iGreetings, Court Fans!
Things seem a bit . . . different since our last Update, no? As we round out our second week of remote lawyering (which, for some of us, seems to involve a lot more long division than we’re used to), the Court itself is in a state of social-distance flux. On March 12th, it announced that One First Street would be closed to the public “until further notice,” and then on the 16th, it postponed oral arguments for the entire March sitting (11 cases). Notwithstanding President Trump’s expectation of a resurrection of normalcy by Easter, it seems highly unlikely that the Court (two-thirds of whose members are over 65) will hold arguments in April, either. That suggests that 20 cases from this term will either be decided without argument, postponed until next term, or argued in some kind protective bubble. (We know how protective folks are about RBG these days….) In any case, it’s clear the Court is navigating unchartered waters here, much like the rest of us. The pandemic has not, however prevented the Court from churning out decisions: four new opinions this week, plus a per curiam dressing down of the Fifth Circuit. Let’s get to it.
First up, in Kahler v. Kansas (No. 18-6135), the Court took up an issue that you don’t often see outside of 1L Crim Law finals: the insanity defense. Specifically, a 6-3 majority held that the Due Process Clause does not require States to adopt an insanity defense that turns on a defendant’s ability to recognize that his crime was morally wrong.
In her opinion for the Court, Justice Kagan began with an overview of the “diverse strains of the insanity defense” in American law. The two most common strains derive from that old standard, M’Naghten’s Case (H.L. 1843), which held that a defendant could not be convicted of an offense if he lacked “cognitive capacity”—that is, if a mental illness left him unable to understand what he was doing when he committed the crime—or “moral capacity”—meaning his illness rendered him unable to understand that his action was wrong. Until 1979, every jurisdiction in the United States recognized both the cognitive-incapacity and moral-incapacity tests. Since then, however, five states—including Kansas in 1995—have legislatively abolished the traditional insanity defense, or at least the moral-incapacity prong of it. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea for a crime (which is essentially the cognitive-incapacity defense); and he can raise mental illness at sentencing to justify a reduced term of imprisonment or commitment to a mental-health facility. But he cannot avoid conviction merely because his mental illness prevented him from understanding that his actions were morally wrong.
James Kahler knew what he was doing when he murdered his ex-wife, her grandmother, and his two daughters. Therefore, under Kansas law, he could not plead insanity as an affirmative defense, even though he claimed his severe depression had rendered him unable to distinguish right from wrong. Before trial, he filed a motion arguing that Kansas’s treatment of the insanity defense—and in particular it’s failure to recognize moral incapacitation as a defense—violates the Fourteenth Amendment’s Due Process Clause. The trial court disagreed and the jury returned a conviction. At the penalty phase, although Kahler was permitted argue that his mental condition mitigated his offense, the jury still imposed the death penalty. The Kansas Supreme Court later rejected Kahler’s due-process argument on appeal.
The Supreme Court affirmed, with Justice Kagan joining, and writing for, the five conservative Justices. She began by noting that a state rule about criminal liability can only violate due process if it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” Kahler argued that the insanity defense, generally, is a fundamental principle of justice and that Kansas’s abolition of the defense therefore violated due process. But Justice Kagan rejected this basic premise. While it is true that the principle that insanity can relieve criminal responsibility, Kansas’s current scheme accords with that principle because it prohibits a defendant from being convicted if a mental illness prevented him from forming the requisite criminal intent and permits a defendant to raise any argument concerning mental illness at sentencing. In Kagan’s view, therefore, Kahler could only prevail by showing that due process requires states to adopt a specific test of insanity—namely, the moral-incapacity test. But that particular strain of the law is not deeply rooted in our traditions and conscience. Both before and after M’Naghten, there was no settled consensus favoring the moral-incapacity test. For this reason, the Supreme Court in Clark v. Arizona (2006) held that “[h]istory shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle.” Given the multiplicity of approaches States have taken to the inanity defense, no one single version has become so ingrained in American law to rank as “fundamental.” This shouldn’t be surprising or lamentable, Justice Kagan insisted. After all, even the psychiatric community recognizes that “insanity is a matter of some uncertainty.” Doctors and scientists—to say nothing of judges and legislators—have held many competing ideas about mental illness over the years.” “And it is not for the courts to insist on any single criterion going forward.” Defining the prices relationship between criminal culpability and mental illness “is a project for state governance, not constitutional law.”
Justice Breyer led the charge for the dissenters. Although he agreed that the Constitution gives the States broad leeway to define state crimes and procedures, he rejected the majority’s conclusion that Kansas was simply tinkering with the insanity defense. “Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy.” The traditional moral-incapacity strain of the insanity defense is recognized in 45 states and by the federal government, Breyer observed (referencing an appendix attached to his dissent). This tends to show that Kansas and the four other American outliers are breaking with a deeply rooted tradition. And he rejected the notion that Kansas had not broken with tradition because it still permits consideration of moral incapacity at sentencing. Tradition, he insisted “demands that an insane defendant should not be found guilty in the first place.”
Next up is Allen v. Cooper (18-877), which asked whether Congress had the authority under the Copyright Remedy Clarification Act of 1990 to abrogate states’ sovereign immunity in copyright cases. That question, the Court held, was “all but prewr[itten]” by the Court’s 1999 decision Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, which invalidated Congress’s efforts to strip states’ immunity from patent suits under a companion statute addressing patent laws. Finding no reason to distinguish or abandon Florida Prepaid, a basically unanimous Court held that the same was true for copyrights, ensuring that (at least for now) states are immune from such suits in federal court.
Like so many Supreme Court cases (we wish), Allen begins with a pirate. In 1718, Edward Teach, better known as Blackbeard, was busy terrorizing the southeast Atlantic coast when his ship ran aground on a North Carolina sandbar and sunk. (Rest assured, Blackbeard and most of his crew survived.) In 1996, the ship was discovered by a salvage company, which hired a local videographer, Frederick Allen, to record its salvage efforts. Over the next decade, he registered numerous copyrights over the photos and videos he captured.
At this point, a second pirate enters the story: North Carolina. To promote tourism, the state used Allen’s photos on various websites and promotional materials without Allen’s permission. Allen protested, and when settlement efforts failed he sued the state for copyright infringement. North Carolina moved to dismiss based on state sovereign immunity. But Allen opposed the motion, citing the Copyright Remedy Clarification Act, which, among other things, provides that states “shall not be immune” from suit in federal court for alleged copyright infringement. North Carolina responded that the Act was unconstitutional under Florida Prepaid, but the district court upheld the Act and denied the motion. On interlocutory appeal, the Fourth Circuit reversed, finding the district court’s efforts to distinguish Florida Prepaid unpersuasive.
The Court affirmed in an opinion written by Justice Kagan and joined by the Chief and Justices Alito, Sotomayor, Gorsuch, and Kavanaugh. Under long-standing precedent, the Eleventh Amendment generally prohibits states from being sued in federal court without their consent. (Yes, we know it doesn’t really say that, but it means that.) But Congress can abrogate states’ immunity when it does “unequivocally” and when it does so in exercise of a constitutional power that permits abrogation. No one disputed that the Clarification Act did the first, but what about the second?
Allen argued that two constitutional sources gave Congress the authority to abrogate states’ immunity in copyright suits. The first, Article I’s Intellectual Property Clause, gives Congress the authority to create patents and copyrights. The problem is that Florida Prepaid already held that the Intellectual Property Clause (like most Article I powers) does not give Congress the authority to strip states of sovereign immunity. If Florida Prepaid barred Congress from using the Intellectual Property clause to abrogate immunity in patent-infringement suits, why should the result be any different in suits involving another type of intellectual property right? Finding no persuasive reason to distinguish copyrights from patents and no basis for overruling Florida Prepaid, the Court rejected Article I as a valid basis for the Clarification Act.
So Allen turned to Section 5 of the Fourteenth Amendment. A long line of cases holds that this provision gives Congress the authority to strip states of sovereign immunity to remedy or prevent states’ violations of Section 1 of the Fourteenth Amendment. But what does copyright infringement have to do with the Fourteenth Amendment? Not much. Copyrights are certainly “property,” so the amendment prohibits states from depriving people of their copyrights “without due process of law.” But not every state infringement of a copyright amounts to a violation of due process. Florida Prepaid thus held that Congress’s abrogation of state sovereign immunity under the Patent Remedy Act was not “proportional” to any problem with states’ violating the due process clause through the infringement of patents. And again, the Court saw no reason why the Copyright Remedy Clarification Act was any different: Nothing in the legislative record of the statute established a need for Congress to abrogate states’ sovereign immunity in order to address widespread deprivations of copyright in violation of due process. Indeed, nothing in the legislative record addressed the Fourteenth Amendment’s due process clause at all. The Act could thus not be saved as a valid exercise of Congress’s Fourteenth Amendment powers. That is not to say that Congress could never abrogate states’ sovereign immunity for IP infringement via the Fourteenth Amendment, but only that to do so, it must build a legislative record to support invocation of its Fourteenth Amendment powers.
Justice Thomas, writing only for himself, concurred. He agreed that Florida Prepaid controlled the outcome but wished to note his disagreement with the majority’s discussion of the principles of stare decisis. Consistent with his previously expressed views, he argued that no special justification was needed to correct clearly erroneous precedent: Error alone was enough. But there was no error in Florida Prepaid, so it remained controlling precedent.
Justice Breyer, joined by Justice Ginsburg, also concurred in the judgment. In their view, Florida Prepaid was based on several Supreme Court decisions addressing state sovereign immunity—notably Seminole Tribe of Florida v. Florida—that were wrongly decided. If those decisions were revisited, then Florida Prepaid would be called into question as well. But as long as those cases remain good law, he agreed that Florida Prepaid controlled the outcome of this case and thus concurred in the result.
In Guerrero-Lasprilla v. Barr (No. 18-776), the Court was asked to determine the scope of the “Limited Review Provision” in the Immigration and Nationality Act (INA). This provision limits judicial review of final removal orders in cases where the alien has committed certain crimes to “constitutional claims or questions of law.” The Court had to decide whether the phrase “questions of law” includes application of a legal standard to undisputed or established facts. Justice Breyer, writing for the majority, concluded that it does. The Court has thus seemingly greatly expanded the category of aliens who may obtain judicial review of their removal orders. Justice Thomas, joined by Justice Alito, dissented.
Petitioners Pedro Pablo Guerrero-Lasprilla and Ruben Ovalles were both removed from the U.S. following convictions for drug crimes. The INA allows one motion to reopen removal proceedings within 90 days after a removal order is entered. The Petitioners did not file such motions within the period. But both did file motions to reopen well after the statutory period had closed, arguing that the period should be equitably tolled based on a prior Fifth Circuit case holding that the period could be so tolled under certain conditions. The Board of Immigration Appeals denied the requests for equitable tolling, holding that both had failed to show the requisite due diligence. Petitioners appealed that decision to the Fifth Circuit. The circuit held it did not have jurisdiction because the question of whether Petitioners had exercised due diligence in attempting to reopen their removal proceedings was a fact question, and not a “question of law” under the INA.
The Court reversed, for several reasons. First, it focused on the statute’s language, noting that nothing in the text “precludes the conclusion that Congress used the term ‘questions of law’ to refer to the application of a legal standard to settled facts,” and emphasizing that the Court had previously held in other contexts that such inquiries present legal, as opposed to factual, questions. The Court did acknowledge that it has also referred to questions involving application of law to facts as “mixed questions” in other contexts, but nevertheless concluded that “nothing in those cases forecloses” its holding that such questions are encompassed by the INA’s “questions of law” phrasing.
Having concluded that the statutory text did not preclude its holding, the Court then emphasized the “presumption favoring judicial review of administrative action,” which can only be overcome by “clear and convincing evidence of congressional intent to preclude judicial review.” Because the INA does not expressly foreclose judicial review of the Petitioner’s claims, the Court reasoned, it was sensible to follow the presumption and allow for review.
The Court then turned to the statute’s context and history. It noted that the same statutory section containing the Limited Review Provision also contains a “zipper clause,” which provides that judicial review of “all questions of law and fact, including . . . application of . . . statutory provisions” must be consolidated into one action before the court of appeals. The Court interpreted the zipper clause to reflect Congress’s intent to include application of law to facts within the rubric of “questions of law.”
Finally, the Court also looked to the Limited Review Provision’s statutory history. The statute was passed in response to the Court’s decision in INS v. St. Cyr (2001), which interpreted a previous iteration of the statute as barring all judicial review of removal orders based on certain crimes. The St. Cyr Court emphasized that Congress may not foreclose habeas review, but did explain that Congress could “provide an adequate substitute [for habeas review] through the courts of appeals.And that is what Congress did: It amended the INA to, among other things, add the Limited Review Provision. In light of this history, the Court explained, it is likely that Congress wanted the provision to include habeas-like inquires, including the misapplication of legal standards to undisputed facts. The legislative history provides further support for that notion: it expressly notes that the amendments to the INA following St. Cyr were intended to provide an “alternative to habeas corpus.”
Having thus shown that the statute’s text, structure, context, and history all support its holding, the Court then addressed two additional arguments pressed by the Government. The first was a textual argument suggesting that Congress would have used different words had it intended the Limited Review Provision to mean what the Court says. The Court rejected this argument primarily because the Government read the provision too narrowly – it applies not just to the paragraph immediately preceding it, but to the whole statutory section, and so Congress chose more general language to apply across the board. The Government also made a policy argument, suggesting that the holding will undermine Congress’s goal of streamlining and limiting judicial review of removal orders for aliens who committed certain crimes. The Court countered that the Limited Review Provision will continue to help streamline matters, and that in any event the efficiency goal could not overcome Congress’s stated intention of providing a substitute for habeas review.
In his dissent, Justice Thomas took issue with nearly every aspect of the Court’s reasoning. He emphasized that there are “three discrete categories”: questions of law, questions of fact, and mixed questions of law and fact. The phrase “questions of law,” argued Justice Thomas, covers only one of those categories – and it is not mixed questions. The Court’s holding flips the Limited Review Provision on its head, by turning a “narrow exception” into a “broad provision permitting judicial review” of nearly all criminal aliens’ challenges to their removal proceedings, thus allowing the “exception to swallow the rule.”
In the only portion of his dissent not joined by Justice Alito, Justice Thomas went on to explain that he has “come to have doubts about” the presumption in favor of judicial reviewability of agency orders, in large part because it has relied too heavily on “legislative intent” and the “spirit of the law” in its development. He also suggested that the “clear and convincing” standard for overcoming the presumption conflicts with the text of the Constitution, insomuch as it is Congress, and not the courts, who has the authority to regulate appellate jurisdiction. And even if the presumption is still good law, Justice Thomas argued, the Court’s holding expands it too much, “rendering it effectively irrebuttable.” Finally, Justice Thomas turned to the Court’s analysis of St. Cyr, arguing that case was largely irrelevant and “said nothing about mixed questions or the application of settled facts to a legal standard.”
In the fourth signed opinion of the week, Comcast v. National Association of African Amirian-Owned Media (No. 17-1171), a unanimous Court held that an ordinary “but-for” causation standard governs claims under 42 U.S.C. § 1981(a), a part of the Civil Rights Act of 1866 that provides that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.”
Entertainment Studios Network (ESN) is an African American-owned operator of various television networks. Together with the National Association of African American-Owned Media, ESN sued Comcast Corporation for declining to carry ESN channels, alleging that Comcast did so because it disfavors African American-owned media. Comcast cited legitimate business reasons for declining ESN channels, but ESN contended that the reasons were pretextual. After the district court dismissed the suit for failure to plausibly allege that racial animus was a but-for cause of Comcast’s actions, the Ninth Circuit reversed, holding that ESN was only required to plead facts showing that race played “some role” in Comcast’s decision.
The Justices unanimously disagreed with the Ninth Circuit. The Court saw no reason to depart from the default tort rule that but-for causation must be established at all procedural stages. While § 1981 does not explicitly set a causation standard, the Court found that the ordinary reading of the text, as well as interpretations of neighboring, simultaneously enacted provisions of the Civil Rights Act of 1866, pointed to a but-for standard. It declined to import the causation standard applicable to Title VII of the Civil Rights Act of 1964—which provides some relief to a plaintiff who can show that race was a “motivating factor,” even if not a but-for cause—given the distinct histories of the 1866 Act and the 1964 Act. Finally, the Court rejected ESN’s argument that the Civil Rights Act of 1991, by amending § 1981 to include the “making” of contracts, guarantees both an equal contractual outcome and an equal contracting process and, thus, makes § 1981 suited to a motivating factor standard. Without offering a view on whether § 1981 in fact guarantees equal “process,” the Court held that the issue was immaterial to determining the proper causation standard.
Concurring in the opinion of the Court, Justice Ginsburg wrote separately to express two views. First, though recognizing that the Court’s holding was compelled by precedent, she continues to believe that “a strict but-for causation standard is ill suited to discrimination cases and inconsistent with tort principles.” Second, while the Court did not reach the debate over Comcast’s position that § 1981 guarantees equality only in “the final contract-formation decision,” Justice Ginsburg would reject that position and instead endorse ESN’s position that § 1981 covers “the entire process by which the contract is formed.”
Finally, in Davis v. United States (No. 19-5421), the Court summarily GVR’d a Fifth Circuit decision applying a peculiar rule of criminal procedure. Davis was convicted of being a felon in possession of a firearm in violation of federal law and sentenced to four years and nine months in prison. At the time, he was also facing state gun drug charges, and the District Court ordered that his federal sentence run consecutively to any sentence the state courts might impose. Davis did not object at the time, but on appeal to the Fifth Circuit argued that the state offenses were part of the same “course of conduct,” and therefore it was error to have the federal sentence run consecutively. Normally, when a criminal defendant fails to raise an argument in the district court, an appellate court will review the issue only for plain error. But in this case, the Fifth Circuit refused to consider the argument at all because it raised factual issues and, under circuit precedent, “questions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” Yeah, the Supreme Court held, that’s not the law. In a per curiam order, the Court held that “there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error.” The Court remanded the case for further proceedings, expressing o view on whether Davis had satisfied the plain-error standard.
That does it for now. We’ll be back next week with more. Until then, stay safe and socially distant!
Tadhg and Dave
