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Chambers Appellate Overview 2019 

The Supreme Court’s term began, as it always does, on the first Monday in October. But this year, 2018, would be different: for the first time in 30 years, Justice Kennedy would not be reviewing petitions, hearing arguments, deciding cases or otherwise conducting the business of the Court. Justice Kennedy retired in July 2018 and was succeeded by his former law clerk and D.C. Circuit judge, Brett Kavanaugh. Justice Kennedy’s retirement provided an opportunity to reflect on his legacy and revisit his many landmark opinions. He was, after all, the decisive vote on important issues like affirmative action (Fisher v. University of Texas, 136 S. Ct. 2198 (2016)), same-sex marriage (Obergefell v. Hodges, 135 S. Ct. 2584 (2015)), capital punishment (Roper v. Simmons, 543 U.S. 551 (2005)) and abortion (Planned Parenthood v. Casey, 505 U.S. 833 (1992)). But Justice Kennedy’s departure also came on the heels of what Justice Ginsburg has called a “divisive” term with “more than the usual high-profile cases.” The occasion therefore prompted commentators to wonder what the future holds for the Supreme Court.

Despite that sense of public uncertainty, the Justices have achieved remarkable consensus so far this term. According to data compiled by Empirical SCOTUS, the Court reached “90% unanimity in [its] first ten decisions of the term.” The Court has reached that mark three times under Chief Justice Roberts’ leadership, which represents a consistent level of agreement “not seen previously since before Fred Vinson took the seat of Chief Justice in 1946.”

By April 2019, over two-thirds through the term, the Court had decided numerous important cases without dissent, including:-

Weyerhaeuser Co. v. United States Fish & Wildlife Service, No. 17-71, holding that an area may be designated as a “critical habitat” under the Endangered Species Act, 16 U.S.C. § 1533(a)(3)(A)(i), only if it is also a “habitat” for the species in question.

New Prime Inc. v. Oliveira, No. 17-340, holding that courts should determine whether Section 1 of the Federal Arbitration Act, the exclusion for “contracts of employment” of certain transportation workers, applies before ordering arbitration.

Fourth Estate Public Benefit Corp. v. Wall-Street.com, No. 17-571, holding that although the Copyright Act confers exclusive rights upon a work’s creation, the copyright claimant may not file an infringement suit until the copyright is registered.

United States v. Stitt, No. 17-765, holding that the term “burglary” in the Armed Career Criminal Act includes burglary of a structure or vehicle that has been adapted, or is customarily used, for overnight accommodation.

Timbs v. Indiana, No. 17-1091, holding that the Eighth Amendment’s Excessive Fines Clause is “incorporated” against the States through the Fourteenth Amendment’s Due Process Clause.

Nutraceutical Corp. v. Lambert, No. 17-1094, holding that Federal Rule of Civil Procedure 23(f), which provides 14 days for seeking permission to appeal a class certification order, cannot be equitably tolled.

Helsinn Healthcare S.A. v. Teva Pharmaceuticals USA, Inc., No. 17-1229, holding that the commercial sale of an invention to a third party, who is then required to keep the invention confidential, may nevertheless place the invention “on sale” under 35 U.S.C. § 102(a).

Rimini Street, Inc. v. Oracle USA, Inc., No. 17-1625, holding that the term “full costs” in the Copyright Act, 17 U.S.C. § 505, refers to the general categories of costs listed in 28 U.S.C. §§ 1821 and 1920.

With the retirement of Justice Kennedy, Chief Justice Roberts has also been thrust into the Court’s “ideological center.” According to the New York Times, Chief Justice Roberts’s voting record last term was “almost indistinguishable from that of Justice Kennedy.” And as of March 2019, based on interim statistics compiled by SCOTUSblog, the Chief Justice was “more often in agreement with the more liberal justices than he was with the more conservative justices, excluding Kavanaugh.” For example, Chief Justice Roberts joined Justices Ginsburg, Breyer, Sotomayor and Kagan in resolving two controversial stay applications. See June Med. Servs., L.L.C. v. Gee, No. 18A774 (granting stay pending disposition of certiorari petition in a case involving Louisiana’s “admitting privileges” law) and Trump v. East Bay Sanctuary Covenant, No. 18A615 (denying stay pending appeal of injunction in case involving the Trump Administration’s Mexican asylum policy). Chief Justice Roberts also joined the majority in Madison v. Alabama, No. 17-7505, clarifying the application of Panetti v. Quarterman, 551 U.S. 930 (2007) and remanding the case for further consideration of a death-row inmate’s competency. Likewise, Chief Justice Roberts joined the majority in Garza v. Idaho, No. 17-1026, holding that the presumption of Sixth Amendment prejudice recognized in Roe v. Flores-Ortega, 528 U.S. 470 (2000), applies regardless of whether a criminal defendant has signed an appeal waiver.

But there already have been some indications that, despite remarkable agreement over the term’s first six months, the rate of consensus is slowing down (as it does toward the end of all terms). For example, in Nielsen v. Preap, No. 16-1363, a 5-to-4 majority held that 8 U.S.C. § 1226(c)’s mandatory detention provision applies to potentially removable noncitizens who have committed certain crimes or have ties to terrorism, even if immigration officials do not immediately attempt to detain them upon release from criminal custody. And in Bucklew v. Precythe, No. 17-8151, the same 5-to-4 majority held that to challenge a method of execution under the Eighth Amendment, a condemned prisoner must identify an alternative procedure that “significantly reduce[s] a substantial risk of severe pain and that the State has refused to adopt without a legitimate penological reason,” regardless of whether the challenge is “facial” or “as applied.”

Of course, there are still numerous other high-profile cases pending on the Court’s docket this term. These cases may further demonstrate that, no matter the consensus rate at the outset, there will always be cases in which the Justices disagree:-

Apple Inc. v. Pepper, No. 17-204, presenting the question whether, under Illinois Brick Co. v. Illinois, 431 U.S. 720 (1977), consumers have standing to seek antitrust damages based on allegedly monopolistic commissions on “app” distribution.

Merck Sharp & Dohme Corp. v. Albrecht, No. 17-290, presenting the question whether state-law failure-to-warn claims are preempted by the Federal Food, Drug and Cosmetic Act when the FDA rejects a drug manufacturer’s application to modify its labeling to warn about the risk at issue.

Gamble v. United States, No. 17-646, presenting the question whether the “separate sovereigns” exception to the Fifth Amendment’s Double Jeopardy Clause should be overruled.

The American Legion v. American Humanist Association, No. 17-1717, presenting the question whether a World War I memorial, which is shaped like a cross and appears on State property, violates the First Amendment’s Establishment Clause.

Gundy v. United States, No. 17-6086, presenting the question whether the Sex Offender Registration and Notification Act’s delegation of authority to the Attorney General to issue certain regulations violates the “non-delegation” doctrine.

Kisor v. Wilkie, No. 18-15, presenting the question whether Auer v. Robbins, 519 U.S. 452 (1997), and Bowles v. Seminole Rock & Sand Co., 325 U.S. 410 (1945), which direct federal courts to defer to an agency’s reasonable interpretation of its own ambiguous regulations, should be overruled.

Iancu v. Brunetti, No. 18-302, presenting the question whether the Lanham Act’s prohibition on the registration of “immoral” or “scandalous” marks violates the First Amendment’s Free Speech Clause.

Department of Commerce v. New York, No. 18-966, presenting the question whether the district court erred in enjoining the Secretary of Commerce from introducing a question about citizenship in the 2020 decennial census on the ground that the action violated the Administrative Procedure Act.

The Court will also enter the fray, once again, in cases involving partisan gerrymandering. In Rucho v. Common Cause, No. 18-422, a case challenging North Carolina’s congressional map as an unconstitutional partisan gerrymander, the Court will consider whether the plaintiffs had standing to assert their claims and whether those claims are justiciable. In Lamone v. Benisek, No. 18-726, a case in which the plaintiffs alleged that a Maryland congressional district was gerrymandered as an act of political retaliation, the Court will consider whether the various legal claims articulated are “unmanageable.”

By the end of this term, the Court will have issued numerous opinions on issues of national importance including, administrative doctrines of deference, constitutional safeguards for criminal defendants, the balance of power between the federal government and the states, the establishment of religion, partisan gerrymandering and much more. Unlike last term however, the Court’s docket is not packed with “blockbuster” cases. According to some commentators, the Court is seeking to preserve “[its] limited capital.” Whatever the reason, Chief Justice Roberts appears determined to preserve the Court’s legitimacy. For example, this term, Chief Justice Roberts issued a rare public statement explaining that “we do not have Obama judges or Trump judges, Bush judges or Clinton judges.” The Justices’ ability to reach consensus at a remarkable rate this term - the isolated 5-to-4 decisions notwithstanding - shows that thus far, they are leading by example.