By Abby Bar-Lev, AFJ Dorot Fellow

As Thanksgiving approaches, we here at AFJ know that it can sometimes be a struggle to spark interesting conversation with the extended family and family friends who  gather around the dinner table.  But what is the one sure crowd-pleasing conversation topic?  The Supreme Court, of course! (What else would you talk about?) So, to make the conversation a bit easier (if not a bit lighter), consider this post to be a “tip sheet” on what has been happening at the Supreme Court since the last big family gathering.  Go ahead, we dare you to not be the life of the party with these snippets in your conversational pocket!  No need to thank us; we can feel the gratitude.

Supreme_Court_BuildingBeginning with a Blockbuster:  In the Supreme Court’s very first week, it heard oral arguments in one of the year’s most divisive cases, McCutcheon v. FEC, a campaign finance reform case that challenges the constitutionality of aggregate individual campaign contributions.  Some are worried that McCutcheon represents a “sequel” to Citizens United, in which the Supreme Court decided that corporations have a First Amendment right to free speech in giving unlimited funds for independent spending in candidate elections.  Others draw a distinction between the two cases, arguing that there is a significant difference between the issue in Citizens United about limitations on independent campaign spending by corporations, and McCutcheon, which deals with direct individual aggregate contributions to campaigns and political committees.  The Supreme Court has not yet ruled on the case and probably will not do so until early summer, so all we can do now is guess.

Rights of the Accused:  The Supreme Court has already heard several cases this term involving defendants’ rights in criminal trials:

  • In one of them, Burt v. Titlow, the Court has handed down a decision.  The issue in Titlow revolved around a defendant’s Sixth Amendment right to effective assistance of counsel.  In this case, the defendant had negotiated a plea deal with her attorney, then hired a new attorney.  That new attorney advised the defendant to withdraw her plea before investigating the case at all.  Consequently, the defendant received the longer prison sentence for murder rather than what would have been a shorter sentence with the originally-negotiated plea deal.  The Sixth Circuit found that the second attorney violated the defendant’s constitutional right to effective assistance of counsel.  The Supreme Court unanimously overruled the Sixth Circuit’s decision,  finding that the Sixth Circuit applied the wrong standard of review and improperly “assum[ed]” ineffectiveness from a fact record that did not support that claim.
  • Earlier this month the Supreme Court heard oral arguments in Burrage v. United States, a case asking whether a defendant drug dealer can be sentenced to a mandatory minimum of 20 years for “causing” a customer’s death when it is inconclusive that the drug sold by the dealer was the “but-for” cause of the customer’s death.  In a guest blog post for AFJ, criminal defense attorney Steven Nolder argued that merely showing a drug contributed to an individual’s death—rather than proving that the drug sold to the customer actually caused the individual’s death beyond a reasonable doubt— should not be enough to sentence a defendant to a mandatory minimum 20 years in prison.  The Supreme Court has not yet reached a result in Burrage.
  • The Supreme Court recently heard arguments in a Fourth Amendment warrantless search and seizure case.  That case, Fernandez v. California, tests the boundaries of law enforcement’s  ability to conduct warrantless searches of an individual’s home after that individual expressly objected.  Currently, if police ask to search someone’s home without a warrant, that individual may refuse to allow the police through the door.  However, a roommate may consent to the search if the individual (whom the police’s actions are targeting) is not at home at the time of the police’s request.  In Fernandez, the defendant did object to a police’s request to conduct a warrantless search of his home.  However, after Fernandez was later arrested, the police returned to his apartment asking to conduct a warrantless search, and Fernandez’s girlfriend allowed the police in to search the apartment.  Was Fernandez’s previous objection enough to ward off a future attempt by the police to search his home in his absence?  Or can police officers return to a home as many “reasonable” times as they want in hopes of finding the individual absent and a consenting roommate present?  If the Supreme Court decides the latter, it would create a powerful loophole for police to conduct warrantless searches of individuals’ homes.

Affirmative Action at the Ballot Box:  When can rights be put to a referendum?  That is essentially the issue that was argued in Schuette v. Coalition to Defend Affirmative Action, which involved a 2006 Michigan referendum that put affirmative action to a vote.  As a result, voters passed Proposal 2, which amended the state constitution to prohibit race- and sex-based affirmative action in public-university admissions.   The constitutional amendment went so far as to bar university admission officials from even considering whether to use race as a relevant factor in admission.  As a result, a student who wants her race to be considered in admission must seek an amendment to the state constitution, but a student who wants consideration for other reasons, such as “legacy” status—having relatives who had attended the college—may petition the regents directly.  As law professor William Yeomans wrote in a guest blog post for AFJ, “It hardly bears stating that submitting minority rights to referendum rarely works out well for the minority.”  The Supreme Court has not yet decided Schuette, but in the meantime you can hear recap of oral argument at the AFJ audio analysis page for this case.

Age Discrimination:  One of the first cases the Supreme Court heard this term was Madigan v. Levin, which deals with plaintiffs’ access to recourse for claims of age discrimination.  Harvey Levin, a former Illinois Senior Assistant Attorney General, sued the state for allegedly engaging in age discriminatory employment practices.  The plaintiff was over the age of 60.  He was replaced by an  attorney in her thirties.  Levin brought suit directly under both the Constitution and the Age Discrimination in Employment Act (ADEA), and the Court was asked to resolve whether age discrimination claims brought under the Equal Protection Clause are barred by the ADEA.  As Senior Attorney with the AARP Foundation Daniel Kohrman wrote in a guest blog post for AFJ, during oral arguments it seemed that “none of the Justices articulated clear enthusiasm for a decision on the merits,” and, indeed, shortly thereafter the Supreme Court dismissed the case as “improvidently granted.”

People v. Corporations:  The Supreme Court has heard two cases already this term involving class actions against corporations, and one regarding corporate accountability for human rights abuses.

  • Although the jurisdictional arguments look technical and legalistic, the issue in DaimlerChrysler AG v. Bauman has important implications for individuals’ ability to hold corporations accountable for human rights abuses.  The case involves claims brought by former employees and family members of deceased employees of a Mercedes-Benz plant in Argentina—owned by Daimler—who were violently tortured and killed.  The plaintiffs allege that Daimler conspired with, directed, and aided and abetted state security forces in carrying out human rights violations during Argentina’s “Dirty War.”  The issue before the Supreme Court is whether the United States can assert jurisdiction over a foreign corporation that has a wholly-owned subsidiary doing business in a U.S. state.  As human rights attorney Michelle Harrison wrote in a guest blog post for AFJ, if the Court finds in favor of Daimler, it could mean that “[a]s long as they keep a separation, on paper, from their U.S. subsidiaries, foreign corporations would be able to enjoy all of the privileges of doing business in the United States with the guarantee that their operations will not be subjected to scrutiny by U.S. courts.”
  • The Supreme Court opened its term by hearing oral arguments in Chadbourne & Parke LLP v. Troice, which asks whether a class action suit for aiding & abetting securities fraud is preempted by the Securities Litigation Uniform Standards Act (SLUSA).  SLUSA prohibits plaintiffs from bringing state law class actions alleging misrepresentation or omission of a material fact “in connection with” the purchase or sale of certain securities.  To get a sense of what that means, lawyers during oral argument drew analogies to the securities fraud committed by Bernie Madoff, but the Court has not yet decided the case.
  • The second class action case the Court has heard is Mississippi ex rel Hood v. AU Optronics Corporation, which involves parens patriae actions.  In this case Mississippi’s attorney general filed a parens patriae action in state court against several LCD television screen manufacturers—all of which are multinational corporations—for violating state antitrust and consumer protection laws.  The defendants removed the case to federal court under the Class Action Fairness Act of 2005 (CAFA), arguing that the state represented a class of LCD screen purchasers.  The Fifth Circuit found that parens patriae actions qualify as “mass actions” under CAFA, and therefore removal was proper.  Using a “claim-by-claim” approach, the Fifth Circuit determined that, because a parens patriae action is filed on behalf of state citizens’ well-being, they are considered “real parties in interest.”  A decision upholding the Fifth Circuit’s ruling would undercut parens patriae actions and create a “procedural nightmare” for the state seeking  justice for itself and on behalf of its residents.    The Supreme Court has not issued a decision in AU Optronics yet, and it’s unclear how the justices will decide.

The Future of “Neutrality Agreements” in Unionization:  The Court recently heard arguments to determine whether one of labor’s most successful and long-standing tools for unionizing a workforce constitutes bribery in violation of the Labor-Management Relations Act (LMRA).  That case, Unite Here Local 355 v. Mulhall, puts “neutrality agreements” under fire.  These agreements involve concessions between an employer and a union; in this case, the employer promised to remain neutral concerning  union organizing, allowed the union onto its property to communicate with employees, and gave the union a list of employees’ names and contact information.  In return, the union promised not to picket, boycott, or otherwise pressure the employer’s business so long as the neutrality agreement was in effect.  Respondents argue that neutrality agreements constitute the employer giving a “thing of value” to the union, which is prohibited as bribery under the LMRA.  The Court has not yet decided the case.

Whatever Happened To…?  There are a couple of big cases that the Supreme Court had agreed to hear but that have since been removed from the Court’s docket.

  • The first is Cline v. Oklahoma Coalition for Reproductive Justice, a case involving Oklahoma’s restriction on medication abortion, which the Supreme Court had sent back to the Oklahoma Supreme Court for it to clarify the law’s scope before setting an argument date.  In November, the Oklahoma Supreme Court responded to the U.S. Supreme Court’s request, holding that the law’s scope would unconstitutionally ban medication abortion in the state.  Shortly thereafter, rather than scheduling an argument date, the U.S. Supreme Court dismissed the case as “improvidently granted,” leaving the Oklahoma Supreme Court’s ruling striking down the law in place.
  • The Supreme Court also had plans to hear arguments in Mount Holly v. Mt. Holly Gardens Citizens in Action, Inc., which involved whether individuals can bring discrimination claims under the Fair Housing Act (FHA) based on a policy’s disparate impact on minority groups.  The Court had agreed to take the case even though all lower courts that heard the issue agreed that the FHA allows for disparate impact claims, and even though the Department of Housing & Urban Development was in the midst of promulgating a rule explicitly making the disparate impact claims part of the FHA.  On November 13, 2013, the parties to the case agreed to a settlement, and the case was therefore withdrawn from the Supreme Court’s docket.

Stay Tuned:  The Supreme Court is only getting started.  In the new year, the Court will be hearing cases involving the President’s appointment powers, vehicle stops based on anonymous tips, buffer zones in front of abortion clinics, unions’ ability to collect non-ideological fees under “fair share” agreements, high-speed chases, the standard for determining mental disability for the death penalty, mortgage-loan fraud, investors’ ability to sue, and the EPA’s authority to regulate greenhouse gas emissions from power plants.

Moreover, the Court will be hearing not one, but two cases challenging the Affordable Care Act’s requirement that profit-making companies with more than 50 employees  are required to provide health insurance coverage for birth control.  The court announced Tuesday that it will hear arguments later this term on whether religious business owners and/or their profit-making companies should be exempt from the coverage requirement based either on the theory that the owners and/or corporation have a constitutional right to religious freedom or that they have religious freedom rights under the Religious Freedom Restoration Act.

Have a happy and healthy Thanksgiving!