Supreme Court October Term 2016: A Review of Select Major Rulings
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Supreme Court October Term 2016:
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R44949
Supreme Court October Term 2016: A Review of Select Major Rulings
Summary
The Supreme Court term that began on October 3, 2016, was notably different from recent terms
at the High Court. It was the first term (1) in thirty years to begin without Justice Antonin Scalia
on the Court; (2) since 1987 to commence with a Court made up of fewer than nine active
Justices; and (3) since 2010 in which a new member (Justice Neil Gorsuch) joined the High
Court. Court observers have suggested that the lack of a fully staffed Supreme Court for the bulk
of the last term likely had an impact on the Court’s work both with regard to the volume of cases
that the Court heard and the nature of those cases. The Court issued seventy written opinions
during the October 2016 term and heard oral arguments in sixty-four cases, numbers that
constitute the lightest docket for the Court since at least the Civil War era. Moreover, unlike in
recent terms where the Court issued opinions on matters related to abortion and affirmative
action, the Court’s docket for the October 2016 term had comparatively very few high-profile
issues.
Nonetheless, the October 2016 term featured a number of cases on matters of potential
significance to Congress’s work, especially with respect to discrete areas of law. In particular, the
Court issued several notable opinions in the areas of intellectual property law, criminal law and
procedure, and redistricting. While a full discussion of every ruling from the October 2016 term
is beyond the scope of this report, Table 1 provides brief summaries of the written opinions
issued by the Court during the last term. Instead, this report focuses its discussion on four
particularly notable cases the Court ruled on during the October 2016 term: (1) Matal v. Tam;
(2) Sessions v. Morales-Santana; (3) Trinity Lutheran Church of Columbia, Inc. v. Comer; and
(4) Ziglar v. Abbasi.
In Matal v. Tam, a dispute at the intersection of First Amendment and trademark law, the Court
concluded that a federal law prohibiting the registration of trademarks that “may disparage” any
“persons, living or dead” violates the Free Speech Clause of the First Amendment. In a case with
potentially significant implications for immigration law, the Supreme Court, in Sessions v.
Morales-Santana, ruled that a gender-based distinction in the derivative citizenship rules—under
which persons born abroad to a U.S. parent may have U.S. citizenship automatically conferred at
birth—violated equal protection requirements. In one of the most closely watched cases of the
term, Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court invalidated on free exercise
grounds a state grant policy that strictly prohibited the distribution of public funds to religious
entities on free exercise grounds. Finally, in Ziglar v. Abbasi, the Supreme Court ruled against
extending the judicially created Bivens remedy to certain unlawfully present aliens challenging
their detention during investigations following the September 11, 2001, terror attacks. The
discussion of each of these cases (1) provides background information on the case being
discussed; (2) summarizes the arguments that were presented to the Court; (3) explains the
Court’s ultimate ruling; and (4) examines the potential implications that the Court’s ruling could
have for Congress, including the ramifications for the jurisprudence in a given area of law.
Congressional Research Service
Supreme Court October Term 2016: A Review of Select Major Rulings
Contents
Trademarks and Free Speech: Matal v. Tam .................................................................................... 4
Immigration and Gender Discrimination: Sessions v. Morales-Santana ....................................... 10
Religious Freedom: Trinity Lutheran Church of Columbia, Inc. v. Comer ................................... 14
Federal Courts and Civil Rights: Ziglar v. Abbasi ......................................................................... 17
Tables
Table 1. Supreme Court’s October 2016 Term .............................................................................. 24
Contacts
Author Contact Information .......................................................................................................... 34
Congressional Research Service
Supreme Court October Term 2016: A Review of Select Major Rulings
he Supreme Court term that began on October 3, 2016,1 was notably different from
recent terms at the High Court. Perhaps most conspicuously, the October 2016 term was
the first term in three decades to begin without Justice Antonin Scalia on the Court.2
Justice Scalia, who died midway through the previous term,3 had a significant influence
on the law in his nearly thirty-year career on the bench,4 and his colleagues noted his
absence in several tributes to the late Justice in the year that followed.5 Moreover, because Justice
Scalia’s eventual successor was not seated until the end of the October 2016 term, the Court’s
most recent term was the first since 1987 to commence with a Court composed of fewer than nine
active Justices.6 And, with the appointment and confirmation of Justice Neil Gorsuch to the
Supreme Court in April 2017, the October 2016 term was also notable in that it marked the first
term since 2010 in which a new Justice joined the High Court.7
T
Court observers have suggested that the lack of a fully staffed Supreme Court for the bulk of the
last term likely had an impact on the Court’s work.8 The Court issued seventy written opinions
during the October 2016 term and heard oral arguments in sixty-four cases.9 These numbers
constitute the lightest docket for the Court since at least the Civil War era.10 Beyond the volume
of the Court’s workload, the overall nature of cases on its docket appeared relatively less high
profile than in prior terms. During the 2014 and 2015 terms, for example, the Supreme Court
1 See J. OF THE SUPREME COURT OF THE UNITED STATES 1 (Oct. 3, 2016),
https://www.supremecourt.gov/orders/journal/Jnl16.pdf.
2 Justice Scalia joined the Court on September 26, 1986. See J. OF THE SUPREME COURT OF THE UNITED STATES 891
(Sept. 26, 1985), https://www.supremecourt.gov/orders/scannedjournals/1985_Journal.pdf.
3 See Hon. John G. Roberts, Jr., Statement by Chief Justice John G. Roberts, Jr. (Feb. 13, 2016),
http://www.supremecourt.gov/publicinfo/press/pressreleases/pr_02-13-16 (announcing Justice Scalia’s death).
4 For more on Justice Scalia’s jurisprudence and his legacy, see CRS Report R44419, Justice Antonin Scalia: His
Jurisprudence and His Impact on the Court, coordinated by (name redacted) and (name redacted) .
5 See, e.g., Hon. John G. Roberts, Jr., SUPREME COURT OF THE UNITED STATES, ASSOC. JUSTICE ANTONIN SCALIA MEM’L
(Nov. 4, 2016), https://www.supremecourt.gov/pdf/
ASSOCIATE%20JUSTICE%20ANTONIN%20SCALIA%20MEMORIAL.pdf (“Justice Scalia’s voice is perhaps most
deeply missed in this very chamber.”); Hon. Ruth Bader Ginsburg, In Memoriam: Justice Antonin Scalia, 130 HARV. L.
REV. 2, 5 (2016) (“I miss the challenges and the laughter Justice Scalia provoked, his pungent, eminently quotable
opinions, so clearly stated that his words rarely slipped from the reader’s grasp, ... The Court is a paler place without
him.”).
6 Justice Lewis Powell retired prior to the October 1987 term, and his eventual successor—Justice Anthony Kennedy—
did not join the Court until February 18, 1988. See J. OF THE SUPREME COURT OF THE UNITED STATES 351 (Feb. 18,
1988), https://www.supremecourt.gov/orders/scannedjournals/1987_Journal.pdf.
7 Justice Elena Kagan was appointed to the Court in August 2010. See J. OF THE SUPREME COURT OF THE UNITED
STATES 1 (Oct. 1, 2010), https://www.supremecourt.gov/orders/journal/jnl09.pdf. Justice Gorsuch authored his first
opinion for the Court in Henson v. Santander Consumer USA, Inc., a unanimous ruling concluding a company that
collects debts that it purchased for its own account is not a “debt collector” for purposes of the Fair Debt Collection
Practices Act. 137 S. Ct. 1718, 1721 (2017). For more on the Henson litigation and Justice Gorsuch’s opinion, see CRS
Legal Sidebar WSLG1845, Supreme Court Unanimously Holds Fair Debt Collection Practices Act Does Not Cover
Debt Buyer, by (name redacted)
.
8 See, e.g., Mike Sacks, The Supreme Court’s Docket is Pretty Sleepy—and That’s a Good Thing, L.A. TIMES (Oct. 2,
2016), http://www.latimes.com/opinion/op-ed/la-oe-sacks-supreme-court-sleepy-docket-20161002-snap-story.html
(“The drama went off the docket this year for two reasons. First: Not every term will be the term of the century....
Second: the deadlock.”).
9 See SCOTUSBLOG, STAT PACK: OCTOBER 2016 TERM 1 (June 28, 2017), http://www.scotusblog.com/wpcontent/uploads/2017/06/SB_Stat_Pack_2017.06.28.pdf.
10 Washington University in St. Louis School of Law’s Supreme Court Database indicates that the last term in which
the Supreme Court issued fewer than 70 opinions was 1864, when the Court issued 59 opinions. See THE SUPREME
COURT DATABASE, WASHINGTON UNIVERSITY LAW, http://scdb.wustl.edu/data.php?s=6 (last accessed August 31, 2017).
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Supreme Court October Term 2016: A Review of Select Major Rulings
issued major rulings on often-contentious issues like same-sex marriage,11 affirmative action,12
and abortion.13 A number of legal commentators have noted that, in contrast, the October 2016
term simply did not include any cases that would tend to generate a comparable level of interest
from the general public,14 notwithstanding potential opportunities for the High Court to rule on
such cases.15 Perhaps because of the recent composition of the Court and the nature of its
docket,16 the latest term witnessed the issuance of a notable number of unanimous opinions.17 In
fact, all of the Justices agreed on the final judgment of the Court in 59% of the opinions issued
11 See Obergefell v. Hodges, 135 S. Ct. 2584, 2608 (2015). For more on this decision, see CRS Report R44143,
Obergefell v. Hodges: Same-Sex Marriage Legalized. The Court during the October 2016 term did issue an opinion
holding that Obergefell required the invalidation of an Arkansas law providing that when a married woman gives birth,
her husband must be listed as the second parent on the child’s birth certificate, including when he is not the child’s
genetic parent. See Pavan v. Smith, 137 S. Ct. 2075, 2079 (2017) (per curiam). Pavan, however, was a five-page,
unsigned opinion issued without oral argument.
12
See Fisher v. Univ. of Tex. at Austin, 136 S. Ct. 2198, 2214-15 (2016). For more on this decision, see CRS Legal
Sidebar WSLG1609, Supreme Court Upholds University of Texas’s Affirmative Action Plan.
13 See Whole Woman’s Health v. Hellerstedt, 136 S. Ct. 2292, 2320 (2016). For more on this decision, see CRS Legal
Sidebar WSLG1610, Supreme Court Strikes Down Texas Abortion Requirements, by (name redacted)
.
14 See, e.g., Geoffrey Lou Guray, The Supreme Court Just Had a Quiet Term. These High-Profile Cases are About to
Change That., PBS (July 3, 2017), http://www.pbs.org/newshour/updates/supreme-court-just-quiet-term-high-profilecases-change/ (“Nearly every single Supreme Court term in recent memory has had at least one-headline grabbing
decision. That changed in the court’s latest term, when it kept high-profile legal disputes off the docket.”); Joseph P.
Williams, The Supreme Court Term: No Big Blockbusters, but Plenty of Work, U.S. NEWS & WORLD REPORT (June 19,
2017), https://www.usnews.com/news/national-news/articles/2017-06-19/what-did-the-supreme-court-do-in-2016-2017
(“The justices didn’t hand down any blockbuster rulings that reshaped the social or political landscape.”).
15 The Court opted not to grant review in several closely watched cases during the October 2016 term. See, e.g., Arthur
v. Dunn, 137 S. Ct. 725, 734 (2017) (Sotomayor, J., dissenting from the denial of certiorari) (arguing that the Court
should have granted certiorari in challenge that the State of Alabama’s method of execution was cruel and unusual
under the Eighth Amendment); Abbott v. Veasey, 137 S. Ct. 612, 613 (2017) (Roberts, C.J., statement respecting denial
of certiorari) (noting that a case challenging Texas’s voter identification law would be “better suited for certiorari
review” at a later time); see generally Robert Barnes, Supreme Court Declines to Hear Immigration and Redskins
Cases, WASH. POST (Oct. 3, 2016) https://www.washingtonpost.com/politics/courts_law/supreme-court-declines-tohear-immigration-and-redskins-cases/2016/10/03/142eeb60-8973-11e6-b24fa7f89eb68887_story.html?utm_term=.3f2ba52986f9 (noting that the Supreme Court declined to hear appeals respecting
a number of issues, including on immigration and campaign finance law). While the Court was expected to issue a
potentially major ruling on whether Title IX of the Education Amendments of 1972 requires schools to provide
transgendered students access to restrooms congruent with their gender identity, the Supreme Court opted to vacate and
remand the case following a change to the U.S. Department of Education’s guidance on the issue. See Gloucester Cty.
Sch. Bd. v. G.G. ex rel. Grimm, No. 16-273, 2017 WL 855755, at *1 (Mar. 6, 2017); see generally CRS Legal Sidebar
WSLG1750, Supreme Court Remands Transgender Case After Agency Guidance Withdrawn. And in two highly
anticipated immigration cases, the eight-Member court was apparently deadlocked, as the cases were rescheduled for
argument for the October 2017 term. In Jennings v. Rodriguez, No. 15-1204, restored to calendar for re-argument,
June 26, 2017, the Court is asked to review immigration authorities’ practice of detaining certain categories of aliens
while seeking orders of removal against them. In Sessions v. Dimaya, No. 15-1498, restored to calendar for reargument, June 26, 2017, the Court will consider whether 18 U.S.C. § 16(b), as incorporated into provisions of the
Immigration and Nationality Act (INA) concerning alien eligibility for removal from the United States, is
unconstitutionally vague.
16 See Jess Bravin, With Court at Full Strength, Alito Foresees Less Conservative Compromise With Liberal Bloc,
WALL STREET J. (Apr. 21, 2017), https://blogs.wsj.com/washwire/2017/04/21/with-court-at-full-strength-alito-foreseesmore-aggressive-conservative-majority/ (quoting Justice Samuel Alito that “[h]aving eight [Justices] ... probably
required having a lot more discussion of some things and more compromise and maybe narrower opinions in some
cases than we would have issued otherwise, but as of this Monday we were back to an odd number”).
17 See Adam Liptak, A Cautious Supreme Court Sets a Modern Record for Consensus, N.Y. TIMES (June 27, 2017),
https://www.nytimes.com/2017/06/27/us/politics/supreme-court-term-consensus.html?mcubz=1 (“The last term was
marked by a level of agreement unseen at the court in more than 70 years. That resulted from a lack of divisive disputes
on social issues and hard work by the justices, who often favored exceedingly narrow decisions to avoid deadlocks.”).
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Supreme Court October Term 2016: A Review of Select Major Rulings
during the October 2016 term, a feat surpassed only one other time during the Roberts Court
era—the October 2013 term (when the Court unanimously agreed on a final judgment in 66% of
cases).18
Notwithstanding the volume and nature of the docket for its most recent term, the October 2016
term featured consideration of numerous cases on matters of potential significance to Congress’s
work, especially in several discrete areas of law. Of note, of the seventy opinions issued during
the last term, more than 10% were on matters related to intellectual property law.19 The Court also
considered cases involving criminal law and procedure,20 including several cases touching on
racial bias issues in the criminal justice system.21 And the Court rendered three potentially
important rulings related to the legal standards for determining whether race impermissibly
predominates a state legislature’s redistricting decisions.22
While a full discussion of every ruling from the last Supreme Court term is beyond the scope of
this report, Table 1 provides brief summaries of the Court’s written opinions issued during the
October 2016 term. The bulk of this report highlights four particularly notable cases the Court
heard and ruled on during the October 2016 term: (1) Matal v. Tam, which examines the interplay
between the First Amendment and trademark law; (2) Sessions v. Morales-Santana, a case
exploring the relationship between immigration law and the Court’s Equal Protection
jurisprudence; (3) Trinity Lutheran Church of Columbia, Inc. v. Comer, the latest chapter in the
Court’s Free Exercise jurisprudence; and (4) Ziglar v. Abbasi, a case limiting the types of
damages claims that can be asserted against federal officers for alleged constitutional violations
under the Bivens23 doctrine. Each case is addressed in a separate section below,24 which
18 See SCOTUSBLOG, STAT PACK: OCTOBER 2016 TERM 16 (June 28, 2017), http://www.scotusblog.com/wp-
content/uploads/2017/06/SB_Stat_Pack_2017.06.28.pdf.
19 See Matal v. Tam, 137 S. Ct. 1744 (2017); Sandoz Inc. v. Amgen Inc., 137 S. Ct. 1664 (2017); Impression Prods. v.
Lexmark Int’l, Inc., 137 S. Ct. 1523 (2017); TC Heartland L.L.C. v. Kraft Foods Grp. Brands L.L.C., 137 S. Ct. 1514
(2017); Star Athletica, L.L.C. v. Varsity Brands, Inc., 137 S. Ct. 1002 (2017); SCA Hygiene Prods. Aktiebolag v. First
Quality Baby Prods., L.L.C., 137 S. Ct. 954 (2017); Life Techs. Corp. v. Promega Corp., 137 S. Ct. 734 (2017);
Samsung Elecs. Co. v. Apple Inc., 137 S. Ct. 429 (2016). For a description of the holdings of these cases, see Table 1.
20 According to Table 1, twenty-seven of the Court’s seventy opinions touched in some way on questions of criminal
law or procedure.
21 See, e.g., Pena-Rodriguez v. Colorado, 137 S. Ct. 855, 869 (2017) (holding that when a juror makes a clear statement
indicating that he relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires
that the rule prohibiting challenges to a verdict based on comments the jurors made during deliberations must “give
way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the
jury trial guarantee”); Buck v. Davis, 137 S. Ct. 759, 776 (2017) (holding that a death row inmate should be able to
seek a new sentence because of “a particularly noxious strain of racial prejudice” in testimony introduced by the
inmate’s own defense attorney during the penalty phase of his trial). For a discussion of Pena-Rodriguez, see CRS
Legal Sidebar WSLG1676, UPDATE: Racially Biased Jurors & the No Impeachment Rule, by (name redacted)
. For a
discussion of Buck, see CRS Legal Sidebar WSLG1751, Capital Punishment and Ineffective Assistance of Counsel:
Latest from the Supreme Court, by (name redacted)
.
22 See North Carolina v. Covington, 137 S. Ct. 1624, 1625 (2017) (vacating a lower court’s order to require special
elections to remedy illicit racial gerrymandering); Cooper v. Harris, 137 S. Ct. 1455, 1463 (2017) (affirming a district
court ruling that North Carolina officials used race as the predominant factor in drawing district lines when they created
two districts whose voting-age populations were majority black); Bethune-Hill v. Va. State Bd. of Elections, 137 S. Ct.
788, 794 (2017) (reversing a district court ruling concluding that race was not the predominant factor in the Virginia
legislature’s design for eleven of the twelve state legislative districts challenged). For background on the issues
addressed in these cases, see CRS Report R44798, Congressional Redistricting Law: Background and Recent Court
Rulings, by (name redacted) .
23 See Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971).
24 These cases will be the subject of a seminar at CRS’s Continuing Legal Education series, the Federal Law Update.
For more information, see CRS, FEDERAL LAW UPDATE: FALL 2017, http://www.crs.gov/Events/Details/16684c3b-
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(1) provides background information on the case; (2) summarizes the arguments that were
presented to the Court; (3) explains the Court’s ultimate ruling; and (4) examines the implications
that the Court’s ruling could have for Congress, including broader ramifications for jurisprudence
in a given area of law.
Trademarks and Free Speech: Matal v. Tam
Matal v. Tam (formerly Lee v. Tam) involved a dispute at the intersection of First Amendment and
trademark law. According to the Supreme Court’s opinion in Tam, a federal law prohibiting the
registration of trademarks that “may disparage” any “persons, living or dead”25 violates the Free
Speech Clause of the First Amendment.26 While Tam involved the U.S. Patent and Trademark
Office’s (PTO’s) refusal to register the mark “THE SLANTS” on the grounds that it may be
disparaging to Asian Americans, the decision has broader implications for trademark law as well
as the Court’s free speech jurisprudence.
The Lanham Act27 specifies the various requirements for registering a trademark.28 Section 2(a)
prohibits the registration of a mark that “[c]onsists of or comprises immoral, deceptive, or
scandalous matter; or matter which may disparage or falsely suggest a connection with persons,
living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or
disrepute.”29 To make this determination, the PTO considered the content of the trademark, “the
likely meaning of the matter in question,” and, if the meaning of the mark “is found to refer to
identifiable persons, whether that meaning may be disparaging to a substantial composite of the
referenced group.”30
The circumstances underlying the Tam litigation began in 2006, when Simon Tam started an
Asian American dance-rock band called “The Slants,” a name he selected in an attempt to reclaim
cd8c-e711-80fb-005056ab2cfe.
25 15 U.S.C. § 1052(a) (2012).
26 Matal v. Tam, 137 S. Ct. 1744, 1751 (2017).
27 Lanham Act, Pub. L. No. 79-489, 60 Stat. 427 (1946) (codified at 15 U.S.C. § 1051 et seq.).
28 A trademark is “any word, name, symbol, or device” used “to identify and distinguish [a markholder’s] goods . . .
from those manufactured or sold by others and to indicate the source of the goods.” 15 U.S.C. § 1127. Trademark rights
are not created by federal law, but, rather, arise through the use of a mark in commerce in connection with particular
goods and services. See B & B Hardware, Inc. v. Hargis Indus., Inc., 135 S. Ct. 1293, 1317 (2015) (“[T]he right to
adopt and exclusively use a trademark appears to be a private property right that ‘has been long recognized by the
common law and the chancery courts of England and of this country.’ ... [T]he exclusive right to use a trademark ‘was
not created by the act of Congress, and does not now depend upon it for its enforcement.’” (quoting In re Trade-Mark
Cases, 100 U.S. 82, 92 (1879))). That is, there are certain common-law rights attendant to the use of marks in
commerce without federal registration, including the right to prevent others from using the mark and the right to sue for
infringement. See id. Federal trademark registration, however, provides certain benefits to markholders, including:
serving as prima facie evidence of the markholder’s exclusive right to use the mark, 15 U.S.C. §§ 1057(b), 1115;
providing constructive notice of the markholder’s claim of ownership of the mark, id. § 1072; and, after five years of
registration, rendering a markholder’s right to use a mark “incontestable,” id. §§ 1065, 1115(b).
29 15 U.S.C. § 1052(a) (emphasis added).
30 TRADEMARK MANUAL OF EXAM. PROC. (TMEP) § 1203.03(b)(i) (Jan. 2015 ed.); see also In re Tam, 808 F.3d 1321,
1330-31 (Fed. Cir. 2015) (en banc) (“A disparaging mark is a mark which ‘dishonors by comparison with what is
inferior, slights, deprecates, degrades, or affects or injures by unjust comparison.’” (quoting In re Geller, 751 F.3d
1355, 1358 (Fed. Cir. 2014))).
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or reappropriate Asian stereotypes.31 In 2011, Tam sought to register the mark “THE SLANTS,”32
but the PTO denied the application on disparagement grounds.33 Tam appealed the PTO’s
rejection to the U.S. Court of Appeals for the Federal Circuit (Federal Circuit).34 While a threejudge panel affirmed the PTO’s disparagement determination and rejected Tam’s constitutional
challenge on First Amendment grounds as “foreclosed by our precedent,”35 the court sitting en
banc subsequently held, “[t]he government regulation at issue amounts to viewpoint
discrimination, and under the strict scrutiny review appropriate for government regulation of
message or viewpoint, we conclude that the disparagement proscription of § 2(a) is
unconstitutional.”36 In so holding, the court explicitly overruled long-standing circuit precedent.37
The Supreme Court granted certiorari and heard arguments on January 18, 2017.38 The sole
question before the Court was whether the disparagement provision is facially invalid under the
First Amendment.39 The PTO raised three arguments in defense of the disparagement clause:
(1) trademarks are not private speech, but are instead the speech of the government (i.e.,
government speech) that the Court has recognized can favor a particular viewpoint;40 (2)
trademarks are government-subsidized speech for which the government can make content-based
distinctions;41 and (3) the disparagement clause “simply defines the criteria for participation in the
government’s voluntary trademark-registration program” for which it “has significant discretion”
to determine the criteria for inclusion.42 In the alternative, the PTO argued that, if trademarks are
not government speech, they are merely commercial speech.43
31 Tam, 808 F.3d at 1331 (“With their lyrics, performances, and band name, Mr. Tam and his band weigh in on cultural
and political discussions about race and society . . . .”).
32 U.S. Trademark Application No. 85/472,044 (filed Nov. 14, 2011).
33 In re Tam, 108 U.S.P.Q.2d 1305 (T.T.A.B. 2013) (“The fact that applicant has good intentions underlying his use of
the term does not obviate the fact that a substantial composite of the referenced group find the term objectionable.”).
34 For purposes of brevity, references to a particular circuit in the body of this report (e.g., the Federal Circuit) refer to
the U.S. Court of Appeals for that particular circuit.
35 In re Tam, 785 F.3d 567, 571-72 (Fed. Cir. 2015).
36 Tam, 808 F.3d at 1328.
37 Id. at 1330 n.1 (“To be clear, we overrule In re McGinley . . . and other precedent insofar as they could be argued to
prevent a future panel from considering the constitutionality of other portions of § 2 in light of the present decision.”).
The rule of McGinley as established by the Federal Circuit’s predecessor provided: “With respect to appellant’s First
Amendment rights, it is clear that the PTO’s refusal to register appellant’s mark does not affect his right to use it. No
conduct is proscribed, and no tangible form of expression is suppressed. Consequently, appellant’s First Amendment
rights would not be abridged by the refusal to register his mark.” In re McGinley, 660 F.2d 481, 484 (C.C.P.A. 1981).
38 Transcript of Oral Argument, Lee v. Tam, No. 15-1293 (U.S. Jan. 18, 2017), https://www.supremecourt.gov/
oral_arguments/argument_transcripts/2016/15-1293_o7jp.pdf.
39 See Brief for Petitioner at I, Matal v. Tam, 137 S. Ct. 1744 (2017) (No. 15-1293) [hereinafter Pet’r’s Br.]; Brief for
Respondent at i, Matal v. Tam, 137 S. Ct. 1744 (2017) (No. 15-1293) [hereinafter Resp’t’s Br.].
40 Pet’r’s Br. 12.
41 Id. at 44 (“‘[I]t is well established that the government can make content-based distinctions when it subsidizes
speech.’” (quoting Davenport v. Wash. Educ. Ass’n, 551 U.S. 177, 188-89 (2007))).
42 Id. at 9; see also Reply Brief for Petitioner at 2, Matal v. Tam, 137 S. Ct. 1744 (2017) (No. 15-1293) [hereinafter
Pet’r’s Reply] (“Although the First Amendment gives respondent broad latitude to use racial slurs in his own
communications, it does not require the government to assist him in that endeavor.”).
43 Pet’r’s Br. 48 (“Because the essential function of trademarks is to identify goods and services as emanating from a
particular commercial source, trademarks are ‘commercial speech’ and receive ‘a limited form of First Amendment
protection.’” (quoting S.F. Arts & Athletics, Inc. v. U.S. Olympic Comm., 483 U.S. 522, 535 (1987))).
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For his part, Tam argued that the disparagement clause violates the First Amendment “because it
imposes a significant viewpoint-based burden on speech.”44 To Tam, the clause “permits the
registration of marks that express a positive or neutral view of a person, but bars the registration
of marks that express a negative view.”45 Furthermore, Tam asserted that “[t]he denial of
registration is a serious burden” because those trademark applicants whose viewpoint is not
approved by the PTO are denied the benefits of trademark registration.46
The Supreme Court’s opinion in Tam, authored by Justice Alito, held that the disparagement
provision violates the Free Speech Clause because “[i]t offends a bedrock First Amendment
principle: Speech may not be banned on the ground that it expresses ideas that offend.”47
Elaborating on this point in a later part of his opinion, Justice Alito (on behalf of four Justices)
remarked that the disparagement clause “evenhandedly prohibits disparagement of all groups. It
applies equally to marks that damn Democrats and Republicans, capitalists and socialists, and
those arrayed on both sides of every possible issue.”48 However, Justice Alito concluded, “in the
sense relevant here, that is viewpoint discrimination: Giving offense is a viewpoint.”49
In concluding that the disparagement provision violated the First Amendment, the Court held that
it was “far-fetched to suggest that the content of a registered mark is government speech,” which
is exempt from free speech scrutiny under the First Amendment.50 The Court observed that “[t]he
Federal Government does not dream up these marks, and it does not edit marks submitted for
registration.”51 Comparing trademarks to monuments donated to a public park (the subject of
Pleasant Grove City v. Summum)52 and specialty license plates (the subject of Walker v. Texas
Division, Sons of Confederate Veterans, Inc.),53 both of which have been held to be government
speech, the Court held that trademarks constitute private speech because (1) they do not have a
history of use by the government to convey messages to the public; (2) the government does not
maintain direct control over the messages conveyed; and (3) the public does not “associate[] the
contents of trademarks with the Federal Government.”54 Finally, pointing to a variety of
registered trademarks communicating a range of viewpoints and opinions, the Court noted that, if
trademarks are considered government speech, “the Federal Government is babbling prodigiously
and incoherently. It is saying many unseemly things. It is expressing contradictory views. It is
44 Resp’t’s Br. 15.
45 Id. at 10.
46 Id. While there are common-law rights attendant to the use of marks in commerce, including the right to prevent
others from using the mark and the right to sue for infringement, federal trademark registration provides certain
additional benefits to markholders. See supra note 46. While the PTO acknowledged that trademark registration
provides these benefits, it countered that denial of these “enhanced legal benefits” did not amount to a burden on
speech because Tam remained free to use his mark as he likes. See Pet’r’s Reply 6. That is, trademark registration is not
necessary for him to exercise his common law rights of preventing others from using his mark and suing for
infringement. Id.
47
Matal v. Tam, 137 S. Ct. 1744, 1751 (2017).
48 Id. at 1763 (Alito, J.).
49 Id.
50 Id. at 1758 (opinion of the Court).
51 Id.
52 555 U.S. 460, 464 (2009).
53 135 S. Ct. 2239, 2243-44 (2015).
54 Matal, 137 S. Ct. at 1759-60.
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unashamedly endorsing a vast array of commercial products and services. And it is providing
Delphic advice to the consuming public.”55
Three Justices joined other portions of Justice Alito’s opinion examining whether the trademark
registration program is akin to a government subsidy for speech for which it can make contentbased distinctions (e.g., government funding for the arts),56 or participation in a government
program for which it has discretion to set the criteria for inclusion (e.g., programs that collect
union dues for public employee unions57).58 Justice Alito found that neither analog was
appropriate because trademark registration is more comparable to a limited public forum for
private speech, wherein the First Amendment prohibits viewpoint-based discrimination.59 Justice
Alito’s opinion also considered whether trademarks might constitute commercial speech, subject
to a lesser degree of scrutiny, but opined that the disparagement clause fails even under less
stringent scrutiny because it was not “narrowly drawn” to serve “a substantial interest.”60 In so
doing, Justice Alito noted, “Speech that demeans on the basis of race, ethnicity, gender, religion,
age, disability, or any other similar ground is hateful; but the proudest boast of our free speech
jurisprudence is that we protect the freedom to express ‘the thought that we hate.’”61
Three Justices joined Justice Kennedy’s concurring opinion, which agreed with the opinion of the
Court to the extent it suggested that the disparagement clause amounts to unconstitutional
viewpoint discrimination.62 For Justice Kennedy, however, this ultimate outcome “render[ed]
unnecessary any extended treatment of other questions raised by the parties” (i.e., the government
subsidy, government program, and commercial speech arguments).63 Justice Thomas filed a
separate concurring opinion arguing that the regulation of commercial speech to suppress truthful
ideas should be subject to strict scrutiny.64
The Supreme Court’s decision in Tam has consequences for other pending cases, such as ProFootball, Inc. v. Blackhorse, a case challenging the PTO’s cancellation of the “REDSKINS”
trademarks as disparaging to Native Americans.65 In Pro-Football, the district court upheld the
cancellations against a First Amendment challenge almost identical to Tam’s, concluding that “the
federal trademark program is government speech under the Supreme Court’s analysis in
55 Id. at 1758 (comparing “Abolish Abortion,” Registration No. 4,935,774, with “I Stand With Planned Parenthood,”
Registration No. 5,073,573; “Capitalism Is Not Moral, Not Fair, Not Freedom,” Registration No. 4,696,419, with
“Capitalism Ensuring Innovation,” Registration No. 3,966,092; and “Global Warming Is Good,” Registration No.
4,776,235, with “A Solution to Global Warming,” Registration No. 3,875,271).
56 See, e.g., Nat’l Endowment for the Arts v. Finley, 524 U.S. 569, 572-73 (1998) (rejecting facial First Amendment
challenge to statute directing panel awarding federal grants for the arts to consider “decency and respect for the diverse
beliefs and values of the American public”).
57 See, e.g., Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009) (“The First Amendment prohibits government
from abridging the freedom of speech; it does not confer an affirmative right to use government resources to facilitate
private speech.” (internal quotation marks omitted)).
58
Matal, 137 S. Ct. at 1760-62 (Alito, J.).
59 Id. at 1762-63.
60 Id. at 1674.
61 Id. (quoting United States v. Schwimmer, 279 U.S. 644, 655 (1929) (Holmes, J., dissenting)).
62 Id. at 1675 (Kennedy, J., concurring in part and concurring in the judgment).
63 Id.
64 Id. at 1769 (Thomas, J., concurring in part and concurring in the judgment).
65 Pro-Football, Inc. v. Blackhorse, 112 F. Supp. 3d 439, 447 (E.D. Va. 2015).
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Walker.”66 While on appeal to the Fourth Circuit,67 Pro-Football filed a petition for a writ of
certiorari before judgment to the Supreme Court, which would have allowed the case to be heard
alongside Tam, but the petition was denied.68 On June 21, 2017, Pro-Football submitted the Tam
opinion to the Fourth Circuit and requested that judgment be entered in its favor, after which the
court requested the parties’ positions as to whether oral argument on this request was necessary.69
In response, all parties conceded that Tam controls the Pro-Football case and consented to the
court’s entering of judgment in favor of Pro-Football.70
The Tam decision will also likely have consequences for the trademark regime as a whole. The
Lanham Act contains other content-based restrictions, such as those prohibiting “immoral” and
“scandalous” marks.71 As the Federal Circuit recognized, “other portions of [the Act] may
likewise constitute government regulation of expression based on message,”72 and the Supreme
Court’s holding in Tam appears to solidify this conclusion. In this vein, the Court’s opinion in
Tam will affect other cases, such as In re Brunetti, a case pending before the Federal Circuit
involving a challenge to the PTO’s rejection of an application for the trademark “FUCT” as
scandalous and immoral.73 On June 20, 2017, the Federal Circuit requested briefing addressing
(1) “the impact of the Supreme Court’s Tam decision on Mr. Brunetti’s case,” and (2) “whether
there is any basis for treating immoral and scandalous marks differently than disparaging marks
in light of the Supreme Court’s unanimous holding that ‘offensive’ trademarks cannot be
banned.”74 Arguing that Tam is outcome determinative, Brunetti responded that “there is no
difference between the Disparagement Clause and the Scandalous Clause.”75 The PTO, however,
relying heavily on Justice Kennedy’s concurring opinion in Tam, countered that Tam struck down
the disparagement provision on the basis of viewpoint discrimination and, unlike the
disparagement provision, the prohibition on scandalous marks is viewpoint neutral.76 Oral
argument occurred on August 29, 2017,77 and the case is currently under consideration by the
Federal Circuit.
The Court’s opinion in Tam also has implications for free speech law more generally. While the
Court in Tam made it clear that “[t]rademarks are private, not government, speech,” it also
cautioned against the “dangerous extension of the government-speech doctrine.”78 The Court
pointed to copyright registration as “[p]erhaps the most worrisome implication” of extending the
government speech doctrine.79 The PTO attempted to distinguish the copyright system from the
trademark regime, stating that while copyright is “the engine of free expression,” “trademarks are
66 Id. at 458.
67 Id. at 439, appeal docketed, No. 15-1874 (4th Cir. Aug. 6, 2015).
68 Pro-Football, No. 15-1874 (U.S. Oct. 3, 2016) (denying petition for certiorari before judgment).
69 Pro-Football, 112 F. Supp. 3d 439 (mem. to parties requesting statement of positions on need for oral argument
following Supreme Court’s decision in Tam).
70 As of August 24, 2017, the Fourth Circuit has yet to act on the request.
71 15 U.S.C. § 1052(a).
72
In re Tam, 808 F.3d 1321, 1330 n.1 (Fed. Cir. 2015) (en banc).
73 In re Brunetti, No. 85310960 (T.T.A.B. 2014), appeal docketed, No. 15-1109 (Fed. Cir. Oct. 28, 2014).
74 Brunetti, No. 15-1109 (Fed. Cir. June 20, 2017) (order requesting letter briefs).
75 Brief for Appellant at 1, Brunetti, No. 15-1109 (Fed. Cir. filed Aug. 9, 2017).
76 Brief for Appellee at 2, Brunetti, No. 15-1109 (Fed. Cir. filed July 20, 2017).
77 Brunetti, No. 15-1109 (Fed. Cir. July 24, 2017) (order scheduling oral argument).
78 Matal v. Tam, 137 S. Ct. 1744, 1760 (2017) (opinion of the Court).
79 Id.
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source identifiers in commerce that are not inherently expressive.”80 That is, “[w]hile some
trademarks have incidental expressive meaning, the essential function of a trademark is to
identify and distinguish the source of goods or services in commerce.”81 The Court, unpersuaded
by this argument, stated, “[i]f private speech could be passed off as government speech by simply
affixing a government seal of approval, government could silence or muffle the expression of
disfavored viewpoints.”82
As noted, the Court also distinguished trademarks from the specialty license plates at issue in
Walker v. Texas Division, Sons of Confederate Veterans. In that case, the Court ruled that license
plates constituted government speech and upheld Texas’s refusal to permit a Confederate-flag
design on a license plate because the design “might be offensive to ... the public.”83 In Tam, the
Court stated that Walker “likely marks the outer bounds of the government-speech doctrine.”84
Thus, Tam may signal that the factors from Walker that inform whether expression is government
speech (i.e., whether there is a history of the government using a specific form of speech to
convey messages to the public; whether the government maintains direct control over the
messages conveyed; and whether the public closely identifies a form of speech with the
government), originally articulated in a case involving monuments in a public park,85 will be
analyzed narrowly in future cases. The Court’s apparent reluctance to expand the government
speech doctrine suggests limits to what the Court described as an “essential” doctrine that is
“susceptible to dangerous misuse.”86
Finally, Tam continues a recent trend of the Court to afford fairly broad First Amendment
protection for speech in the commercial context. Three Justices joined the portion of Justice
Alito’s opinion that considered whether trademarks constitute commercial speech, but opined that
the disparagement provision would fail even under less stringent scrutiny as has been applied to
commercial speech in prior cases.87 Notably, in his concurring opinion (also joined by three
Justices), Justice Kennedy noted that “[c]ommercial speech is no exception” to the rule that
viewpoint discrimination requires heightened scrutiny.88 Justice Kennedy reasoned that, “[u]nlike
content based discrimination, discrimination based on viewpoint, including a regulation that
targets speech for its offensiveness, remains of serious concern in the commercial context. To the
extent trademarks qualify as commercial speech, they are an example of why that term or
category does not serve as a blanket exemption from the First Amendment’s requirement of
viewpoint neutrality.”89 In his concurring opinion, Justice Thomas maintained his long-standing
80 Pet’r’s Br. 47.
81 Id.
82 Matal, 137 S. Ct. at 1758.
83 Walker v. Tex. Div., Sons of Confederate Veterans, Inc., 135 S. Ct. 2239, 2245 (2015).
84 Matal, 137 S. Ct. at 1760.
85 Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 464 (2009).
86 Matal, 137 S. Ct. at 1758.
87 Id. at 1763-64 (Alito, J.).
88 Id. at 1767 (Kennedy, J., concurring in part and concurring in the judgment) (quoting Sorrell v. IMS Health Inc., 564
U.S. 552, 566 (2011)).
89 Id.
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position90 that any restriction on truthful commercial speech should be subject to strict scrutiny.91
As a result, the Court in Tam seems to view the commercial speech doctrine as largely irrelevant
to the result in this case, a view that aligns with other recent Court decisions involving
commercial speech.92
Immigration and Gender Discrimination:
Sessions v. Morales-Santana
Among the cases decided last term,93 Session v. Morales-Santana potentially has the most
consequential implications for future judicial review of immigration and citizenship matters.94
The Supreme Court has repeatedly characterized Congress’s authority over immigration as
plenary, and the judiciary has employed a highly deferential standard of review to federal
immigration laws.95 In Morales-Santana, however, the Court ruled that a gender-based distinction
in the derivative citizenship rules—under which persons born abroad to a U.S. parent may have
U.S. citizenship automatically conferred at birth—violated equal protection requirements.96 In
90 See, e.g., 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484, 518 (1996) (Thomas, J., concurring in part and
concurring in the judgment) (stating, in a case involving a state law prohibiting the advertisement of liquor prices, that
“the government’s asserted interest [in] keep[ing] legal users of a product or service ignorant in order to manipulate
their choices in the marketplace . . . is per se illegitimate and can no more justify regulation of ‘commercial’ speech
than it can justify regulation of ‘noncommercial’ speech”).
91 Matal, 137 S. Ct. at 1769 (Thomas, J., concurring in part and concurring in the judgment).
92 See, e.g., Expressions Hair Design v. Schneiderman, 137 S. Ct. 1144, 1147 (2017) (holding that a state law
prohibiting the display of credit card surcharges by merchants constitutes a regulation of merchants’ speech); IMS
Health, 564 U.S. at 563-54 (striking down a state law regulating the sale, disclosure, and use of prescriber-identifying
information as unconstitutional under a strict scrutiny analysis).
93 This past term, the High Court deferred resolution of a number of immigration cases until the October 2017 term,
raising the possibility that the coming term will result in several major immigration rulings. Two immigration cases
where oral arguments were heard by the Court this past term are scheduled for re-argument in October. See supra note
15 (discussing the Court’s treatment of Jennings v. Rodriguez and Sessions v. Dimaya). And while two lower court
injunctions blocking implementation of the March 6, 2017 executive order limiting certain foreign nationals and
refugees from traveling to the United States were partially stayed by the Court in June, the actual merits of the lowercourt decisions concerning the executive order’s validity are scheduled for consideration in the coming term. See
Trump v. Int’l Refugee Assistance Project, 137 S. Ct. 2080 (2017) (granting certiorari and partially lifting two lower
court injunctions pending further Supreme Court deliberations). See also See also Order in Pending Case, Trump v.
Hawaii, No. 16-1540 (Sept. 12, 2017) (staying mandate of U.S. Court of Appeals of the Ninth Circuit that limited
executive implementation of action related to certain refugees); Order in Pending Case, Trump v. Hawaii, No. 16-1540,
Jul. 19, 2017 (denying motion for clarification of the stay on the injunctions at issue, and partially staying a
modification to one of the injunctions made by a lower court in response to the Supreme Court’s stay of its earlier
injunction).
94 Sessions v. Morales-Santana, 137 S. Ct. 1678, 1686 (2017).
95 See, e.g., Fiallo v. Bell, 430 U.S. 787, 792 (1977) (discussing the “limited scope” of judicial review of immigration
legislation, and observing that “[t]his Court has repeatedly emphasized that over no conceivable subject is the
legislative power of Congress more complete than it is over the admission of aliens.”) (internal citations and quotations
omitted). For example, the power to regulate immigration and naturalization has permitted the federal government to
discriminate on the basis of alienage in the treatment of persons located in the United States, at least so long as the
discrimination satisfies the rational basis standard of review. See Mathews v. Diaz, 426 U.S. 67, 79-80, 83 (1976)
(holding that federal conditions upon alien eligibility for public assistance were not “wholly irrational,” and observing
that “[i]n the exercise of its broad power over naturalization and immigration, Congress regularly makes rules that
would be unacceptable if applied to citizens ... The fact that an Act of Congress treats aliens differently from citizens
does not in itself imply that such disparate treatment is ‘invidious.’”).
96 A few years earlier in Flores-Villar v. United States, the Court was asked to review a decision by the Ninth Circuit
that upheld as constitutionally valid the same gender-based distinction at issue in Morales-Santana. Divided 4-4 on the
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doing so, the Court held that gender-based distinctions in laws governing the acquisition of U.S.
citizenship trigger a more “exacting standard of review” than do gender-based distinctions in laws
governing the entry or exclusion of non-U.S. nationals (aliens).97
The Morales-Santana case concerned provisions in the Immigration and Nationality Act (INA)
specifying when a child born abroad to a U.S. citizen and an alien shall be granted U.S.
citizenship at birth.98 Although the specific eligibility requirements for derivative citizenship in
such circumstances99 have been amended over the years, the requirements have consistently
differed based on the gender of the U.S.-citizen parent.100 Morales-Santana focused on one key
difference: the default rule is that a U.S.-citizen parent must have been physically present in the
United States (or its outer possessions) for a multiyear period prior to the birth of his or her child
abroad to transmit citizenship, but an unmarried U.S. citizen-mother need only have been
continuously present for one year prior to the birth of her child.101
Morales-Santana involved a constitutional challenge to these differing physical presence
requirements.102 Luis Ramón Morales-Santana was born abroad and out of wedlock to a U.S.citizen father and an alien mother.103 He moved to the United States at thirteen, but decades later
he was placed in alien removal proceedings based on his criminal conduct.104 As a defense,
Morales-Santana argued that he was a U.S. citizen. Although his U.S.-citizen father did not
satisfy the physical presence requirements necessary to transmit citizenship under the existing
INA rules, citizenship would have been conferred to a similarly situated individual born to an
unwed U.S.-citizen mother under the applicable standard.105 Morales-Santana claimed that the
differing standards violated his (now-deceased) father’s constitutional right to equal protection.106
The U.S. Court of Appeals for the Second Circuit (Second Circuit) agreed and further ruled that,
question, the Court summarily affirmed the Ninth Circuit’s decision. Flores-Villar v. United States, 564 U.S. 210
(2011) (per curiam), affirming United States v. Flores-Villar, 536 F. 3d 990 (9th Cir. 2008).
97 Morales-Santana, 137 S. Ct. at 1693-94.
98 See id. at 1686-87.
99 The derivative citizenship provisions also provide different eligibility requirements depending upon whether one or
both parents of a child born abroad are U.S. citizens. See 8 U.S.C. § 1401(c). Unless otherwise specified, this report’s
discussion of the derivative citizenship provisions’ application to a married or unwed U.S.-citizen parent refers to
situations where the other parent is an alien.
100 See 8 U.S.C. §§ 1401(a)(7), 1409 (1958 ed.), now codified and amended at 8 U.S.C. §§ 1401(g), 1409 (a), (c) (2012
ed.).
101 The length of the physical presence requirements has been modified over the years. The primary rule at the time
relevant to the Morales-Santana case required an unwed U.S.-citizen father or a U.S.-citizen parent (regardless of
gender) married to an alien to have had ten years’ physical presence in the United States, at least five of which were
after reaching the age of fourteen, in order to transmit citizenship. See 8 U.S.C. §§1401(a)(7), 1409 (1958 ed.). The
current rule for such persons generally requires five years’ physical presence, at least two of which were after the age
of fourteen. 8 U.S.C. §§ 1401(g), 1409 (a) (2012 ed.).
102 Morales-Santana, 137 S.Ct. at 1686.
103 Id.
104 Id. at 1688.
105 See 8 U.S.C. § 1401(a)(7) (1958 ed.).
106 Morales-Santana, 137 S. Ct. at 1688 (explaining that Morales-Santana could not assert an equal protection violation
on the basis of his own gender because the derivative citizenship provision did not distinguish between the sons and
daughters of U.S. citizens); see also id. at 1689 (concluding that Morales-Santana had satisfied the requirements for
third-party standing and could rest his claim for relief on the rights of his deceased father).
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as a remedy, the one-year physical presence requirement applicable to unwed U.S.-citizen
mothers should also apply to unwed U.S.-citizen fathers.107
The Supreme Court, in an opinion authored by Justice Ginsburg, agreed with the Second Circuit’s
conclusion that the gender-based distinction between the physical presence requirements
applicable to unwed U.S.-citizen parents violated the equal protection component of the Fifth
Amendment’s Due Process Clause.108 Applying the “exceedingly persuasive justification” test
typically used to review gender-based distinctions by the government,109 the Court rejected the
government’s argument that the “gender-based differential ensures that a child born abroad has a
connection to the United States ... to warrant conferral of citizenship at birth.”110 The Court
characterized this argument as an “anachronistic” assumption that “unwed fathers care little
about, indeed are strangers, to their children,” and thus need stronger ties to the United States to
compete with the alien mother’s ties to her own country.111 The Court likewise found that the
government provided insufficient evidence to base its claim that the differentiation between
children of unwed U.S.-citizen mothers and U.S.-citizen fathers was premised on a special
concern that children with a U.S.-citizen mother and alien father risked being rendered “stateless”
(i.e., without citizenship to any country).112
While six Justices on the Court agreed that an equal protection violation had occurred, all eight
Justices who considered the case (Justice Gorsuch did not participate) agreed that the remedy
crafted by the Second Circuit was inappropriate.113 The Court reasoned that extending the oneyear physical presence rule to unwed U.S.-citizen fathers would run counter to Congress’s
intentions when it established this statutory scheme. Because of the interplay of different INA
provisions, the Second Circuit’s remedy would result in more rigorous physical presence
requirements for a married U.S. citizen than a similarly situated unmarried U.S. citizen.114 As a
result, the Court held that the longer physical presence requirement for unwed U.S.-citizen fathers
should also be applied prospectively to unwed U.S.-citizen mothers, as this remedy was what
“Congress likely would have chosen had it been apprised of the constitutional infirmity.”115 Thus,
while the Court found that a physical presence requirement for derivative citizenship violated
equal protection, the Court did not alter the requirements applicable to Morales-Santana’s
107 Morales-Santana v. Lynch, 804 F.3d 520, 523-24 (2d Cir. 2015).
108 Morales-Santana, 137 S.Ct. at 1686 and n.1.
109 Id. at 1690.
110 Id. at 1694-95.
111 Id. at 1692-93. Elsewhere in the opinion, the majority contended that such gender-based distinctions not only
“disserve men who exercise responsibility for raising their children,” id. at 1693, but also perpetuate stereotypes that
create “a self-fulfilling cycle of discrimination that force[s] women to continue to assume the role of primary family
caregiver.” Id. at 1692-93 (quoting Nevada Dept. of Human Res. v. Hibbs, 538 U.S. 721, 736 (2003) (brackets in
original)).
112 Id. at 1695-96.
113 Justice Thomas (joined by Justice Alito) concurred with the majority’s judgment to the extent it reversed the Second
Circuit. Id. at 1701-02 (Thomas, J., concurring). According to Justice Thomas, because the Court’s remedial holding
does not change the physical-presence requirement for Morales-Santana’s father and thus cannot provide any judicial
relief, the opinion should not have waded into the underlying constitutional waters. Id. at 1701.
114 See id. at 1700 (majority op.) (“For if [the] one-year dispensation were extended to unwed citizen fathers, would it
not be irrational to retain the longer term when the U.S.-citizen parent is married?”).
115 Id. (internal citations and quotations omitted).
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father.116 Consequently, Morales-Santana’s status as an alien subject to removal remained
unchanged.
While the Court’s ruling did not affect Morales-Santana’s citizenship status, the decision appears
to constrain Congress’s ability to make gender-based distinctions when crafting derivative
citizenship statutes. The Court had previously upheld the INA’s paternal-acknowledgment
requirements as a permissible gender-based distinction in the conferral of derivative
citizenship;117 the Morales-Santana majority viewed the statute’s physical presence requirements
as meaningfully different. Unlike paternal-acknowledgment requirements, the lengthier physical
presence requirements for unwed U.S.-citizen fathers at issue in Morales-Santana did nothing to
demonstrate the parent’s ties to the child and also placed more than a “minimal” burden on the
affected parent.118 Moreover, whereas earlier Court opinions had reached no clear view on the
appropriate standard of review for gender-based distinctions made by citizenship rules, MoralesSantana indicates that the same level of heightened scrutiny applicable to the review of other
gender-based classifications will be employed to the review of derivative citizenship claims.119
More broadly, some observers have speculated that the decision may signal that judicial deference
toward Congress’s authority over immigration is waning.120 Notwithstanding the Court’s longstanding deference to Congress on immigration matters,121 the Morales-Santana Court reviewed
the derivative citizen statute’s gender-based distinctions in the same manner as employed in
nonimmigration contexts.122 Indeed, the Morales-Santana Court did not believe that Congress’s
plenary authority over immigration was controlling in the case before it. Though such authority
had led the Court earlier to uphold gender-based distinctions in the context of alien admission
preferences, the Morales-Santana majority averred that heightened scrutiny is required when
gender-based distinctions involve citizenship issues rather than the entry or exclusion of aliens.123
116 Id.
117 See Nguyen v. INS, 533 U.S. 53, 57-59 (2001) (reviewing condition of derivative citizenship statute found in 8
U.S.C. § 1409(a), under which legitimation or parental acknowledgment is required by an unmarried U.S.-citizen
father, a requirement not applicable to an unmarried U.S.-citizen mother).
118 Morales-Santana, 137 S. Ct. at 1694.
119 Compare id. at 1690 (employing heightened scrutiny), with Nguyen, 533 U.S. at 60-61 (concluding that because a
gender-based distinction relating to paternity acknowledgement satisfied heightened scrutiny, there was no need to
consider whether a lower level of scrutiny was permissible); and Miller v. Albright, 523 U.S. 420, 423 (1998) (plurality
opinion where Justices were unable to agree on the appropriate standard of scrutiny for reviewing gender-based
distinction in derivative citizenship eligibility requirements).
120 See, e.g., David Rubenstein, Immigration Symposium: The Future of Immigration Exceptionalism, SCOTUSBLOG
(June 29, 2017), http://www.scotusblog.com/2017/06/immigration-symposium-future-immigration-exceptionalism/;
Allissa Wickham, Citizenship Ruling May Spell Trouble For Plenary Power, LAW360 (June 13, 2017),
https://www.law360.com/articles/933945/citizenship-ruling-may-spell-trouble-for-plenary-power.
121 See supra note 95 and accompanying text.
122 Morales-Santana, 137 S. Ct. at 1689-90.
123 In Fiallo v. Bell, the Court applied a very deferential standard when reviewing gender-based distinctions in the
context of alien admission preferences, based upon Congress’s “exceptionally broad power to determine which classes
of aliens may lawfully enter the country.” 430 U.S. 787, 794 (1977). The Morales-Santana majority opined that a more
“exacting standard of review” was appropriate when assessing the gender-based distinctions in the application of
derivative citizenship statutes. 137 S. Ct. at 14-17 (concluding that heightened scrutiny was appropriate to the review of
gender-based distinctions in derivative citizenship requirements, as these distinctions do not touch upon the “entry
preference for aliens” at issue in Fiallo).
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Religious Freedom: Trinity Lutheran Church
of Columbia, Inc. v. Comer
In its final decision of the term, the Supreme Court decided Trinity Lutheran Church of Columbia,
Inc. v. Comer, a case examining the constitutionality of a state policy that prohibited the
distribution of public funds to religious entities.124 The Court held that a church preschool and day
care center cannot be disqualified from participating in a state program that offered funding for
resurfacing of playgrounds because of the center’s religious affiliation.125 While the case had been
of particular interest to legal scholars anticipating that newly confirmed Justice Neil Gorsuch
might provide the deciding vote,126 the Court ultimately voted 7-2 in the church’s favor, with the
majority of Justices viewing the state’s action as government discrimination based on the
religious status of the grant applicant in violation of the federal Free Exercise Clause.127
Trinity Lutheran centered on a challenge to a program administered by Missouri’s Department of
Natural Resources (DNR) that reimburses eligible nonprofit organizations that install playground
surfaces made from recycled tires.128 The program awards grants to applicants on a competitive
basis, but, at the time the lawsuit commenced, the program barred participation by applicants that
were owned or controlled by a religious entity.129 The state justified its policy of precluding
religious applicants by citing a Missouri constitutional provision that bars public funds from
being used to aid religious institutions.130 As a result, despite ranking the church among the top
applicants, DNR denied Trinity Lutheran Church’s grant application for resurfacing of a
playground at its preschool and day care center.131
The church challenged the decision, alleging discrimination based on its religious identity in
violation of the federal Free Exercise Clause, which bars laws and policies “prohibiting the free
exercise [of religion].”132 The church argued that categorical exclusion of religious organizations
from participation in a public program was incompatible with the Free Exercise Clause’s
124 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2017 (2017).
125 Id. at 2025.
126 The Court had granted Trinity Lutheran Church’s petition for certiorari in January 2016, before Justice Scalia’s
death, but did not schedule oral arguments until after the confirmation of Justice Gorsuch in the spring of 2017. Trinity
Lutheran Church v. Pauley, 788 F.3d 779 (8th Cir. 2015), cert. granted, 84 U.S.L.W. 3405 (U.S. Jan. 15, 2016) (No.
15-577). Speculation occurred that the Court’s delay was the result of the eight sitting Justices being deadlocked,
providing the new Justice with the deciding vote. See Amy Howe, Argument Analysis: Justices Leaning Toward a
Ruling For Trinity Lutheran On The Merits, SCOTUSBLOG (Apr. 19, 2017, 2:14 PM), (“[T]he conventional wisdom
went, the other eight justices were likely deadlocked on the case and were expecting him to cast the tiebreaking vote,
which is why they waited nearly 15 months after granting review before hearing oral argument.”).
127 Trinity Lutheran Church, 137 S. Ct. at 2016-17.
128 Id. at 2017.
129 Id.
130 Id. at 2017 (citing MO. CONST. art. I, § 7). Article I, Section 7 of Missouri Constitution states “[t]hat no money shall
ever be taken from the public treasury, directly or indirectly, in aid of any church, sect or denomination of religion, or
in aid of any priest, preacher, minister or teacher thereof, as such; and that no preference shall be given to nor any
discrimination made against any church, sect or creed of religion, or any form of religious faith or worship.”
131 Trinity Lutheran Church, 137 S. Ct. at 2018 (noting that the church center “ranked fifth among the 44 applicants in
the 2012 Scrap Tire Program. But despite its high score, the Center was deemed categorically ineligible to receive a
grant.”).
132 U.S. CONST. amend. I.
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guarantees.133 In response, Missouri characterized the church’s argument as requiring the state to
go beyond the guarantees of the Free Exercise Clause, which “does not guarantee churches
opportunities for public financing.”134 According to the state, its policy “places no meaningful
restraint on Trinity Lutheran’s ability to freely exercise its religion” and ensures that the state
would not be required “to subsidize” the activities of a church.135 While Missouri cited a state
constitutional provision restricting the distribution of public funds to aid religious entities, a
stronger antiestablishment standard than the federal Establishment Clause,136 both parties agreed
that the case did not present questions under the federal Establishment Clause.137
The Supreme Court ultimately was persuaded by the arguments of the church, holding that
religious entities could not be barred from availing themselves of opportunities for the resurfacing
grants simply because of their religious identity.138 The Court based its opinion on the First
Amendment’s general prohibition on government interference with the “free exercise” of religion
by its citizens.139 Under the Free Exercise Clause, while neutral laws of general applicability that
incidentally burden a person’s free exercise rights are reviewed under a less demanding rubric,
laws that “single out the religious for disfavored treatment” generally do not survive
constitutional challenge.140 In this vein, the Court has subjected “laws that target the religious for
‘special disabilities’ based on their ‘religious status’ [to the strictest scrutiny].”141 In particular, the
Trinity Lutheran Court explained that laws conditioning the opportunity to seek generally
available benefits on one’s religious status are subject to heightened scrutiny under the Free
Exercise Clause.142
Because Missouri’s program “expressly discriminate[d] against otherwise eligible recipients by
disqualifying them from a public benefit solely because of their religious character,” the Court
held that the state had violated the Free Exercise Clause.143 It rejected the state’s characterization
that its policy did not prohibit religious practice but rather “simply declined to allocate ... a
subsidy the State had no obligation to provide in the first place.”144 Although the Court
acknowledged that the policy did not criminalize behavior or otherwise proscribe beliefs, it
concluded that the policy effectively forced the church to choose between its religious identity
133 Brief for Petitioner at 11, Trinity Lutheran Church, 137 S. Ct. 2012 (No. 15-577).
134 Brief for Respondent at 5, Trinity Lutheran Church, 137 S. Ct. 2012 (No. 15-577).
135 Id.
136 See MO. CONST. art. I, § 7.The federal Establishment Clause, which states that “Congress shall make no law
respecting an establishment of religion,” see U.S. CONST. amend. I, has been interpreted to permit religious entities to
receive public funding in some circumstances (e.g., secular aid to religious schools). See Mitchell v. Helms, 530 U.S.
793 (2000); Agostini v. Felton, 521 U.S. 203 (1997); Lemon v. Kurtzman, 403 U.S. 602 (1971); Everson v. Bd. of
Edu., 330 U.S. 1 (1947); Bradfield v. Roberts, 175 U.S. 291 (1899).
137 Trinity Lutheran Church, 137 S. Ct. at 2019 (“The parties agree that the Establishment Clause of [the First]
Amendment does not prevent Missouri from including Trinity Lutheran in the Scrap Tire Program.”).
138 Id. at 2023-24.
139 Id.
140
Id. at 2020.
141 Id. at 2019.
142 Id. at 2021-22 (“[T]he Department’s policy puts Trinity Lutheran to a choice: It may participate in an otherwise
available benefit program or remain a religious institution. Of course, Trinity Lutheran is free to continue operating as a
church ... But that freedom comes at the cost of automatic and absolute exclusion from the benefits of a public program
for which the Center is otherwise fully qualified. And when the State conditions a benefit in this way, ... the State has
punished the free exercise of religion.”).
143 Id. at 2021.
144 Id. at 2022.
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and its eligibility to participate in a public benefits program.145 Considering whether Missouri had
a sufficient interest to justify what the Court deemed to be a “discriminatory policy,” the Court
explained that the state’s interest in promoting the separation of church and state beyond what the
federal Constitution requires through limitations on funding to religious entities was not
compelling enough to justify “the clear infringement on free exercise before us.”146
The outstanding question from Trinity Lutheran is the reach of the Court’s decision. A large
majority of states have adopted similar constitutional provisions (sometimes referred to as
“Blaine Amendments”) that broadly prohibit public funds from being directed to religious
entities—a stricter limitation than the federal Establishment Clause.147 The impact of Trinity
Lutheran on these laws has been debated, largely because of “Footnote 3” in Chief Justice
Roberts’s opinion, which did not command a majority of the Court and two concurring Justices
(Thomas and Gorsuch) expressly did not join. Footnote 3 states that the “case involves express
discrimination based on religious identity with respect to playground resurfacing” and “[does] not
address religious uses of funding or other forms of discrimination.”148 Justice Gorsuch, joined by
Justice Thomas, asserted in a concurring opinion that Footnote 3 should not be read to limit the
logic of the Court’s opinion only to a limited set of cases, such as those involving playground
resurfacing.149 In dissent, Justice Sotomayor strongly criticized the Court’s decision as “all but
invalidat[ing]” state Blaine Amendments, asserting that the relationship between church and state
is now “profoundly change[d]” because the Court has now viewed the Free Exercise Clause to, at
least in some instances, require that public funding be provided to a religious institution.150
Though the decision’s full effect remains unclear, there have been immediate implications in
other cases.151 For example, the Court has remanded a number of other pending cases involving
free exercise challenges of public aid that excluded religious schools because of state Blaine
Amendments, ordering review in light of Trinity Lutheran.152
145 Id.
146 Id. at 2024 (“[O]nly a state interest of the highest order can justify the Department’s discriminatory policy. Yet the
Department offers nothing more than Missouri’s policy preference for skating as far as possible from religious
establishment concerns ... As we said when considering Missouri’s same policy preference on a prior occasion, the
state interest asserted here—in achieving greater separation of church and State than is already ensured under the
Establishment Clause of the Federal Constitution—is limited by the Free Exercise Clause.” (internal quotations and
citations omitted)).
147 Blaine Amendments generally refer to state constitutional provisions that prohibit the provision of public funding to
religious organizations, which were similar to a proposed federal constitutional amendment proposed by Representative
James G. Blaine in 1875. For a discussion of state Blaine Amendments, see Transcript, The Blaine Game: Controversy
Over the Blaine Amendments and Public Funding of Religion, PEW RESEARCH CENTER: RELIGION AND PUBLIC LIFE
(July 24, 2008), http://www.pewforum.org/2008/07/24/the-blaine-game-controversy-over-the-blaine-amendments-andpublic-funding-of-religion/.
148 Trinity Lutheran Church, 137 S. Ct. at 2024 n.3.
149 Id. at 2026 (Gorsuch, J., concurring in part) (“Of course the footnote is entirely correct, but I worry that some might
mistakenly read it to suggest that only ‘playground resurfacing’ cases, or only those with some association with
children’s safety or health, or perhaps some other social good we find sufficiently worthy, are governed by the legal
rules recounted in and faithfully applied by the Court’s opinion.”).
150 Id. at 2027, 2041 (Sotomayor, J., dissenting).
151 See, e.g., Complaint at 1, Harvest Family Church v. Fed. Emergency Mgmt. Agency, No. 4:17-cv-02662 (S.D. Tx.
filed Sept. 4, 2017) (alleging that exclusion of houses of worship from eligibility for federal disaster relief aid violates
the Free Exercise Clause).
152 See Supreme Court Remands School Aid Cases for Reconsideration in Light of Trinity Lutheran Decision, RELIGION
CLAUSE (June 28, 2017, 7:00 AM), http://religionclause.blogspot.com/2017/06/supreme-court-remands-school-aidcases.html.
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In addition to the federalism questions and effect of the decision on enforcement of state
constitutional provisions, Trinity Lutheran may also have broader implications for government
funding programs generally. The Court’s decision indicates that a threshold question in analysis
for public funding cases is whether eligibility for such funding is conditioned on the recipient’s
religious status or on how the funding will be used by the recipient.153 The Court specifically
noted that, in Locke v. Davey, it had previously upheld restrictions on the use of public funds for
expressly religious purposes, emphasizing that the program at issue in that case “took account of
[the state’s] antiestablishment interest only after determining that the ... program did not ‘require
[beneficiaries] to choose between their religious beliefs and receiving a government benefit.’”154
Thus, Trinity Lutheran appears to allow for the government to deny funding to religious
beneficiaries if the funds will be used for religious purposes such as the example in Locke, but
prohibits beneficiaries of a government grant from being disqualified as eligible simply because
of their religious status.155 In this vein, the case may offer some clarity to questions that arise in
the context of federal programs that allow for the participation of religious organizations in
providing secular social services.156
Federal Courts and Civil Rights: Ziglar v. Abbasi
In Ziglar v. Abbasi, a consolidated case in which only two-thirds of the bench participated, the
Supreme Court, using language that may curb a wide range of damages lawsuits against
government actors, ruled 4-2 against extending the judicially created Bivens remedy to certain
claims brought by unlawfully present aliens challenging their detention following the September
11, 2001, terror attacks.157 The central issue in Abbasi was the application of the Supreme Court’s
1971 opinion in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics. While 42
U.S.C. § 1983 provides a private damages remedy against individual state officers resulting from
violations of the Constitution, Congress has never enacted a comparable statute with respect to
federal officers’ violations of the Constitution.158 In Bivens, though, the Court functionally created
such a remedy, recognizing a damages action against federal officers as an implied remedy for an
illegal search conducted in violation of the Fourth Amendment.159
The Bivens remedy has had an inconsistent trajectory at the Supreme Court. In Bivens the Court
suggested that a judicially created legal remedy might be inappropriate (1) in a case presenting
“special factors counselling hesitation in the absence of affirmative action by Congress” or (2) if
there exists “an explicit congressional declaration that [the plaintiffs should be] ... remitted to
another remedy, equally effective in the view of Congress.”160 Following the general principle
that “a federal district court may provide relief in damages for the violation of constitutional
rights if there are ‘no special factors counselling hesitation in the absence of affirmative action by
153 Trinity Lutheran Church, 137 S. Ct. at 2021-24.
154 Id. at 2016.
155 Id. at 2022 (“The express discrimination against religious exercise here is not the denial of a grant, but rather the
refusal to allow the Church—solely because it is a church—to compete with secular organizations for a grant.”).
156 For more information on such programs, see CRS Report R41099, Faith-Based Funding: Legal Issues Associated
with Religious Organizations That Receive Public Funds, by (name redacted).
157 Ziglar v. Abbasi, 137 S. Ct. 1843, 1848 (2017). Justices Sotomayor, Kagan, and Gorsuch did not participate in the
case.
158 See 42 U.S.C. § 1983.
159 Bivens v. Six Unknown Named Agents of the Fed. Bureau of Narcotics, 403 U.S. 388, 390 (1971).
160 Id. at 396-97.
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Congress,’”161 in the decade that followed Bivens the Court twice extended the remedy to other
contexts. First, in Davis v. Passman, the Court held that a Bivens remedy was available for gender
discrimination against a public employee in violation of the equal protection component of the
Fifth Amendment.162 Second, in Carlson v. Green, the Court allowed a Bivens claim to proceed
for constitutionally inadequate prisoner medical care in violation of the Eighth Amendment.163
Beginning in 1983, the Supreme Court began to curb the availability of the Bivens remedy in a
series of cases.164 For example, in Chappell v. Wallace the Court held for the first time that
“special factors” counseled against extending the Bivens remedy.165 Chappell involved a lawsuit
filed by Navy enlistees against their superiors.166 In denying a Bivens remedy, the Court
concluded that the “unique disciplinary structure of the Military Establishment and Congress’[s]
activity in the field constitute ‘special factors’ which dictate that it would be inappropriate to
provide enlisted military personnel a Bivens-type remedy against their superior officers.”167 That
same year, in Bush v. Lucas the Court held that the existence of “an elaborate, comprehensive
scheme” to protect the federal workforce counseled against recognizing a Bivens claim in which a
civil servant alleged that he had been retaliated against for exercising his First Amendment
rights.168 In the years following Chappell and Bush, the Court, while not overturning Bivens, has
declined to extend the remedy first created in 1971 to a host of contexts arising in subsequent
cases.169
With its 2007 opinion, Wilkie v. Robbins, the Court recognized a two-part framework for
determining whether a Bivens remedy should be available.170 First, the Court asks whether “any
alternative, existing process for protecting the [plaintiff’s] interest amounts to a convincing
reason for the Judicial Branch to refrain from providing a new and freestanding remedy in
damages.”171 Second, “even in the absence of an alternative,” the Court considers whether “any
161 Davis v. Passman, 442 U.S. 228, 245 (1979) (quoting Butz v. Economou, 438 U.S. 478, 504 (1978)).
162 Id.
163 Carlson v. Green, 446 U.S. 14, 24 (1980).
164 See Chappell v. Wallace, 462 U.S. 296, 298 (1983).
165 Id.
166 Id. at 297.
167 Id. at 304.
168 462 U.S. 367, 385-90 (1983). The Court further reasoned that “Congress is in a far better position than a court to
evaluate the impact of a new species of litigation between federal employees on the efficiency of the civil service,”
adding that, “[n]ot only has Congress developed considerable familiarity with balancing governmental efficiency and
the rights of employees, but it also may inform itself through factfinding procedures such as hearings that are not
available to the courts.” Id. at 389.
169 See Minneci v. Pollard, 565 U.S. 118, 120 (2012) (rejecting an Eighth Amendment-based Bivens claim against
employees of a privately operated federal prison); Hui v. Castaneda, 559 U.S. 799, 802 (2010) (concluding that the
Federal Tort Claims Act precludes Bivens actions against U.S. Public Health Service personnel alleging constitutional
violations arising out of their official duties); Wilkie v. Robbins, 551 U.S. 537, 547-48, 562 (2007) (refusing to
recognize a Bivens claim against officials of the Bureau of Land Management accused of harassment and intimidation
aimed at extracting an easement across private property in violation of the Fourth and Fifth Amendments); Correctional
Services Corp. v. Malesko, 534 U.S. 61, 63 (2001) (refusing to extend Bivens to allow recovery against a private
corporation operating a halfway house under contract with the Bureau of Prisons); FDIC v. Meyer, 510 U.S. 471, 486
(1994) (declining to imply a Bivens cause of action directly against an agency of the federal government); Schweiker v.
Chilicky, 487 U.S. 412, 414, 418 (1988) (refusing to allow Bivens for violations of due process in handling of Social
Security applications); United States v. Stanley, 483 U.S. 669, 671, 683-84 (1987) (holding that Bivens does not extend
to any claim incident to military service).
170 Wilkie, 551 U.S. at 550.
171 Id.
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special factors” exist that “counsel[] hesitation before authorizing a new kind of federal
litigation.”172 Aside from applying this framework, the Court has increasingly focused its
examination on whether to extend the Bivens remedy to “any new context or new category of
defendants.”173 This focus has influenced lower courts’ consideration of when it is appropriate to
recognize a new Bivens remedy. In particular, courts have questioned what constitutes a “new
context” for Bivens174 and what “special factors” would counsel against recognizing a Bivens
claim.175
The plaintiffs in Abbasi—six unlawfully present men of Arab or South Asian descent, most of
whom are Muslim—were detained for months at a federal detention center in New York City
shortly after the 9/11 terror attacks.176 At the time, the Federal Bureau of Investigation (FBI) had
been investigating tips of suspected terrorist activity (some more well-grounded than others) and
detained aliens “of interest” pursuant to a “hold-until-cleared policy.”177 In other words, certain
aliens were detained until the FBI affirmatively cleared them of terrorist ties.178 According to the
plaintiffs’ complaint, some detainees, including the plaintiffs, purportedly were subjected to harsh
conditions of confinement to pressure them into cooperating.179 After plaintiffs’ release from
confinement and removal from the United States, they sued seeking money damages under Bivens
for alleged constitutional harms suffered.180 Specifically, the plaintiffs sought damages for the
(1) government’s detention policies and (2) resulting conditions of confinement. They brought
claims against several high-level government officials and the detention facility’s warden and
assistant warden, alleging violations of the Fourth and Fifth Amendments.181 The Second Circuit
allowed the claims to proceed under Bivens, and an appeal to the Supreme Court followed.182
Before the Supreme Court, the Abbasi plaintiffs argued that their detention policy and conditionsof-confinement claims are cognizable under Bivens.183 They principally contended that their
claims against government actors alleging violations of the substantive and equal protection
components of the Due Process Clause of the Fifth Amendment do not extend Bivens to a new
context.184 Because the Supreme Court has already recognized Bivens claims for unconstitutional
prison abuse under the Eighth Amendment in Carlson, the plaintiffs argued that “[a] conditions of
172 Id. (internal quotation marks and citations omitted).
173 See Malesko, 534 U.S.at 68; see also Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009) (stating that because “implied
causes of action are disfavored,” the Court is “reluctant to extend Bivens liability to any new context or new category of
defendants”) (internal quotation marks and citations omitted).
174 See, e.g., Meshal v. Higgenbotham, 804 F.3d 417, 423 (D.C. Cir. 2015) (commenting that “[t]he Supreme Court has
never defined what constitutes a new ‘context’ for Bivens purposes.”); Arar v. Ashcroft, 585 F.3d 559, 572 (2d Cir.
2009) (noting that the concept of a “new ‘context’” for purposes of Bivens “is not defined in the case law.”).
175 See, e.g., Hernandez v. United States, 757 F.3d 249, 275 (5th Cir. 2014) (“Bivens itself provided little guidance on
what qualifies as a special factor. Since then the Supreme Court and our sister circuits have identified a handful of
‘special factors.’”); see generally Anya Bernstein, Congressional Will & the Role of the Executive in Bivens Actions:
What is Special about Special Factors, 45 IND. L. REV. 719 (2012).
176 Ziglar v. Abbasi, 137 S. Ct. 1843, 1852-53 (2017).
177
Id. at 1852.
178 See Turkmen v. Hasty, 789 F.3d 218, 227 (2d Cir. 2015).
179 See Turkmen v. Ashcroft, 915 F. Supp. 2d 314, 325-26 (E.D.N.Y. 2013).
180 Abbasi, 137 S. Ct. at 1852-54.
181 Id. at 1853-54.
182 Id. at 1854.
183 Brief for Respondent at 20-30, Ziglar v. Abbasi, 137 S. Ct. 1843 (2017) (Nos. 15-1358, 15-1359, & 15-1363).
184 Id.
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confinement suit arising under the Due Process Clause is not at some exotic frontier for Bivens
litigation.”185 The government countered that the plaintiffs’ claims, indeed, sought to extend
Bivens to new contexts, and further contended that challenges to high-level policy decisions
involving national security and immigration are special factors counseling hesitation against
affording a Bivens remedy in this case.186
In reversing the Second Circuit, Justice Kennedy, on behalf of the Supreme Court in Abbasi,
began the opinion by providing general guidance for courts examining whether to allow a Bivens
claim to proceed. Noting that Bivens, Davis, and Carlson “represent the only instances in which
the Court has approved of an implied damages remedy under the Constitution itself,” the majority
explained the Court’s hesitancy to expand the Bivens remedy further.187 In particular, Justice
Kennedy maintained that it is a “significant step under separation-of-powers principles for a court
to determine that it has the authority ... to create and enforce a cause of action for damages
against federal officials in order to remedy a constitutional violation.”188 The Court further noted
that “there are a number of economic and governmental concerns” when determining whether to
subject government employees to monetary and other liabilities, and Congress is in a “better
position” than the Court to resolve those concerns.189 Positing that “separation-of-powers
principles” must be central to a Bivens analysis, the Court concluded that the “answer most often”
to the question of “‘who should decide’ whether to provide for a damages remedy will be
Congress.”190
With this general principle in mind, the majority turned to the questions of (1) what constitutes a
“new context” for Bivens and (2) what “special factors” counsel against extending the Bivens
remedy to a new context. As to the first question, the Court answered the inquiry narrowly,
holding that if a case is “different in a meaningful way” from Bivens, Davis, or Carlson, “then the
context is new.”191 According to the Court, meaningful differences may include the constitutional
right raised by the suit; the official action at issue; the amount of judicial guidance available for
the problem; or the risk of judicial intrusion into the other branches of government, among
others.192 And with respect to what “special factors” might counsel hesitation against judicial
intrusion, the Abbasi majority stated that “the inquiry must concentrate on whether the Judiciary
is well suited, absent congressional action or instruction, to consider and weigh the costs and
benefits of allowing a damages action to proceed.”193 Further, the availability of alternative
remedies may also give the judiciary pause.194 Ultimately, in fairly broad language, the Court
concluded that:
if there are sound reasons to think Congress might doubt the efficacy or necessity of a
damages remedy as part of the system for enforcing the law and correcting a wrong, the
185 Id. at 27.
186 Brief for Petitioners at 17-18, Ashcroft v. Abbasi, 137 S. Ct. 1843 (2017) (No. 15-1359) (arguing that the lower court
applied a “far too generalized definition of the context” of the Bivens claim and should have instead taken into account
the context in which the claim arose—i.e., a national security emergency—and who the claim was being lodged
against—high-level government officials).
187
Abbasi, 137 S. Ct. at 1855 (emphasis added).
188 Id. at 1856.
189 Id. at 1856-57.
190 Id. at 1857.
191 Id.at 1859.
192 Id. at 1859-60.
193 Abbasi, 137 S. Ct. at 1857-58.
194 Id. at 1858.
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courts must refrain from creating the remedy in order to respect the role of Congress in
determining the nature and extent of federal-court jurisdiction under Article III.195
Turning to the Abbasi plaintiffs’ challenges to the government’s detention policies following
9/11, the Supreme Court concluded that Bivens cannot provide a remedy.196 The Court first held
that the claims lodged against a high-level executive policy in the wake of a major terrorist attack
meaningfully differ from the issues in Bivens, Davis, and Carlson, which respectively involved
FBI agents handcuffing someone in his home without a warrant, a Congressman firing his female
employee, and a prison’s failure to treat an inmate’s medical condition.197 Moving on to the
special factors analysis, the Court concluded that Bivens is an inappropriate means for
challenging a government agency’s policy; rather, Bivens is better suited to challenging individual
official action.198 Furthermore, the Court added, other remedies, including injunctive relief, are
more appropriate means to challenge “large-scale policy decisions.”199 Additionally, the majority
maintained that allowing a suit for damages in Abbasi, which involved an investigation after a
major terror attack on U.S. soil, would compel courts to interfere with “sensitive functions of the
Executive Branch,” including the responsibility to formulate and implement national security
policies.200 And, in the Court’s view, a judicial inquiry into national security policy—a field that
is the responsibility of Congress and the President—raises separation-of-powers concerns.201 This
concern is particularly pronounced, the Court continued, when the judicial inquiry involves a
claim for money damages rather than injunctive relief, as “high officers who face personal
liability for damages might refrain from taking urgent and lawful action in a time of crisis.”202
As for the Abbasi plaintiffs’ conditions-of-confinement claim against the warden and his assistant,
the Supreme Court concluded that the plaintiffs indeed were asking for Bivens relief in a new
context, but, nevertheless, declined to decide whether “special factors” precluded relief.203 The
Court first compared the conditions-of-confinement claim to the claim at issue in Carlson.204
Although both cases related to prisoner mistreatment, the Court found small but meaningful
differences between the claims.205 For instance, the conditions-of-confinement claim in Abbasi
alleged a violation of the Fifth Amendment, rather than the Eighth Amendment, and thus, in the
majority’s view, “the judicial guidance available to this warden, with respect to his supervisory
duties, was less developed.”206 Next, the Court identified a number of special factors that may
discourage extending the Bivens remedy, including potential alternative remedies and Congress’s
decision not to provide a damages remedy against federal prison officials in the Prison Litigation
195 Id.
196 Id. at 1863.
197 Id. at 1860 (noting that the “respondents’ detention policy claims challenge the confinement conditions imposed on
illegal aliens pursuant to a high-level executive policy created in the wake of a major terrorist attack on American soil,”
which “bear little resemblance to the three Bivens claims the Court has approved in the past.”).
198 Id.
199 Id. at 1862. The Court also noted that a prisoner could seek a writ of habeas corpus to review individualized
conditions-of-confinement challenges, as such a remedy “would have provided a faster and more direct route to relief
than a suit for money damages.” Id. at 1863.
200 Id. at 1860-61.
201 Id. at 1861.
202 Id. at 1864.
203 Id. at 1864-65.
204 Id. at 1864.
205 Id. (“[E]ven a modest extension is still an extension.”).
206 Id.
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Reform Act.207 But the Court stopped short of concluding that those factors were determinative,
given that the Second Circuit did not conduct that analysis in the first instance, and the parties did
not focus on that analysis in their arguments.208
In dissent, Justice Breyer, joined by Justice Ginsburg, contended that the majority improperly
characterized the plaintiffs’ claims as an extension of Bivens, and thus the Second Circuit’s
judgment should have been affirmed.209 Justice Breyer agreed that the constitutional right at issue
is germane to a Bivens analysis, but he argued that it is only the substance of the right at issue that
matters, not merely the label of the right.210 Under that view, the dissent reasoned that the Abbasi
plaintiffs’ claims did not meaningfully differ from other Bivens cases, most notably Carlson.211
Although brought under different constitutional provisions—one applicable to persons serving a
criminal sentence (Carlson) and one governing other forms of detention (Abbasi)—the harms, in
Justice Breyer’s view, were the same: unconstitutional treatment of the confined.212
Abbasi appears to signal an increasingly narrow role for Bivens actions to remedy constitutional
violations by federal officers. The majority’s reticence concerning the appropriateness of the
Bivens remedy, in general, played a large role in the ultimate outcome in Abbasi. For instance, the
majority described the era in which Bivens and its progeny were decided as an “ancien regime” in
which the Court was more willing to create a judicial remedy when a federally protected right had
been invaded, even when Congress had not statutorily provided one expressly.213 In this vein, the
majority opinion echoed a concurrence from Justice Scalia nearly twenty years ago, in which he
described Bivens as a “relic of the heady days in which this Court assumed common-law powers
to create causes of action” and argued for “limit[ing] Bivens and its two follow-on cases ... to the
precise circumstances that they involved.”214 As a result, in Abbasi’s aftermath it may be harder
for plaintiffs to argue that a particular case is not an extension of Bivens in closely related, but not
identical, constitutional claims.215 Additionally, the Court appears to be sending a strong message
that it will not recognize a money-damages remedy for constitutional harms committed by federal
officials if Congress has not created one, placing the primary responsibility for creating such
207 Id. at 1865.
208 Id.
209 Id. at 1873-85 (Breyer, J., dissenting).
210 Id. at 1877-78.
211 Id.
212 Id. In addition to the Bivens issue presented in Abbasi, the Supreme Court also considered whether the government
actors were entitled to qualified immunity on the plaintiffs’ allegations that they were liable for conspiring to interfere
with the plaintiffs’ civil rights under 42 U.S.C. § 1985(3). Id. at 1865-66. Qualified immunity shields government
actors from suits for civil damages if a reasonable officer would not have known that his conduct was unconstitutional.
Id. at 1867. In Abbasi, the Court concluded that “reasonable officials in petitioners’ positions would not have known,
and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the
injuries alleged.” Id. In a concurring opinion, Justice Thomas agreed with the majority’s ruling on qualified immunity
but wrote separately, in part, to express his “growing concern with [the Court’s] qualified immunity jurisprudence.” Id.
at 1870 (Thomas, J., concurring). According to Justice Thomas, in determining qualified immunity, courts should ask
“whether the common law in 1871”—the year in which the civil rights act was enacted from which § 1985 was
derived—“would have accorded immunity to an officer for a tort analogous to the plaintiff’s claim,” rather than the
current inquiry into whether the government actor’s conduct violated “clearly established statutory or constitutional
rights of which a reasonable person would have known.” Id. at 1871 (internal quotation marks and citation omitted).
213 Id. at 1855 (majority).
214 Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 75 (2001) (Scalia, J., concurring).
215 See Abbasi, 137 S. Ct. at 1873 (Breyer, J., dissenting) (“I fear that the Court’s holding would significantly shrink the
existing Bivens contexts, diminishing the compensatory remedy constitutional tort law now offers to harmed
individuals.”).
Congressional Research Service
R44949 · VERSION 3 · UPDATED
22
Supreme Court October Term 2016: A Review of Select Major Rulings
remedies in the political branches.216 Nonetheless, while Bivens has potentially become a
“disfavored” remedy, the Court in Abbasi recognized that Bivens’s protection against
unreasonable searches and seizures in violation of the Fourth Amendment is “settled law” that the
majority did not intend to disturb.217 Accordingly, the Bivens actions already recognized by the
Court appear to remain viable in their specific contexts.
216 Id.at 1857 (majority) (“The question is ‘who should decide’ whether to provide for a damages remedy, Congress or
the courts? ... The answer most often will be Congress.”).
217 Id. at 1856-57.
Congressional Research Service
R44949 · VERSION 3 · UPDATED
23
Table 1. Supreme Court’s October 2016 Term
Date of
Opinion
Author of
Court’s
Opinion
Trump. v.
International
Refugee
Assistance
Project
6/26/17
Per Curiam
The petitions for certiorari are granted, and the government’s stay applications are
granted in part. The injunctions remain in place only with respect to foreign nationals
and refugees who have a credible claim of a bona fide relationship with a person or
entity in the United States.
Civil Procedure
Constitutional Law
Immigration
Pavan v. Smith
6/26/17
Per Curiam
An Arkansas law providing that when a married woman gives birth, her husband must be
listed as the second parent on the child’s birth certificate, including when he is not the
child’s genetic parent, violates the Fourteenth Amendment’s substantive guarantee of
the “constellation of benefits that the States have linked to marriage” to same-sex
couples, as announced in Obergefell v. Hodges.
Civil Rights Law
Constitutional Law
Family Law
Hernández v.
Mesa
6/26/17
Per Curiam
Where a U.S. Border Patrol agent on American soil shot and killed a Mexican national
across the U.S.-Mexico border, the Sixth Circuit must on remand determine whether
the victim’s parents may assert damages claims against the agent under Bivens v. Six
Unknown Fed. Narcotics Agents in light of the intervening guidance provided in Ziglar v.
Abbasi.
Civil Rights Law
Constitutional Law
Criminal Law &
Procedure
Davila v. Davis
6/26/17
Thomas
The ineffective assistance of postconviction counsel does not provide cause to excuse
the procedural default of ineffective assistance of appellate counsel claims.
Constitutional Law
Criminal Law &
Procedure
California Public
Employees’
Retirement
System v. ANZ
Securities, Inc.
6/26/17
Kennedy
Petitioner’s untimely filing of its individual complaint more than three years after the
relevant securities offering is ground for dismissal.
Civil Procedure
Securities Law
Trinity Lutheran
Church of
Columbia, Inc.
v. Comer
6/26/17
Roberts
The Missouri Department of Natural Resources’ policy violated the rights of Trinity
Lutheran under the Free Exercise Clause of the First Amendment by denying the church
an otherwise available public benefit on account of its religious status.
Civil Rights Law
Constitutional Law
Perry v. Merit
Systems
Protection Bd.
6/23/17
Ginsburg
When the Merit Systems Protection Board dismisses on jurisdictional grounds a “mixed
case”—where an employee attributes an adverse action to bias based on race, gender,
age, or disability—the proper review forum is district court.
Civil Procedure
Labor & Employment
Law
Case Name
CRS-24
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Date of
Opinion
Author of
Court’s
Opinion
Murr v.
Wisconsin
6/23/17
Kennedy
In a regulatory takings case, the Court of Appeals of Wisconsin was correct to analyze
petitioners’ two contiguous lots as a single unit in assessing the effect that governmental
regulations had on petitioners’ ability to use or sell their lots.
Constitutional Law
Real Property Law
Lee v. United
States
6/23/17
Roberts
Petitioner was prejudiced, for purposes of his ineffective-assistance-of-counsel claim, by
his counsel’s erroneous advice that he would not be deported as a result of pleading
guilty to a federal drug crime, which turned out to be an “aggravated felony” under the
Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(B).
Constitutional Law
Criminal Law &
Procedure
Immigration
Maslenjak v.
United States
6/22/17
Kagan
To secure a conviction for unlawfully procuring citizenship in violation of 18 U.S.C.
§ 1425(a), the government must establish that the defendant’s illegal act played a role in
acquiring citizenship, and where that alleged illegality is a false statement to government
officials, the jury must decide whether the statement so altered the process as to have
influenced the award of citizenship; here, the district court erred in instructing the jury
that Maslenjak’s false statements need not have influenced the naturalization decision.
Criminal Law &
Procedure
Immigration
Turner v.
United States;
Overton v.
United States
6/22/17
Breyer
Evidence that the government failed to disclose to the defense in these cases was not
“material” under Brady v. Maryland—i.e., there is no “reasonable probability” that it
would have changed the outcome of petitioners’ trial.
Constitutional Law
Criminal Law &
Procedure
Weaver v.
Massachusetts
6/22/17
Kennedy
In the context of a public-trial violation during jury selection, where the error is neither
preserved nor raised on direct review but is raised later via an ineffective assistance of
counsel claim, the defendant must demonstrate prejudice to secure a new trial;
petitioner has not satisfied that requirement here.
Constitutional Law
Criminal Law &
Procedure
Jenkins v.
Hutton
6/19/17
Per Curiam
In a federal habeas case, the Sixth Circuit erred in holding that it could review Hutton’s
procedurally defaulted due process claim under the miscarriage of justice exception
established in Sawyer v. Whitley.
Constitutional Law
Criminal Law &
Procedure
Bristol-Myers
Squibb Co. v.
Superior Court
of Cal., San
Francisco Cty.
6/19/17
Alito
California courts lacked specific jurisdiction to entertain claims that New York-based
pharmaceutical company Bristol-Myers Squibb’s drug Plavix damaged the health of state
nonresidents, who did not allege that they obtained Plavix from a California source, that
they were injured by Plavix in California, or that they were treated for their injuries in
California.
Constitutional Law
Civil Procedure
Case Name
CRS-25
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Case Name
Date of
Opinion
Author of
Court’s
Opinion
Matal v. Tam
6/19/17
Alito
The Federal Circuit’s judgment—that 15 U.S.C. § 1052(a), which prohibits the
registration of trademarks that may “disparage ... or bring ... into contemp[t] or
disrepute” any “persons, living or dead,” violates the First Amendment’s Free Speech
Clause—is affirmed.
Constitutional Law
Trademark Law
McWilliams v.
Dunn
6/19/17
Breyer
In a federal habeas case, the Eleventh Circuit erred in concluding that the Alabama
courts’ ruling—that McWilliams received all of the mental health assistance to which he
was constitutionally entitled—was not unreasonable in light of Ake v. Oklahoma.
Constitutional Law
Criminal Law &
Procedure
Ziglar v. Abbasi
6/19/17
Kennedy
The Second Circuit’s judgment—permitting illegal immigrants detained in the aftermath
of September 11 to pursue claims against federal officials under Bivens v. Six Unknown
Fed. Narcotics Agents and 42 U.S.C. § 1985(3) —is reversed in part and vacated and
remanded in part.
Civil Rights Law
Constitutional Law
Immigration
Packingham v.
North Carolina
6/19/17
Kennedy
A North Carolina statute that makes it a felony for a registered sex offender “to access
a commercial social networking Web site where the sex offender knows that the site
permits minor children to become members or to create or maintain personal Web
pages” impermissibly restricts lawful speech in violation of the First Amendment.
Computer & Internet
Law
Constitutional Law
Criminal Law &
Procedure
Virginia v.
LeBlanc
6/12/17
Per Curiam
In a federal habeas case, the Fourth Circuit erred in concluding that the Virginia trial
court’s ruling—that the Commonwealth’s geriatric release program provides a
meaningful opportunity for juvenile nonhomicide offenders to receive conditional
release—was objectively unreasonable in light of Graham v. Florida.
Constitutional Law
Criminal Law &
Procedure
Henson v.
Santander
Consumer USA
Inc.
6/12/17
Gorsuch
A company that collects debts that it purchased for its own account, like Santander did
here, is not a “debt collector” for purposes of the Fair Debt Collection Practices Act.
Bankruptcy Law
Business & Corporate
Law
Sessions v.
Morales-Santana
6/12/17
Ginsburg
The gender-based differential in the law governing acquisition of U.S. citizenship by a
child born abroad, when only one parent is a U.S. citizen—a shorter duration-ofresidency requirement for unwed U.S.-citizen mothers than for unwed U.S.-citizen
fathers—is incompatible with the Fifth Amendment’s requirement that the government
accord to all persons “the equal protection of the laws”; it falls to Congress to select a
uniform prescription that neither favors nor disadvantages any person on the basis of
gender; in the interim, the current requirement for unwed U.S.-citizen fathers should
apply, prospectively, to children born to unwed U.S.-citizen mothers.
Civil Rights Law
Constitutional Law
Immigration
CRS-26
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Date of
Opinion
Author of
Court’s
Opinion
Microsoft Corp.
v. Baker
6/12/17
Ginsburg
The federal courts of appeals lack jurisdiction under 28 U.S.C. § 1291 to review an
order denying class certification (or, as here, an order striking class allegations) after the
named plaintiffs have voluntarily dismissed their claims with prejudice.
Civil Procedure
Sandoz Inc. v.
Amgen Inc.
6/12/17
Thomas
In this suit involving the Biologics Price Competition and Innovation Act of 2009’s
patent-dispute regime, 42 U.S.C. § 262(l)(2)(A)’s disclosure requirement is not
enforceable by federal injunction; the availability of a state-law injunction to enforce that
provision should be determined on remand; and § 262(l)(8)(A)’s notice of commercial
marketing may be provided prior to obtaining licensure.
Life
Sciences/Pharmaceutical
Patent Law
Public Health & Welfare
Law
North Carolina
v. Covington
6/5/17
Per Curiam
In ordering North Carolina’s General Assembly to redraw state legislative districts, the
district court erred when it provided additional relief without undertaking an equitable
weighing process.
Civil Procedure
Constitutional Law
Advocate
Health Care
Network v.
Stapleton
6/5/17
Kagan
The Employee Retirement Income Security Act of 1974’s church-plan exemption applies
to an employee benefit plan maintained by a qualifying church-affiliated organization,
regardless of whether a church initially established the plan.
Health Care Law
Pensions & Benefits Law
Kokesh v. SEC
6/5/17
Sotomayor
Because the Securities and Exchange Commission (SEC) disgorgement operates as a
penalty under 28 U.S.C. § 2462, any claim for disgorgement in an SEC enforcement
action must be commenced within five years of the date the claim accrued.
Civil Procedure
Securities Law
Honeycutt v.
United States
6/5/17
Sotomayor
21 U.S.C. § 853(a)(1)—which limits forfeiture to property the defendant himself actually
acquired as the result of drug law violations—does not permit forfeiture with regard to
petitioner, who had no ownership interest in his brother’s store and did not personally
benefit from the store’s illegal sales.
Criminal Law &
Procedure
Town of
Chester v.
Laroe Estates,
Inc.
6/5/17
Alito
A litigant seeking to intervene as of right under Federal Rule of Civil Procedure 24(a)(2)
must meet the requirements of Article III standing if the intervenor wishes to pursue
relief not requested by a plaintiff.
Civil Procedure
Constitutional Law
County of Los
Angeles v.
Mendez
5/30/17
Alito
The Ninth Circuit’s “provocation rule”—which makes an officer’s otherwise reasonable
use of force unreasonable if (1) the officer “intentionally or recklessly provokes a violent
confrontation” and (2) “the provocation is an independent Fourth Amendment
violation”—is incompatible with the Fourth Amendment.
Constitutional Law
Criminal Law &
Procedure
Case Name
CRS-27
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Date of
Opinion
Author of
Court’s
Opinion
BNSF R. Co. v.
Tyrrell
5/30/17
Ginsburg
45 U.S.C. § 56, a provision of the Federal Employers’ Liability Act, does not address
personal jurisdiction over railroads; and the Montana courts’ exercise of personal
jurisdiction over petitioner under Montana law does not comport with the Fourteenth
Amendment’s Due Process Clause.
Civil Procedure
Constitutional Law
Labor & Employment
Law
EsquivelQuintana v.
Sessions
5/30/17
Thomas
For the purpose of determining whether a statutory rape offense criminalizing sexual
intercourse based solely on the participants’ ages qualifies as an aggravated felony under
the Immigration and Nationality Act, the generic federal definition of “sexual abuse of a
minor” requires the age of the victim to be less than 16.
Criminal Law &
Procedure
Immigration
Impression
Products, Inc. v.
Lexmark Int’l,
Inc.
5/30/17
Roberts
Respondent Lexmark exhausted all of its patent rights in the toner cartridges it sold
domestically as part of its Return Program as well as in the toner cartridges it sold
abroad.
Patent Law
Cooper v.
Harris
5/22/17
Kagan
The district court did not clearly err in concluding that race furnished the predominant
rationale for North Carolina’s redesign of Congressional Districts 1 and 12.
Civil Rights Law
Constitutional Law
Water Splash,
Inc. v. Menon
5/22/17
Alito
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil
and Commercial Matters (Hague Service Convention) does not prohibit service of
process by mail.
Civil Procedure
International Law
TC Heartland
L.L.C. v. Kraft
Foods Group
Brands L.L.C.
5/22/17
Thomas
For purposes of the patent venue statute, 28 U.S.C. § 1400(b)—which provides that
“[a]ny civil action for patent infringement may be brought in the judicial district where
the defendant resides ... ” —a domestic corporation “resides” only in its state of
incorporation.
Civil Procedure
Patent Law
Kindred
Nursing
Centers, L.P. v.
Clark
5/15/17
Kagan
The Kentucky Supreme Court’s clear-statement rule—that a legal representative may
enter into an arbitration agreement for his principal only where a power of attorney
specifically authorizes him to waive the principal’s rights of access to the courts and trial
by jury—violates the Federal Arbitration Act.
Business & Corporate
Law
Contracts Law
Midland
Funding, L.L.C.
v. Johnson
5/15/17
Breyer
The filing of a proof of claim for an obviously time-barred debt in a bankruptcy
proceeding is not a false, deceptive, misleading, unfair, or unconscionable debt collection
practice within the meaning of the Fair Debt Collection Practices Act.
Bankruptcy Law
Business & Corporate
Law
Case Name
CRS-28
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Date of
Opinion
Author of
Court’s
Opinion
Howell v.
Howell
5/15/17
Bank of
America Corp.
v. Miami
Case Name
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Breyer
The Uniformed Services Former Spouses’ Protection Act does not permit state courts
to order a veteran to indemnify a divorced spouse for the loss in the divorced spouse’s
portion of the veteran’s retirement pay caused by the veteran’s waiver of retirement pay
to receive service-related disability benefits.
Family Law
Military & Veterans Law
5/01/17
Breyer
The City of Miami is an “aggrieved person” authorized to bring suit under the Fair
Housing Act (FHA), but the Eleventh Circuit erred in concluding that the City’s
complaints met the FHA’s proximate-cause requirement based solely on the finding that
the City’s alleged financial injuries were foreseeable results of the Banks’ misconduct.
Civil Rights Law
Bolivarian
Republic of
Venezuela v.
Helmerich &
Payne Int’l
Drilling Co.
5/01/17
Breyer
The Foreign Sovereign Immunities Act’s expropriation exception grants jurisdiction only
where there is a legally valid claim that property rights are at issue and that the relevant
property was taken in violation of international law; simply making a nonfrivolous
argument to that effect is not sufficient.
Civil Procedure
International Law
Lewis v. Clarke
4/25/17
Sotomayor
A tribal employee sued in his individual capacity, not the tribe, is the real party in
interest, and the tribe’s sovereign immunity is not implicated; an indemnification
provision cannot, as a matter of law, extend sovereign immunity to individual employees
who would otherwise not fall under its protective cloak.
Civil Procedure
Indian Law
Nelson v.
Colorado
4/19/17
Ginsburg
Colorado’s statutory scheme—which permits the state to retain assessments tied to a
conviction later overturned unless and until the defendant institutes a discrete civil
refund proceeding and proves her innocence by clear and convincing evidence—does
not comport with the Fourteenth Amendment’s guarantee of due process.
Constitutional Law
Criminal Law &
Procedure
Manrique v.
United States
4/19/17
Thomas
A defendant wishing to appeal an order imposing restitution in a deferred restitution
case must file a notice of appeal from that order; if he fails to do so and the government
objects, he may not challenge the restitution order in his appeal from an initial judgment
imposing other aspects of his sentence, such as a term of imprisonment.
Criminal Law &
Procedure
Goodyear Tire
& Rubber Co. v.
Haeger
4/18/17
Kagan
When a federal court relies on its inherent authority to sanction bad-faith conduct by
ordering a litigant to pay the other side’s legal fees, the award is limited to the fees the
other side incurred solely because of the misconduct.
Civil Procedure
Legal Ethics
CRS-29
Date of
Opinion
Author of
Court’s
Opinion
Coventry
Health Care of
Mo., Inc. v.
Nevils
4/18/17
Ginsburg
Because subrogation and reimbursement prescriptions in federal employees’ health
insurance contracts that the Office of Personnel Management negotiates with private
carriers plainly “relate to ... payments with respect to benefits” under 5 U.S.C.
§ 8902(m)(1)—the Federal Employees Health Benefits Act of 1959’s express preemption
provision—they override state laws barring subrogation and reimbursement; the regime
Congress enacted is compatible with the Supremacy Clause.
Health Care Law
McLane Co. v.
EEOC
4/03/17
Sotomayor
A district court’s decision whether to enforce or quash an Equal Employment
Opportunity Commission subpoena should be reviewed for abuse of discretion, not de
novo.
Civil Rights Law
Civil Procedure
Dean v. United
States
4/03/17
Roberts
A sentencing court may consider the fact that a defendant will serve 18 U.S.C. § 924(c)’s
mandatory minimum when calculating an appropriate sentence for the predicate offense.
Criminal Law &
Procedure
Expressions
Hair Design v.
Schneiderman
3/29/17
Roberts
By prohibiting petitioner merchants from employing a single-sticker pricing regime to
impose credit-card-use surcharges, New York General Business Law § 518 regulates
speech, and thus it should be evaluated as a speech regulation by the Court of Appeals
on remand.
Commercial Law
Constitutional Law
Moore v. Texas
3/28/17
Ginsburg
The Texas Court of Criminal Appeals’ (CCA’s) decision that petitioner was not an
intellectually disabled person exempt from the death penalty does not comport with the
Eighth Amendment and this Court’s precedents where the CCA rejected the habeas
court’s application of current medical guidance in favor of a standard set out in one of
the CCA’s prior opinions.
Constitutional Law
Criminal Law &
Procedure
Czyzewski v.
Jevic Holding
Corp.
3/22/17
Breyer
A bankruptcy court may not, without the consent of affected creditors, approve a
structured dismissal of a Chapter 11 bankruptcy that deviates from the ordinary priority
rules governing distributions of bankruptcy estate assets.
Bankruptcy Law
Star Athletica,
L.L.C. v. Varsity
Brands, Inc.
3/22/17
Thomas
The test for determining whether a feature incorporated into the design of a useful
article is eligible for copyright protection—whether the feature (1) can be perceived as a
two- or three-dimensional work of art separate from the useful article, and (2) would
qualify as a protectable pictorial, graphic, or sculptural work, either on its own or fixed
in some other tangible medium of expression, if it were imagined separately from the
useful article into which it is incorporated—is satisfied in this case.
Copyright Law
Case Name
CRS-30
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Date of
Opinion
Author of
Court’s
Opinion
Endrew F. v.
Douglas Cty.
School
Dist. RE-1
3/22/17
Roberts
To meet its substantive obligation to provide a free appropriate public education under
the Individuals with Disabilities Education Act, a school must offer an individualized
education program that is reasonably calculated to enable a child to make progress
appropriate in light of the child’s circumstances.
Civil Rights Law
Education Law
Manuel v. Joliet
3/21/17
Kagan
Petitioner may challenge the legality of his pretrial confinement on Fourth Amendment
grounds; on remand, the Seventh Circuit should determine the claim’s accrual date for
statute-of-limitations purposes, unless it finds that the city has previously waived its
timeliness argument.
Constitutional Law
Criminal Law &
Procedure
SCA Hygiene
Products
Aktiebolag v.
First Quality
Baby Products,
L.L.C.
3/21/17
Alito
Laches (i.e., the doctrine that generally posits that an unreasonable delay in asserting
one’s rights can bar a claim for equitable relief) cannot be invoked as a defense against a
claim for damages brought within the Patent Act’s six-year limitations period, 35 U.S.C.
§ 286.
Civil Procedure
Patent Law
NLRB v. SW
General, In.c
3/21/17
Roberts
A Federal Vacancies Reform Act of 1998 (FVRA) provision that prevents a person who
has been nominated to fill a vacancy in an office requiring presidential appointment and
Senate confirmation from performing the duties of that office in an acting capacity, 5
U.S.C. § 3345(b)(1), applies to anyone performing acting service under the FVRA, not
just first assistants performing acting service under § 3345(a)(1).
Constitutional Law
Administrative Law
Rippo v. Baker
3/06/17
Per Curiam
Where petitioner requested recusal of his trial judge, the Nevada Supreme Court erred
in not asking the proper question: whether, considering all the circumstances alleged,
the risk of bias was too high to be constitutionally tolerable.
Criminal Law &
Procedure
Legal Ethics
Beckles v.
United States
3/06/17
Thomas
The advisory Federal Sentencing Guidelines are not subject to vagueness challenges
under the Due Process Clause.
Constitutional Law
Criminal Law &
Procedure
Pena-Rodriguez
v. Colorado
3/06/17
Kennedy
The Sixth Amendment requires that the no-impeachment rule—which recognizes that a
verdict, once entered, cannot be challenged based on comments the jurors made during
deliberations—must give way in order for the trial court to assess the possible denial of
the jury trial guarantee where compelling evidence indicates that a juror relied on racial
stereotypes or animus to convict a criminal defendant.
Civil Rights Law
Constitutional Law
Criminal Law &
Procedure
Case Name
CRS-31
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Date of
Opinion
Author of
Court’s
Opinion
Bethune-Hill v.
Virginia State
Bd. of Elections
3/1/17
Kennedy
The district court employed an incorrect legal standard in concluding that race was not
the predominant factor in the Virginia legislature’s design for 11 of the 12 state
legislative districts challenged in this case, but the court did not err in concluding that
the lines for the remaining district were constitutional because the legislature’s use of
race, though predominant, was narrowly tailored to achieve a compelling state interest.
Civil Rights Law
Constitutional Law
Fry v. Napoleon
Community
Schools
2/22/17
Kagan
A disabled child plaintiff seeking relief under a federal law other than the Individuals with
Disabilities Education Act (IDEA) need not exhaust the IDEA’s administrative
procedures where the gravamen of the plaintiff’s suit is something other than the denial
of the IDEA’s core guarantee of a “free appropriate public education”; the Court of
Appeals should determine on remand the gravamen of Fry’s complaint.
Civil Rights Law
Education Law
Life
Technologies
Corp. v.
Promega Corp.
2/22/17
Sotomayor
The supply from the United States of a single component of a multicomponent invention
for manufacture abroad does not give rise to infringement liability under § 271(f)(1) of
the Patent Act, because it does constitute the supply of “all or a substantial portion of
the components of a patented invention” for combination abroad.
Patent Law
Buck v. Davis
2/22/17
Roberts
The Fifth Circuit erred in denying a certificate of appealability to petitioner, who
demonstrated both ineffective assistance of counsel under Strickland v. Washington and an
entitlement to relief under Federal Rule of Civil Procedure 60(b)(6).
Constitutional Law
Criminal Law &
Procedure
Lightfoot v.
Cendant
Mortgage Corp.
1/18/17
Sotomayor
The provision authorizing federally chartered corporation Federal National Mortgage
Association (Fannie Mae) “to sue and to be sued ... in any court of competent
jurisdiction, State or Federal,” 12 U.S.C. § 1723a(a), does not extend federal jurisdiction
to all cases involving Fannie Mae.
Civil Procedure
Banking Law
White v. Pauly
1/09/17
Per Curiam
The Tenth Circuit erred in basing its conclusion that Officer White was not entitled to
qualified immunity on the ground that White violated clearly established law when he
arrived late to an ongoing police action and then failed to identify himself before
shooting an armed individual.
Constitutional Law
Criminal Law &
Procedure
Shaw v. United
States
12/12/16
Breyer
18 U.S.C. § 1344(1), which makes it a crime to “knowingly execut[e] a scheme ... to
defraud a financial institution,” covers schemes to deprive a bank of money in a
customer’s deposit account.
Banking Law
Criminal Law &
Procedure
Samsung
Electronics Co.
v. Apple Inc.
12/06/16
Sotomayor
In arriving at a damages award for design-patent infringement involving a
multicomponent product, the relevant “article of manufacture,” 35 U.S.C. § 289, need
not be the end product sold to the consumer but may be only a component of that
product.
Patent Law
Case Name
CRS-32
Holding (from Supreme Court Syllabus, if Available)
Area(s) of Lawa
Date of
Opinion
Author of
Court’s
Opinion
Salman v.
United States
12/06/16
Alito
In affirming the securities fraud conviction of insider-trading tippee Salman, the Ninth
Circuit properly applied Dirks v. SEC, which permitted the jury here to infer that the
tipper personally benefited from making a gift of confidential information to a trading
relative, from whom Salman, in turn, received the information.
Criminal Law &
Procedure
Securities Law
State Farm Fire
& Casualty Co.
v. United States
ex rel. Rigsby
12/06/16
Kennedy
The False Claims Act (FCA) does not mandate dismissal of a qui tam relator’s complaint
for a violation of the FCA requirement that a complaint be sealed for a specified period
of time; nor did the district court abuse its discretion in denying petitioner’s motion to
dismiss respondents’ complaint for violating that requirement.
Civil Procedure
Governments
BravoFernandez v.
United States
11/29/16
Ginsburg
The issue-preclusion component of the Double Jeopardy Clause does not bar the
government from retrying defendants, like petitioners, after a jury has returned
irreconcilably inconsistent verdicts of both conviction and acquittal when the convictions
are later vacated for legal error unrelated to the inconsistency.
Constitutional Law
Criminal Law &
Procedure
Bosse v.
Oklahoma
10/11/16
Per Curiam
The state court erred in concluding that Payne v. Tennessee implicitly overruled the
portion of Booth v. Maryland that prohibits a capital sentencing jury from considering
opinions of a victim’s family members about the crime, the defendant, and the
appropriate punishment.
Constitutional Law
Criminal Law &
Procedure
Case Name
a.
CRS-33
Holding (from Supreme Court Syllabus, if Available)
Based on LEXIS-NEXIS Practice Area or Industry Headings.
Area(s) of Lawa
Supreme Court October Term 2016: A Review of Select Major Rulings
Author Contact Information
(name redacted), Coordinator
Acting Section Research Manager
[redacted]@crs.loc.gov
, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov
, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov, 7-....
(name redacted)
Legislative Attorney
[redacted]@crs.loc.gov
, 7-....
(name redacted)
Acting Section Research Manager
[redacted]@crs.loc.gov
, 7-....
Congressional Research Service
R44949 · VERSION 3 · UPDATED
34
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