Supreme Court: The Term in Review (2017–2018) Part 1 of 2
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Supreme Court: The Term in Review (2017–2018) Part 1 of 2


ANNOUNCER: “SUPREME COURT:
THE TERM IN REVIEW.” A FEDERAL JUDICIAL CENTER
PROGRAM FOR JUDGES, STAFF ATTORNEYS,
AND LAW CLERKS. NOW FROM OUR STUDIO
IN WASHINGTON, D.C., HERE’S JOHN COOKE. HELLO. I’M JOHN COOKE, DEPUTY DIRECTOR OF THE
FEDERAL JUDICIAL CENTER. WELCOME TO THIS YEAR’S
EDITION OF “SUPREME COURT:
THE TERM IN REVIEW,” OUR ANNUAL LOOK AT THE COURT’S
DECISIONS MOST LIKELY TO AFFECT THE DAY-TO-DAY WORK
OF FEDERAL JUDGES. ON THE TERM’S LAST DAY, ASSOCIATE JUSTICE
ANTHONY KENNEDY ANNOUNCED HIS RETIREMENT
FROM THE COURT. ON JULY 9th, PRESIDENT TRUMP
ANNOUNCED HIS NOMINATION TO FILL THE VACANCY–
JUDGE BRETT KAVANAUGH OF THE U.S. COURT OF APPEALS FOR THE
DISTRICT OF COLUMBIA CIRCUIT. THIS PAST TERM, THE COURT
ISSUED DECISIONS, 71 DECISIONS, AFTER ORAL ARGUMENT– 59 OF THEM SIGNED
AND 12 PER CURIUM. THE COURT DEALT WITH
IMPORTANT ISSUES REGARDING THE FIRST AMENDMENT, PRESIDENTIAL POWER
UNDER FEDERAL IMMIGRATION LAW, VOTERS’ RIGHTS,
FEDERALISM, AND SENTENCING. WE’LL DISCUSS THOSE
AND MANY OTHER DECISIONS WITH OUR FACULTY. WE’RE AGAIN FORTUNATE
TO BE JOINED BY DEAN ERWIN CHEMERINSKY OF THE UNIVERSITY OF CALIFORNIA
BERKELEY SCHOOL OF LAW, LAURIE LEVENSON OF LOYOLA LAW
SCHOOL IN LOS ANGELES, AND SUZANNA SHERRY OF VANDERBILT
UNIVERSITY LAW SCHOOL. WE’LL ALSO BRING YOU
A DISCUSSION WITH PROFESSOR ANNE FLEMING OF THE GEORGETOWN UNIVERSITY
LAW CENTER ABOUT THIS TERM’S
BANKRUPTCY DECISIONS. BETH WIGGINS OF
OUR RESEARCH DIVISION AND JIM CHANCE OF OUR
EDUCATION DIVISION WILL BE OUR MODERATORS. IN THE FIRST PART OF OUR
PROGRAM, WE’LL EXAMINE CASES INVOLVING THE FIRST, FOURTH,
FIFTH, AND SIXTH AMENDMENTS, AS WELL AS IMMIGRATION
AND BANKRUPTCY LAW. AFTER A SHORT BREAK,
WE’LL LOOK AT DECISIONS ADDRESSING REDISTRICTING
AND VOTERS’ RIGHTS, FEDERAL STATUTES,
THE FEDERAL COURTS, FEDERALISM AND
SEPARATION OF POWERS, AND CRIMINAL TRIALS,
PLEAS, AND SENTENCING. THE WRITTEN MATERIALS THAT
ACCOMPANY THIS PROGRAM AT FJC.DCN
INCLUDE AN OUTLINE WITH A SUMMARY OF EACH OF THE
DECISIONS THAT WE’LL DISCUSS, ALONG WITH AN APPENDIX WITH
SUMMARIES OF THE REMAINING CASES DECIDED BY THE COURT THIS TERM. THE ONLINE OUTLINE ALSO CONTAINS
LINKS TO THE FULL OPINIONS. IF YOU’RE A VIEWER WHO’S SEEKING
CLE CREDIT IN A JURISDICTION THAT REQUIRES
A VERIFICATION CODE, PLEASE NOTE THAT
THE CODE WILL APPEAR AT THE BOTTOM OF THE SCREEN
3 TIMES DURING THIS PROGRAM. WE’LL BEGIN WITH A LOOK AT SOME IMPORTANT
FIRST AMENDMENT OPINIONS. IN A TERM CROWDED WITH BIG
DECISIONS AND IMPORTANT NEWS, PERHAPS NO AREA OF THE LAW
WAS MORE AFFECTED THAN THE COURT’S FIRST AMENDMENT
JURISPRUDENCE. IN OUR FIRST DECISION, “JANUS V. AMERICAN FEDERATION
OF STATE, COUNTY, AND MUNICIPAL EMPLOYEES–
OR AFSCME” THE COURT OVERTURNED
A 41-YEAR-OLD PRECEDENT, “ABOOD V. DETROIT
BOARD OF EDUCATION.” ERWIN, WHAT’S THE
SIGNIFICANCE OF THAT? CHEMERINSKY: IN “ABOOD” IN 1977,
THE SUPREME COURT REAFFIRMED THAT NO ONE CAN BE FORCED TO
JOIN A PUBLIC EMPLOYEES’ UNION, BUT THE COURT SAID THAT
NON-UNION MEMBERS CAN BE REQUIRED TO PAY THE SHARE
OF THE UNION DUES THAT GO TO SUPPORT THE COLLECTIVE
BARGAINING ACTIVITIES UNION. THE COURT EXPLAINED
THAT NON-UNION MEMBERS BENEFIT FROM
COLLECTIVE BARGAINING– IN THEIR WAGES, THEIR HOURS,
THEIR WORKING CONDITIONS. THEY SHOULDN’T BE ABLE
TO BE FREE RIDERS. BUT THE COURT SAID
THAT NON-UNION MEMBERS CAN’T BE REQUIRED TO PAY
THE SHARE OF THE DUES THAT GO TO SUPPORT THE
POLITICAL ACTIVITIES UNION. THE COURT SAID THAT WOULD BE
IMPERMISSIBLE COMPELLED SPEECH. OVERRULING “ABOOD” IS GONNA BE
A SERIOUS BLOW TO UNIONS IN 22 STATES. IT’S GONNA BE
A DECREASE IN REVENUE, A DECREASE IN MEMBERSHIP. WELL, THE COURT DOESN’T OVERTURN
PRECEDENT LATELY, ERWIN, AND PARTICULARLY ONE
OF THIS LONG STANDING. SO WHAT WAS THEIR
REASONING HERE? SHERRY: WELL, JUSTICE ALITO,
WHO WROTE THE MAJORITY OPINION, DID ADDRESS STARE DECISIS, BUT HE SAID THERE WERE GOOD
REASONS TO OVERTURN “ABOOD.” HE SAID THE CASE INVOLVES
FUNDAMENTAL SPEECH RIGHTS AND THAT “ABOOD” ITSELF
WAS POORLY REASONED. HE SAID IT LED TO PRACTICAL
PROBLEMS AND EVEN ABUSE, AS UNIONS WERE CHARGING
FOR THINGS THAT WERE UNRELATED TO
COLLECTIVE BARGAINING. HE SAID LATER DECISIONS
HAD UNDERMINED “ABOOD” AND TURNED IT INTO AN ANOMALY. AND, FINALLY, HE SAID THERE WERE
NO RELIANCE INTERESTS BECAUSE PUBLIC UNIONS HAD BEEN
ON NOTICE FOR A NUMBER OF YEARS THAT THE COURT WAS CONCERNED
ABOUT THE VALIDITY OF “ABOOD.” LEVENSON: BUT, YOU KNOW,
THE MAJORITY NEVER SAYS CLEARLY WHAT THE STANDARD SHOULD BE
IN THESE CASES. IT SAYS THAT FRANKLY,
THE UNIONS WOULD LOSE UNDER EITHER
THE STRICT SCRUTINY OR THE MORE PERMISSIVE STANDARD
THAT HAD BEEN SET FORTH IN “KNOX V. SERVICE EMPLOYEES.” UNDER THAT STANDARD,
A COMPELLED SUBSIDY MUST SERVE A COMPELLING
STATE INTEREST THAT CANNOT BE ACHIEVED THROUGH MEANS
SIGNIFICANTLY LESS RESTRICTIVE OF ASSOCIATIONAL FREEDOMS. THE MAJORITY HERE IN “JANUS”
SAYS THAT THE STATE INTEREST AND LABOR PIECE
MIGHT BE COMPELLING, BUT IT COULD BE ACCOMPLISHED
WITHOUT THIS COMPELLED SUBSIDY. AND THE COURT ALSO REJECTED
THE FREE RIDER JUSTIFICATION AS INSUFFICIENT TO OVERRIDE THE
FIRST AMENDMENT SPEECH RIGHTS OF THE WORKERS WHO WERE
COMPELLED TO PAY THE FAIR SHARE PAYMENT. WIGGINS: BUT JUSTICE KAGAN
WROTE A VERY STRONG DISSENT, REJECTING VIRTUALLY ALL OF THE
MAJORITY’S REASONING, RIGHT? LEVENSON:
SHE ABSOLUTELY DID. SHE WROTE THAT “ABOOD”
HAD WORKED WELL FOR 40 YEARS AND THAT IT HAD
THE PROPER BALANCE BETWEEN THE WORKERS’
FIRST AMENDMENT RIGHTS AND THE GOVERNMENT’S
INTERESTS AND WORKFORCE THAT WAS PROPERLY MANNERED
AND KEEPING LABOR APPEASED. SHE SAID, FRANKLY, THAT THE FREE
SPEECH–FREE RIDER SITUATION, I SHOULD SAY,
IS ABSOLUTELY REAL AND COMPELLING REASON TO KEEP
THE “ABOOD” FRAMEWORK AND THAT THE “ABOOD”
FRAMEWORK WORKED WELL IN THE OVERALL GOVERNMENT
SPEECH AREA. CHEMERINSKY: JUSTICE ALITO
POINTED OUT THAT THERE’S 22 STATES THAT REQUIRE
THAT NON-UNION MEMBERS PAY THE SO-CALLED FAIR SHARE. SO THOUSANDS OF LABOR
MANAGEMENT CONTRACTS WENT INTO, BASED ON THE
ASSUMPTION OF “ABOOD,” SAID THIS AFFECTS MILLIONS
OF PUBLIC EMPLOYEES. SHE SAID RELIANCE INTERESTS
DON’T GET ANY STRONGER THAN THEY ARE HERE. ESSENTIALLY, THE DISSENTERS
ACCUSE THE MAJORITY OF TAKING SIDES
IN A POLITICAL DEBATE AND OF HAVING NO REGARD FOR THE
PRINCIPLES OF STARE DECISIS. I THINK WHETHER YOU AGREE
WITH THE OPINION OR NOT, THE DISSENT IS RIGHT
ABOUT ONE THING: THIS IS NOT A COURT
THAT’S HESITANT ABOUT OVERRULING PRECEDENT, AND I THINK THIS CASE MAY BE
A HARBINGER OF THINGS TO COME. THIS IS ALSO A DECISION
THAT’S GONNA LEAD TO A GREAT DEAL OF LITIGATION. FOR EXAMPLE, WEEK BEFORE LAST,
10 LAWSUITS WERE FILED BY NON-UNION MEMBERS WHO HAD
PAID THE FAIR SHARE NOW SEEKING A REFUND. ALSO, THERE’S THE QUESTION, PENDING RIGHT NOW
IN THE LOWER COURTS, IS WHETHER THIS DECISION
WILL BE EXTENDED TO PRIVATE EMPLOYEE UNIONS. ADDITIONALLY, JUSTICE ALITO
TWICE IN HIS MAJORITY OPINIONS, SAID THAT EXCLUSIVE
REPRESENTATION AND BARGAINING, WHICH IS CREATED BY THE
NATIONAL LABOR RELATIONS ACT, IS ALSO INTENTIONED WITH
THE FIRST AMENDMENT. THEN THERE’S THE WHOLE QUESTION
WHERE PEOPLE ARE REQUIRED TO PAY FEES
IN OTHER CONTEXTS; SAY, BAR DUES OR STUDENT FEES. I THINK WE’RE GONNA SEE
CHALLENGES TO THESE AGAIN AS WELL. IN “MASTERPIECE CAKE SHOP V. COLORADO CIVIL RIGHTS
COMMISSION,” A COLORADO BAKER, JACK PHILLIPS,
REFUSED TO DESIGN A WEDDING CAKE FOR A SAME-SEX COUPLE BECAUSE OF
HIS RELIGIOUS OPPOSITION TO GAY MARRIAGE. THE COUPLE BROUGHT A COMPLAINT
AGAINST THE BAKER AND PURSUED IT THROUGH
ALL THE LEVELS OF THE STATE’S
CIVIL RIGHTS PROCESS. IT WENT THROUGH
THE CIVIL RIGHTS DIVISION, THE CIVIL RIGHTS COMMISSION,
AN ADMINISTRATIVE LAW JUDGE, THE COLORADO COURT OF APPEALS, AND FINALLY THE
COLORADO SUPREME COURT. THROUGHOUT THIS PROCESS AND
BEFORE THE U.S. SUPREME COURT, PHILLIPS CLAIMED THAT
FORCING HIM TO MAKE CAKES FOR SAME-SEX WEDDINGS
WOULD VIOLATE HIS RIGHTS UNDER BOTH THE FREE SPEECH
AND FREE EXERCISE CLAUSES OF THE FIRST AMENDMENT. SUZANNA, DID THE SUPREME COURT
AGREE WITH HIM? WELL, IT DIDN’T DECIDE THE CASE
ON EITHER OF THOSE GROUNDS. INSTEAD, IT RULED SO NARROWLY
THAT IT SUCCEEDED IN GETTING 7 VOTES FOR THE
MAJORITY OPINION, EVEN ON THIS VERY
CONTROVERSIAL ISSUE. SO JUSTICE KENNEDY WROTE
THE MAJORITY OPINION, JUSTICE THOMAS CONCURRED
IN THE JUDGMENT ONLY, AND ONLY JUSTICES SOTOMAYOR
AND GINSBERG DISSENTED. THE MAJORITY OPINION
FIRST REITERATED THAT RELIGIOUS OBJECTIONS DO NOT
ALLOW ACTORS IN THE ECONOMY TO DENY PERSONS SERVICE, EQUAL
ACCESS TO GOODS OR SERVICES THAT WOULD BE IN
VIOLATION OF A NEUTRAL AND GENERALLY APPLICABLE
ACCOMMODATIONS LAW OR ANTI-DISCRIMINATIONS LAW, BUT IT ALSO FOUND THAT THE
COLORADO CIVIL RIGHTS COMMISSION HAD DENIED PHILLIPS A NEUTRAL
AND RESPECTFUL CONSIDERATION OF HIS CLAIMS,
AND THAT IN DOING SO, IT HAD EXHIBITED
UNCONSTITUTIONAL HOSTILITY TO RELIGION. INDEED. THE DECISION ACTUALLY
QUOTED SOME LANGUAGE BY MEMBERS OF THE
CIVIL RIGHTS COMMISSION SUGGESTING THAT RELIGION
HAD BEEN USED TO JUSTIFY SLAVERY AND THE HOLOCAUST
AND OTHER DISCRIMINATION, AND THAT IN ITSELF
SHOWED HOSTILITY TO RELIGION. IT ALSO CITED SOME OTHER CASES, WHERE THE COMMISSION HAD
ALLOWED OTHER BAKERS TO REFUSE
TO MAKE THESE CAKES WHO OBJECTED ON GROUNDS
OF CONSCIENCE, BUT HERE, THEY DID NOT ALLOW
THE SAME FOR PHILLIPS ON RELIGIOUS OBJECTIONS. CHEMERINSKY: I THINK
IT’S IMPORTANT TO EMPHASIZE THAT THE SUPREME COURT LEFT
UNRESOLVED THE MAJOR QUESTIONS OF DOES IT VIOLATE
FREE EXERCISE OF RELIGION, OR IS IT IMPERMISSIBLE
COMPELLED SPEECH TO REQUIRE THAT A BUSINESS
SERVE CUSTOMERS WHEN IT VIOLATES THE OWNERS OF
THE BUSINESS’ RELIGIOUS BELIEFS. I THINK THE BOTTOM LINE IS THAT
THE COURT ESSENTIALLY SAID THAT PHILLIPS WASN’T
ENTITLED TO DISCRIMINATE, BUT THAT ONLY A RESPECTFUL
COMMISSION WAS ALLOWED TO TELL HIM SO. WIGGINS: OK, SO, IT WAS A 7-2
DECISION ON THE HOLDING, BUT THERE WERE SOME
CONCURRENCES AND A DISSENT. TELL US ABOUT THOSE. LEVENSON: WELL, THE DISSENT BY
JUSTICE GINSBERG AND SOTOMAYOR SAID THEY DIDN’T FEEL THAT THE
COMMISSION ACTUALLY HAD SHOWN INSTITUTIONAL HOSTILITY
TO RELIGION. COMMENTS BY 1 OR 2 COMMISSIONERS DO NOT SHOW RELIGIOUS
DISCRIMINATION BY THE WHOLE COMMISSION. THEY ALSO NOTED THAT,
FRANKLY, THE PROCESS HAD GONE THROUGH SEVERAL LAYERS
OF INDEPENDENT DECISION-MAKING AND THAT THE COMMISSION WAS ONLY
ONE PARTICIPANT IN THAT PROCESS. SHERRY: AND THE CONCURRENCE, WHICH WAS WRITTEN BY
JUSTICE KAGAN AND JOINED BY JUSTICE BREYER
TALKED ABOUT THE CASE OF THE OTHER–OR THE CASES
OF THE OTHER BAKERS. AND THOSE OTHER BAKERS HAD
REFUSED TO MAKE CAKES FOR CUSTOMERS WHO WANTED CAKES THAT
WERE OFFENSIVE TO GAY COUPLES. THEY WANTED CAKES THAT WOULD
DENIGRATE SAME-SEX MARRIAGE. AND WHAT THE DIFFERENCE WAS,
ACCORDING TO THE CONCURRENCE WAS THAT THOSE BAKERS WERE REFUSING
TO MAKE THAT CAKE FOR ANYONE WHEREAS, PHILLIPS WAS ONLY
REFUSING TO MAKE A CAKE FOR A GAY COUPLE. AND THE FORMER
DOES NOT VIOLATE THE COLORADO CIVIL RIGHTS LAW,
BUT THE LATTER DOES. JUSTICE THOMAS ALSO WROTE
A CONCURRING OPINION. HE SAID THAT IT WOULD BE
IMPERMISSIBLE COMPELLED SPEECH TO REQUIRE THE BAKER TO
DESIGN AND BAKE A CAKE. JUSTICE THOMAS REJECTED ANY
DISTINCTION BETWEEN COMMERCIAL AND NON-COMMERCIAL SPEECH. IF JUSTICE THOMAS’ POSITION
EVER GETS SUPPORT FROM A MAJORITY OF THE COURT, IT WILL HAVE
DRAMATIC IMPLICATIONS. AFTER ALL, IF BAKING
A CAKE IS SPEECH, THEN ISN’T COOKING FOOD SPEECH? CAN’T IT BE SAID THAT
ALMOST ANY WORK ACTIVITY HAS AN EXPRESSIVE COMPONENT? INTERESTINGLY, JUSTICE GORSUCH
IS LISTED AS CONCURRING IN PART TO JUSTICE THOMAS’ OPINION,
BUT WE DON’T KNOW WHAT PART. I THINK WE SHOULD NOTE THAT
ONE STATE APPELLATE COURT HAS ALREADY CITED
MASTERPIECE CAKE SHOP, AND IN THAT CASE,
THE STATE COURT REJECTED A STATIONERY STORE’S
CLAIM THAT IT SHOULD BE EXEMPT FROM AN ANTI-DISCRIMINATION LAW
BECAUSE THE STATIONERY STORE DID NOT WANT TO DESIGN ARTWORK
FOR A SAME-SEX WEDDING. ON THE OTHER HAND,
THE SUPREME COURT VACATED AND REMANDED A CASE
IN WHICH A FLORIST DIDN’T WANT TO PROVIDE FLOWERS
FOR A SAME-SEX WEDDING, AND IT DID SO EVEN THOUGH THERE
DIDN’T SEEM TO BE ANY EVIDENCE OF RELIGIOUS HOSTILITY
IN THE PROCEEDINGS BELOW. WIGGINS: MM-HMM. THANK YOU. BEFORE WE LOOK AT
OUR NEXT DECISION, I WANT TO MENTION THAT
IF YOU HAVE ANY QUESTIONS ABOUT THE OPINIONS
WE’RE DISCUSSING, YOU CAN E-MAIL THEM TO US
AT THE ADDRESS AT THE BOTTOM OF YOUR SCREEN. WE’RE GOING TO TAKE A COUPLE OF
MINUTES AT THE END OF EACH PANEL TO ANSWER ANY QUESTIONS
WE GET FROM YOU. AND IF WE DON’T HAVE TIME TO
ANSWER YOUR QUESTIONS DURING THE PROGRAM,
ONE OF OUR FACULTY WILL SEND YOU AN ANSWER
BY E-MAIL AFTERWARDS. SO PLEASE LET US KNOW
IF YOU HAVE ANY QUESTIONS. OK, LET’S MOVE ON NOW. THE DECISION IN
“NATIONAL INSTITUTE “OF FAMILY LIFE ADVOCATES
V. BECEERA” WAS ANOTHER ONE DECIDED
ON NARROW GROUNDS, BUT THE POTENTIAL IMPACT AND
IMPLICATIONS ARE FAR BROADER. CALIFORNIA LAW REQUIRES
LICENSED MEDICAL FACILITIES THAT ASSIST WOMEN WITH PREGNANCY
OR FAMILY PLANNING TO PROVIDE A GOVERNMENT-DRAFTED
NOTICE TELLING WOMEN ABOUT THE AVAILABILITY OF PUBLIC
PROGRAMS THAT PROVIDE FREE OR LOW-COST ACCESS TO COMPREHENSIVE
FAMILY PLANNING SERVICES, PRE-NATAL CARE,
AND ABORTION. THE LAW EXCLUDES
FROM THE REQUIREMENT SEVERAL CATEGORIES OF CLINICS
THAT WOULD OTHERWISE QUALIFY AS LICENSED FACILITIES. THE LAW ALSO REQUIRES
UNLICENSED FACILITIES, THAT IS THOSE WITHOUT
LICENSED MEDICAL STAFF, TO MAKE CLEAR, ALSO, THROUGH
A GOVERNMENT-DRAFTED NOTICE, THAT THEY’RE UNLICENSED. THE CALIFORNIA
LEGISLATURE FOUND THAT SO-CALLED
CRISIS PREGNANCY CENTERS WHICH INCLUDE BOTH LICENSED
AND UNLICENSED CLINICS EMPLOY WHAT IT CALLED INTENTIONALLY
DECEPTIVE ADVERTISING AND COUNSELING PRACTICES THAT
“OFTEN CONFUSE, MISINFORM, “AND EVEN INTIMIDATE WOMEN
FROM MAKING FULLY INFORMED, TIME-SENSITIVE DECISIONS
ABOUT CRITICAL HEALTH CARE.” BOTH LICENSED AND UNLICENSED
CLINICS CHALLENGE THE LAW AS VIOLATIONS OF
THE FIRST AMENDMENT, BUT LOST BEFORE BOTH
THE DISTRICT COURT AND THE NINTH CIRCUIT. SO, SUZANNA, HOW DID
THE SUPREME COURT DECIDE? IT CAME DOWN 5-4
ON THE SIDE OF THE CLINICS, WITH JUSTICE THOMAS
WRITING THE OPINION, BUT IT DIDN’T ACTUALLY DECIDE
THE QUESTION OF WHETHER THE LAW WAS AN UNCONSTITUTIONAL
VIEWPOINT DISCRIMINATION. INSTEAD, IT ISSUED
A FAIRLY NARROW DECISION SAYING THAT THE DISTRICT COURT
SHOULD HAVE GRANTED A PRELIMINARY INJUNCTION
THAT THE CLINICS HAD ASKED FOR BECAUSE THEY SHOWED A LIKELIHOOD
OF SUCCESS ON THE MERITS OF SHOWING CONTENT
DISCRIMINATION, ALTHOUGH NOT NECESSARILY
VIEWPOINT DISCRIMINATION. THE COURT SAID THAT THE
CALIFORNIA LAW WAS CONTENT-BASED BECAUSE IT PRESCRIBED
THE CONTENT OF THE REQUIRED DISCLOSURES. IT’S WELL-ESTABLISHED
IN FIRST AMENDMENT LAW THAT CONTENT-BASED RESTRICTIONS
HAVE TO MEET STRICT SCRUTINY. THEY HAVE TO BE
NECESSARY TO ACHIEVE A COMPELLING GOVERNMENT
INTEREST. THE NINTH CIRCUIT HERE SAID
A LOWER LEVEL OF SCRUTINY IS APPROPRIATE BECAUSE THE
GOVERNMENT WAS REGULATING PROFESSIONAL SPEECH. THE COURT EXPLICITLY REJECTED
THAT ARGUMENT AND SAID THERE’S NO REASON TO USE
A LOWER LEVEL OF SCRUTINY THAN STRICT SCRUTINY, JUST BECAUSE
IT’S PROFESSIONAL SPEECH. LEVENSON: YES, THE COURT NOTED
IN ITS MAJORITY DECISION THAT IN THE “ZAUDERER” DECISION
BACK IN 1984–’85, THE COURT ALLOWED
A LOWER LEVEL OF SCRUTINY IN ONLY TWO SITUATIONS. THE FIRST WAS WHEN LICENSE
NOTICE WAS LIMITED TO PURELY FACTUAL AND
NON-CONTROVERSIAL INFORMATION ABOUT THE TERMS UNDER WHICH
SERVICES WILL BE AVAILABLE. AND THE SECOND IS WHEN THE
NOTICES ARE TIED TO RISKS AND BENEFITS OF THE
MEDICAL PROCEDURES. THE MAJORITY FOUND THAT NEITHER
OF THOSE APPLY IN THIS SITUATION BUT, FRANKLY, IT SAYS THAT EVEN
IF THOSE STANDARDS WERE APPLIED, THE MAJORITY WROTE
THE NOTICE REQUIREMENT FOR THE LICENSED FACILITIES
WOULD NOT SURVIVE UNDER AN INTERMEDIATE SCRUTINY
BECAUSE IT WAS UNDER-INCLUSIVE, AND THE INFORMATION–THERE WAS
OTHER WAYS TO GET THAT TO WOMEN. AND AS FOR THE
UNLICENSED CLINICS, THE COURT HELD THAT THE
GOVERNMENT-SCRIPTED DISCLOSURE REQUIREMENTS
ENDED UP DROWNING OUT THE FACILITIES’ MESSAGE,
SO THAT WAS NOT PROPER EITHER. CHANCE: WELL, THERE WAS A
CONCURRENCE BY JUSTICE KENNEDY AND 3 OTHER MEMBERS
OF THE MAJORITY THAT SUGGESTED THESE LAWS MAY
ALSO BE VIEWPOINT AS WELL AS CONTENT DISCRIMINATION
UNDER THE FIRST AMENDMENT. AND THERE WAS A DISSENT
BY JUSTICE BREYER FOR HIMSELF AND JUSTICES GINSBERG,
SOTOMAYOR, AND KAGAN. LAURIE, WHAT DID THEY WRITE? THEY SAID THAT THE RULE THAT
THE MAJORITY HAS SET UP WILL, FRANKLY, INVITE
CONSTANT LITIGATION AS TO EVERY DISCLAIMER
THE GOVERNMENT IMPOSES. THEY SAID THAT THE MAJORITY
USED THE WRONG STANDARDS. IN FACT, THEY SHOULD HAVE USED
THE UNDUE BURDEN STANDARD UNDER THE “CASEY–PLANNED
PARENTHOOD V. CASEY” DECISION. THEY BELIEVED THAT THE
DISCLOSURES REQUIRED UNDER THE CALIFORNIA LAW DO RELATE
TO MEDICAL PROCEDURE AND HEALTH RISK. AND THEY’RE BOTH INVOLVED IN
THE CARRYING OF A PREGNANCY AND THE DELIVERY
OF THE BABY. AND THE STATE’S INTEREST IN THIS
CASE IS NOT HYPOTHETICAL, AND THE NOTICE REQUIREMENTS
ARE NOT UNDULY BURDENSOME. CHEMERINSKY: I THINK THIS IS
ANOTHER CASE THAT’S GONNA LEAD TO A GREAT DEAL OF LITIGATION. AS I MENTIONED, THE COURT SAYS
A LAW THAT REQUIRES DISCLOSURE OF SPECIFIC INFORMATION IS A CONTENT-BASED
RESTRICTION ON SPEECH THAT HAS TO MEET
STRICT SCRUTINY. WELL, ANY LAW THAT REQUIRES
DISCLOSURE IS PRESCRIBING WHAT HAS TO BE DISCLOSED. SO THINK OF ORDINANCES
THAT SAY THAT RESTAURANTS HAVE TO DISCLOSE
CALORIE COUNTS OR THAT BARS HAVE TO DISCLOSE
THE EFFECTS OF ALCOHOL ON PREGNANT WOMEN OR THAT
WORKPLACES HAVE TO DISCLOSE THE PRESENCE OF
TOXIC SUBSTANCES. ALL OF THOSE CAN BE CHALLENGED. ALL OF THOSE WILL NOW NEED TO
MEET STRICT SCRUTINY. I AGREE. THIS IS A VERY
SIGNIFICANT DECISION FOR SEVERAL OTHER
REASONS AS WELL. SEVERAL CIRCUITS HAD
ADOPTED THE PRINCIPLE THAT PROFESSIONAL REGULATION
OF PROFESSIONAL SPEECH WAS SUBJECT TO A LOWER
LEVEL OF SCRUTINY, AND NOW THOSE CASES
HAVE ALL BEEN OVERRULED. ALSO, THERE’S A NUMBER OF STATES
THAT CURRENTLY REQUIRE DOCTORS TO PROVIDE CERTAIN INFORMATION
TO WOMEN BEFORE– WHO ARE SEEKING ABORTIONS,
AND THE TRUTH OF THE INFORMATION IS SOMETIMES QUESTIONABLE. I THINK THOSE LAWS ARE NOW
SUBJECT TO CHALLENGE. WIGGINS: OK, THANK YOU. WE’LL BE BACK WITH SOME
FOURTH AMENDMENT DECISIONS IN A MOMENT. THE FOURTH AMENDMENT WAS
ADDED TO THE CONSTITUTION TO PROTECT THE RIGHT OF
THE PEOPLE TO BE SECURE IN THEIR PERSONS, HOUSES,
PAPERS, AND EFFECTS FROM UNREASONABLE
SEARCHES AND SEIZURES. FOR CENTURIES, THAT MEANT
KEEPING THE AUTHORITIES FROM ENTERING PEOPLE’S HOMES AND SEARCHING THROUGH
THEIR POSSESSIONS FOR SOME PROOF OF ILLEGAL
ACTIVITY WITHOUT PROBABLE CAUSE. BUT THE DEVELOPMENT
OF NEWER TECHNOLOGIES, ESPECIALLY THE RECENT
DIGITAL REVOLUTION, THE SCOPE OF THE FOURTH
AMENDMENT PROTECTIONS NOW HAS BEEN HARDER TO DEFINE; FOR EXAMPLE,
IN OUR NEXT DECISION, “CARPENTER V. UNITED STATES.” THE ISSUE WAS WHETHER
PROSECUTORS COULD OBTAIN CELL PHONE TOWER RECORDS WITHOUT
GETTING A WARRANT FROM A JUDGE. EVERY TIME A PERSON’S CELL PHONE
CONNECTS TO A CELLULAR SITE, A DATE-STAMPED RECORD OF THE
LOCATION OF THE PHONE IS CREATED BY THE PHONE COMPANY. GET ENOUGH OF THESE RECORDS OVER
A LONG ENOUGH PERIOD OF TIME, AND THE POLICE CAN TRACK A
PERSON’S LOCATION AND MOVEMENTS. SO, ERWIN, TELL US
THE FACTS OF THIS CASE AND WHAT THE COURT SAID ABOUT
USING CELL SITE DATA IN CRIMINAL PROSECUTIONS. CHEMERINSKY: TIMOTHY CARPENTER
WAS A SUSPECT IN A SERIES OF ARMED ROBBERIES. MAYBE IT’S IRONIC. THEY WERE
PRIMARILY ARMED ROBBERIES OF RADIO SHACKS. [PANEL CHUCKLING] LAW ENFORCEMENT WENT TO
A FEDERAL MAGISTRATE JUDGE AND GOT INFORMATION
FOR A PERIOD OF 127 DAYS WITH REGARD TO HIS CELLULAR
LOCATION INFORMATION. THEY DID SO UNDER THE FEDERAL
STORED COMMUNICATION ACT, WHICH IS A STANDARD THAT’S EASIER TO
MEET THAN PROBABLE CAUSE. CARPENTER MADE
A SUPPRESSION MOTION, BUT BOTH THE DISTRICT COURT AND
THE SIXTH CIRCUIT RULED AGAINST HIM, RELYING ON WHAT’S CALLED
THE “THIRD PARTY DOCTRINE.” THE “THIRD PARTY DOCTRINE” SAYS,
“WE DON’T HAVE A REASONABLE “EXPECTATION OF PRIVACY
IF WE’VE VOLUNTARILY TURNED INFORMATION OVER
TO A THIRD PARTY.” WIGGINS: SO DID THE
THIRD-PARTY DOCTRINE CARRY THE DAY AT
THE COURT, LAURIE? LEVENSON: WELL,
NOT IN THIS CASE, BUT IT DOES SURVIVE
IN MOST SITUATIONS. THE 5-4 MAJORITY OPINION
WRITTEN BY THE CHIEF JUSTICE REASONED THAT CELL SERVICE
LOCATION INFORMATION, OTHERWISE KNOWN AS CSLI, IS NOT
LIKE OTHER TYPES OF RECORDS BECAUSE IT SHOWS SO MANY DETAILS
ABOUT A PERSON’S LIFE. IT CAN SHOW FAMILIAL, POLITICAL,
PROFESSIONAL, RELIGIOUS, AND EVEN SEXUAL ASSOCIATIONS. SO, GIVEN THAT, THE COURT
CREATED A VERY NARROW EXCEPTION FROM THIRD-PARTY DOCTRINE
AND SAID IN THOSE SITUATIONS INVOLVING CSLI RECORDS, THE LAW ENFORCEMENT NEEDS TO
GO GET A WARRANT. IT SAID, HOWEVER, IT’S VERY
NARROW BECAUSE IT ALSO INCLUDES A TIME REGULATION. AND IT DIDN’T SET OUT HOW LONG
THAT SURVEILLANCE HAS TO BE THOSE RECORDS FOR, BUT IT DID NOTE IN A FOOTNOTE
THAT 7 DAYS OF CSLI RECORDS CONSTITUTES A FOURTH AMENDMENT
SEARCH AND THEREFORE, THE GOVERNMENT CAN’T DO IT
WITHOUT A WARRANT. THEY CAN’T USE OTHER TYPES
OF COMPULSORY PROCESS SUCH AS SUBPOENAS. THEY MIGHT BE ABLE TO,
IN THE RIGHT SITUATIONS, USE THE EXIGENT
CIRCUMSTANCE EXCEPTION. CHEMERINSKY: AS LAURIE POINTS
OUT, CHIEF JUSTICE ROBERTS’ MAJORITY OPINION STRESSES
THAT THE HOLDING IS NARROW. SAYS, FOR EXAMPLE, THE COURT’S
NOT DEALING WITH ACCESS TO REAL-TIME CELLULAR
LOCATION INFORMATION. HE SAID THE COURT’S
NOT RECONSIDERING THE THIRD-PARTY DOCTRINE. HE SAID THE COURT’S NOT DEALING
WITH A SITUATION WHERE FOREIGN POLICY OR
NATIONAL SECURITY IS INVOLVED. CHANCE: WELL, EVEN WRITTEN
NARROWLY, THOUGH, THIS SEEMS LIKE SOMETHING
THAT COULD HAVE A SIGNIFICANT PRACTICAL IMPACT ON THE COURTS. CHEMERINSKY: I TOTALLY
AGREE WITH THAT. IN 2016, VERIZON AND AT&T,
JUST 2 CELLULAR COMPANIES, WERE REQUIRED TO PROVIDE
CELLULAR LOCATION INFORMATION 125,000 TIMES TO
FEDERAL, STATE, AND LOCAL LAW ENFORCEMENT
PERSONNEL. THIS IS GOING TO HAVE
A SIGNIFICANT EFFECT IN TERMS OF BURDENING
THE COURTS. ALSO, THERE’S THE ISSUE OF WHAT
ABOUT CASES THAT ARE PENDING OR ON APPEAL WHERE CELLULAR
LOCATION INFORMATION WAS OBTAINED. I DON’T THINK THIS
CASE RULES, IN EFFECT, IN THOSE PENDING MATTERS,
AND THAT’S BECAUSE THE EXCLUSIONARY RULE
WOULDN’T APPLY. THE MAGISTRATE JUDGE,
LAW ENFORCEMENT–THOSE CASES– HAD ACTED IN GOOD FAITH
BASED ON THE LAW THAT WAS IN PLACE AT THE TIME. THE SUPREME COURT HAS MADE IT
CLEAR THAT THE EXCLUSIONARY APPLIES ONLY IF THERE’S
AN INTENTIONAL OR RECKLESS VIOLATION
OF THE FOURTH AMENDMENT. LEVENSON: AND I THINK THAT THE
CHALLENGE FOR THE LOWER COURTS IS GONNA BE ONE OF LINE-DRAWING. WHEN WILL THESE THIRD-PARTY
RECORDS BE CONSIDERED UNDER THE THIRD-PARTY DOCTRINE, AND WHEN WILL THEY BE
PARTICULARLY INVASIVE, AS SET FORTH IN “CARPENTER”? AND WILL THERE BE MORE
CHALLENGES TO SUBPOENAS AS WELL, AND HOW WILL THOSE
CHALLENGES BE RECEIVED? WIGGINS: THANK YOU.
OUR NEXT TWO DECISIONS INVOLVE TWO MORE
TRADITIONAL DOCTRINES IN FOURTH AMENDMENT
JURISPRUDENCE: THE AUTOMOBILE EXCEPTION
TO THE WARRANT REQUIREMENT AND THE SANCTITY OF THE HOME,
INCLUDING ITS CURTILAGE. IN “BYRD V. UNITED STATES,” TERRENCE BYRD BORROWED
A RENTED CAR FROM HIS EX-GIRLFRIEND,
LATASHA REED, TO DRIVE FROM NEW JERSEY
TO PITTSBURGH. UNDER THE RENTAL AGREEMENT, BYRD WAS NOT AN AUTHORIZED
DRIVER ON THE CAR. HALFWAY TO PITTSBURGH,
BYRD WAS STOPPED BY A PENNSYLVANIA
STATE TROOPER FOR DRIVING TOO LONG
IN THE LEFT LANE. SEEING THAT BYRD WAS NOT
ON THE RENTAL AGREEMENT, AND FIGURING HE
DIDN’T NEED CONSENT, THE TROOPER SEARCHED THE CAR
AND FOUND 49 BRICKS OF HEROIN IN A FLAK JACKET. BYRD MOVED TO SUPPRESS THE
EVIDENCE, SAYING THE SEARCH WAS A VIOLATION OF HIS
FOURTH AMENDMENT RIGHTS. HE LOST IN BOTH THE DISTRICT
AND APPELLATE COURTS. BOTH RULED THAT BYRD HAD
NO REASONABLE EXPECTATION OF PRIVACY BECAUSE HE WAS NOT
A REGISTERED DRIVER ON THE RENTAL AGREEMENT. SO, ERWIN, DID
THE JUSTICE AGREE? CHEMERINSKY: THE JUSTICE
AGREED WITH BYRD HERE AND REVERSED THE LOWER COURTS. JUSTICE KENNEDY WROTE,
“IT WAS A UNANIMOUS DECISION.” JUSTICE KENNEDY SAID THAT EVEN
THOUGH BYRD WASN’T AUTHORIZED UNDER THE RENTAL AGREEMENT, HE STILL HAD A REASONABLE
EXPECTATION OF PRIVACY. JUSTICE KENNEDY SAID “A REASONABLE EXPECTATION
OF PRIVACY” BECAUSE HE WAS LAWFULLY
DRIVING THE CAR, AND, ALSO, HE WAS IN CONTROL
OF THE VEHICLE. LEVENSON: BUT, AGAIN, THIS IS
A VERY NARROW DECISION. THE COURT SIMPLY HOLDS THAT
IT’S NOT ENOUGH TO GET PAST THE WARRANT REQUIREMENT THAT THE
DRIVER WAS NOT ON THE CONTRACT, THE RENTAL CONTRACT, THAT THERE ARE SO MANY
TECHNICAL PROVISIONS IN THOSE CONTRACTS
THAT WOULD NOT BE ENOUGH. AND, OF COURSE, THAT’S
A DIFFERENT QUESTION FROM WHETHER ANOTHER
EXCEPTION MIGHT APPLY, LIKE THE AUTOMOBILE EXCEPTION. THE FOCUS IN THIS CASE
IS WHETHER BYRD HAD A FOURTH AMENDMENT RIGHT
TO RAISE THE ISSUE, WHETHER HIS RIGHTS
WERE VIOLATED. AND STILL, ALL WE KNOW IS THAT UNDER THE COURT’S
PREVIOUS DECISION IN “RAKAS V. ILLINOIS,”
A LEGITIMATE PRESENCE ON THE PROPERTY IS
INSUFFICIENT IN ITSELF TO ESTABLISH A REASONABLE
EXPECTATION OF PRIVACY, BUT IT IS A FACTOR. CHEMERINSKY: AND THE
KEY HERE IS THAT BYRD WAS IN LAWFUL POSSESSION
OF THE VEHICLE. THE CIRCUMSTANCES
OF POSSESSION MATTER. SO IF THIS WAS A STOLEN CAR,
IT WOULD BE DIFFERENT. OR IF THERE’D BEEN DECEPTION
OF THE RENTAL CAR COMPANY OBTAINING THE VEHICLE, THAT,
TOO, WOULD MAKE IT DIFFERENT. CHANCE: IS THIS GONNA AFFECT FOURTH AMENDMENT JURISPRUDENCE
ALL THAT MUCH, LAURIE? LEVENSON:
I ACTUALLY DON’T THINK SO. IT MIGHT SUGGEST THAT THE COURT
DOESN’T WANT TO RELY EXCLUSIVELY ON PROPERTY RULES TO DECIDE
WHEN THERE’S A REASONABLE EXPECTATION OF PRIVACY,
BUT IT IS A FACTOR. AND ON REMAND, THE GOVERNMENT
MIGHT ACTUALLY BE ABLE TO SHOW THAT THERE WAS PROBABLE CAUSE
TO BELIEVE THAT THE VEHICLE CONTAINED CONTRABAND,
SINCE BYRD TOLD THE TROOPER THAT HE HAD A MARIJUANA
CIGARETTE IN THE CAR. THAT MIGHT JUSTIFY THE SEARCH
ON DIFFERENT GROUNDS, BUT THAT ISSUE HASN’T BEEN
DECIDED YET BY THE LOWER COURT. CHANCE: THANKS. OUR LAST DECISION
IN THIS GROUP, “COLLINS V. VIRGINIA,” ALSO INVOLVES THE
AUTOMOBILE EXCEPTION, BUT IN A DIFFERENT WAY. TWO POLICE OFFICERS HAD
INDEPENDENTLY BEEN CHASING AFTER A BLACK-AND-ORANGE MOTORCYCLE
WITH AN EXTENDED FRAME FOR TRAFFIC VIOLATIONS, BUT THE DRIVER OF THE BIKE
HAD ELUDED THEM. LATER, ONE OF THE OFFICERS
FOUND PICTURES OF A SIMILAR-LOOKING MOTORCYCLE
ON RYAN COLLINS’ FACEBOOK PAGE. SO, HE TRACKED DOWN THE ADDRESS,
DROVE THERE, AND PARKED ON THE STREET. FROM THAT VANTAGE POINT, HE SAW
WHAT APPEARED TO BE A MOTORCYCLE WITH AN EXTENDED FRAME
COVERED WITH A TARP AT THE TOP OF THE DRIVEWAY. THE OFFICER WALKED UP TO THE
BIKE, PULLED OFF THE TARP, AND FOUND A BLACK-AND-ORANGE
MOTORCYCLE WITH AN EXTENDED FRAME THAT
MATCHED THE ONE BEING PURSUED FOR TRAFFIC VIOLATIONS. SO HE RAN A SEARCH OF
THE LICENSE PLATES AND THE VEHICLE
IDENTIFICATION NUMBER AND CONFIRMED
THE BIKE WAS STOLEN. IN HIS TRIAL FOR RECEIVING
STOLEN PROPERTY, COLLINS MOVED TO HAVE
THE EVIDENCE SUPPRESSED UNDER THE FOURTH AMENDMENT. NOW, VIRGINIA STATE COURTS
RULED AGAINST COLLINS’ MOTIONS ON THE GROUNDS OF THE
AUTOMOBILE EXCEPTION TO THE WARRANT REQUIREMENT. DID THE SUPREME COURT AGREE WITH
THE VIRGINIA SUPREME COURT? LEVENSON: NO, IT DID NOT. JUSTICE SOTOMAYOR WROTE FOR
8 PEOPLE IN THE MAJORITY, 8 JUSTICES, AND HELD THAT
THE AUTOMOBILE EXCEPTION DOES NOT ALLOW WARRANTLESS
SEARCHES OF AUTOMOBILES ON THE CURTILAGE OF
THE HOME, AS OPPOSED TO OUT ON THE PUBLIC STREET,
ABSENT EXIGENT CIRCUMSTANCES. THE JUSTICE WROTE THAT THE
AUTOMOBILE EXCEPTION APPLIES TO VEHICLES OUT ON THE ROAD
BECAUSE THERE THERE’S A LESSER EXPECTATION OF PRIVACY, THAT, INDEED, THE POLICE
HAVE A RIGHT TO BE OUT THERE, BUT THAT THE AUTOMOBILE
EXCEPTION WAS NOT MEANT TO BE USED IN THIS SITUATION,
WHERE THE VEHICLE IS PARKED. IT’S PARKED ON THE CURTILAGE. AND IN THIS
PARTICULAR SITUATION, IT WAS UP ON A DRIVEWAY
THAT ABUTTED THE HOME, AND IT WAS,
IN FACT, COVERED, SO AUTOMOBILE EXCEPTION
DOESN’T WORK. CHEMERINSKY:
JUSTICE SOTOMAYOR LOOKED AT THE UNDERLYING RATIONALE FOR THE
AUTOMOBILE EXCEPTION. SHE SAID IT’S ABOUT THE FACT
THAT A MOTOR VEHICLE CAN BE EASILY MOVED. BUT HERE, THE MOTOR
VEHICLE WAS PARKED. THERE’S NO REASON THE POLICE
COULDN’T GET A SEARCH WARRANT. SHE SAID TO APPLY
THE AUTOMOBILE EXCEPTION HERE, BRINGS SUBSTANTIAL EXPANSION
OF THAT EXCEPTION, AND I THINK EVEN MORE
IMPORTANTLY SAID IT WOULD DIMINISH THE PROTECTIONS
UNDER THE FOURTH AMENDMENT. FOR THE HOME AND THE CURTILAGE
SURROUNDING IT. AND THAT’S WHAT THE FOURTH
AMENDMENT IS–AS THE COURT– MOST ABOUT. WIGGINS: SO THERE’S A
CONCURRENCE WRITTEN BY JUSTICE THOMAS, THOUGH,
THAT GOES FURTHER IN TERMS OF FOURTH AMENDMENT JURISPRUDENCE. LEVENSON: THERE IS, BUT IT’S
UNCLEAR WHETHER IT WOULD FIND SUPPORT AMONG
THE MAJORITY OF JUSTICES. JUSTICE THOMAS ACTUALLY SUGGESTS
THAT THE COURT SHOULD RE-EXAMINE THE EXCLUSIONARY RULE
AS APPLIED TO THE STATES AND THE POSSIBILITY THAT
HE WOULD VOTE TO OVERRULE “MAPP V. OHIO.” THANKS. WE’LL BE RIGHT BACK WITH TWO FIFTH AND SIXTH
AMENDMENT DECISIONS. DOUBLE JEOPARDY IS ONE OF THE
MOST IMPORTANT PROTECTIONS PROVIDED BY THE FIFTH AMENDMENT
TO THE CONSTITUTION. IT PREVENTS A GOVERNMENT
FROM PROSECUTING THE ACCUSED MORE THAN ONCE FOR
THE SAME ALLEGED CRIME, BUT WHEN THAT PROTECTION IS
AVAILABLE IS NOT ALWAYS CLEAR. THIS TERM, IN
“CURRIER V. VIRGINIA,” THIS QUESTION AROSE AGAIN. MICHAEL CURRIER WAS INDICTED
FOR BURGLARY, LARCENY, AND POSSESSION OF A FIREARM
BY A CONVICTED FELON. TO KEEP THE JURY IN HIS
BURGLARY AND LARCENY TRIAL FROM HEARING ABOUT
PREVIOUS CONVICTIONS FOR BURGLARY AND LARCENY, CURRIER ASKED TO HAVE HIS
POSSESSION OF FIREARM TRIAL SEVERED FROM HIS BURGLARY
AND LARCENY TRIAL. THE TRIALS WERE SEVERED,
AND CURRIER WAS TRIED FIRST ON THE BURGLARY AND LARCENY TRIALS,
FOR WHICH HE WAS ACQUITTED. SO, HE THEN MOVED TO DISMISS
THE SECOND TRIAL, CLAIMING A VIOLATION OF HIS
DOUBLE JEOPARDY RIGHTS. SO, LAURIE, DID THE COURT
SEE DOUBLE HERE? LEVENSON: NO, THE COURT DID NOT. IN A 5-4 OPINION WRITTEN BY
JUSTICE GORSUCH, THE COURT FOUND THAT CURRIER’S
DOUBLE JEOPARDY RIGHTS WERE NOT VIOLATED
FOR TWO REASONS: 1–FRANKLY, HE HAD CONSENTED
TO THE TWO TRIALS. AND SECOND–THIS IS NOT
A SITUATION THAT INVOLVED PROSECUTORIAL OVERREACHING, WHICH IS WHAT THE DOUBLE
JEOPARDY CLAUSE IS ALL ABOUT. CHEMERINSKY: THERE WAS
A SECOND ISSUE PRESENTED, AND THAT’S WHETHER COLLATERAL
ESTOPPEL WOULD PRECLUDE THE PROSECUTORS FROM BEING
ABLE TO USE THE CHARGES, BURGLARY AND LARCENY, THAT
CURRIER HAD BEEN ACQUITTED FOR. WHAT CURRIER SAID IS SINCE HE
HAD BEEN ACQUITTED IN THE PRIOR TRIAL, COLLATERAL ESTOPPEL SHOULD
KEEP THE PROSECUTORS FROM BEING ABLE TO USE THAT TO SHOW THAT HE’S
A FELON IN POSSESSION. JUSTICE GORSUCH,
WRITING FOR PLURALITY, REJECTED THAT ARGUMENT. HE SAID COLLATERAL ESTOPPEL IS
A CONCEPT OF CIVIL LITIGATION. HE SAID IT SHOULDN’T BE IMPORTED
INTO THE CRIMINAL CONTEXT OF DOUBLE JEOPARDY. HE SAID THAT COLLATERAL ESTOPPEL
AND DOUBLE JEOPARDY HAVE DIFFERENT
HISTORICAL ANTECEDENTS AND, THUS, THEY SHOULD BE KEPT
ENTIRELY DISTINCT. BUT IT’S WORTH NOTING
THAT JUSTICE KENNEDY, THOUGH CONCURRING
IN THE JUDGMENT, DID NOT CONCUR IN
THAT PART, PART III, OF JUSTICE GORSUCH’S OPINION. LEVENSON: SO THERE REMAINS
A 4-4 SPLIT AS TO THAT ISSUE, AND IT’S UNRESOLVED. IN “McCOY V. LOUISIANA,”
THE QUESTION WAS WHETHER A DEFENSE ATTORNEY
IN A CAPITAL TRIAL COULD CONCEDE HIS CLIENT’S GUILT
IN THE SENTENCING PHASE OF HIS TRIAL AGAINST
HIS CLIENT’S WISHES IF THE ATTORNEY THOUGHT
IT WAS THE BEST STRATEGY FOR AVOIDING THE DEATH PENALTY. ROBERT McCOY ADAMANTLY
DENIED HE HAD COMMITTED THE TRIPLE HOMICIDE
HE WAS CHARGED WITH AND WANTED HIS ATTORNEY
TO ARGUE A DUBIOUS ALIBI. NEVERTHELESS, HIS ATTORNEY
CONCEDED McCOY’S GUILT TO THE JURY
CONSIDERING HIS SENTENCE, HOPING TO SPARE HIM
THE DEATH PENALTY. SO, COULD THE LAWYER DO THAT
AS A MATTER OF STRATEGY, OR WAS IT THE DEFENDANT’S RIGHT
TO DENY HIS GUILT? ERWIN? CHEMERINSKY: THE SUPREME
COURT SAID IT WAS THE DEFENDANT’S RIGHT. IT WAS A 6-3 DECISION, WITH JUSTICE GINSBERG
WRITING FOR THE MAJORITY. JUSTICE GINSBERG STRESSED
THAT McCOY WAS ADAMANT THAT HE DID NOT WANT TO CONCEDE
THAT HE HAD DONE THESE KILLINGS. JUSTICE GINSBERG ALSO EMPHASIZED
THAT MOST DECISIONS AT TRIAL ARE STILL LEFT TO COUNSEL– WHAT ARGUMENTS TO MAKE,
WHAT EVIDENCE TO INTRODUCE– BUT THERE ARE
CERTAIN CHOICES THAT ARE LEFT TO
THE CRIMINAL DEFENDANT AND, ABOVE ALL, WHETHER TO
ADMIT SOMETHING ESSENTIAL AS WHETHER THE KILLINGS OCCURRED, AND SAID NOTHING WAS MORE
IMPORTANT TO McCOY HERE THAN DENYING THAT HE HAD
DONE THE KILLINGS. LEVENSON: YES, THE COURT SAID
THE ISSUE HERE WAS FOCUSING ON THE CLIENT’S AUTONOMY AND NOT
THE PERFORMANCE OF COUNSEL AND, THEREFORE, THE COURT
DID NOT USE THE STRICKLAND INEFFECTIVE ASSISTANCE
OF COUNSEL STANDARD THAT WOULD HAVE REQUIRED
A SHOWING OF PREJUDICE. THIS WAS A STRUCTURAL ERROR AND THEREFORE REQUIRED
AUTOMATIC REVERSAL. WE’LL BE RIGHT BACK. THE RIGHTS OF IMMIGRANTS AND THOSE TRYING TO
ENTER THIS COUNTRY WERE BEFORE THE COURT
THIS YEAR, WITH ONE OF THE MOST ANTICIPATED
DECISIONS COMING DOWN ON THE LAST DAY OF THE TERM. “TRUMP V. HAWAII” WAS THE CASE
THAT TESTED WHETHER A PRESIDENTIAL PROCLAMATION
BANNING RESIDENTS OF 8 NATIONS FROM ENTERING THE U.S. WAS
A LEGITIMATE EXECUTIVE ORDER UNDER FEDERAL LAW OR AN
ANTI-MUSLIM BAN IN VIOLATION OF THE FIRST AMENDMENT’S
ESTABLISHMENT CLAUSE. THE PROCLAMATION WAS THE THIRD
EXECUTIVE ORDER ON THIS TOPIC ISSUED BY PRESIDENT TRUMP,
AFTER HIS FIRST TWO WERE CHALLENGED IN FEDERAL COURT
AND THEN WITHDRAWN. THIS THIRD ORDER WAS ALSO
CHALLENGED IN FEDERAL COURT, AND THE DISTRICT COURT IN HAWAII
ISSUED AN INJUNCTION HALTING ITS APPLICATION WHILE
THE LITIGATION WENT FORWARD. THE SUPREME COURT STAYED THE
INJUNCTION BEFORE GRANTING CERT. ALTHOUGH BANNING ENTRY
INTO THE U.S. TO MOST RESIDENTS FROM 6 MUSLIM-MAJORITY COUNTRIES
AS WELL AS SOME INDIVIDUALS FROM VENEZUELA AND NORTH KOREA, THE ORDER INCLUDED A SYSTEM
OF EXEMPTIONS AND WAIVERS THAT WOULD ALLOW SOME PEOPLE
FROM THOSE NATIONS TO ENTER THIS COUNTRY
FOR SPECIFIC REASONS. I THINK THAT
EVERYONE WATCHING KNOWS HOW THE COURT
DECIDED THIS CASE, BUT TELL US SOMETHING
ABOUT THE RATIONALE, THE REASONING OF
THE COURT, SUZANNA. WELL, THE COURT SUPPORTED THE
PRESIDENT ON SEVERAL GROUNDS, SO, LET’S START WITH
THE STATUTORY GROUNDS. WHAT THE 5-JUSTICE
MAJORITY SAID IS THAT THE IMMIGRATION AND
NATIONALITY ACT, OR INA, GIVES THE PRESIDENT VERY BROAD
AUTHORITY IN THIS AREA. SO THEY RELIED ON A PARTICULAR
SECTION OF THE INA THAT I THINK WE HAVE UP
ON THE SCREEN, WHICH SAYS… ACCORDING TO THE COURT,
THE LAW EXUDES DEFERENCE TO THE PRESIDENT
IN EVERY CLAUSE, AND, THEREFORE, TRUMP DID NOT
EXCEED HIS AUTHORITY UNDER THE INA WHEN HE
PROMULGATED THE ORDER. LEVENSON: AND THE
ADMINISTRATION’S EXPLANATION FOR WHY THEY NEEDED THIS
EXECUTIVE ORDER AND WHICH COUNTRIES
THEY WERE SELECTING IS THAT THEY TOOK A LOOK AT THE
THREATS FROM VARIOUS COUNTRIES IN TERMS OF THEIR
VETTING OF INFORMATION AND HOW RELIABLE THEIR
INFORMATION WOULD BE IN PROVIDING THE VISAS. AND BASED UPON THAT PROCESS
AS THE COURT REVIEWED IT, THEY BELIEVED THAT
THE ADMINISTRATION DID GO THROUGH A MULTI-AGENCY
GLOBAL REVIEW TO DETERMINE WHERE
THEY WOULD BE ABLE TO GET THE MOST RELIABLE INFORMATION. SHERRY: AND THE COURT RELIED,
ALSO, ON TWO EARLIER PRECEDENTS THAT IT SAID
SUPPORTED ITS HOLDING. THE CASES WERE “KLEINDIENST V.
MANDEL” AND “KERRY V. DIN.” IN THOSE CASES,
THE RULE WAS THAT THE REVIEW OF EXECUTIVE
IMMIGRATION DECISIONS IS LIMITED TO JUST DETERMINING
WHETHER THE EXECUTIVE HAS GIVEN A FACIALLY LEGITIMATE AND BONA
FIDE REASON FOR THE ACTIONS. IF THE PRESIDENT DOES THAT, THEN THE COURT’S NOT ALLOWED
TO LOOK BEHIND THAT TO CHECK THE MOTIVATION. AND THE MAJORITY SAID THAT
TRUMP HAD GIVEN LEGITIMATE AND BONA FIDE REASONS. INTERESTINGLY, NEITHER
OF THE DISSENTS– AND THEY WERE
VERY STRONG DISSENTS– BUT NEITHER OF THEM TOOK ISSUE
WITH THIS STATUTORY RULING. WIGGINS: SO, NOW TELL US ABOUT
THE FIRST AMENDMENT RULING. SHERRY: I THINK THAT RULING
WAS MORE INTERESTING AND POTENTIALLY
MORE INFLUENTIAL. THE PLAINTIFFS CLAIMED THAT
PRESIDENT TRUMP’S STATEMENTS BEFORE AND–DURING HIS CAMPAIGN
AND THEN AFTERWARDS AS PRESIDENT REGARDING MUSLIMS
AND ISLAM IN GENERAL WERE EVIDENCE THAT THE REAL
MOTIVATION FOR THE PROCLAMATION WAS NOT NATIONAL SECURITY, BUT
INSTEAD WAS RELIGIOUS ANIMUS AGAINST MUSLIMS, IN VIOLATION
OF THE FIRST AMENDMENT. NOW, THE CHIEF JUSTICE’S
MAJORITY OPINION ACKNOWLEDGES THOSE STATEMENTS
AND EVEN QUOTES A FEW OF THEM, BUT HE SAYS THAT IT’S NOT
THE JOB OF THE COURT TO DENOUNCE STATEMENTS
LIKE THAT, BUT IS INSTEAD TO REVIEW “THE SIGNIFICANCE
OF THOSE STATEMENTS “IN REVIEWING
A PRESIDENTIAL DIRECTIVE, NEUTRAL ON ITS FACE…” AND HERE THE MAJORITY SAID
IT HAS TO TAKE INTO ACCOUNT SEVERAL FACTORS: FIRST–THE AUTHORITY
OF THE PRESIDENT, WHICH THEY SAID WAS CLEAR
FROM THE TEXT OF THE LAW; SECOND–THE FACT THAT THE
PLAINTIFFS WERE ASKING TO INVALIDATE A NATIONAL
SECURITY DIRECTIVE; AND THIRD–THAT THE PROCLAMATION
WAS FACIALLY NEUTRAL TOWARD RELIGION. SO, WHILE THE MAJORITY
SAID IT CONSIDERED THE PLAINTIFF’S
EXTRINSIC EVIDENCE, THEY SAID THAT, IN FACT, THE GROUNDS GIVEN BY
THE ADMINISTRATION WITH REGARD TO NATIONAL
SECURITY WAS PERSUASIVE, APART FROM ANY
RELIGIOUS HOSTILITY AND THAT THEY HAVE TO ACCEPT
THAT AS A JUSTIFICATION. CHANCE: WELL, BOTH
OF THESE DECI– THERE WERE TWO DISSENTS
IN THIS DECISION, AND ONE, IN PARTICULAR,
WAS VERY STRONG. TELL US ABOUT THAT. LEVENSON: WELL, THE SHORTER
OF THE TWO DISSENTS WAS BY JUSTICE BREYER
AND JUSTICE KAGAN. AND JUSTICE BREYER FOCUSED ON
THE SYSTEM OF WAIVER EXCEPTIONS THAT WAS MENTIONED EARLIER
AND SAID THAT THERE WAS EVIDENCE THAT, FRANKLY, THE GOVERNMENT
WASN’T REALLY USING THAT AND GRANTING THOSE WAIVERS,
FOR MOST PART. AND BREYER FELT THAT IT WAS
AN IMPORTANT ENOUGH ISSUE HERE ABOUT THE PROCLAMATION
AND MAKING SURE IT WAS NOT A MUSLIM BAN THAT
HE WOULD SEND IT BACK TO THE DISTRICT COURT
FOR FURTHER PROCEEDINGS AND ACTUALLY KEEP
THE INJUNCTION IN PLACE. SHERRY: THERE WAS A SECOND,
MUCH LONGER DISSENT BY JUSTICE SOTOMAYOR,
JOINED BY JUSTICE GINSBERG. SHE CATALOGUED ALL OF THE
STATEMENTS THAT PRESIDENT TRUMP HAS MADE OVER THE YEARS
ABOUT MUSLIMS AND ISLAM. AND SHE WROTE THAT ANY
REASONABLE OBSERVER COULD CONCLUDE FROM THESE
THAT THE PRIMARY PURPOSE OF THE PROCLAMATION IS,
SHE SAID, TO DISFAVOR ISLAM AND ITS ADHERENCE BY EXCLUDING
THEM FROM THE COUNTRY. SHE ALSO MENTIONS
THE “MASTERPIECE CAKE SHOP” CASE THAT WE TALKED ABOUT
A FEW MINUTES AGO AND SAYS THAT IN THAT CASE,
THE MAJORITY LOOKED BEHIND THE HOLDING OF THE COMMISSION TO THE COMMISSION–A FEW
COMMISSIONERS’ STATEMENTS. AND SHE SAYS THOSE STATEMENTS
WERE MUCH MORE BENIGN THAN– THAN PRESIDENT TRUMP’S
STATEMENTS, AND SHE THINKS THAT THE MAJORITY
HERE SHOULD HAVE APPLIED THE ANALYSIS THAT THEY APPLIED
IN “MASTERPIECE CAKE SHOP.” WIGGINS: IN “JENNINGS
V. RODRIGUEZ,” THE COURT DEALT WITH
THE RIGHTS OF ALIENS BEING DETAINED BY
THE GOVERNMENT. RODRIGUEZ WAS A MEXICAN CITIZEN
WITH PERMANENT RESIDENT STATUS IN THE U.S. HE WAS CONVICTED OF A DRUG
OFFENSE AND STEALING A VEHICLE AND ORDERED REMOVED
FROM THE COUNTRY. HE APPEALED FOR RELIEF
FROM REMOVAL, BUT AFTER ALMOST 3 YEARS IN DETENTION,
HE FILED A HABEAS ACTION SEEKING A BOND HEARING TO DETERMINE IF HIS CONTINUED
INCARCERATION WAS JUSTIFIED. HIS CASE WAS CONSOLIDATED
WITH ANOTHER SIMILAR CASE, AND TOGETHER, THEY MOVED
FOR CLASS CERTIFICATION. THE DISTRICT COURT
DENIED THEIR MOTION, BUT THE NINTH CIRCUIT REVERSED. AFTER THAT, THE DISTRICT COURT
ENTERED A PERMANENT INJUNCTION IN LINE WITH THE WREATH
RODRIGUEZ SOUGHT AND THE COURT OF APPEALS
AFFIRMED. THE APPEALS COURT HELD THAT THE
STATUTE UNDER WHICH RODRIGUEZ WAS INCARCERATED SHOULD BE
CONSTRUED AS REQUIRING PERIODIC BOND HEARINGS
EVERY 6 MONTHS. CONTINUED DETENTION,
THE CIRCUIT SAID, SHOULD ONLY BE PERMITTED
IF THE GOVERNMENT PROVES BY CLEAR AND CONVINCING EVIDENCE THAT FURTHER DETENTION
IS JUSTIFIED. SO, SUZANNA, DID THE
SUPREME COURT AGREE WITH THE NINTH CIRCUIT? SHERRY: NO, IT DID NOT.
SO HERE’S A LITTLE BACKGROUND. THERE ARE 3 DIFFERENT STATUTES
UNDER WHICH ALIENS CAN BE DETAINED PENDING
IMMIGRATION DECISIONS, AND NONE OF THEM EXPLICITLY
PROVIDE IT FOR BAIL OR FOR ANY KIND OF
BOND HEARINGS. THE NINTH CIRCUIT USED THE CANON
OF CONSTITUTIONAL AVOIDANCE TO READ INTO THE STATUTES
A REQUIREMENT OF BOND HEARINGS EVERY 6 MONTHS DURING THE
PENDENCY OF THE PROCEEDINGS AND RELIED ON A 2001
SUPREME COURT CASE, “ZADVYDAS V. DAVIS,” WHERE THE COURT HAD INTERPRETED
THE STATUTE AS REQUIRING AN EVERY-6-MONTHS’ REVIEW
OF A REMOVAL ORDER SO THAT A DEFENDANT IS NOT SITTING
INDEFINITELY UNTIL REMOVAL. LEVENSON: BUT THE JUSTICES
DID WRITE THAT THIS CASE IS DIFFERENT FROM “ZADVYDAS” AND THAT THE NINTH CIRCUIT
MISTAKENLY USED THE CONSTITUTIONAL
AVOIDANCE DOCTRINE. THE MAJORITY SAID THAT THE
STATUTE MAKES IT CLEAR THAT THE ATTORNEY GENERAL CAN
KEEP A DEPORTEE IN CUSTODY, AND NOTHING IN THE STATUTE
SUPPORTED THE IMPOSITION OF THESE PERIODIC
BOND HEARINGS. THE COURT WROTE “SPOTTING A
CONSTITUTIONAL ISSUE DOES NOT “GIVE A COURT THE AUTHORITY “TO REWRITE A STATUTE
AS IT PLEASES, BUT ONLY TO CHOOSE BETWEEN COMPETING
PLAUSIBLE INTERPRETATIONS.” AND HERE THE COURT WROTE THAT
THE NINTH CIRCUIT’S INTERPRETATION OF THE STATUTE
WAS IMPLAUSIBLE. SHERRY: WE SHOULD ALSO NOTE
THAT THE COURT DIDN’T REACH THE CONSTITUTIONAL ISSUE– THAT IS, WHETHER BOND HEARINGS,
PERIODIC BOND HEARINGS, WERE REQUIRED UNDER DUE PROCESS. INSTEAD, IT REMANDED
THAT QUESTION BACK TO THE NINTH CIRCUIT,
NOW THAT IT WAS CLEAR THAT THE STATUTE ITSELF DID NOT
REQUIRE THOSE HEARINGS. LEVENSON: BUT THERE WAS
A DISSENT HERE WRITTEN BY JUSTICE BREYER, AND HE WOULD
CONSTRUE THE STATUTE AS REQUIRING THE 6-MONTH
BOND HEARINGS UNDER DUE PROCESS. HE BELIEVES “ZADVYDAS”
WAS CLEAR PRECEDENT, THAT “IN CUSTODY,” HE WROTE, “DOES NOT ALWAYS MEAN
ACTUALLY DETAINED.” FINALLY, WE WANT TO TELL YOU
ABOUT THE COURT’S RULING IN “SESSIONS V. DIMAYA.” UNDER A SECTION OF THE
IMMIGRATION AND NATIONALITY ACT, OR INA, AN ALIEN CAN BE RENDERED
DEPORTABLE IF HE OR SHE IS CONVICTED OF AN
AGGRAVATED FELONY. NOW, THAT TERM “AGGRAVATED
FELONY” IS DEFINED BY CROSS-REFERENCING OTHER
CRIMINAL STATUTES, INCLUDING THE SO-CALLED
“RESIDUAL CLAUSE” OF THE ARMED CAREER
CRIMINAL ACT, OR ACCA. THAT CLAUSE INCLUDED
CONVICTIONS FOR ANY ACT THAT “OTHERWISE INVOLVES…” BUT 3 YEARS AGO,
IN “JOHNSON V. U.S.,” THE COURT STRUCK DOWN THE
RESIDUAL CLAUSE OF THE ACCA AS UNCONSTITUTIONALLY VAGUE. NOW, IN “SESSIONS V. DIMAYA,” THE COURT FINDS THE RESIDUAL
CLAUSE IN THE ACCA IS VIRTUALLY IDENTICAL
TO THE ONE IN THE INA AND STRIKES THAT DOWN, TOO,
AS UNCONSTITUTIONALLY VAGUE. IT WAS A 5-4 DECISION
WRITTEN BY JUSTICE KAGAN. THE CHIEF JUSTICE WROTE A
DISSENT DISTINGUISHING THIS CASE FROM “JOHNSON” ON THE GROUND
THAT THE VAGUENESS DOCTRINE SHOULD BE MORE LENIENT IN CIVIL
THAN IN CRIMINAL CASES. THANKS, JIM. I’LL BE BACK IN A MOMENT
WITH A CONVERSATION I RECENTLY HAD WITH
PROFESSOR ANN FLEMING OF THE GEORGETOWN UNIVERSITY
LAW CENTER ABOUT THIS YEAR’S
BANKRUPTCY LAW DECISIONS. PROFESSOR ANN FLEMING
OF THE GEORGETOWN LAW CENTER IS HERE TODAY TO TALK ABOUT
THE 3 BANKRUPTCY CASES DECIDED BY THE COURT THIS TERM. WELCOME, ANN.
THANKS FOR BEING HERE. THANK YOU FOR HAVING ME. WHY DON’T WE START
WITH THE FIRST CASE HANDED DOWN BY THE COURT– “MERIT MANAGEMENT GROUP
V. FTI CONSULTING”? IT WAS A UNANIMOUS DECISION
AND RESOLVED A CIRCUIT SPLIT ABOUT AN EXCEPTION TO THE
TRUSTEE’S AVOIDANCE POWERS. SO, TO START, WHAT ARE
THE TRUSTEE’S AVOIDANCE POWERS AND ARE THERE LIMITS TO THEM? FLEMING: SO, THE BANKRUPTCY CODE
GIVES THE TRUSTEE THE POWER TO INVALIDATE
CERTAIN TRANSFERS BY THE DEBTOR OR OF
THE DEBTOR’S PROPERTY, AND THE PURPOSE IS TO MAXIMIZE
THE FUNDS AVAILABLE FOR DISTRIBUTION TO CREDITORS
AND TO ENSURE AN EQUITABLE DISTRIBUTION OF
THE DEBTOR’S PROPERTY. BUT THESE AVOIDING POWERS
ALSO COME WITH SOME LIMITATIONS, AND THOSE INCLUDE THE LIMITATION
ON TRANSFERS INVOLVING FINANCIAL INSTITUTIONS, WHICH IS
AT SECTION 546(e) OF THE CODE. SO, CAN YOU BRIEFLY EXPLAIN
THE SAFE HARBOR PROVISION AND THE SPECIFIC ISSUE THAT WAS
BEFORE THE COURT IN THIS CASE? SO, THE SAFE HARBOR PROVISION
PREVENTS THE TRUSTEE FROM AVOIDING TRANSFERS THAT ARE BY,
TO, OR FOR THE BENEFIT OF FINANCIAL INSTITUTIONS. SO, IN THIS CASE, BEDFORD DOWNS,
WHICH IS A RACETRACK, MADE A TRANSFER
TO THE SHAREHOLDERS OF ANOTHER RACETRACK,
AND THE SHAREHOLDERS INCLUDED MERIT MANAGEMENT GROUP, BUT THE TRANSFER DIDN’T GO
DIRECTLY FROM THE RACETRACK TO THE SHAREHOLDERS. IT WENT THROUGH TWO
FINANCIAL INSTITUTIONS. SO THE TRANSFER WENT FROM
PARTY “A” TO PARTY “B,” FROM PARTY “B” TO PARTY “C,” AND FROM PARTY “C”
TO PARTY “D.” AND BOTH PARTIES “B” AND “C”
WERE FINANCIAL INSTITUTIONS. SO, WHEN THE TRUSTEE ATTEMPTED
TO VOID THE TRANSFER, MERIT CLAIMED THAT IT WAS
PROTECTED FROM AVOIDANCE BY 546(e), AND THE COURT
HAD TO DECIDE THAT QUESTION. SO WHAT DID THE COURT DECIDE? SO THE COURT DECIDED THAT
THE RELEVANT TRANSFER IS THE TRANSFER THAT THE TRUSTEE
IS SEEKING TO AVOID, WHICH IS THE TRANSFER
FROM “A” TO “D.” IF FINANCIAL INSTITUTIONS
ARE MERELY CONDUITS OR PERFORM COMPONENT PARTS
OF THE TRANSFER, THEN IT’S NOT PROTECTED BY
THE 546(e) SAFE HARBOR. WIGGINS: OK, SO WHAT GUIDANCE
DOES THIS CASE PROVIDE FOR DETERMINING WHETHER
A TRANSACTION INVOLVING A FINANCIAL INSTITUTION ACTUALLY
FALLS WITHIN THE SAFE HARBOR, WHICH WOULD PREVENT AVOIDANCE? SO THIS IS THE ONLY
SUPREME COURT CASE ON 546(e). AND THE SUPREME COURT READ
THE SAFE HARBOR NARROWLY, WHICH WAS IN LINE WITH THE VIEWS
TAKEN BY THE SEVENTH AND ELEVENTH CIRCUITS
AND ESSENTIALLY OVERRULED OPINIONS BY THE SECOND,
THIRD CIRCUITS AND SOME OTHER COURTS OF APPEALS
THAT HAD TAKEN A MORE EXPANSIVE VIEW OF THE SCOPE
OF THE SAFE HARBOR. WIGGINS: OK. THANK YOU. WHY DON’T WE MOVE ON
TO THE SECOND CASE– “U.S. BANK
V. VILLAGE OF LAKERIDGE”? THE CASE IS ABOUT THE MEANING
OF INSIDER IN BANKRUPTCY AND SPECIFICALLY THE
STANDARD OF REVIEW FOR A COURT’S DETERMINATION WHETHER
SOMEONE IS OR ISN’T AN INSIDER. UM… WHAT DOES IT MATTER
IF SOMEONE IS AN INSIDER? WHY DOES IT MATTER? SO, THE CODE PLACES
CERTAIN RESTRICTIONS ON THOSE WHO ARE DEEMED
TO BE INSIDERS, AND THE CODE HAS A STATUTORY
DEFINITION OF “INSIDER,” BUT THERE ARE ALSO
NON-STATUTORY INSIDERS, AND COURTS HAVE DEVELOPED TESTS
FOR DETERMINING IF SOMEONE IS A NON-STATUTORY INSIDER. AND THOSE TESTS TEND TO FOCUS
ON WHETHER THE TRANSACTION WAS DONE AT ARM’S LENGTH
BETWEEN THE DEBTOR AND THE OTHER PERSON. SO, HOW DID THE BANKRUPTCY
COURT IN THIS CASE DECIDE WHETHER SOMEONE
WAS AN INSIDER? SO, IN THIS CASE, THE DEBTOR PROPOSED A PLAN
OF REORGANIZATION, AND THE PLAN CLASSIFIED
THE CREDITORS INTO TWO CLASSES, AND BOTH CLASSES WERE IMPAIRED. ONE OF THE TWO CREDITORS
OBJECTED TO THE PLAN, WHICH MEANT THAT THE DEBTOR
HAD TO ATTEMPT CONFIRMATION THROUGH CRAM DOWN,
AND FOR CRAM DOWN, AT LEAST ONE IMPAIRED CLASS
OF CREDITORS HAS TO CONSENT TO THE PLAN, AND
INSIDERS DON’T COUNT. SO THE CONSENTING CREDITOR
TRANSFERRED ITS CLAIM TO ANOTHER PERSON, AND SO THE QUESTION
THEN BECAME “WAS THE PURCHASER OF THAT CLAIM
ALSO AN INSIDER?” AND THERE WERE SOME FACTS
THAT INDICATED THAT HE MIGHT BE BECAUSE THE CLAIM WAS PURCHASED
FOR A SIGNIFICANT DISCOUNT AND BECAUSE HE
HAD BEEN INVOLVED IN A ROMANTIC RELATIONSHIP
WITH SOMEONE WHO WAS AN OFFICER OF THE DEBTOR
AND ON THE BOARD OF DIRECTORS OF THE SELLER/CREDITOR. SO, IN THIS CASE,
THE BANKRUPTCY COURT APPLIED A 2-PART TEST TO DETERMINE
IF THIS PERSON WAS A NON-STATUTORY INSIDER. THE FIRST PART OF THE TEST
LOOKED AT WHETHER THE PERSON WAS IN A RELATIONSHIP WITH
THE DEBTOR THAT WAS SIMILAR TO SOME OF THE ENUMERATED
RELATIONSHIPS FOR INSIDERS IN THE CODE. THE SECOND PRONG OF THE TEST
LOOKED AT WHETHER THE TRANSFER THAT WAS
AT ISSUE IN THE CASE WAS DONE AT ARM’S LENGTH. SO THE BANKRUPTCY COURT
REALLY FOCUSED ON THAT SECOND PRONG OF THE TEST AND
DETERMINED THAT IN THIS CASE, THE TRANSFER WAS DONE
AS THOUGH THE TWO WERE STRANGERS TO ONE ANOTHER,
BASED ON THE FACT THAT THE FINANCES OF THE
PURCHASER OF THE CLAIM AND THE PERSON THAT HE WAS
ROMANTICALLY INVOLVED WITH ON THE SELLER’S SIDE
WERE SEPARATE AND BECAUSE HE HAD DONE DUE DILIGENCE
BEFORE PURCHASING THE CLAIM. AND THE NINTH CIRCUIT AFFIRMED THE BANKRUPTCY’S
COURT’S FINDINGS BASED ON CLEAR ERROR REVIEW. SO DID THE COURT THINK
THAT THE NINTH CIRCUIT APPLIED THE CORRECT STANDARD
IN REVIEWING THE COURT’S…UM… DECISION, WHICH WAS CLEARLY
A QUESTION OF FACT IN LAW? YEAH. SO THE COURT SAID THAT
THE STANDARD OF REVIEW REALLY DEPENDS ON WHETHER THE
QUESTION THAT THE COURT DECIDED WAS PRIMARILY A QUESTION OF FACT
OR PRIMARILY A QUESTION OF LAW. AND IT DETERMINED THAT GIVEN THE
NATURE OF THE QUESTION HERE– WAS THIS PURCHASE DONE AS THOUGH
THE TWO PARTIES WERE STRANGERS– WAS REALLY A QUESTION OF FACT
AND INVOLVED VERY LITTLE LEGAL ANALYSIS,
SO THE COURT SAID THAT WAS APPROPRIATE FOR
CLEAR ERROR REVIEW. WIGGINS: OK, SO I GUESS
WHAT I’M INTERESTED IN IS DOES THIS DECISION MEAN
THE NINTH CIRCUIT’S LEGAL TEST IS THE CORRECT ONE,
AND IS THE ISSUE SETTLED? NO. SO THE COURT GRANTED CERT
ON THE QUESTION OF WHETHER THE NINTH CIRCUIT USED THE
CORRECT STANDARD OF REVIEW. IT DID NOT GRANT CERT
TO DETERMINE WHETHER THE TEST THAT WAS APPLIED
IS THE CORRECT TEST. AND, IN FACT, THERE WERE
TWO CONCURRING OPINIONS, AND BOTH OF THEM SUGGESTED
THAT THE COURT HAD SOME CONCERNS ABOUT THE TEST
THAT WAS APPLIED HERE. SO, IN JUSTICE KENNEDY’S
CONCURRENCE, HE EXPLICITLY NOTED THAT
THE HOLDING IN THE CASE SHOULD NOT BE READ TO
INDICATE THAT THE COURT THOUGHT THIS WAS THE RIGHT TEST. AND THEN IN JUSTICE SOTOMAYOR’S
CONCURRENCE, WHICH WAS JOINED BY 3 OTHER JUSTICES, SHE NOTED
THAT THERE WERE CONCERNS ABOUT THE TEST, AND THAT IF IT TURNS
OUT THIS IS NOT THE RIGHT TEST TO APPLY, THEN THE CORRECT TEST
MAY ACTUALLY INVOLVE A DIFFERENT MIX OF LEGAL AND
FACTUAL QUESTIONS, WHICH WOULD THEN, PERHAPS, REQUIRE
A DIFFERENT STANDARD OF REVIEW. OK, WELL, WHY DON’T WE
MOVE ON TO THE THIRD CASE– “LAMARR, ARCHER, AND COFRIN
V. APPLING,” WHICH CONCERNED THE
NONDISCHARGABILITY OF DEBTS UNDER 523(a)(2). SO WHAT KINDS OF DEBTS
ARE NONDISCHARGEABLE UNDER THAT PROVISION? SO THAT PROVISION PREVENTS
THE DEBTOR FROM DISCHARGING TWO TYPES OF DEBTS: ONE IS WHERE THE DEBTOR OBTAINED
THE MONEY, PROPERTY, OR SERVICES BASED ON FALSE PRETENSES,
MISREPRESENTATION, OR ACTUAL FRAUD. THE SECOND CATEGORY OF DEBTS
THAT CAN’T BE DISCHARGED ARE WHERE THE DEBTOR OBTAINED
THE MONEY OR PROPERTY BASED ON A MATERIALLY FALSE STATEMENT
THAT IS MADE IN WRITING RESPECTING THE DEBTOR’S
FINANCIAL CONDITION. OK, SO THE DEBTOR HERE,
APPLING, TOLD HIS LAWYERS THAT HE WOULD PAY
HIS PAST LEGAL FEES AND SOME FUTURE LEGAL FEES
WITH A TAX RETURN HE EXPECTED, BUT HE DIDN’T DO THAT. AND SO, ACCORDING TO THE COURT,
DID THIS FALSE STATEMENT PREVENT APPLING FROM
DISCHARGING THE DEBT HE OWED TO HIS ATTORNEYS? SO THE COURT SAID NO,
AND THAT WAS BECAUSE IT DETERMINED THAT THE STATEMENT
HE MADE, WHICH REALLY INVOLVED ONLY A SINGLE ASSET
OF THE DEBTOR’S– SO A STATEMENT ABOUT
HIS TAX RETURN REFUND– THAT THAT WAS A STATEMENT
RESPECTING THE DEBTOR’S FINANCIAL CONDITION, AND IT TURNED ON THE QUESTION
OF “WHAT DOES RESPECTING MEAN?” AND THE COURT SAID “RESPECTING”
HAS ITS ORDINARY MEANING, WHICH INDICATES THAT IF
A SINGLE ASSET IMPACTS OR HAS SOME BEARING ON THE
DEBTOR’S FINANCIAL STATUS, THEN A STATEMENT ABOUT THAT
ASSET IS A STATEMENT RESPECTING THE DEBTOR’S
FINANCIAL CONDITION, AND THE COURT NOTED THAT
ITS HOLDING WAS GROUNDED, ALSO, IN THE LEGISLATIVE HISTORY
OF THAT PROVISION OF THE CODE. – THANK YOU, ANNE.
– THANK YOU.

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