Dean Erwin Chemerinsky Reviews the Civil Cases of the Supreme Court’s October 2023 Term

Introduction

A highlight of the annual AJEI conference is UC Berkeley Law Dean Erwin Chemerinsky’s summary and analysis of recent Supreme Court decisions.  The Dean spoke to a packed room at November’s conference in Boston, sharing his usual thorough recap of some of the more noteworthy civil cases decided in the past term.

The Term started October 2, 2023 and ended October 6, 2024 (OT’23).  Dean Chemerinsky introduced the Term by quoting Justice Sotomayor in a talk she gave at Berkeley in January 2024.  When he asked her, “How are you?,” she said, “I’m exhausted,” seemingly referring to the difficult cases the Court took up that Term.

The Dean pointed to the continuation of the Roberts Court’s trend of deciding significantly fewer cases each term than the Rehnquist Court, with the justices’ issuing only 59 signed decisions after briefing and oral argument this Term, on par with the previous three terms (58 in OT’22, 54 in OT’21, and 52 in OT’20). He extrapolated from these numbers that the Court is now “in a steady state,” deciding cases each term “somewhere in the 50s.”

He also noted that the Term’s decisions continued to reflect the Court’s solid conservative majority of six justices, with the Chief Justice finding himself as the justice most often in the majority (in 97% of the Term’s decisions, and dissenting in only one case).  The Dean detected a more audible and “distinctive voice” from Justice Barrett as she directly encouraged her fellow justices to decide cases in a more moderate way, even though she almost always sided with her conservative brethren throughout the Term.  Additionally, he shared his prediction that Justices Thomas and Alito will step down during the second administration of President Donald Trump.

The Cases

The Dean addressed the civil cases by subject matter, organizing them into the five categories of:

1. Abortion
2. The administrative state
3. First Amendment
4. Second Amendment
5. Executive Power/Immunity.

Abortion

Two abortion cases came before the Court this Term, but the justices decided neither one on its merits.

Food & Drug Administration v. Alliance for Hippocratic Medicine (No. 23-235) involved mifepristone, a drug used to induce abortions.  Following the Court’s June 2022 decision in Dobbs v. Jackson Women's Health Organization, which held there is no constitutional right to abortion, several states sought to restrict mifepristone’s sale.  The Alliance for Hippocratic Medicine and other pro-life groups challenged the FDA’s approval of the drug, and both the trial court and the court of appeals sided with the plaintiffs, effectively banning the drug in the U.S.  But the Court reversed in a unanimous decision written by Justice Kavanaugh, concluding that the plaintiffs lacked Article III standing to challenge the FDA’s regulatory actions regarding the drug.  The Court reasoned that none of the plaintiff doctors or medical associations prescribes or uses mifepristone, and they do not allege direct monetary, property, or physical injuries from the FDA's regulation of the drug.  Simply because they have legitimate legal, moral, ideological, and policy concerns about abortion does not suffice on its own to confer Article III standing to sue in federal court.

In a concurring opinion, Justice Thomas urged the Court (in a future case) to revisit its precedent that allows organizations and associations to sue in federal court, reiterating that associational (or organizational) standing is simply another form of third-party standing.

The other abortion case, Moyle v. United States (No. 23-736), started off with a bang, but ended with a fizzle.  It involved the Emergency Medical Treatment and Labor Act (EMTALA), a law passed by Congress in 1986 that requires hospitals receiving Medicare funding to offer “necessary stabilizing treatment” to pregnant women in emergencies.  Following Dobbs, the Biden Administration took aim at an Idaho law that criminalizes providing an abortion with narrow exceptions that include to save the life of the mother, arguing that the state law is preempted by EMTALA.  After the trial court preliminarily enjoined the law, the Justices stayed the injunction and agreed to hear the case.   But ultimately, in a 6-3 per curiam decision, the Court determined that it was premature for the justices to hear the case at this stage, returning the case to the Ninth Circuit for further proceedings.

The Administrative State

Probably the most widely discussed and noteworthy decision of the Term was in a pair of cases that squarely took aim at the Chevron doctrine of judicial deference to agency interpretations on the meaning of federal laws, Loper Bright Enterprises v. Raimondo (No. 22-1219) and Relentless, Inc. v. Department of Commerce (No. 22-1219).  Divided 6-3, with the majority’s decision written by the Chief Justice, the Court overturned the doctrine established through its 1984 decision in Chevron U.S.A. v. Natural Res. Defense Council, Inc.  Citing Marbury v. Madison, Chief Justice Roberts reasoned that the Administrative Procedure Act requires federal courts to “decide all relevant questions of law” when reviewing agency actions, meaning that judges should use their own judgment to interpret laws and not defer to agencies’ interpretations.  In contrast, Chevron contradicted this fundamental Article III principle by requiring courts to defer to agency interpretations of ambiguous statutes if those interpretations were reasonable, premised on a flawed assumption that Congress intends to delegate interpretive authority to agencies whenever a law is ambiguous. 

Justice Kagan dissented, joined by Justices Sotomayor and Jackson, stressing the doctrine of stare decisis and arguing that if Congress didn’t like the Chevron doctrine, Congress could have changed the APA to eliminate Chevron deference in the intervening 40 years since the Court’s Chevron decision.

In another 6-3 decision, Securities & Exchange Commission v. Jarkesy (No. 22-859), the Court held that the Seventh Amendment entitles a defendant to a jury trial when the SEC seeks civil penalties for securities fraud.  The case involved an administrative law judge’s finding that Mr. Jarkesy was guilty of securities fraud, which led to the SEC’s imposition of civil penalties.  Writing for the majority, Chief Justice Roberts reasoned that such matters must be decided by a jury, not by a non-Article-III body, despite Congress’s assignment of such enforcement actions to an agency.  He explained that the claims are “legal in nature,” closely resembling common law fraud actions, in substance.  He also emphasized that the SEC’s civil penalties here are punitive in nature, a type of remedy traditionally provided by courts of law and historically adjudicated by courts with juries.  Justice Sotomayor’s dissenting opinion highlights the practical effects of the majority’s decision — that it will affect many agencies imposing civil penalties in administrative or enforcement proceedings.  Along the same lines, Dean Chemerinsky noted the decision’s effects on the judiciary, as these administrative enforcement actions will now land in federal court.

The Court’s focus on the administrative state was also seen in Corner Post, Inc. v. Board of Governors of the Federal Reserve System (No. 22-1008).  What seemed like a run-of-the-mill case about a statute of limitations, turned out to significantly increase agency exposure under the Administrative Procedure Act.  The case involved the six-year statute of limitations for seeking judicial review of federal agency rulemaking under the APA, presenting whether one must challenge the validity of an agency rule within six years of the rule’s issuance or, instead, within six years from when the rule first injures the particular claimant.  In another 6-3 decision, Justice Barrett wrote the majority opinion, holding that the limitations period runs once the particular claimant has been harmed by the agency action.  Justice Jackson’s dissenting opinion, joined by Justices Sotomayor and Kagan, underscores the majority’s continued shift of power from agencies to courts, making it easier to challenge agency actions, and for a much longer period of time.  Now, anytime one is aggrieved by an agency rule, no matter when that rule was enacted, the challenger has six years to bring suit under the APA.

First Amendment/Speech

The Court continued to focus on the freedom of speech this Term, particularly as it relates to the internet.  Dean Chemerinsky observed that since the advent of the printing press, nothing has so dramatically increased the reach of messaging to society more than the internet and, specifically, social media.

In Lindke v. Freed (No. 22-611), the Court faced the question of when a public official can block or delete comments on social media.  The case involved Kevin Lindke, a resident and constituent of a city where James Freed served as the city manager.  Lindke posted criticisms of the city’s response to the COVID-19 pandemic on Freed’s Facebook post.  Freed then deleted Lindke’s comments and blocked him from further commenting on Freed’s post.  In a unanimous decision written by Justice Barrett, the Court ruled for Lindke, holding that public officials can be liable for blocking social media comments.  The Court developed a two-part test for determining when a government official’s social media conduct violates the freedom of speech under the First Amendment: (1) that the government official has the authority to speak on behalf of the government and (2) that he is purporting to speak on behalf of the government.  The Court clarified that a public official “does not relinquish his First Amendment rights” when he assumes public office, but he retains his right as a citizen to speak on matters of public concern.  The test is not whether the official’s post falls within the “scope” of his official duties; the dispositive inquiry is whether he possesses the “authority” to speak on the government’s behalf regarding the specific content of the post.  The ruling serves as a further limitation on the government’s ability to exclude constituents from public forums.

In the consolidated cases of Moody v. NetChoice (No. 22-277) and NetChoice v. Paxton (No. 22-555), the Court addressed facial First Amendment challenges to Florida and Texas laws designed to combat large social media platforms’ bias against and censorship of conservative speakers.  Trade associations representing social media platforms challenged the state laws, asserting facial challenges and arguing that they violated the platforms’ freedom of speech.  The district courts preliminarily enjoined the new laws, with the Eleventh Circuit upholding the injunction of the Florida law and the Fifth Circuit reversing the injunction of the Texas law.  The Supreme Court vacated the judgments below, holding that neither the Eleventh Circuit nor the Fifth Circuit conducted a proper analysis of the trade associations’ facial challenges.  The Court reasoned that the lower courts should have analyzed the challenges more broadly because the laws might apply to, and differently affect, other kinds of websites and apps; a plaintiff can succeed on a facial challenge only if a substantial number of the law’s applications are unconstitutional when judged in relation to the statute’s “plainly legitimate sweep.”  The lower courts did not address the “full range” of activities covered by the laws, measure the constitutional applications of the laws against unconstitutional ones, or evaluate whether the laws intrude on the platforms’ protected editorial discretion.

While the Court’s judgment was unanimous, three of the justices did not join Justice Kagan’s majority opinion in full.  Justices Thomas, Alito, and Jackson each filed an opinion concurring in the judgment.  Dean Chemerinsky found Justice Thomas’s opinion particularly thought-provoking because Justice Thomas wrote that federal courts should not hear facial challenges to state laws, but that federal courts may consider as-applied challenges to state laws.  Likewise, in her own concurrence, Justice Barrett wrote that the trade associations “would be better served” by bringing the First Amendment challenge as applied to specific social media functions.  The Dean perceived an underlying issue courts will need to eventually address—whether social media should be regulated at the state level instead of at the federal level.

And in another unanimous decision, the Court held in National Rifle Association v. Vullo (No. 22-842) that public officials violate the First Amendment when they use their positions to punish or suppress those advocating for positions they disagree with.  Justice Sotomayor authored the opinion, siding with the NRA in concluding that the group had properly stated a claim that government officials violated the First Amendment.  The Court reaffirmed the long-standing legal admonition against using “the power of the State to punish or suppress disfavored expression.”  The Court further held that public officials cannot coerce private parties into punishing or suppressing speech on their behalf.  The Court left open the question of whether the state officials are entitled to qualified immunity, noting that the court of appeals can make that determination on remand.

Second Amendment

In United States v. Rahimi (No. 22-915), the Court faced the question: Does the government violate the Second Amendment right to bear arms by prohibiting gun possession by a person who is under a civil domestic violence restraining order?  The facts of the case are straightforward.  After the defendant assaulted his then-girlfriend, she was issued a restraining order against him that barred him from possessing firearms.  Undeterred, the defendant then engaged in many more separate shootings, including firing his gun while in the presence of children.  He was indicted for violating 18 U.S.C. § 922(g)(8), which prohibits individuals subject to domestic violence restraining orders from possessing firearms.  He argued that Section 922(g)(8) violates the Second Amendment.  The district court disagreed, as did the Fifth Circuit initially, but it then withdrew its opinion, reversed his conviction, and struck down Section 922(g)(8) based on the Supreme Court’s then-newly issued 2022 decision in New York State Rifle & Pistol Association, Inc. v. Bruen.  Strictly applying Bruen, the Fifth Circuit reasoned that restraints on gun rights at the time of the nation’s founding in 1791 did not include domestic violence restraining orders and so the historical understanding of the Second Amendment espoused in Bruen meant that the federal statutory restriction did not pass constitutional muster.  All of that set the stage for the Supreme Court to take up the case.

In an 8-1 reversal, the Chief Justice wrote the decision for the Court, declaring that the Second Amendment right to bear and own arms is not “trapped in amber,” and clarifying that judges need not find a “historical twin” or a “dead ringer” of the law in question, but only a “historical analog” that existed at the time of the founding.  And the Court saw a close-enough historical analog to Section 922(g)(8) in the surety laws that existed in 1791, which authorized judges to require individuals suspected of future misbehavior to post a bond (or be jailed).

Dean Chemerinsky noted that the Court’s decision “provides some guidance, but not a whole lot of guidance” on how lower courts are to apply Bruen.  He also observed that the justices issued seven opinions in this case, including the Chief’s decision for the Court and the lone dissent by Justice Thomas.  The Dean noted that each of the seven opinions concerns the interpretive concept of originalism and, more specifically, grapple with what kind of originalism the Court should employ in these types of cases.  “Back when Scalia and Thomas were the only originalists on the Court, there wasn’t a debate on originalism.  But now with six conservative justices, including the addition of a couple or a few more originalists, there is a debate on what kind of originalism is best,” he added.

Executive Power/Immunity

Dean Chemerinsky concluded his remarks with two cases decided by the Court that had the effect of broadening presidential power and immunity.

The Court resolved the first case, Trump v. Anderson (No. 23-719), often called the “Colorado ballot case,” in a per curiam decision with all nine justices signing on to the judgment.  The dispute here arose when Colorado voters sued to keep President Trump off the ballot due to his alleged role in the January 6th events at the Capitol.  Clearing the path for President Trump to remain on the 2024 ballot in all 50 states, the Court unanimously held that it is not for state courts to enforce or apply Section 3 of the Fourteenth Amendment, and that only Congress can do so.  According to the Court, allowing individual states to determine a federal candidate’s eligibility could lead to a patchwork of conflicting outcomes not only based on differing views of candidates’ qualifications but also on procedural variations in state law governing the proceedings, disrupting the federal election process in a manner the Constitution neither requires nor tolerates. 

As the Court observed, the history of Section 3 is interesting, as it was added to the Fourteenth Amendment after the Civil War to target former officials who had supported the Confederacy.  Section 3 disqualifies individuals who have been federal or state government officials and sworn an oath to uphold the Constitution from taking any office “under the United States” if they have “engaged in insurrection.”

The Dean found the Court’s reasoning questionable because, as he understands it, state courts apply the Fourteenth Amendment “all the time.”  And Dean Chemerinsky was also not persuaded by the Court’s additional rationale that states would be split if state courts where allowed to apply this constitutional provision.  He asked, “Isn’t the Supreme Court in the business of clearing up any division among the states?”  And although he did not expressly answer his own question, it was apparent to the audience that his answer is “yes.”

The final case Dean Chemerinsky addressed, he referred to as the “Trump immunity case.”  In Trump v. United States (No. 23-939), the Court held that a former president is entitled to immunity from criminal prosecution for official acts undertaken while in office.  The Court expressly did not decide whether presidential immunity for official acts must be absolute “or instead whether a presumptive immunity is sufficient.”  With the limits of its decision in place, the Court remanded the case to the lower court—with certain guidance and guardrails regarding the constitutional limits of presidential immunity—to determine which of the indicted acts qualify as official versus unofficial acts.  Chief Justice Roberts authored the Court’s decision, joined by Justices Thomas, Alito, Gorsuch, and Kavanaugh.  Justice Barrett wrote a separate opinion partially concurring in the Court’s decision, while Justice Sotomayor filed a dissent, joined by Justices Kagan and Jackson.

Dean Chemerinsky wrapped-up his remarks by spotlighting the ominous valediction in Justice Sotomayor’s dissent: “With fear for our democracy, I dissent.”  The Dean was then asked a follow-up question from the audience, “What does the Trump immunity decision do to prosecute a former president for war crimes or crimes against humanity?,” to which the Dean responded, “If he performed official acts using delineated presidential authority, he is absolutely immune.”  The questioner then exclaimed, “That’s terrifying!,” prompting the Dean to quip, “I’m just the messenger,” which evoked laughter around the room and ended the session on a lighthearted note.