Friday, April 9, 2021

Oral Argument Summary: NCAA v. Alston

By: Audrey Jung

On March 31, 2021, the Supreme Court considered whether the NCAA’s restrictions on paying college athletes violate antitrust law.

This dispute draws its roots from NCAA v Board of Regents (1984), a case where the University of Georgia and the University of Oklahoma sued the NCAA for restricting the number of football games they could broadcast on national TV networks. The Supreme Court ruled that the NCAA’s restrictions had monopolized broadcasts, thus violating antitrust law. However, it also held that the NCAA had “ample latitude” to enforce rules preserving amateurism, which separates college from professional sports. 

NCAA v Alston will more clearly define what “ample latitude” means.

In 2014, several Division I athletes, including former West Virginia running back Shawne Alston, challenged the NCAA’s restrictions on education-related benefits, claiming that they violated antitrust law. These benefits include internships, computer and science equipment, music instruments, and post-graduate scholarships. The student-athletes argued that these restrictions didn’t drive consumer demand or impact amateurism, but were instead designed to cut costs.

The district court ruled for the students but noted that while the NCAA can’t restrict non-cash-related benefits, it can restrict cash awards for educational purposes. The Ninth Circuit of Appeals affirmed. The NCAA appealed, and the Supreme Court agreed to hear the case in December 2020.

At the Supreme Court, the NCAA’s lawyer, Seth Waxman, argued that college sports are marked by amateurism, meaning that students are not “paid for their play.” Maintaining amateurism is pro-competitive, and it’s achieved through agreement by schools within the NCAA. Waxman claimed that the lower courts’ definition of amateurism is too narrow, and that amateurism should be decided by the NCAA, not by the courts. Giving courts the power to decide leads to unnecessary litigation and makes judges supervisors of college sports.

The lawyer for the students, Jeffrey Kessler, argued that there is no pro-competitive justification for the NCAA’s restrictions. Kessler cited past NCAA restrictions — on TV broadcasts, assistant coach salaries, and name, image, and likeness profits — and argued that even after court rulings lifted all these restrictions, demand for college sports continued to flourish. 

Acting Solicitor General Elizabeth Prelogar also argued for the respondents. She explained why the Court should apply the rule of reason and not, as the NCAA argued, a 

“quick look” review of the restrictions. Unlike the rule of reason, the “quick look” review doesn’t require an in-depth analysis of the market and its anticompetitive effects. Instead, it simply requires the NCAA to show that removing the restrictions hurts the market for college sports. According to Prelogar, this clashes with precedent. Price-fixing in a market where the NCAA has monopoly control has severe anticompetitive effects.

In line with March Madness, Waxman, Kessler, and Prelogar are legal all-stars. Waxman, a former solicitor general, has argued over 80 cases at the Court. Kessler is a well-known sports lawyer. Prelogar, who clerked for Justices Elena Kagan and Ruth Bader Ginsburg, as well as then Appellate Court Judge Merrick Garland, is also no stranger to the Supreme Court. 

Chief Justice Roberts asked the opening question. Colleges pay up to $50,000 for insurance policies so that their athletes will play in college and not the professional leagues. To Roberts, this practice sounded a lot like students were “paid to play,” and he questioned whether it undermines amateurism.

Justice Thomas wondered whether there are also differences in pay between coaches of amateur and professional teams. Why don’t pay restrictions on amateur athletes also apply to coaches of amateur teams?

Meanwhile, Justice Alito brought up the potential costs of playing a college sport. While colleges receive billions of dollars to pay coaches and fund their athletic departments, rigorous and time-consuming training leaves students with less time to study, the pressure to avoid harder majors, and low graduation rates. “How,” Alito queried, “can this be defended in the name of amateurism?”

Waxman cited limits to the number of hours athletes can spend in training. As to lower graduation rates, student-athletes, he claimed, graduate at higher rates. Alito remained skeptical. While Waxman’s argument could apply to lower revenue sports, it’s a different story with powerhouse basketball and football teams.

Justice Sotomayor brought up the fact that although courts prohibited the NCAA from restricting education-related benefits, athletics conferences can still do so. If the NCAA and its member schools believe these benefits harm amateurism, why not let conferences impose these restrictions?

Justice Kagan offered a different perspective. What if what was really happening was that the NCAA was using its market power to fix athletic compensation at low rates, to make a profit? 

Justice Gorsuch and Justice Kavanaugh both built off of Justice Kagan’s concern. Because the NCAA has monopoly control, Gorsuch wondered why it shouldn’t be subject to stricter scrutiny, through a rule of reason analysis. Kavanaugh, meanwhile, expressed concern that schools were “conspiring…to pay no salaries to the workers [students] who are making the school billions of dollars”.

Justice Barrett looked ahead. How would a ruling against the NCAA affect Title IX and women’s sports?

Waxman replied that it would disadvantage lower-revenue sports, in both mens’ and womens’ sports. To cut costs, schools would cut benefits to less popular sports to compensate players in sports that drew more revenue.

In a question to Kessler, Justice Thomas asked whether lifting NCAA restrictions would lead to “cherry-picking,” with wealthier schools offering more enticing benefits to draw in the best athletes. With lower-income schools at a disadvantage, it could hurt the competitiveness of college sports. 

The district court ruled that schools can pay students up to $5,980 for being on the team, an amount that Justice Kagan questioned as arbitrary and Justice Sotomayor as judicial price-fixing.

General Prelogar clarified that the $5,980 isn’t an automatic award students receive for joining the team. The NCAA can enforce criteria, like a GPA requirement, so that the $5,980 is an award for academic achievement, rather than payment for the athletes’ play. Failing to limit cash payments could allow athletes to be paid amounts akin to professional salaries, blurring the line between college and professional sports. The $5,980 isn’t arbitrary, in that it matches the equivalent amount students received in athletic awards.

Both Chief Justice Roberts and Justice Breyer wondered how far the Court’s role extends into businesses, like college sports. A ruling in this case, though narrow, could affect a large number of antitrust cases. In Roberts’ words, “the restrictions…were modest ones, but I don’t think the principle was.”

The Court’s ruling could have broad implications. A ruling in the NCAA’s favor could make it harder for students to fight restrictions in future cases or to receive compensation. A ruling in the students’ favor would allow athletes to receive educational benefits. It might also open doors to future cases challenging the NCAA’s restrictions, or extend to antitrust cases beyond college sports.

A ruling will come out sometime this year.

Image credit: U of Alabama v. U of Georgia (David Smith,; CC BY-NC-ND 2.0,

Wednesday, March 17, 2021

Uzuegbunam v. Preczewski: SCOTUS Rules on Redress for Violated Rights

By Audrey Jung

In an 8-1 ruling on March 8th, the Supreme Court ruled that a student can sue his school for nominal damages even after the school changed its conduct. Nominal damages are compensations of typically $1 or $2, awarded when the plaintiff is in the right but hasn’t suffered a measurable loss. 

The ruling is a win for Chike Uzuegbunam, a former student at Georgia Gwinnett College. College officials blocked Uzuegbunam from distributing religious literature and sharing his faith on campus, even after he reserved a spot in one of the college’s two “free speech zones.” When the officials threatened Uzuegbunam with disciplinary action, his friend, Joseph Bradford, also abandoned his plans to speak. 

Uzuegbunam and Bradford sued the college for nominal damages and injunctive relief, claiming its speech code violated their 1st and 14th Amendment rights. During litigation, the college revised its policies and then filed to dismiss the case as moot. 

The students argued they could still sue for nominal damages. Their lawyer, Kristen Waggoner, argued that even though the college revised its policies, it needed to be held accountable for violating Uzuegbunam and Bradford’s rights. She also contended that nominal damages have a special purpose for “injuries that transcend price tags,” like a violation of speech or an unwarranted search or seizure.

Georgia Gwinnett College argued that nominal damages claims encourage unnecessary litigation. When there is no threat of future harm, only cases that seek compensation should be allowed to continue through courts. The students’ lawsuit prompted the college to change its policies, and the issue should have been resolved there.

Writing for the majority, Justice Clarence Thomas held that nominal damages can redress past injuries, and therefore the Georgia Gwinnett students can continue litigating their case. For someone to have standing (the right to sue), they must demonstrate that they suffered or are likely to suffer a concrete injury, traceable to the defendant, that is likely to be resolved by the court. Uzuegbunam clearly suffered a concrete injury through a violation of speech, and his injury is traceable to the college’s actions. This left the third prong of standing. 

The Supreme Court drew on precedent to determine that nominal damages do redress injury, thus satisfying the requirements for standing. Past courts have awarded nominal damages when they could not award other damages, like statutory, compensatory, or punitive damages, doing so even when there was no threat of future injury. Thomas noted that American and English courts applied this reasoning both before and after the ratification of the Constitution.  

Thomas also cited 19th-century Justice Joseph Story, who figured prominently in oral arguments this January. Justice Story argued that nominal damages should be paid even if the parties could not prove a certain type of damage, writing that the law requires “no farther inquiry than whether there has been the violation of a right.” Justice Story went on to warn that if defendants aren’t made to pay nominal damages, they might continue violating the plaintiffs’ rights. Then, their actions would become “the foundation, by lapse of time, of an adverse right.” (Webb v. Portland, 1832)

Thomas was joined by Justices Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Amy Coney Barrett. Justice Kavanaugh concurred but noted that by paying nominal damages, defendants should be able to end litigation without a resolution of the merits, thus preventing prolonged lawsuits.

In a lone dissent ––– his first since joining the Court in 2005 ––– Chief Justice John Roberts pushed back against the majority’s ruling and held that nominal damages cases like Uzuegbunam’s are moot. Under Roberts’ view, the Court’s decision marked a gross overstep of judicial authority and would require courts to give advisory opinions ––– non-legal interpretations of the law ––– “whenever a plaintiff tacks on a request for a dollar.”  Roberts also questioned whether the historical precedent cited by the majority is relevant to this case, noting differences in court systems at the time.

Alliance Defending Freedom, which argued on Uzuegbunam’s behalf, praised the Supreme Court’s decision as “great news for anyone who values our constitutional freedoms.” The decision was similarly celebrated by groups across the political spectrum, with and without religious affiliations. Respondents were largely silent on the ruling.

The Court’s decision will likely impact future constitutional rights cases, and lead colleges and other government institutions to review their policies. But will Roberts’ prediction come true? Only time will tell.

Tuesday, February 9, 2021

Why Justice Wasn’t Served in Germany v. Philipp

by Blake Fox

In a 9-0 decision last week, the Supreme Court ruled in Federal Republic of Germany v. Philipp that the heirs of German Jewish art dealers, who were coerced into selling art to the Nazis for one-third of its value, could not sue the German government for restitution. The Justices neglected relevant statutes, the history of the Holocaust, and well-established legal precedent. 

Starting in 1933, Nazi Germany organized unprecedented looting of artwork from Jews. The government turned its eyes to acquiring the Welfenschatz, or Guelph Treasure, a collection of medieval relics owned by a consortium of Jewish art dealers. To acquire this collection of art, Hermann Göring, Adolf Hitler’s deputy, used political pressure and physical threats to purchase the Welfenschatz for just one-third of its value. The heirs of the Jewish consortium—Alan Philipp, Gerald Stiebel, and Jed Leiber—have since sued Germany in American courts seeking restitution for the Welfenschatz

In 1976, Congress passed the Foreign Sovereign Immunities Act (FSIA) to allow U.S. courts to hear lawsuits against foreign states in certain situations. Most nations are exempt from being sued under the FSIA except in limited cases. One such case is “property taken in violation of international law…” The Nazis’ art theft was part of the Holocaust, including the death of six million Jews in the largest genocide in human history, so the Holocaust would fit the definition of a “violation of international law.” 

In his majority opinion for the Court, Chief Justice Roberts wrote, “What a country does to property belonging to its citizens within its borders is not the subject of international law.” However, nothing in the FSIA says that citizens are prevented from suing their country of residence. Plus, the Supreme Court has even said that domestic takings can be covered

under FSIA. Justice Stephen Breyer wrote in Venezuela v. Helmerich & Payne International Drilling Company, “There are fair arguments to be made that a sovereign’s taking of its own nationals’ property sometimes amounts to an expropriation that violates international law, and the expropriation exception provides that the general principle of immunity for these otherwise public acts should give way.” 

Congress even amended the FSIA, as recently as 2016, to specify that the German government is not immune from jurisdiction if it is sued for the theft of art: “Nazi-era claims.—Paragraph (1) shall not apply in any case asserting jurisdiction under subsection (a)(3) in which rights in property taken in violation of international law are in issue within the meaning of that subsection…” In other words, Congress specifically amended the FSIA to codify that Nazi Germany is “a covered government during the covered period…” Had Congress not intended for Holocaust survivors, including German Jews, to have jurisdiction under FSIA to sue Germany, then it would have stated that. 

If the FSIA amendment wasn’t convincing enough, then Congress also passed the Holocaust Expropriated Art Recovery Act (HEAR Act) in 2016 to give opportunities to Holocaust survivors and their heirs to gain restitution for stolen art. Representatives Brian Fitzpatrick from Pennsylvania, Josh Gottenheimer from New Jersey, Debbie Wasserman-Schultz from Florida, and other members of Congress filed an amicus briefing making clear that Congress intended for Holocaust survivors and their heirs to have the jurisdiction to sue Germany under the FSIA.

The Court also fails to consider all the aspects of the Holocaust when it comes to “property taken in violation of international law.” According to the United Nations, specific aspects of genocide include “killing members of the group” and “causing serious bodily or mental harm to members of the group.” The Holocaust consisted of millions of Jews in Europe being forced into ghettos, transferred to concentration camps, experimented on and gassed to death. In total, two-thirds of European Jewry. The United States government has considered art theft to be of international importance, which is why created the Monuments, Fine Art and Archives program in 1943 to find and return art stolen by Nazis. To put the Holocaust in the words of Justice Ruth Bader Ginsburg, “Many [Jews] have been left with scars that take a long time to pass away. We must never forget the horrors which our brethren were subjected to in Bergen-Belsen and other Nazi concentration camps.” 

At the Second Geneva Convention, it was defined that “genocide, whether committed in time of peace or in time of war, is a crime under international law.” Based upon this definition, the Holocaust is considered a genocide—and a gross violation of international law. Therefore, art stolen during the Holocaust would fit the FSIA’s criteria for “property taken in violation of international law.” If the Supreme Court does not believe that the Holocaust, the largest genocide in human history, does not fit this criterion, then nothing does. Nothing. 

The Court claims that the sale of the Welfenschatz is a domestic matter between Germany and their Jewish citizens, but that claim ignores the facts of the Holocaust. Before the Nuremberg Laws, which officially stripped Jews of their citizenship in Germany, German Jews were still second-class citizens under the Nazi regime. For example, Jewish quotas were set at schools, Jewish lawyers could not work in Berlin, Jewish doctors could not work in Munich, Jewish workers were fired from the military, and Jews had to register their assets with the government. It is impossible to say that under Hitler’s rule— a man who called for the death of every Jew worldwide to resolve the so-called “Jewish Problem”—that there was ever a time when Jews were genuinely equal citizens. Their oppression was not a matter of a politician’s ordinary domestic choices, but of a dictator’s repeated violations of international law. 

Although the Supreme Court hadn’t heard any cases on Nazi art theft before, the justices failed to mention several well-established precedents by the lower courts. Every appellate and district court to previously hear cases involving Holocaust survivors and their heirs, suing Germany and Nazi-occupied European countries, has found that Nazi art theft meets the threshold of “property taken in violation of international law” set under the FSIA. This can be found in Cassirer v. Kingdom of Spain, Malewicz v. City of Amsterdam, de Csepel v. Republic of Hungary, and the D.C. Court of Appeal’s decision in this very case. 

Following the defeat of Nazi Germany in World War II, Nazi officials were tried for war crimes and their role in the Holocaust during the Nuremberg Trials. It was Justice Robert Jackson who served as the chief prosecutor for the United States. Jackson successfully prosecuted Nazis for their atrocities and delivered justice for the Jewish community. But in Germany v. Philipp in 2021, the Supreme Court failed to establish a precedent that would bring justice to the victims of the Holocaust and their heirs. 

Many Jewish attorneys are recognized for their contributions to advancing the legal profession: Louis Brandeis, Benjamin Cardozo, Felix Frankfurter, Arthur Goldberg, Abe Fortas, Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, David Bazelon, Laurence Silberman, Douglas Ginsburg, Robert Katzmann, Merrick Garland, Leondra Kruger, David Wecht, Lawrence Tribe, Alan Dershowitz, Noah Feldman, David Schizer, Risa Goluboff. As Justice Harry Blackmun would say, “the list seems endless.” Nevertheless, the Supreme Court has now failed to follow Justice Jackson’s footsteps. Justice was not served in Germany v. Philipp.

Sunday, January 31, 2021

Oral Argument Summary of Uzuegbunam v Preczewski

By Audrey Jung

On January 12th, the Supreme Court heard oral arguments for Uzuegbunam v Preczewski, a case about whether you can still sue for nominal damages from an unconstitutional policy after that policy is revised. 

The case goes back to 2016 when Chike Uzuegbunam, a student at Georgia Gwinnett College, was stopped from distributing religious literature on campus. Citing the school’s Speech Zone Policy, officials informed Uzuegbunam he needed to reserve a spot in one of two free speech zones to speak publicly about his beliefs. Uzuegbunam obtained a reservation, but officials stopped him once again, claiming he caused “disorderly conduct.” Their actions prompted Joseph Bradford, a friend of Uzuegbunam, to abandon his plans to speak at the event.

Uzuegbunam and Bradford sued the college, claiming its policies violated the 1st and 14th Amendments. They sued for declaratory judgment–––a declaration that the school Speech Code was unconstitutional–––and nominal damages, which are monetary compensations of typically $1 or $2 awarded when the plaintiff is in the right but has not suffered a measurable loss. During this time, Georgia Gwinnett College voided the policies that Uzuegbunam and Bradford challenged and then filed a motion to dismiss the case as moot. The students countered, arguing their case could continue on nominal damages claims alone. 

In May 2018, the district court ruled for the college. It reasoned that nominal damages were not enough to allow the case to continue under the school’s revised policies. The Eleventh Circuit Court of Appeals affirmed in July 2019, citing its controversial ruling in Flanigan’s Enters., Inc. v. City of Sandy (2017) that nominal damages could not save otherwise moot cases. Uzuegbunam and Bradford appealed to the Supreme Court, which agreed to hear the case in July 2020.

During oral arguments, the students’ lawyer, Kristen Waggoner, argued that although the college revised its policies, it still needed to be held accountable for violating the students’ rights. The only remedy is nominal damages, which are designed to redress “injuries that transcend price tags.” These include injuries that are difficult to measure, like a violation of speech. Nominal damages are different from compensatory damages, which cover quantifiable loss like car damages from an accident. Waggoner asserted that the Eleventh Circuit’s ruling in Flanigan conflicts with centuries of English and American court rulings, which granted nominal damages even after defendants revised unconstitutional policies. Hashim Mooppan, a Deputy Assistant Attorney General who also argued on Uzuegbunam and Bradford’s behalf, seconded her position.

Andrew Pinson, the lawyer for Georgia Gwinnett College, argued that when there is no threat of future injury, only cases that seek compensation should continue through courts. Nominal damages don’t qualify as compensation, he maintained, because they are of so little value. Allowing plaintiffs to sue solely on nominal damages claims encourages unnecessary litigation. Pinson added that nominal damages suits can lead courts to incorrectly issue advisory opinions––non-binding opinions on the law––which may give people vindication but aren’t legal rulings. 

Chief Justice John Roberts questioned the legal standing (the right to sue) of people who only seek nominal damages. To have standing, plaintiffs must demonstrate that they suffered a concrete injury traceable to the defendant that is likely to be resolved by the court. However, Roberts pointed out, Georgia Gwinnett College already removed the portions of its speech code that the plaintiffs challenged. What more were the plaintiffs seeking than a declaration that they were right, symbolized by nominal damages? 

Waggoner replied that under Article III of the Constitution, all injuries require redress, no matter how insignificant the amount of money awarded. Unlike declaratory judgments, which prevent future injury, nominal damages redress past injury, which the plaintiffs sought.

Building on Robert’s question, Justice Thomas asked whether the small monetary value of nominal damages actually undermines the rule that injuries must be real and substantial. According to Waggoner, the Supreme Court has held that vindicating constitutional rights is of utmost importance— and that injuries must be redressed no matter how insignificant the amount of money paid.

Justice Breyer wondered how Joseph Bradford, who unlike Uzuegbunam, wasn’t stopped from speaking at the event, suffered a concrete injury. Waggoner argued that Bradford intended to speak, but was discouraged after officials threatened Uzuegbunam with disciplinary action. His speech was chilled, or prohibited because he feared suspension or expulsion if he carried out his intention to speak.

Justice Gorsuch brought up the college’s argument that even if courts require plaintiffs to sue for compensation, and not just nominal damages, that would have little bearing on cases. For instance, Gorsuch pointed out that students could sue for compensation for bus fare or the time it took to walk to campus. After all, Gorsuch noted, “We have very imaginative lawyers.” Waggoner cautioned against this practice, which could encourage plaintiffs to make up damages and wage prolonged lawsuits. 

In a question to Mooppan, Justice Kagan asked about the relevance of past nominal damages cases. For example, some Supreme Court decisions came before declaratory judgments even existed. In other cases, courts dealt with damages that weren’t quantified but now have fixed monetary values. If nominal damages no longer play a role in these cases, in what ways are they still necessary today? In response, Mooppan cited Justice Story, who held that every injury causes damage. Some cases are monetized, but for those in which damage isn’t or can’t be measured, nominal damages remain the appropriate recourse.

Justice Kagan also had a question for Pinson, the lawyer for the college, concerning “the most famous nominal damages case I know of in recent time.” In this case, American singer and songwriter Taylor Swift sued a radio host for sexual assault. Swift sued for $1, not as compensation for her injury, but as an acknowledgment of harm. Under the college’s logic, why couldn’t she do that?

Pinson argued that because Swift only sought nominal damages and there wasn’t a clear likelihood of future harm, her case should have been moot. Instead, Swift should have alleged a compensable injury and received compensatory damages.

Justice Kavanaugh mentioned Pinson’s claim that if courts allow lawsuits relying solely on nominal damages, then people will experience frivolous and prolonged litigation. However, Kavanaugh asked, couldn’t a defendant avoid this problem simply by paying a dollar? He also noted that plaintiffs who only sue for nominal damages generally don’t receive enough money to pay for attorney’s fees. Wouldn’t this also disincentive wasteful litigation?

In summary, the plaintiffs argue that cases that only seek nominal damages are not moot, even if defendants revise unconstitutional policies during litigation. Past injuries need to be redressed, even if there is no threat of future harm. Nominal damages have a place for damages that are difficult to measure, like a violation of speech or an unreasonable search of one’s home.

Respondents contend that nominal damages cases should not be allowed to continue if an unconstitutional issue is already resolved. Uzuegbunam and Bradford’s lawsuit prompted officials to change their policies, and the issue should have been resolved there. Respondents argue that allowing these cases to continue through courts would lead to drawn-out litigation.

A ruling in the students’ favor could affect the enforcement of not just school but also government policies. The Supreme Court will release its decision sometime this year.

Tuesday, January 5, 2021

Happy new year, everyone. I hope you’re finding small ways to preserve your sanity.

If great Supreme Court reporting helps to keep you sane, then I recommend following David Wolfe Bender. He’s a prolific reporter for the Indiana Daily Student, an astute observer of national politics, and an occasional Supreme Court writer, whose recent article on a First Amendment case is clearer than most articles by adults. David divides his post into clear sections, beginning with a description of the background facts and continuing to a quick summary of the case history. He then explains why the Supreme Court might take the case, all the while sharing insights and quotations from prior court decisions. If you’re interested in Snapchat, obscenity, or the scope of the First Amendment, then this is the article for you.

On a much sadder note, I’ve learned that Congressman Jamie Raskin has announced the death of his 25-year-old son, Tommy. With his wife Sarah, Rep, Raskin released a letter about his son’s life that’s utterly adoring and heartbreaking. High School SCOTUS sends its love to the Raskins.

Thanks very much for reading. As always, you can reach me at

— Anna Salvatore

Sunday, January 3, 2020

Reynolds v. United States: Religion Does Not Supersede the Law

by Blake Fox

In 1875, a minor Mormon religious official named George Reynolds was arrested, charged with bigamy, and convicted under the Morrill Anti-Bigamy Act. Reynolds appealed his conviction on the grounds that polygamy, a practice of Mormonism, should be protected under the First Amendment. His case eventually reached the Supreme Court, where the justices  had no choice but to ban polygamy because of legal and historical precedents, the scope of the First Amendment, the rights of Congress and the dangers of legalizing polygamy. 

In the United States, Mormons have long endured cruelty for church views that were seen as “un-American.” They were expelled from states such as New York, Illinois, and Missouri, in large part because they supported  polygamy—an act condemned by both the Catholic and Episcopalian Churches. Former Pennsylvania Senator and US Secretary of State James Buchanan ran a successful Presidential campaign by claiming that Mormons  were ruining the institution of marriage. As President, Buchanan even sent US troops to Utah in an attempt to remove Brigham Young from the governorship. In 1856, the Republican Party met in Philadelphia for the party’s first National Convention. The party’s new platform called for the banning of the “twin relics of barbarism–Polygamy, and Slavery.” In 1856, the Republican Party was quite liberal regarding slavery and came out against polygamy because they viewed the act as a similar evil. However, the party also called to ban polygamy for straightforward political reasons. Politicians condemned polygamy not because it harmed women, but because the practice was already unpopular in the United States. By 1862, public opinion had heavily shifted against Mormons, and polygamy was banned with the passage of the Morril Anti-Bigamy Act. The Morill Anti-Bigamy stated, “Every person having a husband or wife, who marries another…is guilty of bigamy.” Anyone who was found guilty of bigamy under the act faced up to 5 years in jail and fines as high as $500. 

Although the ban on polygamy didn’t explicitly target Mormons—after all, the ban technically applied to all Americans—other parts of the Morrill Anti-Bigamy Act singled out Mormons for unfair treatment. For example, the law prevented religious groups in federal territories from owning more than $50,000 of property. The lawmakers clearly had Mormons in mind, since the Church of Latter-Day Saints was based in the federal territory of Utah. Similarly, the Morill Anti-Bigamy nullified all laws on polygamy and spiritual marriage passed by the Territory of Utah’s Legislative Body. The Act was within its rights to do so, given that the Constitution’s Supremacy Clause allows Congress to overrule state laws.

The Mormon Church believed that the Morrill Anti-Bigamy Act violated the First Amendment, and it argued in court that polygamy was a religious right. And yet the history of the Free Exercise Clause undermines the church’s arguments. For example, at Reynold’s trial in Utah, his defense claimed that Reynolds was innocent because polygamy was protected under the First Amendment. Yet it was Territorial Supreme Court Chief Justice Alexander White, who presided over the case, who disputed Reynold’s argument that the First Amendment covered polygamy. White  said that Reynolds had “evil intent…[and] the law inexorably, in such cases, implies criminal intent…” Then at the Supreme Court of the United States, Attorney General Charles Davens spoke about instances where the First Amendment can restrict speech, such as when Congress bans religiously inspired human sacrifices. 

In the Court’s majority opinion, Chief Justice Morrison Waite explained that claims of religious freedom do not excuse people from following the law. If religious exceptions could always override a general law, wrote Waite, then every American would “become law unto himself.” To support his arguments, Waite examined the role of religion at the time the Constitution was being written James Madison, commonly referred to as the Father of the  Constitution, supported a bill in the Virginia Assembly which prevented the civil government from endorsing religion. Madison also said,“it is time enough for the rightful purposes of civil government…to interfere when principles break out into overt acts against peace and good order,” — a statement which implied to Waite that the First Amendment allows restrictions on religious actions. It follows, then, that the  First Amendment does not cover polygamy. 

Waite added that Congress had a legislative right to restrict “actions which were in violation of social duties or subversive of good order,” which included polygamy. The fact that marriage is “a civil control, and usually regulated by law” gave Congress the right to outlaw the practice. Based on Utah’s status as a federal  territory and Congress’ right to protect the American people, Congress had the right and obligation to ban polygamy. 

The Supreme Court’s ruling in Reynolds v. United States incorporated interpreted case law, legal history, and the dictates of the First Amendment to end the cruel practice of polygamy in the United States. Its holding that the government has a right to regulate religious practices, but not religious beliefs, has since been used as a precedent for many court cases. 

Wednesday, December 12, 2020

Opinion Summary: Carney v. Adams

by Audrey Jung

In an 8-0 decision on Dec. 10, the Supreme Court held that James Adams—an independent candidate for the Delaware judiciary—lacked standing to challenge a state law which requires upper courts to have an equal number of Democrats and Republicans. 

The case traces its roots to 1897, when delegates at Delaware’s constitutional convention limited the number of judges from the same party who could sit on one bench. Sixty-four years later, Delaware excluded unaffiliated or third-party members from certain Delaware courts.

Delaware’s constitution includes two key limits on judicial appointments. First, there is a “bare majority” rule, which prevents judges from one political party from occupying more than half the number of seats on judicial courts. For example, out of five seats on Delaware’s Supreme Court, no more than three can be filled by Republican judges. Second, Delaware’s constitution has a “major party” rule, which requires that all seats not filled by the bare majority party must be filled by members of the opposite major party. This rule applies to three of Delaware’s five courts –– the state Supreme Court, Chancery Courts, and Superior Courts. 

James Adams, a member of the Delaware bar who expressed interest in becoming a judge, contested the “bare majority” and “major party” requirements. Adams was previously active in the Democratic Party, but became an Independent in early 2017. Eight days later, he filed a lawsuit against Gov. John Carney to challenge the “bare majority” and “major party” rules. 

Carney moved to dismiss the case, arguing that Adams lacked legal standing (the right to sue). He pointed to the three main requirements for someone to have standing: they must show that they have suffered—or will suffer—a concrete injury, that their injury is directly linked to the defendant’s conduct, and that the defendant’s conduct will likely be corrected by a court ruling. 

Carney also asserted that the statutes promoted a bipartisan judiciary. According to his attorney, the “bare majority” rule forbids governors from filling judicial courts with judges who all share the governor’s politics. Instead, the statute occasionally forces governors to appoint moderate judges of the opposite political party to the bench, ensuring that courts rarely reach the extremes of the political spectrum. By design, the “major party rule” prevents governors from nominating independents or third-party voters who might serve the governor’s political interests.

The District Court ruled against Carney, so Carney appealed to the U.S. Court of Appeals for the Third Circuit. The higher court ruled that Adams had standing to challenge the “bare majority” rule, but not the “major party” rule. However, the Third Circuit then invalidated the “bare majority” requirement and decided that because the “major party rule” was inseparable from its sister statute, both statutes were actually invalid. Soon the case reached the Supreme Court. 

During oral arguments, Gov. Carney’s lawyer—Michael McConnell—argued that Adams lacked standing because he never applied to become a judge. He would’ve been able to sue if he suffered an “injury,” like being rejected from judgeships because of his third-party status. But because he never tried, he had no right to sue. 

McConnell also disputed the Third Circuit’s ruling, arguing that even if the “bare majority” requirement were invalid, the “major party” rule wouldn’t be necessarily invalid too. Because the “major party” rule applies to two of Delaware’s five courts, and the “bare majority rule” doesn’t apply to those same courts, McConnell argued that the “bare majority” rule is capable of functioning alone if the court strikes down its counterpart. Finally, McConnell added that the statutes are the least restrictive method for the state to maintain political balance on its courts. Since the defendant offers no better alternatives, Delaware feels that the statutes should stand. 

Adams’ lawyer, David Finger, claimed that Delaware’s statutes are discriminatory because they exclude independent or third-party voters from three state courts. He said that the requirements prevent Delaware from establishing an independent judiciary because they force governors to appoint judges based on their political affiliation. Plus, Finger added, the evidence doesn’t suggest that Delaware’s “bare majority” and “major party” rules have improved the quality of Delaware’s courts. He concluded that Delaware’s judiciary can be bipartisan without excluding people who exist outside of the two-party binary. 

In a unanimous opinion authored by Justice Breyer, the Supreme Court ruled that Adams lacked standing to contest the statutes. To begin with, Justice Breyer held that Adams didn’t show he was “ready and able” to apply for a judgeship. He noted that between 2012 and 2016, when Adams was a registered Democrat, there were 14 judge openings in the state. Even though Adams was eligible for these positions, he didn’t apply for any of them. He didn’t even have to identify as a Republican or a Democrat to apply; the “major party” rule only applies to three of Delaware’s five courts, meaning that as an Independent, Adams could still have tried for Delaware’s Family Court or the Court of Common Pleas. Adams’ failure to apply for any judgeships casts doubt on his actual intention to become a judge, wrote Breyer. He concluded that Adams’ “someday intentions” do not constitute an injury, citing Lujan v Defenders of Wildlife (1992). The Supreme Court reversed the Third Circuit’s ruling and returned the case to the lower courts, instructing them to dismiss the case.

In her concurring opinion, Justice Sotomayor briefly addressed how courts should rule when defendants with standing challenge the “bare majority” and “major party” rules. First, Sotomayor highlighted distinct differences between the two statutes. The “major party” rule is not only much less common than its “bare majority” counterpart but also, Sotomayor wrote, more likely to “impose a greater burden” on First Amendment rights. She also mentioned that issues dealing with state law, like the statutes in question, are often better decided by state courts rather than federal courts. 

If someone with standing challenges Delaware’s statutes, courts may invalidate both, one, or neither of the statutes. Courts will also decide whether the “bare majority” and “major party” requirements are severable. 

It’s notable that Adams filed a new lawsuit the same day that the Court released its decision. In his latest complaint, Adams adds that he in fact applied for three judgeships after filing his lawsuit in 2017. However, none of the applications were forwarded to Gov. Carney because Adams wasn’t part of a major political party. While this new complaint may allow Adams to sue, the new case will likely be settled in Delaware’s state courts—not in the Supreme Court of the United States. 

Wednesday, December 16, 2020

Blake Fox is a high school senior from the Philadelphia area. He’s an aspiring lawyer and a future student in Wesleyan’s class of 2025. Below is his debut piece for High School SCOTUS.

Abe Fortas: A Successful Attorney. A Flawed Justice. 

Born to an Orthodox Jewish family in Memphis, Tennessee, it was clear from a young age that Abe Fortas would be a great legal mind. Fortas was awarded a scholarship to Southwestern at Memphis, now known as Rhodes College, where he graduated first in his class. At 20 years old, he was the youngest student at Yale Law School, where he served as Editor-in-chief of the Yale Law Review and finished second in his class. Impressed by Fortas, professor William Douglas arranged for Fortas to become an associate professor at Yale directly after law school. Fortas became a successful attorney and then served as an Associate Justice on the United States Supreme Court from 1965 to 1969. President Lyndon B. Johnson eventually nominated Fortas to become the Chief Justice of the Supreme Court in 1968, but his nomination was ultimately rejected by the Senate. In Abe Fortas, Johnson selected an excellent Associate Justice of the Supreme Court, as evident by his work in practice and his opinions on the bench. But despite Fortas’ acclaim, his ethics scandals made him unfit to serve as Chief Justice. 

Fortas first emerged as a successful lawyer when he represented Lyndon B. Johnson in a close Senate primary in 1948. After Johnson wrested the Democratic nomination from Texas Governor Coke Stevenson by just 87 votes, Fortas helped him through the resulting legal challenges. They worked together to ensure that Fortas’s name could appear on the general election ballot before voter fraud investigations were complete. Fortas then devised a bold legal strategy to get the case to the United States Supreme Court. His plan came to fruition when he successfully argued that federal courts have no jurisdiction over a state’s primary. Fortas’ argument centered around federalism, the 10th Amendment and state rights, which he knew would have a profound impact on Justice Hugo Black. Soon after the court ruled in Johnson’s favor, the Texas Democratic Party affirmed that Johnson had won the party’s primary, leading the future President to view Fortas as the greatest lawyer in America.

In 1950, Fortas further strengthened his legal credentials when he defended Owen Lattimore, an expert on Asian affairs, from Sen. Joseph McCarthy’s accusations of communism. Many lawyers were afraid of taking on McCarthyism in case it would offend their other clients. Yet just four years after Fortas founded his law firm, Arnold & Fortas, he agreed to take one of the most explosive legal cases in American history. Fortas represented Lattimore under the premise that “We have to take it on, because if we don’t nobody else will.” With Fortas by his side the entire time, Lattimore appeared in front of a Senate Committee led by McCarthy for four months.6 In the end, the Republican-led committee found that Lattimore was not a Communist or a spy.7 Several subsequent investigations (and even an indictment) reached the same conclusion about Lattimore’s innocence. 

Fortas’s next landmark case stemmed from his interest in psychiatry. Arguing in front of the D.C. Court of Appeals, he changed legal history forever when he represented Monte Durham with the insanity defense in Durham v. United States. While on trial, Durham’s attorneys argued that he was of an “unsound mind at the time he committed [grand larceny],” but the trial court still found Durham guilty because his counsel failed to prove that he “didn’t know the difference between right and wrong.” Before Durham’s case, courts had long tested defendants’ insanity by seeing whether they understood the difference between right and wrong. This older test, dubbed the M’Naghten Rule, disappeared after Fortas urged the court to create “a new standard of criminal responsibility” that includes input from psychiatry. For one of the first times in history, a psychiatry brief, detailing Durham’s background and mental condition, was filed in court. The D.C. Court of Appeals overruled Durham’s conviction and established the “Durham rule” that based the test for insanity in criminal cases on medical evidence. While the “Durham rule” has been largely replaced as the test for insanity in criminal cases, many still view it as the best test for determining insanity. Regardless, Fortas’ work in Durham brought much-needed reform to the insanity defense for the first time in more than 100 years. 

Fortas’ most profound impact in private practice came in the landmark case of Gideon v. Wainwright, where he persuaded the Supreme Court that states must provide attorneys to poor defendants in criminal cases. Fortas was tasked with defending Clarence Earl Gideon, a Floridian charged with breaking and entering into a poolroom. Gideon, who was too poor to afford an attorney, requested that counsel be provided to him at trial. At the time, though, Florida law only provided counsel to the poor in capital punishment cases, so Gideon represented himself at trial and was sentenced to five years in prison. Defying the odds for someone with only a middle-school education, Gideon successfully filed a writ of certiorari to the Supreme Court from prison. 

As Gideon’s attorney, Fortas would have to challenge the Court’s 1942 decision in Betts v. Brady, which held that states shall only pay for the poor’s lawyers in “special circumstances.” Fortas’ brief is notable for depersonalizing Gideon and noting that his argument contradicts established precedent. Fortas was unabashedly challenging long standing legal precedent, including that of that Supreme Court’s from just 19 years. before At oral arguments, Fortas appealed to the justices who favored a healthy separation between states’ criminal justice systems and the federal government. Fortas did so by pointing out the flaws in the “special circumstances” rule, which enables every poor individual convicted without an attorney to file petitions to a federal judge— in turn, the federal courts were constantly forced to review state courts’ judgment under the vague “special circumstances” standard. As Fortas pointed out, this was an “ad hoc” and “ex post facto” review. Observers of Fortas’ argument, including journalist Anthony Lewis, lauded his oration in Gideon, stating, “His speech has a slow, deliberate quality, with tangible intellectual force – the word may be tension – behind it.” William Douglas, the longest-serving justice in Supreme Court history, referred to Fortas’ oral argument in Gideon as the best that he ever heard during his 36 years on the Court. In an unanimous decision, Justice Black wrote the court’s opinion in Gideon, which found that the Sixth and Fourteenth Amendments require states to provide attorneys to defendants who are unable to afford one. 

Fortas’s accomplishments were not limited to his time as an oral advocate. In 1965, Fortas’ authored the majority opinion in Tinker v. Des Moines, which affirmed that students have First Amendment rights to free expression at school. Tinker involved a group of high school students who planned to wear black armbands to class in protest of the Vietnam War. Before the students could enact their plan, Des Moines School District banned students from wearing armbands in protest during school hours. The young people who did so anyway were suspended. 

Fortas ruled in favor of the students’ right to protest at school, writing, “State-operated schools may not be enclaves of totalitarianism. School officials do not possess absolute authority over their students,” and students “may not be confined to the expression of those sentiments that are officially approved.” Fortas added that the student’s armbands were “entirely divorced from actually or potentially disruptive conduct by those participating in it. It was closely akin to ‘pure speech’ which, we have repeatedly held, is entitled to comprehensive protection under the First Amendment.” 

Along the lines of Fortas’ support of minors was his majority opinion in In re Gault established that minors have the right to due process under the law. The case arose when 15-year-old Gerald Gault made a lewd phone call to his neighbor. Gault’s parents were not informed of the charges in a timely matter, and he was not informed of his right to counsel — and yet after a short, supposedly off-the-record conversation with the judge, Gault was sentenced to six years at the State Industrial School. 

Already established as the Court’s champion of juvenile rights, Fortas took time during oral arguments to argue that juveniles deserve due process when they’re accused of crimes. To show that Gault didn’t receive due process, Fortas mentioned the sentencing disparities between a child and an  adult charged under the same statute: While Gault was sentenced to six years in the State Industrial Court, an adult convicted of the same crime would only face up to two months in prison and a fine. In an 8-1 decision, Fortas wrote that “due process of law is the primary and indispensable foundation of individual freedom.” He added, “Departures from established principles of due process have frequently resulted not in enlightened procedure, but in arbitrariness… [And] under our Constitution, the condition of being a boy does not justify a kangaroo court.” His opinion, dubbed by Chief Justice Earl Warren as the “ Magna Carta for juveniles,” established once and for all that the Fifth Amendment endows children with due process rights. 

Fortas’ achievements as a lawyer and a Supreme Court Justice were immense, but his career dipped when he failed to uphold judicial ethics. Shortly after Johnson appointed Fortas to replace the retiring Chief Justice, Fortas disqualified himself from promotion after reporters found that he received payments from his former clients and partners to give a summer course. On the surface, there was nothing wrong with a Supreme Court Justice giving paid speeches or, in Fortas’s case, teaching a summer course at American University. However, Fortas was not paid to teach the courses by American University, but by a group of businesspeople including his former partner Arnold Porter. Fortas’s salary as an Associate Justice was much smaller than what he earned in private practice; his $15,000 payment for the summer course was greater than 40% of his yearly salary. This previously undisclosed infusion of money raised concerns that Fortas would not be an impartial Chief Justice if he later heard cases involving the businesspeople or Porter’s law firm.

Fortas also showed poor judgment when he took payments from Louis Wolfson, a businessman who was eventually indicted for securities fraud. To supplement his modest salary on the bench, Fortas arranged a $20,000 a year retainer from Wolfson’s family foundation. After Wolfson’s indictment by the Securities and Exchange Commission (SEC), the businessman then received legal advice from Fortas, and he even tried to persuade Fortas to have Lyndon B. Johnson intervene on his behalf before sentencing. Although Fortas eventually returned the money after Wolfson was indicted, this incident revealed another significant lapse in Fortas’ judgment. The Supreme Court’s stated mission is to secure equal justice under the law, and the justices must strive to remain impartial under all circumstances. Yet Fortas eroded public confidence in the Court when he accepted undisclosed payments from a wealthy businessman. 

As a Supreme Court Justice, Fortas continued to advise Lyndon B. Johnson on various issues, a relationship which seemingly contradicts the ideal of judicial independence. When it came to the Johnson administration’s pressing issues, such as the Vietnam War, race riots in America, and American-Israeli relations, Fortas was one of Johnson’s closest counselor. Fortas also served as Johnson’s most prolific advisor and recruiter for judicial nominations. Around Washington, Fortas was viewed as a good judge, but his presence at the White House led many to believe that he was “distracted” from his Associate Justice duties. One of Fortas’ law clerks noted they could “safely take naps in the justice’s chamber because Fortas spent so little time there.”nMany of Fortas’ fellow Justices became uneasy with his relationship with Johnson too, as they were repelled by the unprecedented level of closeness between the Executive and Judicial branches. Even Fortas’ predecessor, Justice Arthur Goldberg, warned Fortas “…people do not like a Supreme Court justice being too close to a President,” but to no avail.

Perhaps the most glaring example of Fortas’ ethics violations came in 1966 when he conferred with Lyndon B. Johnson about a Supreme Court case involving Fred Black, a lobbyist who was appealing his tax fraud conviction. Following oral arguments, the Justice Department revealed that the FBI had bugged Black’s office and apartment, and the Supreme Court then asked for a brief on the legality of the bugging. Knowing that FBI policy banned electronic eavesdropping in most cases, FBI Director J. Edgar Hoover looked to save the bureau’s image by pinning the eavesdropping on former United States Attorney General Robert Kennedy. Fortas tried to persuade Johnson to appoint a special arbitrator to investigate and report on Kennedy’s supposed bugging. Some believe that Fortas’ attempt to accuse Kennedy of wrongdoing may have been politically calculated, given that Kennedy was widely expected to challenge Johnson in the 1968 Democratic primary.

Abe Fortas was a brilliant lawyer and groundbreaking Supreme Court Justice. He used the legal system to improve civil liberties through Gideon v. Wainwright, Tinker v. Des Moines, and In re Gault. However, his judicial impropriety, ethics violations and politically calculated decisions contributed to the Senate rejecting his nomination to be Chief Justice and his eventual resignation from the bench. While it’s true that Fortas will be remembered for establishing new precedents, he will also be noted for his lapses in judicial ethics. 

Supreme Court Released 4 Unanimous Opinions Last Week

The following piece first appeared in Gabe Fleisher’s Wake Up To Politics newsletter.

— Anna Salvatore

The Supreme Court released four unanimous rulings last Thursday on issues ranging from the no-fly list to rape in the military. 

Although the Supreme Court makes news for 5-4 opinions in June, its first opinions of the term are often unanimous. In both 2013 and 2016 the Court was even unanimous 90% of the time, according to an analysis by legal statistician Adam Feldman. Why do the justices form coalitions in December and divide along partisan lines in June? It takes longer to write opinions on topics such as abortion, same-sex marriage, and union rights, which are politically charged and not explicitly mentioned in the Constitution. The justices agree early on the easier cases and then spend months quarrelling and concurring and dissenting on the harder ones. 

One of last Thursday’s opinions was Tanzin v. Tanzir, in which the Court ruled that Muslim men who are wrongfully placed on the government’s no-fly list can sue for money. Writing for the majority, Justice Thomas explained that the Religious Freedom Restoration Act forbids the government from substantially burdening people’s religious exercise, with certain narrow exceptions. The law also allows people whose exercise was burdened to seek “appropriate relief.” To understand if “appropriate relief” includes money, the Supreme Court examined how past courts have interpreted the phrase. It concluded that “in the context of suits against government officials, damages have long been awarded as appropriate relief.”

The next opinion on Thursday was Carney v. Adams, a case about whether Delaware’s constitution can mandate political balance on the state’s five major courts. In other words, the state forbids any more than a bare majority of Republican or Democratic judges. James Adams, an independent, argued that the requirement violated his First Amendment rights by forcing him to identify as either Republican or Democrat. But the Supreme Court didn’t address that interesting legal question, instead holding that Adams was not able to sue the state in the first place. To sue, wrote Justice Breyer, Adams must have had a “concrete, particularized injury,” but Adams never applied to become a judge on Delaware’s courts. He would’ve been able to sue if he applied and got rejected. 

You might remember that the Supreme Court used similar reasoning in Gill v. Whitford, a case a few terms ago about political gerrymandering. Rather than address the juicy legal questions about whether politicians can manipulate congressional maps to favor their party, the Court said that North Carolina voters weren’t able to sue because they hadn’t suffered a concrete, particularized injury. When the justices focus on “standing” — aka, whether people have standing to sue — it often means that they’re waiting for a later case with more clear-cut or dramatic background facts. Then they can really cut loose. 

The Uniform Code of Military Justice (UCMJ) was the subject of last week’s third opinion, United States v. Briggs. The question here was when, exactly, rape victims in the military are allowed to bring their lawsuits. The UCMJ says that offenses “punishable by death” can be tried and punished “at any time without limitation,” so the Supreme Court held that rape victims aren’t held to the usual five-year statute of limitations for bringing lawsuits. According to retired Air Force Col. Don Christensen, the president of Protect Our Defenders, “Today’s opinion was a huge win for military rape survivors.”

Finally, the Supreme Court held on Thursday in Rutledge v. Pharmaceutical Care Management Assn. that Arkansas’s law regulating pharmacy middlemen isn’t automatically overridden by federal law.

Oral Argument Summary: Jones v Mississippi

The following piece is by Audrey Jung, a sophomore in high school from the West Coast.

The Supreme Court heard oral arguments for Jones v Mississippi earlier this month, a case about whether courts must find minors permanently incorrigible before sentencing them to life without parole.

The case goes back to August 2004, when a fifteen-year-old named Brett Jones killed his grandfather. At the time, Jones was living with his grandparents in Lee County, Mississippi to escape his stepfather’s abuse. Jones’ birth father was an alcoholic, and his mother suffered from anxiety and bipolar disorder. As tumultuous as Jones’ childhood was, though, he suffered no abuse in his grandparents’ home. Nevertheless, tensions rose after Jones’ grandfather discovered that he was hiding his girlfriend in their home, escalating into a fight where Jones fatally wounded his grandfather. A jury convicted Jones of murder and sentenced him to life imprisonment without parole in 2005.

After Jones’ sentencing, court rulings significantly reshaped juvenile criminal sentencing. In 2005, the Supreme Court ruled in Ropers v Simmons that the death penalty was unconstitutional for minors. Ropers was followed by Graham v Florida in 2010, where the Court prohibited life sentences for minors in all non-homicide cases. In the 2012 case Miller v. Alabama, the justices then struck down mandatory life sentences without parole for juvenile offenders. This decision meant that while states could still sentence minors to life without parole, mandatory sentences would be forbidden under state law. The Supreme Court gave five Miller factors for lower courts to consider before sentencing a minor to life without parole — (1) the minor’s age and immaturity, (2) their home environment, (3) the circumstances of their offense, (4) disadvantages they faced in the justice system (for example, challenges participating in court), and (5) their chance of rehabilitation. The decision in Miller seemingly held that life sentences without parole should be reserved for rare cases where the minor demonstrated a permanent incapacity for change. 

Following Miller, the Mississippi Supreme Court voided Jones’ life sentence and ordered that he be resentenced in the summer of 2013. Mississippi was one of the earlier states to apply Miller retroactively, which wasn’t mandated till a SCOTUS ruling in Montgomery v. Louisiana (2016). However, while Mississippi courts, in line with Millers ruling, required judges to consider the five Miller factors, they did not require judges to determine a minor’s permanent incorrigibility. At Jones’ resentencing hearing, an employee at a juvenile detention center where Jones was incarcerated for five years testified that he was a good and mature worker who got along well with others. During his incarceration, Jones also learned a trade and obtained his Graduate Equivalency Degree. His counsel argued he should be resentenced to be considered for parole because he showed a capacity for rehabilitation.

Mississippi Circuit Judge Thomas Gardner ruled against Jones. In his 2015 ruling, Gardner wrote that he had considered every Miller factor, but in light of the mitigating and aggravating circumstances, he didn’t find Jones eligible for parole. Jones’ lawyer appealed the case on the grounds that Gardner hadn’t decided whether Jones was permanently incorrigible, which he argued was the deciding factor when sentencing a minor to life without parole.

The Mississippi Court of Appeals upheld Gardner’s ruling in Dec. 2017. In late 2018, the Mississippi Supreme Court rejected Jones’ appeal for further review. Jones’ counsel appealed to the United States Supreme Court, which agreed to hear the case in March of 2020.

In oral arguments at the Supreme Court, Jones’ lawyer—David Shapiro—contended that the Mississippi courts did not recognize the permanent incorrigibility rule that Miller seemingly created. Instead, the court was abiding by a previous ruling, which states that a life without parole sentence is lawful as long as the judge considers youth-related factors. Shapiro argued that Jones’ case should be remanded so that a lower court could determine whether he was permanently incorrigible. 

Opposing counsel, Mississippi state Deputy Solicitor Krissy Nobile, argued that Miller and Montgomery don’t require a judge to find incorrigibility in order to sentence a minor to life without parole. Nobile then asserted that considering the precedents on which Miller relied, Jones shouldn’t be eligible for parole. Finally, she said that a minor’s incapacity for change can not be separated from a consideration of the minor’s youth, which circuit judge Garner cited in his ruling. 

Chief Justice Roberts asked the first question to Shapiro during oral argument: “What exactly are you looking for?” More specifically, Roberts was asking how Shapiro wanted judges to sentence minors based on Miller’s and Montgomery’s rulings. Shapiro replied that he wanted judges to understand that permanent incorrigibility was the determining factor when sentencing minors to life without parole. 

Roberts noted that the circuit judge cited Miller in his ruling and said that he had considered all the identifiable factors. He followed up by asking why what the judge had done wasn’t enough. Other justices asked questions that revolved around this theme.

In response, Shapiro argued that the judge was acting in line with a decision by the Mississippi Supreme Court, which ruled that a sentence is only unlawful if the judge ignored youth-related factors. Although the judge considered Jones’ youth in his decision, he failed to consider Jones’ unique potential for rehabilitation as a young person — and for that reason his ruling was flawed. 

Other justices continued Roberts’ line of questioning, including Justice Breyer. The latter asked one of his typical hypotheticals: If the justices were to rule in Jones’ favor, what procedure should judges use to determine whether a minor is permanently incorrigible? Shapiro said that there are different ways to resolve the question. For example, judges may find testimony indicating that the defendant lacks remorse and is likely to return to criminal activity; they may even find explicit statements to that effect. States would have some leeway on determining specific procedures for determining incorrigibility, but they would have to adhere to the Court’s guidelines.

Justice Alito brought up Shapiro’s opening claim that “most children, even those who commit grievous crimes, are capable of redemption.” He pointed out that some people, whether through religious or moral beliefs, believe everyone is capable of redemption. “What if,” Alito suggested, “a judge says … the Supreme Court says I have to determine whether this person is capable of redemption, [but] I believe that every human being is capable of redemption?” Justice Alito then expressed concern that the Court had “gotten light years away from the original meaning of the Eighth Amendment,” which prohibits cruel and unusual punishment. 

Justice Kagan commented that while Shapiro argued Miller set out a substantive rule, the Mississippi courts established a procedural rule. A substantive rule is retroactive and governs the “who” and “what,” determining who can be convicted, of what crimes they can be tried, and what punishments they can receive; a procedural rule deals with the “how,” which is the process by which defendants are tried. Kagan asked Shapiro why Mississippi courts were wrong to establish a procedural requirement for judges to consider youth-related factors. 

Shapiro replied that according to Montgomery, Miller created a substantive rule that only permanently incorrigible minors could be sentenced to life without parole. By establishing a procedure that only considered the five Miller factors, including youth-related factors, Mississippi courts failed to meet this substantive rule. 

Chief Justice Roberts referenced an earlier response of Shapiro’s and directed it to Mississippi’s lawyer, Krissy Nobile. Shapiro had asked that judges convey or explicitly state that the defendant was permanently incorrigible, which Roberts said “didn’t seem like very much” to ask for. Why would that explicit requirement be unacceptable to the State? 

In response, Nobile cited Miller, which holds that judges must consider how the “mitigating circumstances of youth may weaken the rationale of punishment.” She argued that Mississippi courts were already in line with Miller, so there was no reason to require them to explicitly label a minor as permanently incorrigible. 

Responding to a question from Justice Thomas, Nobile added that despite Mississippi sentencing procedures being laid out after Miller but before Montgomery, the procedures do not violate Montgomery. Nobile returned to the Court’s ruling in Montgomery and argued that the ruling does not require a finding of incorrigibility. She said that in Miller, “The Court vacillates between various adjectives. Crime reflects permanent incorrigibility, crime reflects irreparable corruption, crime reflects transient immaturity, which shows that the Court is using these terms as a shorthand descriptor.” According to Nobile, this passage shows that the Court does not require a judge to make a direct finding that a minor is permanently incorrigible.

Nobile added that permanent incorrigibility is already anchored to a central question that the Court established: “Can the crime be sufficiently diminished by or explained by some quality of youth?”  

Frederick Liu, an assistant to the solicitor general who argued on Mississippi’s behalf, also argued that Miller does not require courts to make a separate finding of permanent incorrigibility. Liu said that by considering each Miller factor, courts already judge whether a crime reflects transient immaturity, and no further finding of permanent incorrigibility should be required.

The key takeaways from this case are as follows: Jones’ counsel, Shapiro, argues that permanent incorrigibility should be a substantive rule, and thus the deciding factor to sentence a minor without parole. A ruling in Jones’ favor would make it much harder for judges to impose life without parole sentences on minors.

On the other hand, Mississippi argues that it is impossible to determine permanent incorrigibility. According to the state, Miller aimed to prevent disproportionately severe sentences from being given to minors, not to mandate that judges find a minor permanently incorrigible. The state argued that permanent incorrigibility should be applied not substantively but procedurally, as one step in a series of determinations that might lead a judge to sentence a minor to life without parole. 

A ruling for Jones would change the way minors are sentenced, affecting hundreds who face life without parole. The Supreme Court will release its decision sometime next year. 

For further reading: