University Writing Program, George Washington University | all content & perspectives are my own
I surveyed some recent and upcoming Supreme Court cases for a segment on Law & Disorder with Heidi Boghosian and Michael Smith. My segment starts at 31:45.
At the end, they were kind enough to ask where people can follow my writing, and I felt quite outdated in giving a website. So I have now created a Twitter account. Follow @profzwolfe to know when there are new posts here (and, perhaps eventually and rarely, other content).
The Court returns from the holidays for oral arguments on January 13. This month starts with “bridgegate,” takes up other important criminal law and other issues, and ends with a major church-state case.
[arguments on Jan 13 involve technical ERISA and preclusion issues and are not recommended for the casual observer]
Kelly v. US is a really interesting public corruption case, involving criminal prosecutions that followed “bridgegate” – the September 2013 decision to create a traffic nightmare on the George Washington Bridge to punish the Fort Lee mayor for refusing to back then-NJ Gov Chris Christie. After all the public scandal, prosecutors noted that public funds had been wasted in putting on a fake “traffic study” as cover for the true motives, as well as changing and then restoring the traffic pattern. Two people were ultimately convicted of felonies: they used deception to cause the Port Authority to expend resources, which meets the statutory offenses of fraud and wire fraud (because some of the scheme was conducted by email). The Third Circuit upheld those convictions. In seeking Supreme Court review, the defendants urge that reading the fraud statutes so broadly “would put every official action in the sights of the fraud laws, turning them into broad government ethics codes.” Scotusblog has a useful overview of the factual events and a symposium with a range of views.
The second case today, Romag Fasteners Inc. v. Fossil Inc., is not one I would ordinarily recommend to a casual observer but may be worth staying for after the first argument. It is a question of interpretation of the Lanham Act, involving trademark and copyright infringement. Some courts have read a “willfulness requirement” into the statute, requiring the infringer to turn over (“disgorge”) all profits only if the infringement was willful. Here, Fossil was found to have acted in “callous disregard” for Romag’s intellectual property, but not willfully. Most of the legal organizations are lining up against Fossil, arguing that willfulness is not required if the judge otherwise finds that the circumstances of the infringement support an award of profits. A useful summary of the sides is here.
The only case today asks whether the Age Discrimination in Employment Act requires but-for causation or only that age was a motivating factor, in the context of federal employees. ADEA requires (for employees aged 40 and over) that employment actions in the federal sector “shall be made free from any discrimination based on age.” For many employment discrimination laws, it is well established that a plaintiff need only prove that the discrimination was a motivating factor, not that the action would not have been taken “but for” the employee’s race, religion, etc. For example, after much litigation on this, in 1991 Congress amended Title VII to make explicit that “an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice.” 42 U.S.C. §2000-e2(m). However, in 2008 the Supreme Court held in Gross v. FBL Financial Svcs that the ADEA provision involving private sector employees required but-for causation. But the provision involving private sector employees prohibits actions “because of such individual’s age,” and the plaintiffs here (federal employees) argue that the earlier-quoted language that applies to them, “free from any discrimination” is broader. See the Harvard CR-CL discussion for more detail about this case, Babb v. Wilkie.
Shuar v. US is an important consideration of the Armed Career Criminal Act. If a defendant is convicted of unlawful gun possession under federal law, ACCA requires the court to impose a mandatory minimum sentence of 15 years if the defendant had three prior convictions for a “violent felony” or “serious drug offense.” What constitutes a “violent felony” has been heavily litigated, and the Court has settled on a “categorical approach,” which considers only the nature of the crime rather than the individual’s specific conduct. So a conviction for burglary is a prior conviction for a violent felony, even if no force or violence was actually employed in that particular burglary. The Court has never squarely addressed whether this categorical approach applies to determining what is a “serious drug offense” as well. That’s the issue in this case, but with an unexpected wrinkle: if the court looks only to the statutory elements of the drug crimes for which Shuar was previously convicted (and not to his actual conduct), they would not be “serious” under the ACCA. This case has not received much public attention, but the NACDL amicus brief is quite readable and should help to provide a good grounding in the issues.
Today’s second case is not recommended for the casual observer. Although mandatory arbitration is a developing and important area of the law, GE Energy Power Conversion France SAS v. Outokumpu Stainless USA is a more technical issue: “Whether the Convention on the Recognition and Enforcement of Foreign Arbitral Awards permits a nonsignatory to an arbitration agreement to compel arbitration based on the doctrine of equitable estoppel.”
The separation of church and state is before the Court today in Espinoza v. Montana Dept of Revenue. It involves tax breaks for donations to scholarships supporting attendance at private schools, and whether those scholarships can be used at religious schools. The tax office initially prohibited using those scholarships at religious schools. In order to avoid either discriminating against or supporting religion, the Montana Supreme Court struck down the whole program; no taxpayer support of religious or non-religious private schools. Church-state issues have been before the Court repeatedly in recent years, but we still lack a clear and coherent framework for resolving just how much (as the state put it) “room for play in the joints” there is between the free exercise clause (that prohibits unduly discriminating against religion and religious schools) and the establishment clause (that prohibits excessive governmental support for religion). Scotusblog has a good symposium; start with Amy Howe’s overview and then look at some of the disparate arguments.