
The federal district court in Philadelphia ruled against CSS, and the Third Circuit affirmed. The Supreme Court unanimously reversed and found in favor of CSS. In so holding, the Supreme Court distinguished this Fulton matter from the Supreme Court’s famous “peyote case” from 1990—Emp. Div., Dep't of Hum. Res. of Oregon v. Smith, 494 U.S. 872 (1990), wherein the Supreme Court refused to recognize that Native Americans were exempt from an Oregon law that prohibited anyone from using peyote (a hallucinogenic substance) due to their religious beliefs. In Smith, the Supreme Court dictated that people cannot be granted exceptions from general laws due to their religious beliefs—“so long as the law is neutral, not motivated by the desire to infringe on religious beliefs, and generally applies to everyone.” In these instances, the Free Exercise Clause is not implicated, so the law is not subject to strict scrutiny review.
The Supreme Court explained that the disputed Philadelphia ordinance at issue in Fulton did not qualify as “a neutral law of general applicability,” however, because it granted city officials discretion to create exceptions. Thus, Fulton dictates that if “a government law burdens religion, and it gives discretion to government officials to create exceptions, then it has to meet strict scrutiny.” “But don’t lose sight of the bottom line of this case.” In this case, “the Supreme Court protects the ability of Catholic Social Services to discriminate on the grounds of sexual orientation on account of religious beliefs.”
6. First Amendment—Freedom of Speech
Mahaney Area School Dist. v. B.L., 141 S. Ct. 2038 (2021), is another big case from this last Term that “received a lot of media attention.” This case arose when a student from a public high school was upset that she didn’t make the varsity cheerleading team, so posted a video on her Instagram page, wherein “she lifted her middle finger, on both hands, and repeatedly used a profanity that starts with the letter ‘F.’” The cheerleading coach saw this, said that it violated team rules as it reflected “conduct unbecoming of a cheerleader,” and kicked her off the junior varsity team. The student and her parents sued in federal district court, arguing that her First Amendment rights were violated.
In an 8-1 decision, the Supreme Court found in favor of the student. In so holding, the Supreme Court clarified that “it is not saying that schools can never punish speech out-of-school,” but schools should generally “be limited in their ability to punish speech that occurs outside of school or during non-school hours.” The Supreme Court reiterated the existing standard that out-of-school speech can generally be punished “only if it’s actually disruptive to school activities,” such as “bullying, harassing, and cheating behaviors.”
Why is this case important? “This is the first time that student speech has won in the Supreme Court since Tinker in 1969.” “Every other student speech case, in the more than half-century since, has always come down in favor of the school officials.” Additionally, so many cases “in our modern world now” involve student speech that is shared on social media and during non-school hours, and “this case says that schools are very limited in their ability to punish this speech.”
7. Intellectual Property
Google v. Oracle, 141 S. Ct. 1183 (2021), “is, I think, the most import copyright case of the digital era.” This case arises from Google’s use, without consent or a valid licensing agreement, of lines of code that had been developed by a company later purchased by Oracle. “Oracle then sues Google for copyright infringement for using these lines of code.” After a long history of litigation, the matter comes to the Supreme Court to address two issues: (1) whether such “lines of code” are copyrightable; and if so, (2) “is what Google did ‘fair use?’”
In a 7-2 decision, the Supreme Court finds in favor of Google and against Oracle. Since the Supreme Court refused to address the first question—whether the lines of code are copyrightable, “that remains an enormously important unresolved issue.” Rather, the majority opinion focuses entirely on the second question regarding whether Google’s conduct constitutes “fair use.” For litigators in this area, “the most important” part of the Supreme Court’s “fair use” discussion is when Justice Breyer, writing for the majority, emphasizes that the assessment is “ultimately a balancing test,” wherein the focus must be on weighing “the social benefit from the transformative use of the work against the harm to the copyright owner.”
After applying this test to the facts of this case, the Supreme Court concluded that “what Google did here was transformative and enormously beneficial” as it led to the development of the Android phone. Comparatively, Google’s actions “did relatively little harm to Oracle.” In his dissenting opinion, however, “Justice Thomas clearly looks to what Google did with disdain”; emphasizes the harms that Oracle suffered; and notes that Google could have gotten a license, paid for this code, and should not be rewarded for refusing to do so. “The key difference between the majority and the dissent, is that the majority really wants to provide protection for what it regards as ‘transformative’ uses and seems less concerned in terms of what was the actual economic harm to the copyright owner.”
8. Personal Jurisdiction
Ford Motor Company v. Montana Eighth Judicial District, 141 S. Ct. 1017 (2021), addressed whether personal jurisdiction existed in a product liability suit. Although this personal jurisdiction inquiry has historically focused entirely on the defendant’s contacts, in this Ford Motor Company matter, the Supreme Court instead assessed whether personal jurisdiction existed by focusing on the plaintiff’s contacts with the state. “This is a huge change in the law with regard to personal jurisdiction.”