Commercial Litigation Update

Notwithstanding the fact that, as we approach the end of the term, the Court still had 30 cases to decide as of Wednesday morning, June 8, the day’s count has only been reduced by one. So, expect a flurry of cases with the most controversial of them (think firearms and reproductive rights) perhaps coming down at the end.

The Court has started the week with three decisions emphasizing textual readings, two of them unanimous and a third drawing Justice Kagan into the majority with the Court’s six nominal jurisprudential conservatives.

Despite a large list of argued cases pending decision, the Court decides just two of them today—neither of them Dobbs.

It is fair, I think, to say that a substantial majority of those who heard the argument in the case of Federal Election Commission v. Ted Cruz for Senate doubted that, irrespective of whatever they might think of Ted Cruz, it was highly likely that he and his campaign organization would prevail in challenging the federal campaign finance law limitation on the use of post-election funds to repay a candidate's personal loans as violative of the First Amendment rights of candidates who want to make expenditures on behalf of their own candidacy through personal loans. But, by a six-three division between the Court's judicial conservatives and liberals, that is precisely what has occurred. Those who criticize the Court's decision in Citizens United v. Federal Election Commission, 558 U.S. 310 (2010), likely will feel much the same way about the Cruz case.

Further evidencing an ongoing shift from more absolutist thinking about the intersection between the First Amendment's Establishment Clause and an individual's or group's right of free speech, we find this morning's unanimous decision in Shurtleff v. Boston in which the Court, reversing the First Circuit, held that the city of Boston violated the free speech clause of the First Amendment when it refused to let a group fly a Christian flag outside city hall. As Justice Breyer explained, in what will be among the last of his opinions:

Cummings v. Premier Rehab Keller, P.L.L.C. is a very important case for employment and benefits practitioners. The Court, divided 6-3 along conservative/liberal lines, has held that emotional distress damages are not recoverable in a private action to enforce either the Rehabilitation Act of 1973 or the Affordable Care Act. In fact, the case affects potential results under four statutes that Congress has enacted pursuant to its Spending Clause authority that prohibit recipients of federal funds from discriminating with respect to matters including race, color, national origin, sex, disability, or age. See Civil Rights Act of 1964, Title VI, 42 U. S. C. §2000d; Education Amendments Act of 1972, Title IX, 20 U. S. C. §1681; Rehabilitation Act of 1973, §504, 29 U. S. C. §794; Patient Protection and Affordable Care Act (ACA), §1557, 42 U. S. C. §18116. The Court previously held that victims of intentional violations of these statutes may bring private lawsuits seeking to recover, among other things, compensatory damages. Franklin v. Gwinnett County Public Schools, 503 U. S. 60, 76 (1992). Today, the Court holds that the damages available under these statutes cannot include compensation for emotional suffering.

Auguring a flood of opinions in the remaining weeks of the term, the Supreme Court decided five cases today. Some of them offer support for the media/popular equation of a political party background with jurisprudential outcomes, but others clearly do not. Interestingly, several cases decided by wide margins also, through concurrences and dissents, lay down markers that could affect the outcomes of future cases.

There has been a good deal of recent attention given to the Supreme Court's so-called "shadow docket," a term that refers generally to the Court's (conservative majority's) issuing brief orders and unsigned opinions resolving procedural motions in a way that effectively disposes of cases, but without their having been fully briefed and argued.

I write this from London on the eve of the announcement that the nomination of Judge Ketanji Brown Jackson to succeed Justice Breyer is about to go to the full Senate for confirmation. Those who follow my writings will know that I am among a group of right-of-center former public officials in Republican administrations who are on record as supporting this nomination of an experienced and well-qualified federal judge.

The Court has decided the latest in a series of important cases interpreting the reach of the Federal Arbitration Act (FAA), 9 U. S. C. §§ 1 et seq.

On March 31, in Badgerow v. Walters, by an 8-1 majority (opinion written by Justice Kagan, and a lone dissent by Justice Breyer), the Court reversed an order of the Fifth Circuit and held that the federal courts do not have authority to “look through” an arbitration dispute for a federal question that would establish jurisdiction to confirm or deny an arbitral award.

The Court issued opinions in two cases today, both interesting in their particular factual circumstances, but neither controversial, with one unanimously decided and the other with a lone dissent.

In an unsigned per curiam order, the Court today reversed a decision of the Supreme Court of Wisconsin that, in a dispute about the assignment of the number of so-called minority-majority districts, chose an electoral map drawn by the governor over several other such proposals. Wisconsin Legislature v. Wisconsin Election Commission.

On a single evening, William Dale Wooden went on a spree, burglarizing 10 units in the same storage facility. The question resolved in the Supreme Court’s somewhat unanimous decision in Wooden v. United States is whether, under the Armed Career Criminal Act, 18 U. S. C. §924(e)(1) (ACCA), Wooden’s prior convictions were for offenses occurring on different “occasions,” because the burglary of each unit happened at a distinct point in time, rather than simultaneously. All of the Justices (Kagan, J., writing the definitive majority opinion) agreed that the answer is “no.” Convictions arising from a single criminal episode can only count once under ACCA.

The Supreme Court decided two more cases today, one unanimously, the other anything but so.

Yesterday, in United States v. Zubaydah, the Court upheld the government’s assertion of the state secrets privilege, rejecting an al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA. The Court continued its interest in the privilege in today’s unanimous opinion, authored by Justice Alito, in Federal Bureau of Investigation v. Fazaga.

The Court has decided two important cases today, United States v. Zubaydah, upholding the government’s assertion of the state secrets privilege and rejecting the al Qaeda terrorist leader’s discovery request for information concerning his torture by the CIA, and Cameron v. EMW Women’s Surgical Center, P.S.C., allowing the intervention of the Kentucky attorney general to assume the defense of the state’s abortion law after the official who had been defending the law decided not to seek further review. Both cases are, at root, about significant issues of public interest and policy—the torture of terrorists and restrictive abortion policies—but neither opinion resolves any such question. Indeed, the lessons learned from each of these cases are essentially procedural, and though the outcomes are determined by significant margins, the alliances of Justices on the multiple opinions published are also instructive.

The Court has decided the case of Unicolors, Inc. v. H&M Hennes & Mauritz, L.P., holding that lack of knowledge of either fact or law can excuse an inaccuracy in a copyright registration. Reversing the Ninth Circuit, the Court held that the appeals court was wrong to overturn a copyright infringement verdict that a fabric designer won against fast-fashion chain H&M when it ruled that inadvertent legal errors cannot be the basis for challenging a copyright registration.

The pension trustees of Northwestern University, and those elsewhere, will need to take close note of the Court’s unanimous decision (Barrett, J., not participating) in Hughes v. Northwestern University in which the Court returns yet again to interpreting the Employee Retirement Income Security Act (ERISA), this time in the context of determining the extent of ERISA fiduciaries’ duty to monitor investments and remove imprudent ones. See Tibble v. Edison International, 575 U.S. 523 (2015).

Late in the afternoon of January 19th, the Supreme Court dealt a crippling blow to the argument of the defeated former President, when by an 8-1 majority (Thomas, J., dissenting), the Court denied Mr. Trump's application for a stay of the mandate and injunction pending the review of the decision of the D.C. Circuit in the case of Trump v. Thompson, ordering the transmission by the Archivist of the documents sought by the House Select January 6th Committee.

The Court didn’t waste time getting to a controversial matter, the applications for stays of the Occupational Safety and Health Administration’s (“OSHA’s”) COVID-19 mandate concerning alternatives of mandatory testing, masking, or vaccination directed at employers and the Department of Health & Human Services (“DHHS”) mandate directed at health care facilities and their workers.

The Court has resumed issuing opinions with its holding in Babcock v. Kijakazi, Acting Commissioner of Social Security. This case of statutory interpretation is of particular interest to the relatively small set of individuals who claim retirement benefits based on simultaneous service in two federal pension systems. The Court's opinion, written by Justice Barrett, was joined by all of the other Justices, save for Justice Gorsuch, who, somewhat self-consciously, dissented.

Readers of SCOTUS Today, especially employers, might appreciate seeing an article that I co-wrote concerning the Supreme Court's rejection of a petition to enjoin New York State's vaccine mandate applicable to health care workers: “Supreme Court Lets New York’s Vaccine Mandate for Health Care Workers Stand.”

This action is consequential on its face because while future litigation by health care workers and others is certain, no fewer than six Justices have indicated support for a major mandate that allows for very limited exemptions. This marks the second time that the Court has rejected such a petition.

No case in recent months has created more news than the Mississippi abortion case, Dobbs v. Jackson Women’s Health Organization, as to which the Supreme Court recently heard oral argument.

Commentators on all sides of the inherently controversial issue of abortion have, often with great self-importance, opined how, at least in their views, each of the Justices will decide the case and how that decision will affect the Court’s two major opinions in the area: Roe v. Wade and Planned Parenthood of Southeastern Pa. v. Casey. We likely will have to wait months to know the outcome of Dobbs, in which the state argues that the trimester-based regime of Roe must be overruled.

While this post is not going to be of profound interest to most practitioners, it serves at least two purposes. First, it marks the new flow of formal opinions of the Court for the current term, and second, it is a reminder that there is a small category of cases that proceed to the Court in its original jurisdiction—one that includes suits between states.

Article III, section 2, of the Constitution provides that “In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all ...