by Joann Horta-Baez
For its first annual program, “United States Supreme Court Year in Review,” UC Davis School of Law invited a distinguished panel of experts on the Court to discuss its major decisions during the 2016-2017 term. The panel included UC Davis Law faculty, Dean Kevin R. Johnson, Professor Carlton F. W. Larson, and Acting Professor Aaron Tang, together with Orrick, Herrington & Sutcliffe LLP attorney Easha Anand.
The panel opened with Professor Larson, who shared some interesting statistics for this past year’s Supreme Court term. In non-unanimous cases, Chief Justice John Roberts agreed most with Justice Anthony Kennedy (82%). Justice Kennedy agreed most with Justice Roberts (82%), second most often with Justice Elena Kagan (74%), and least often with Justice Clarence Thomas (32%). Justices Thomas and Neil Gorsuch agreed 100% of the time. In all cases, Justice Kennedy was in the majority 97% of the time. Justice Thomas wrote the most opinions (31%). Finally, 59% of the decisions were unanimous.
Professor Larson tackled the biggest news of the year: the arrival of Justice Neil Gorsuch. More conservative than the late Justice Antonin Scalia, Justice Gorsuch “has chosen to publish decisions as soon as he got in, even telling his colleagues they don’t know what they’re doing.” This comment was followed by the words “making it less likely that Kennedy will retire.” Besides the Gorsuch arrival and the travel ban, the rumors of Justice Kennedy’s retirement loomed heavily at the term review.
Professor Larson described this last term as “not a sensational one,” and went on to discuss a few free speech cases decided this year:
– Packingham v. North Carolina1 – This case found SCOTUS protecting sex offenders’ access to social media. In a unanimous opinion by Justice Kennedy, the Court held that the law violated the Constitution and had a “staggering reach,” so much so that the Court was perplexed at North Carolina thinking that the law was acceptable.
– Matal v. Tam2 – Here, a Japanese band named “The Slants” was not allowed to trademark its band name at the federal level registration because of the disparagement clause of the Lanham Act. The Court held that the clause violates free speech and that preventing the trademark registration was viewpoint-based discrimination.
Professor Larson noted that free speech seems to be what unites all sides, right and left.
Next up was Professor Aaron Tang, former clerk to Justice Sonia Sotomayor. He described this year as “the calm before the storm,” in terms of cases and the composition of the Court. Like Professor Larson, he thought this was not a blockbuster term, especially when compared to some cases to be heard next term, including: Gil v. Whitford3 (a gerrymandering case out of Wisconsin); Cakeshop v. Colorado4 (a baker who refused to bake a cake for a same-sex wedding); Carpenter v. United States5 (a Fourth Amendment case where law enforcement obtained cellphone records without a warrant); and of course Trump v. Hawaii,6 the so-called travel ban case.
Trump v. Hawaii was the case everyone wanted to hear about. President Trump’s revised executive order blocks new visas for travelers from six majority-Muslim countries for 90 days, and suspends the United States’ refugee program for 120 days. In an unsigned opinion, the Supreme Court modified the injunction by protecting foreign nationals with a bona fide relationship to a person or entity in the United States. Professor Tang observed that the likelihood of success on the merits will depend on whether the order violates the Immigration and Naturalization Act or the Establishment Clause of the Constitution. If it does, the Supreme Court will reject the ban. Many believe that the case will be moot by the time the Court conducts oral argument, but Professor Tang is not convinced. His take is that, on the contrary, come September (when the ban expires) the Trump Administration will extend the order claiming that 90 days was not enough to research the protocols and that the state department has encountered further issues determining who is a bona fide foreign national. (Update as of July 20, 2017: After the Trump Administration sought clarification regarding what is a “bona fide relationship,” the Supreme Court sided with the lower court in Hawaii allowing for an expanded list of familial exemptions for relatives but granted the government’s request to enforce the ban on refugees.)
Again, the Court’s composition took center stage, as Tang went on to speak about Justice Gorsuch’s selection over the Obama Administration’s original nominee, Judge Merrick Garland. Tang described Justice Gorsuch’s selection as a “home-run, a grand slam for the conservatives,” noting that Justice Gorsuch is “every bit as conservative as expected: pro-gun, anti-gay marriage, and a textualist.” But most interesting was his take on Justice Gorsuch’s judicial attitude, calling his approach “aggressive” and “trying to shape the law as he thought it should be.” Justice Gorsuch has written seven opinions and opted out of the certiorari pool, believing his clerk is better off looking at cases for him.
Easha Anand, former clerk to Justice Sonia Sotomayor, discussed the Supreme Court’s shadow docket. Not widely known, the shadow docket contains cases in which the Court issues rulings, but there are no oral arguments or briefs submitted. Anand went on to observe that this docket matters but is not transparent. Participation is optional and gives insight into justices’ perspectives. She explained that rulings are considered precedential or quasi-precedential by lower courts, yet it does not follow the standard process. When the majority decides not to review a case, the justice(s) who disagree can write a dissent explaining why the case should be heard or reviewed. (Anand notes that about 99% of petitions for certiorari are denied.) She discussed one specific case she found interesting, Peruta v. California.7 This case challenged the City of San Diego’s very limited conceal-carry policy which requires a showing of “good cause” to obtain a license to conceal-carry. Under this requirement the applicant must distinguish him/herself from “regular” persons and show that he/she has a particular need to carry a firearm for self-defense. Justice Thomas was not too happy that the Court had denied certiorari and wrote a dissent accusing the other members of the Court of treating the Second Amendment as a “disfavored right” – thereby basically mapping out how the pro-gun side can bring this issue back to the Supreme Court.
Anand also discussed the summary reversal docket. Here, the Court issues a summary reversal when it grants certiorari and overturns the lower court’s opinion below without written briefs or oral arguments on the merits. An interesting case coming from the summary reversal docket was Pavan v. Smith,8 in which a lesbian couple from Arkansas wanted both of their names on a birth certificate but was denied by the government. The Court sided with the couple, explaining that Obergefell v. Hodges9 extended to birth certificate recognitions. Justices Thomas, Alito, and Gorsuch dissented, but Justice Gorsuch wrote separately stating that this issue needed oral arguments and briefs to reach a decision.
Last, but not least, was Kevin R. Johnson, Dean and Mabie-Apallas Professor of Public Interest Law and Chicana/o Studies at UC Davis Law School. He spoke on immigration and the immigration cases heard this term: Maslenjak v. United States,10 Hernandez v. Mesa,11 Esquivel-Quintana v. Sessions,12 Sessions v. Morales,13 and Lee v. United States.14 In Jennings v. Rodriguez15 and Sessions v. Dimaya,16 the Court deadlocked and ordered re-arguments. He explained this volume of immigration cases was not surprising as the Obama Administration removed close to 400,000 persons per year, adding that many more are expected under the Trump Administration.
This was an excellent and informative program, which will hopefully become an annual event.
1 Docket No. 15-1194 (OT 2016).
2 Docket No. 15-1293 (OT 2016).
3 Docket No. 16-1161 (OT 2017).
4 Docket No. 16-111 (OT 2017).
5 Docket No. 16-402 (OT 2017).
6 Docket No. 16-1540 (OT 2017).
7 Docket No. 16-894 (OT 2016).
8 Docket No. 16-992 (OT 2016).
9 135 S. Ct. 2584 (2015).
10 Docket No. 16-309 (OT 2016).
11 Docket No. 15-118 (OT 2016).
12 Docket No. 16-54 (OT 2016).
13 Docket No. 15-1191 (OT 2016).
14 Docket No. 16-327 (OT 2016).
15 Docket No. 15-1204 (OT 2017).
16 Docket No. 15-1498 (OT 2017).