July? Julying! Weekly Brief for June 29

For the first time since 1996, the Supreme Court’s term has officially extended into the month of July. The Court decided five cases this week, touching on abortion, free speech, religious liberty, administrative agencies, and copyright law. It also added four cases to next term’s docket, one of which concerns the release of grand jury materials from Special Counsel Mueller’s investigation into Russian meddling in the 2016 election. Here’s a recap of the Court’s busy week.


Statistics

This Week:
Decisions: 5
Cert Grants: 4 (for O.T. 2020)
CVSGs: 2
GVRs: 6

O.T. 2019:
Cases Decided: 54
Cases Remaining: 8*
Weeks Left in Term: 0**

* This number does not include cases that were granted and had been set for oral argument in March or April, but were postponed due to COVID-19 and were not rescheduled for the May virtual argument sitting.

** This number reflects the date at which the Supreme Court’s term usually ends (the last week of June). However, O.T. 2019 will end later due to measures the Court took in response to COVID-19. It is unknown when the Court will finish releasing its decisions.

Monday

Orders:

The Court released its first orders list of the week Monday morning. This list was the quieter of the two. The Court called for the views of the Solicitor General in two cases: PennEast Pipeline Co., LLC v. New Jersey, which asks whether private companies that hold certificates from the Federal Energy Regulatory Commission have the authority to exercise the federal government’s eminent domain power under the Natural Gas Act of 1938; and FMC Corp. v. Shoshone-Bannock Tribes, which concerns the Ninth Circuit’s treatment of the (general) rule that indigenous tribes do not have the power to regulate nonmembers on non-indigenous fee land.

The Court turned down Bourgeois v. Barr, a federal inmate’s challenge to the lethal injection protocol the DOJ seeks to use when it resumes federal executions. Justices Ginsburg and Sotomayor would have taken up the case. The Court’s denial paves the way for the federal government to resume executions of federal death row prisoners.


Opinions:

After the orders list, the Court issued opinions in three cases:

U.S. Agency for Int’l Development (USAID) v. Alliance for Open Society Int’l
In 2005, Congress created the President’s Emergency Plan for AIDS Relief, or PEPFAR. PEPFAR gives funds to several non-governmental organizations (NGOs) that are combating the AIDS/HIV epidemic overseas. But Congress attached a few conditions on the disbursement of funds. One is that NGOs must have “a policy explicitly opposing prostitution and sex trafficking” (§7631(f)). In 2013, certain U.S.-based NGOs challenged this restriction, claiming that it “compelled” them to speak and violated their Free Speech rights. The Supreme Court agreed, invalidating §7631(f) as applied to NGOs whose headquarters are in the United States.

This follow-up case challenges §7631(f) as applied to internationally-based NGOs. But Justice Kavanaugh, writing for a 5:3 majority, rejected the challenge. His ruling keeps §7631(f)’s restriction in place for foreign NGOs that receive PEPFAR funds. Chief Justice Roberts and Justices Thomas, Alito, and Gorsuch agreed. (Justice Kagan recused herself, presumably because she may have taken part in earlier litigation in this case when she served as President Obama’s second Solicitor General.)

Kavanaugh’s argument is short and simple (his opinion spans only eight-and-a-half pages). It relies on two premises: First, foreign citizens do not have rights under the U.S. Constitution. This, he explains, is a “fundamental principle” of constitutional law stretching back to 1904 and even found indirectly in the Constitution’s Preamble. To be sure, foreign citizens who are physically located inside the U.S.’ borders do enjoy some procedural rights under the Constitution, such as due process in immigration and criminal proceedings. But foreign citizens located entirely outside American borders do not. In other words, a German citizen living in Texas has some constitutional rights, but a German citizen living in Germany does not. Second, an organization that has been incorporated outside the United States is its own legal entity, even if it’s affiliated with an organization incorporated within the U.S. This is also a “settled” principle of American corporate law, writes Kavanaugh (citing Dole Food Co. v. Patrickson (2003) and Cedric Kushner Promotions, Ltd. v. King (2001)).

The foreign-based NGOs here satisfy both premises. Even though some of them are affiliates of U.S.-based organizations, all of them were incorporated (and continue to be located) outside the United States. Quite simply, they are “foreign organizations operating abroad,” and they therefore “possess no rights under the First Amendment,” Kavanaugh concludes. Thus, §7631(f) as applied to them cannot possibly violate their (fanciful) First Amendment rights.

Justice Thomas authored a short concurrence. He fully agrees that §7631(f) does not violate the First Amendment as applied to foreign NGOs, but he uses his opinion to reiterate his dissent in this case’s 2013 predecessor. Recall that the Court in that case struck down §7631(f) as applied to American NGOs. That decision, Thomas argues, was erroneous because §7631(f) does not actually compel an NGO to say anything at all. In short, he would uphold §7631(f) in its entirety.

Justice Breyer dissented in a 23-page opinion joined by Justices Ginsburg and Sotomayor. In short, Breyer does not see these foreign NGOs as truly foreign NGOs. Instead, he says their U.S. affiliates are the real actors, and the foreign NGOs are the mouthpieces through which the U.S. affiliates speak. So, Breyer says the Court ought to reframe the question. It’s not whether §7631(f) as applied to foreign NGOs violates the First Amendment; it’s whether §7631(f) as applied to U.S.-NGOs that operate through foreign entities violates the First Amendment. Breyer’s answer is “yes.” He argues that the message being conveyed—that the NGO “oppos[es] prostitution and sex trafficking—originates in a U.S.-based NGO, is transferred to that NGO’s foreign affiliate, and is conveyed by that foreign affiliate to the audience in the foreign country. The foreign NGOs are really just conduits for the speakers’ (their American affiliates’) message. Thus, Breyer would hold that §7631(f) violates the First Amendment as applied to respondents in this case.

June Medical Services, L.L.C. v. Russo
Next, the Court decided its only abortion case of the term. At issue was Louisiana’s Act 620, which would’ve required abortion doctors in the state to obtain admitting privileges at nearby hospitals before performing any abortions. The Court, 5:4, struck down the law as unconstitutional. Chief Justice Roberts joined Justices Ginsburg, Breyer, Sotomayor, and Kagan quite narrowly, relying on an extraordinarily strong application of stare decisis. For an in-depth analysis of the decision, see my post here.

Seila Law LLC v. Consumer Financial Protection Bureau (CFPB)
The final opinion on Monday came in Seila Law v. CFPB. The CFPB, an independent financial regulatory agency, is headed by a single Director who must be appointed by the president and confirmed by the Senate. The Director serves a five-year term and can be fired only by the president for “inefficiency, neglect of duty, or malfeasance in office” (12 U.S.C. §5491(c)(3)). Chief Justice Roberts, writing for a 5:4 majority, held that this structure violates the separation of powers because Congress’ standards for removing the CFPB’s head illegitimately cabin the power of the Executive. While this is a loss for the CFPB, it is a small one. Roberts then held that the agency could otherwise continue operating; only the Office of the CFPB’s Director has to be restructured. For an in-depth analysis of this decision, see my post here [forthcoming].

Tuesday

The Court released two more decisions Tuesday morning:

U.S. Patent & Trademark Office v. Booking.com B.V.
The first decision involves Booking.com’s bid to trademark its name. The popular online travel-reservation service wants to acquire the exclusive rights to use the term “Booking.com.” However, the Lanham Act of 1946 bars the trademarking of “generic terms,” or words we often use in everyday language and that, if trademarked, would fail to distinguish one producer from another (15 U.S.C. §1064(3)). For example, suppose there was a company called “Shoes, Inc.” that wanted to trademark the term “shoes.” The word “shoes” is a common word in the English language. And, if the layman were to see “shoes” as a trademarked term, all he could glean from it is that it alludes to some company that sells shoes, not the specific company Shoes, Inc. Thus, “shoes” qualifies as a “generic term” under the Lanham Act and cannot be trademarked.

When Booking.com sought to trademark “Booking.com,” the U.S. Patent and Trademark Office (PTO) declined the application on much the same grounds. It held that “booking” and “.com” are both generic terms, and their coupling does not make the mark registrable. But Justice Ginsburg, writing for an 8:1 majority, disagrees. Only Justice Breyer dissented.

For a term to be “generic,” it must name a “‘class’ of goods or services,” not any “particular feature or exemplification of this class,” Ginsburg explains (citing §§ 1064(3), 1065(4), and 1127). Now, “Booking.com” is a compound term (composed of the terms “booking” and “.com”). To determine whether a compound term is generic, Ginsburg says the Court must “train[] on the term’s meaning as a whole, not its parts in isolation” (citing Estate of P. D. Beckwith, Inc. v. Commissioner of Patents (1920)). And to determine the term’s meaning, the Court must consult the consumer’s understanding of its meaning (citing Judge Hand in Bayer Co. v. United Drug Co. (SDNY 1921)). Under these principles, Ginsburg explains, “whether ‘Booking.com’ is generic turns on whether that term, taken as a whole, signifies to consumers the class of online hotel-reservation services.”

The answer is an emphatic “no.” Even the PTO “no longer disputes” that conclusion, Ginsburg points out. Both of the lower courts in this case agreed that consumers understand “Booking.com” to refer to the particular hotel- and travel-reservation service offered by the company Booking.com. If you’re not convinced, Ginsburg invites you to consider the opposite conclusion. Suppose “Booking.com” was held to be a term that refers to online hotel- and travel-reservation services in general. Is Travelocity then a “Booking.com”? No. Similarly, does it make sense to ask a frequent traveler what her favorite “Booking.com” is? No. We of course could call Travelocity a “hotel-reservation provider,” which would be a generic compound term. And we of course could ask that frequent traveler what her favorite “hotel-reservation service” is (to which she might reply, “Booking.com”). Clearly, then, the term “Booking.com” is not a “generic term” under the Lanham Act.

The PTO’s main objection does not sway Justice Ginsburg. The PTO argues that the Court should create a per se rule that any compound term formed by some generic word and “.com” is unregistrable. Thus, any “generic.com” term cannot be trademarked. But such a rule finds “no support . . . in trademark law or policy,” Ginsburg counters. She also notes that the PTO’s past practice does not even accord with such a rule. Therefore, Ginsburg concludes that “Booking.com” is a registrable mark.

Justice Sotomayor penned a short concurrence. She merely seeks to highlight a few things, including the tools Courts may use to discern consumers’ understanding of the meaning of a term. Evidence from consumer surveys is one, though, as the dissent remarks, such evidence may be unreliable. Stronger tools, she says, can include “dictionaries, usage by consumers and competitors, and any other source of evidence bearing on how consumers perceive a term’s meaning.”

Justice Breyer was the lone dissenter. “Today, the Court holds that the addition of ‘.com’ to an otherwise generic term, such as ‘booking,’ can yield a protectable trademark,” Breyer writes. “Because I believe this result is inconsistent with trademark principles and sound trademark policy, I respectfully dissent.”

Breyer is skeptical that appending “.com” to any generic term yields more information to consumers than the resulting combination’s constituent parts. He is especially skeptical here: Combining “booking” and “.com,” he argues, doesn’t “‘identify a particular characteristic or quality of some thing'” (namely, a specific hotel-reservation service); it “‘connotes the basic nature of that thing,'” which is “the hallmark of a generic term” (quoting Justice Ginsburg in Blinded Veterans Assn. v. Blinded Am. Veterans Foundation (DC Cir. 1989)).

Espinoza v. Montana Dept. of Revenue
The final decision of the week comes in a Free Exercise Clause case. Montana established a scholarship program for elementary, middle, and high school students. Under the program, the State gives tax credits to private citizens and businesses who donate to private, nonprofit scholarship organizations. Those nonprofits, in turn, use the donations as scholarship funds and award those scholarships to families whose children wish to go to private schools. Scholarship-winning families may use their award at any “qualified education provider,” which Montana broadly defines to include virtually all public and private schools in the state.

However, Montana’s State Constitution says that the State “shall not make any direct or indirect appropriation . . . to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” Applying this “no-aid” provision, the Montana Supreme Court struck down the scholarship program, arguing that state funds were ending up in the hands of religious institutions.

But Chief Justice Roberts for a 5:4 majority vacated that decision. He held that, in so doing, Montana discriminated against religious schools and the parents whose children want to attend them with the scholarship funds they won in violation of the First Amendment’s Free Exercise Clause.

For an in-depth analysis of this case, see my post here.

Wednesday

On Wednesday, the Court conducted its weekly, private (tele-)conference. The Justices reviewed the petitions on their docket and debated whether to grant review for any of them. Out of an abundance of caution, only Chief Justice Roberts was actually present in the Supreme Court building; the other eight Justices took part in the conference over the phone. Some high profile cases the Justices are considering include:

  • Arlene’s FlowersInc. v. Washington. This case is a mirror-image to that of Masterpiece CakeshopLtd. v. Colorado, on whose merits the Court punted in 2018. The questions before the Court are (1) whether a state violates a floral designer’s Free Exercise and Free Speech rights by forcing her to create custom floral arrangements celebrating same-sex weddings or by acting based on hostility toward her religious beliefs; and (2) whether the Free Exercise Clause’s prohibition on religious hostility applies to the executive branch.
  • Hunt v. Board of Regents of the University of New Mexico. This is a First Amendment case which asks whether university disciplinary action for off-campus, political speech violates the Free Speech Clause of the First Amendment.
  • McKesson v. Doe. This is a First Amendment case stemming from a Louisiana protest in which some protesters resorted to violence. The question presented is whether the First Amendment bars a state from suing the leader of the protest for criminal negligence where the leader did not necessarily promote or instigate the violence.
  • Reisman v. Associated Faculties of the University of Maine. This case mixes labor unions with the Free Speech Clause of the First Amendment. The question presented is whether it violates the First Amendment to designate a labor union to represent and speak on behalf of public-sector employees who object to its advocacy.
  • Collins v. Mnuchin. This case concerns a constitutional challenge to the structure of the Federal Housing Finance Agency (FHFA), a mirror-image case to that of Seila Law v. CFPB, the challenge to the structure of the Consumer Financial Protection Bureau. The questions presented in Collins are (1) whether the structure of the FHFA violates the separation of powers, and if so (2) whether the actions of the FHFA must be annulled and the statute creating its structure struck down.
Thursday

The Court released another orders list Thursday morning. The Court granted five cases (two of which were consolidated). Most notable is Department of Justice v. House Committee on the Judiciary, which involves the U.S. House of Representative’s push to obtain grand jury materials stemming from the Mueller Investigation. The House argues that its impeachment inquiry into President Trump qualifies as a “judicial proceeding” under Federal Rule of Criminal Procedure 6(e)(3)(E)(i). The Court will decide whether that is so. Procedurally, the Court’s taking up this case means that it is highly unlikely the grand jury materials at issue will be released to the public before the November presidential election.

The other grants are Hungary v. Simon and Germany v. Philipp, both of which concern the scope of jurisdiction under the Foreign Sovereign Immunities Act; and Nestlé USA, Inc. v. Doe I, which asks whether private corporations in the U.S. can be sued for human rights violations abroad under the Alien Tort Statute of 1789.

Also, the Court GVR’d six cases, one of which I had featured for weeks on my list of high-profile petitions. The Court sent Box v. Planned Parenthood of Indiana & Kentucky (and its sister case) back to the Seventh Circuit in light of the Court’s decision this week in June Medical Services v. RussoBox had challenged an Indiana “fetal ultrasound” abortion law. Other GVRs were in St. Augustine School v. Stand (in light of this week’s Espinoza v. Montana Dept. of Revenue); Booking.com B.V. v. USPTO (in light of this term’s Peter v. NantKwest, Inc.); and two other cases in light of last week’s Liu v. SEC.

Friday

The Justices were off on Friday; the Fourth of July gave them a long weekend.

The Week Ahead

The Court has announced it will release more opinions on Monday at 10:00am EDT. As of this writing, the Court has not announced any other proceedings next week.

With eight cases remaining, it’s unlikely the Court will clean up its docket in one day. The Court could schedule more opinion days next week or take it one week at a time. Stay tuned.


Photo Credits: Supreme Court Curator’s Office

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