Supreme Court 2019-2020: Insanity, Discrimination, and DACA-And a Pandemic.

The 2019-2020 Supreme Court session was an extraordinary session. One major ruling involved insanity defense and whether the two prongs of cognitive capacity and moral capacity were required. Sexual identity was ruled to be covered by the Civil Rights Act in relation to employment. Unanimous criminal jury decisions were ruled a required condition for conviction. The rescindment of DACA was overturned on procedural grounds. Other decisions related to conditions of abortion, habitual residence in international custody cases, police immunity from civil liability, guns, HIV, and capital punishment. Thirty-five percent of cases were unanimous (down from the recent average), and 22% were decided by a 5-4 vote (slightly above the recent average). © National Register of Health Service Psychologists 2020.

Overview

When the Supreme Court Term was gaveled to order the first Monday in October 2019, many commentators predicted a significant, even a “blockbuster,” Term. It promised important cases and surprises, but not even the most prescient could have predicted just how extraordinary this Term would be. It did have a number of important (“blockbuster”) cases. Beyond that, COVID-19 disrupted the Court, as it did the rest of the country. It resulted in some cases being delayed, and in the first telephonic arguments in the history of the Court (with a few surprises there too).

The case highlights include the following in which the Court

held that the Constitution does not require that a state adopt a traditional form of the “insanity defense;”1

interpreted federal employment non-discrimination laws to prohibit discrimination based on sexual orientation or identity;2

determined that unanimous jury trials are required in state criminal trials;3

held that the Administration had erred in the process used to modify the DACA program, and that the proper procedure will have to be used if DACA is to be stopped;4

again struck down as unconstitutional a state law requiring physicians performing abortions to have admitting privileges at a nearby hospital;5

engaged in an ongoing debate on the place of precedent (stare decisis) in its decisions—not a dry debate, but one addressing a critical element of its future cases, including abortion;

also considered issues related to international child custody, police immunity from civil liability, Affordable Care Act payments to hospitals, guns, HIV, subpoenas of the personal papers of Presidents, robocalls, and capital punishment.

In this article we will first look at some of the cases of special significance to mental and other health practitioners, and then look at a variety of other interesting and especially important decisions. It concludes with an analysis of the Term and a look at likely cases for next Term. On September 18, Ruth Bader Ginsburg passed away, and we also briefly review her remarkable career.

Insanity and the Constitution

The “insanity defense” has been a debated feature of Anglo-American law for centuries. A successful insanity defense means that the defendant is not guilty of the crime charged, even when it is beyond dispute that the defendant did the act that constituted the crime, and would have been guilty, except for the insanity. This Term the Supreme Court was called upon to determine whether the insanity defense is required by the Constitution. Kansas adopted a more limited insanity defense than has been common in American law (as have a small handful of other states), and the question was whether this statute limited the constitutional rights of criminal defendants in Kansas.6

There have been many formulations of the insanity defense, but they all essentially begin with the requirement that the defendant, at the time the crime was committed, suffered from a serious “mental disease or defect.” For 150 years, the most common statement of the defense came from M’Naghten’s Case in England (1848), which held that “at the time of the committing of the act, the party accused was laboring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong."7 American courts consider M’Naghten to have two branches, “cognitive capacity” (the defendant was not able to understand what he was doing when committing the crime), and “moral capacity” (able to “understand that the action was wrong”). Either arm qualifies as “insanity.” There are, in addition to the M’Naghten test, at least a dozen other permutations that have found some favor over the decades.

Kansas law recognizes only the cognitive capacity test (“the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged”). It does not recognize the moral capacity test. It does permit any evidence of mental illness at the sentencing stage of a trial. The constitutional question for the Court was whether Kansas, by failing to recognize the moral capacity insanity defense, deprived the defendant Kahler, of “due process of law” under the Fourteenth Amendment.

James Kahler killed his estranged wife and her grandmother, and then his two daughters. He was tried by Kansas for capital murder, and wanted to use the “moral capacity” insanity defense (the one Kansas does not recognize). He was convicted and sentenced to death, and appealed on the basis that the narrow Kansas insanity defense was a violation of the Due Process Clause. In a 6-3 decision, the Court rejected his claim. The majority viewed the Constitution as giving states considerable latitude in structuring and defining criminal offenses and defenses. Only if a state’s insanity definition “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental” is there a Constitutional due process violation.8 The majority opinion noted that there are, and have been, a number of variations in the insanity defense among the states over time. In addition, the defendant could present any evidence of mental illness at the sentence phase of a trial.

The three dissenting justices concluded that “seven hundred years Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law” suggest that a moral capacity test must be recognized by states.9 An unfortunate example used by the dissenters at the beginning of the dissent may somewhat confuse the issues (described in the notes).10 The dissent includes a state-by-state summary of the insanity defense, which readers may find helpful. Although they were compiled by excellent legal minds, some caution should be exercised in reading the citations for individual states (as set out in the notes).11

The American Psychological Association (APA) filed an amicus curiae (“friend of the court”) brief in this case, one of only two it filed in cases before the Court this Term.12 The brief was in cooperation with several other organizations, and led by the American Psychiatric Association.13 Contrary to the positive trend of recent years in which APA amicus briefs have focused on providing specialized information that the Court would not otherwise have available, the first 25 pages of the brief restated legal arguments and legal history.14 The brief was well written, but repeated arguments the parties made, and generally did not specifically focus on areas in which psychologists and psychiatrists would be able to represent special knowledge as a friend of the court. The last seven pages, however, do provide very helpful information about the relationship between mental illness and the capacity to understand wrongfulness,15 and provide evidence that mental health professionals can diagnose mental illness that may preclude “moral capacity.”16 The three dissenting justices cited pages 25–26 and 28 of the amicus brief for the proposition that “individuals suffering from mental illness may experience delusions” which may lead them to be violent.17

Does Any of This Matter?

The insanity defense has been the subject of intense debate for centuries because it goes to fundamental questions of the nature of criminal responsibility, due process, and free will. Harvard Law Professor Arthur Miller once suggested, however, that as a practical matter “focusing on [the insanity defense] is like worrying whether the violin is out of tune in the band playing on the deck of the Titanic.”18 Perhaps that is overstated, but there is more talk than action when it comes to the insanity defense. The insanity defense is seldom pleaded even in felony cases (perhaps 1% of the cases) and very seldom successful when it is pleaded (probably under 5%), meaning it is successful in .05% of felony cases.19 There are several reasons for this. First, juries do not like the insanity defense. It is also difficult and expensive to present the defense. A defendant found not guilty by reason of insanity may spend more time incarcerated (in a prison mental hospital) than if found guilty of the crime, so raising it in all but the most serious offenses can be harmful. (Some states have adopted a verdict of “guilty, but mentally ill,” which, unlike insanity, finds the defendant guilty but changes the nature of imprisonment.)

The other thing that may not have great practical significance is the legal test for insanity—the subject of the Kahler case. When different instructions were used on mock juries, it made little difference in whether the jury would have found the defendant not guilty by reason of insanity.20 Thus, in one sense, the argument in Kahler may be more academic than practical.

It Does Matter to Expert Experts

Kahler illustrates the substantial range of statutes and court decisions among the states. As the Appendix in Justice Breyer’s dissent illustrates, there is no single “insanity defense” in the U.S.; rather, there are any number of them, depending on the jurisdiction in which the case is tried. Although Kahler involved the legal standard for the defense, the definition of “mental disease or defect” varies among jurisdictions, as does what experts are permitted to testify about. Even in the same state, there may be differences between the defense in state cases compared with federal cases tried in that state.

Careful use of language is also important. It can mean one thing to mental health experts but something entirely different to judges and jurors.

Before testifying, preparing a report, or even beginning work with a criminal defendant raising the insanity defense, mental health professionals should understand the aspects and elements of an insanity defense. They should also understand how the insanity defense differs from other similar sounding, but very different, legal concepts (competency to be tried, for example). The attorney with whom the mental health professional is working should be the first stop for ensuring that there is a clear understanding of the particular requirements and peculiarities of that jurisdiction. This generally requires a detailed conversation with the retaining party, scheduled in advance to go over the legal and practical questions. These are obviously very important issues to the people involved with the case, and fitting reports and testimony into the requirements of the law is a critical step to doing the best job possible for those involved and for the system of justice overall.

A Note on the Insanity Defense and Incompetency to Be Executed

It is also important for mental health professionals to be clear on the distinction between the insanity defense, which was the subject of the Kahler case, and incompetency. In the criminal arena there may be incompetency to be tried, and incompetency to be executed.

The insanity defense is measured as of the time of the crime and it results in the defendant being found not guilty. Incompetency to stand trial means that at the time of trial, defendants would be unable to sufficiently understand the nature and consequence of what is going on to assist in their own defense. The effect of being found incompetent is that the state can endeavor to help the defendant recover sufficient competency, but may not go on with the trial until sufficient competency is restored.

A strange incompetency to be executed case was decided shortly after the Court adjourned in July. Incompetency to be executed means that at the time of an execution, a defendant cannot rationally understand that he or she is being executed and the basis for the execution.21 On July 16, just after the Court had adjourned, Wesley Purkey applied to the Court for a stay of execution.22 (The federal government had begun executions that week.) The Court declined to stay the execution on a 5-4 vote. According to the dissent, a forensic psychiatrist who had examined Mr. Purkey in person determined that he “lacks a true understanding or rationality that the murder is the basis for his execution.”23 He had been diagnosed with Alzheimer’s disease in 2019. He apparently had a history of paranoid delusional thinking.

The majority did not write an opinion in the case (it was presented to the Court as a stay, not a regular case in which there were oral arguments), so it is difficult to know the Court’s reasoning. The dissenter’s description of the government’s brief may give a clue that there was potentially a procedural problem (the stay may have been filed in the wrong place), and the forensic psychiatrist’s report may not have been convincing or it may have been confusing. Mr. Purkey was executed later that day, July 16.

Discrimination Against Gay and Transgender Employees: Defining “Sex”

Title VII of the Civil Rights Act of 1964 makes it illegal for an employer to “discriminate against any individual because of that individual’s race, color, religion, sex, or national origin.”24 This Term, the Court heard Bostock v. Clayton County and was called upon to determine whether discrimination based on sexual orientation or sexual identity is within the statute’s definition of “sex.” By a 6-3 majority the Court held that Title VII does prohibit employment discrimination based on sexual orientation and identity.25

This was a question of statutory (not constitutional) interpretation, with three opinions (totally 172 pages) battling over the proper interpretation of Title VII. There was generally agreement that what the law ought to be was irrelevant. Instead, the outcome hinged on the meaning of the word “sex” in 1964, when the statute was passed. Reduced to its essence, the majority reasoned that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex. Consider, for example, an employer with two employees, both of whom are attracted to men.” If he fires the gay employee, “the employer discriminates against him for traits or actions it tolerates in his female colleague.”26 “[W]hen Congress chooses not to include any exceptions to a broad rule, courts apply the broad rule.”27

Justice Alito’s long (107 pages) dissent offered many 1960s-era dictionary definitions of “sex,” to indicate that in 1964, “sex” meant to refer to biological gender, not orientation or identity.28 The dissenters suggested that the Court was usurping the authority of Congress because it was “legislating” by adopting a new provision of Title VII.29

The American Psychological Association (the APA took the lead on this brief, which was filed in cooperation with several other mental health organizations) filed an amicus brief in the case.30 They had a lot of company—there were about 70 amicus briefs filed in the case. The APA brief emphasized two points. The first was that orientation and identity “are intrinsically related to sex” and the “relationship between a man and a man, or a woman and a woman, is homosexual because of the sex of the individuals”31 (emphasis in original). This, of course, was the heart of the case, and similar to the central point in the Court’s opinion. A second type of argument in the brief dealt with various issues of stigma and stereotyping, which did not appear to be of great importance in the case, but might have helped set a tone for the Court. The brief was well referenced—the footnotes having more words than the Argument. Another group of medical organizations filed a brief directed at transgender discrimination.32

Although this decision was statutory, not a ringing constitutional pronouncement, it would be difficult to overstate the likely importance of the decision. First, in the employment area, it is now settled law that employers may not discriminate based on orientation or identity in any employment decisions—hiring, firing, compensation, fringe benefits, and so on. Harassment based on identity or orientation may similarly be an employment law violation, and employers must take steps to stop it. On the other hand, it may mean that giving employment preferences to gay employees would now be as illegal as preferences to straight employees. There are a few exceptions to Title VII—religious employers, for example, but these would be relatively minor exceptions.

The importance of the decision goes well beyond employment, however. Justice Alito, in an appendix to his opinion, listed more than 100 federal statutes that prohibit “discrimination because of sex.”33 The decision did not directly determine that the same interpretation would be given to all of those statutes. These were adopted at various times, so it is conceivable that the courts would interpret the same language differently among some of those statutes. It is likely, however, that these statutes will be overwhelmingly interpreted as prohibiting discrimination related to sexual orientation and identification. That represents an extraordinary change in federal policy.

An interesting side effect of Bostock relates to the strong position of the majority that Title VII must read for the plain words without reference to the specific understanding of Congress when it passed the law. The same phrase of Title VII addressed by the Court in Bostock (“discriminate against any individual because of that individual’s race, color, …sex….”) was interpreted to allow private firms’ affirmative action program because Congress intended the provision to help minorities, despite the apparent prohibition on discrimination.34 What effect Bostock might have on such private affirmative action programs was not addressed by and of the opinions in the decision.

Religious Objections

Some religious organizations expressed concern that the Bostock decision might require them to violate their religious belief in employment decisions. At the end of the Term, the Court decided a case that likely reduces that concern. Courts have provided a “ministerial exception” for religious organizations in employment discrimination cases.35 This Term the Court held that the “ministerial” exemption is not limited to “ministers.”36 At issue this Term were two elementary teachers who taught religion, prayed with their students, and were involved with students’ spiritual development. Both were dismissed and wished to bring employment discrimination cases. The Court held that the ministerial exception precluded that. Courts should not interfere with the operation of religious organizations at a level where an employee holds an important position within a religious organization.37 A variety of factors (not fully defined by the Court) determine if a position falls within the ministerial exception, but it depends on what employees actually do, not what they are called. Performing “vital religious duties” (as both of these teachers did), brings them under the exception.

The ministerial exception is not a broad exception to employment discrimination law. It applies to only some of the employees of religious organizations. In the context of the Bostock it does mean that for those with “vital religious duties,” antidiscrimination laws generally do not apply. This would include the sexual orientation and identification protection of Bostock.

Unanimous Criminal Jury Decisions

Two states, Louisiana and Oregon, permit juries to convict defendants of felonies by a vote of 10-2, that is, by a less than unanimous vote. The question in Ramos v. Louisiana was whether the Sixth Amendment prohibits nonunanimous conviction in state criminal cases.38 The relevant part of the Sixth Amendment provides, “In all criminal prosecutions, the accused shall enjoy the right to a … public trial, by an impartial jury.”39 There were two issues in this case. The first is whether it is significant that the Sixth Amendment includes no reference to a “unanimous” jury. The second (hidden) issue is that when it was adopted, the Sixth Amendment applied only to federal criminal trials, not to state defendants.

In terms of the unanimous verdict, the Court has repeatedly held that the right to a “jury trial” was understood by Congress and the states that ratified the Sixth Amendment to mean a unanimous verdict. That had been the understanding in British law, as it was in almost all states at the time the amendment was adopted. (But, as we will see in a moment, there was an important exception.)

As for the application of the Sixth Amendment to the states, the Court over the decades has used the Fourteenth Amendment to “incorporate” many of the provisions of the Bill of Rights to the states, including the various provisions of the Sixth Amendment. The problem, however, was in 1972, a badly divided Court held that Sixth Amendment right to a jury trial applied to the states, but it did not include the requirement of a unanimous verdict.40 The 1972 cases involved the same Louisiana and Oregon jury laws before the Court this Term. In 2020, however, the Court reached a different answer to the same question. The majority held that the Sixth Amendment criminal-jury rights are incorporated against the states through the Fourteenth Amendment. That right also applies the unanimous verdict requirements to the states.

The Court was, as it had been in 1972, divided.41 Five justices held that the Due Process Clause of the Fourteenth Amendment was the basis for the decision, although only four justices joined portions of that decision. Justice Thomas concurred.42 Three justices dissented,43 essentially finding that there was not sufficient reason to overturn the 1972 case, the stare decisis issue discussed later.

This case will not have a major impact on jury trials, nor on the work of mental health professionals who participate in jury studies. The effect of this decision will, however, extend beyond Oregon and Louisiana because a number of states told the Court that they were interested in experimenting with nonunanimous juries.44 As a result of this decision, those efforts will not go forward.

DACA: The Limits of Lawmaking by Memorandum

In 2012 the Obama Administration issued a “memorandum” establishing (without congressional approval or formal rulemaking) the Deferred Action for Childhood Arrivals (DACA) program. DACA granted renewable suspensions of deportation to undocumented aliens brought to the U.S. as children by their parents (“Dreamers”), and under other laws, the more than 700,000 Dreamers who received suspended deportation also could gain work rights and certain social benefits. Two years later, the Obama Administration further extended DACA to the parents of Dreamers (Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA). In 2015, the Fifth Circuit upheld a district court’s nationwide injunction barring implementation of DAPA. The Supreme Court upheld that decision on a 4-4 vote.45 In 2017, there was a change of administration, and the Attorney General told the Department of Homeland Security (DHS) that DACA suffered the same legal defects as DAPA, so the Administration should rescind the program. DHS did so, once again by memorandum without formal rulemaking or congressional action.

The case before the Court this Term challenged the way the rescission of DACA occurred.46 (An interesting irony is the president of the University of California, the named plaintiff challenging the rescission process, was Janet Napolitano, who had, as then-DHS Secretary, issued the first memorandum, establishing DACA.) The decision of the Court dealt solely with the process by which the rescission took place—there was general agreement that DHS could rescind it, if done properly with the right analysis and findings. The Court held that the rescission was “arbitrary and capricious” because (1) the rescission memorandum did not address the option of revoking DACA’s work and social benefits while continuing to suspend deportation, and (2) DHS did not adequately weigh DACA recipients’ “reliance interests” in continuing to live in the U.S. “While the agency was not required to pursue these accommodations, it was required to assess the existence and strength of any reliance interests….”47 That is, the wisdom of the decision to rescind DACA was not an issue, only bases and the process used to make the decision.48

The dissents argued that DHS had a compelling reason for rescinding DACA—that it was unlawful.49 Furthermore, DACA was being rescinded by the very same memorandum process that created it.50 It also noted that the majority provides a handy way for an outgoing administration to force a new administration to manage an unlawful program for some time,51 and endless delays (the litigation over DACA has extended through four years following the change of administration).52

The Association of American Medical Colleges, American Psychiatric Association, American Medical Association, American College of Obstetricians and Gynecologists, and many other organizations filed an amicus brief in this case.53 The brief argued that the failure of the regulation to consider “reliance interests” would have especially difficult consequences in the medical fields.54

Abortion

June v. Russo involved a Louisiana state law requiring abortion providers to have “active admitting privileges at a hospital” within 30 miles of where an abortion is performed.55 Ordinarily, this would have been an easy (and short) case because the Court, in 2016, decided a case (from Texas) that involved almost exactly the same statutory provision.56 But it was neither easy nor short (a total of five opinions covering 138 pages).

The four plurality justices emphasized that the Louisiana law (like the Texas law) substantially burdened the right to abortion without any corresponding benefit to the health of women seeking abortions.57 (Under earlier Court precedents, “undue burdens” on abortion are unconstitutional.58) Justice Breyer wrote that the state could not present even one example in which a woman would have had better treatment if her doctor had admitting privileges. For a variety of reasons, admitting privileges were hard for abortion providers to obtain so enforcing the law had little or no benefit, but there was a cost—reduced availability of abortion services.

In the 2016 case, Justice Kennedy was the fifth, deciding, vote. But, of course, he has retired. The fifth vote in 2020 came from Chief Justice Roberts—truly the “swing vote” because in 2016 he had voted to uphold the law essentially identical to the law he voted this Term to invalidate. Chief Justice Roberts’ turn-about was essentially based on stare decisis. That is, he disagreed with the earlier decision and “still believes that the case was wrongly decided,”59 but felt obligated to follow it.60

The four dissenting justices (in three different opinions) emphasized a variety of reasons the Court should have allowed the Louisiana law to stand. They questioned whether physicians should have “standing” (authority to go to court) to raise their patients’ right to abortion. Physician standing is frequently the way abortion rights cases get to court. This might become an issue in future abortion cases. (Chief Justice Roberts agreed only in a footnote that there was standing.) There were also concerns about the legitimacy of the Court’s “abortion jurisprudence,” and a desire to return the case to lower courts for better fact finding.

This should pretty clearly be the end of the abortion provider “hospital privileges requirement” a number of states passed. States seeking to nibble away at abortion rights will undoubtedly look elsewhere. Beyond that, it is difficult, from this case, to discern the future of abortion rights. Chief Justice Roberts seemed to narrow application of the “undue burden” and this was a special case—almost identical to one decided only four years earlier. The four dissenting justices, often with some passion, criticized the opinions of the majority justices, suggesting some appetite for deciding additional cases.

A few health care organizations filed amicus briefs in this case.61 Organizations representing obstetricians and gynecologists were especially interested in it, 62 resulting in a strong disagreement, and even some name-calling (set out in the notes).63 Justice Breyer cited the brief American College of Obstetricians and Gynecologists (ACOG) (twice) and the “Medical Staff Professionals” (three times) related to the privileging process and lack of value in hospital privileges for abortion providers.

In another abortion case, the Court was asked to review a Kentucky abortion statute that requires an ultrasound image to be shown to the woman as part of informed consent to an abortion.64 Several medical groups filed an amicus brief in favor of a review,65 but the Court declined to hear the case.

The Invisible Case: or the “Dustbin of History”?66

Stare decisis, the adherence to prior decisions or precedents, was a recurring issue this Term.67 It was present in the unanimous jury (Ramos v. Louisiana) and abortion (June v. Russo) cases, but appeared repeatedly in other cases and in decisions about whether to accept cases. It is an enduring debate through constitutional history, but probably is more intense now because of its relevance to abortion and Roe v. Wade.68

There is a tension between two fundamental tenets of Supreme Court decisions. One is a strong commitment to following precedent. It allows for social continuity and certainty in the law—the law is not a whim of current justices. On the other hand, courts should not be repeating the mistakes of the past. When a justice feels a past decision was a mistake, one way of putting the stare decisis question is: how much of a mistake was it before the Court should overrule it and correctly state the law.

In truth, whatever their commitment to stare decisis, every justice has voted to overturn decisions that other justices think should be preserved. In fact, Justice Kavanaugh noted that “in just the last few Terms, every current Member of this Court has voted to overrule multiple constitutional precedents.”69 Issues of adherence to precedent probably most often arise when there has been a jurisprudential shift over time (“liberal” to “conservative” or vice versa). That has happened over the last thirty years or so, as it did (in an opposite direction) from 1930–1960.

The debate over stare decisis broke out even when members of the Court all agreed on a case. For example, in Allen v. Cooper all justices agreed on the outcome of the case and what the principle was that should govern it. (The case involved state liability for copyright infringement.)70 In two of the three opinions, the only difference (among seven justices) was essentially an argument how strong stare decisis should be if they had disagreed with the earlier decision (described in the notes).71 We can expect to see the stare decisis debate continue in future terms.

Other Significant Decisions

Child Custody and Child Abduction

Mental health professionals who commonly deal with child custody evaluations sometimes have to deal with international questions, as when one parent lives in the United States, and the other parent in another country. A question may then arise about which country’s courts should have the authority to determine custody and related issues. The Hague Convention on the Civil Aspects of International Child Abduction (to which the U.S. is a party) provides that the courts of the country where the child has “habitual residence” have jurisdiction to decide custody. 72 Furthermore, if a parent takes the child to another country, that country is obligated to return the child to the country of “habitual residence.” This can be important for many reasons, including that countries have different rules and standards for custody.

The convention has no definition of the critical term “habitual residence.” This Term the Court was called upon to define that term.73 The definition was not precise. The Court held that determining habitual residence depends on the “totality of the circumstances,”74 and that “locating a child’s home is a fact-driven inquiry, courts must be sensitive to the unique circumstances of the case and informed by common sense.”75 Determining where a child is at home or feels at home likely invites the testimony of experts who have examined the child.

An exception to the Convention’s obligation to return a child to the country of habitual residence is where “there is a grave risk that [the] return would expose the child to physical or psychological harm or otherwise place the child in an intolerable situation.”76 This again invites expert testimony on the risk of returning the child to a country where there might be “psychological harm” or otherwise “intolerable” circumstances. Because those terms are also not defined, the lower courts that consider these cases will have considerable latitude in allowing expert testimony and deciding what is harmful or intolerable.

Immigration and Foreign Citizens Cases

In addition to international custody cases, the Court decided a number of other cases involving immigration, foreign citizens, and international agreements.

The Court interpreted federal statutes implementing the International Convention Against Torture (CAT).77 The practical effect of the ruling is to allow those seeking asylum in the U.S. to challenge in court their removal from the U.S. on the basis that they would likely be tortured in the country to which they would be returned.78

The court-review process, however, may not apply to those in the process of arriving in the U.S. (even those raising CAT claims). Asylum seekers arriving in the U.S. must show a “credible fear of persecution” in order to stay in the country and pursue the asylum claim. Under U.S. law, if the “credible fear” is not initially established, it can be reviewed by an administrative immigration judge, but there is not access to a federal judicial review. The Court held this Term that the process does not violate due process, and that the right to habeas corpus does not apply in such cases.79

The Court also considered permanent residents (“green card” holders), who may be removed from the U.S. if they are convicted for serious crimes. Under federal statutes, that removal is often automatic, but there is an exception that allows an immigration judge to cancel removal if the green card holder has resided in the U.S. for “seven continuous years” and has not committed an “aggravated felony.”80 The calculation of the seven years ends, under a “stop-time rule” of the statute, if residents are convicted of crimes that would make them inadmissible to or removeable from the U.S.81 This Term, the Court held that the conviction of a crime that would have rendered the person “inadmissible” invokes the “stop-time rule” thereby making the resident subject to automatic removal.82

The Court also found that a cross-border shooting by federal border patrol agents did not give rise to civil liability (this case is discussed in the “Immunity” material below).83

U.S. law makes it illegal for someone to knowingly or recklessly “encourage someone to enter or reside in the U.S. in violation of the law.”84 An immigration consulting/law firm was convicted of charging immigrants to file fraudulent work-permit applications, thereby encouraging people to reside in the U.S. in violation of the law.85 Because of inappropriate procedures by the Ninth Circuit in considering the appeal (described in the notes),86 the Court unanimously remanded the case with instructions to decide the case with proper process.

Police and Government Official Immunity

In the aftermath of the killing of George Floyd and others, questions have arisen about the “immunity” of government officials, notably including police. It is common for the Court to decide “immunity cases” each term, and this Term was no exception. There are several important elements of these cases. First, they involve civil liability, not criminal liability. In fact, the legal immunity from criminal prosecution is limited for police, as the charges brought against the officers in Minneapolis demonstrate. Indeed, there can be both federal and state criminal charges—that is not double jeopardy, as the Court decided last Term.87 In other words, even if a state declines to bring criminal charges (or botches the case), the federal government can bring felony charges of its own against police officers.

The potential civil liability (and immunity) for state officers is different than for federal officers. For state officers (including police) a federal statute (42 U.S.C. §1983) imposes liability for an intentional violation by state officials of a clearly established constitutional right (e.g., life, search or seizure, torture).88 Over the years the courts have developed a “qualified immunity” doctrine that limits liability to where the state official should have known conduct was improper because it violated a "clearly established" law (generally a court decision). This broad qualified immunity has been criticized, and either Congress or the Supreme Court could change it, which seems likely. Justice Thomas essentially issued an invitation for a future case that would raise the §1983 immunity issue directly.89

As for federal officers, there is no federal statute generally imposing civil liability for the violation of federal civil rights, although individual federal laws impose liability in some limited contexts. The Court has implied a civil liability for federal officials in some circumstances,90 but because Congress has not authorized this liability, the Court has been very reluctant to expand it. The Court has established a qualified immunity doctrine similar to §1983 state liability described above.

This Term the Court considered whether there can be civil liability for actions taken by a federal official in the U.S., but that harm a foreign national in another country. In this case a Border Patrol Agent shot from the U.S. and killed a Mexican national who was just across the border in Mexico. 91 The issue was whether the parents of the Mexican national could sue the U.S. officials for damages. The Court declined to expand liability to include those injured outside the U.S. Because this liability was implied by the Court (not specifically authorized by Congress), the Court has been and remained reluctant to expand the implied liability.

Affordable Care Act Debts

The Affordable Care Act (ACA), to encourage private insurers to participate in online health insurance exchanges, provided that the federal government would cover the insurance losses for three years.92 The Act, however, did not appropriate any money for these “risk corridors,” perhaps under the very optimistic assumption that insurers would break even. In fact, they lost $12 billion. Congress (following the 2010 election) prohibited any appropriated funds from being used to pay insurance companies for their risk corridor losses.

Four insurance companies sued the U.S., seeking reimbursements for their losses, and this Term the Court held that the government must pay for their losses under the ACA.93 The Court said that Congress could have expressly repealed the obligation (in the appropriation bill), but instead had only prohibited the expenditure of the money, which the Court said did not amount to an implied repeal of the obligation.

This is not the last word on the ACA. It will be back before the Court again, next Term, in California v. Texas.94 The case essentially deals with the constitutionality of individual mandates (explained in the notes).95

Guns: The Case That Shot Blanks

A highly anticipated case this Term was New York State Rifle & Pistol Association v. New York City, which involved extraordinary restrictions on the ownership and transportation of firearms.96 After the Court had accepted the case, however, both New York City and New York State changed the firearm laws. In a 6-3 per curiam (by the court, not an identified justice) opinion the Court sent the case back to the lower courts for consideration of the claims under the new New York rules. Justices Alito, Gorsuch, and Thomas dissented.97 They would have decided the case, and made it clear that they saw the New York law as unconstitutional. Justice Kavanaugh, who joined the majority, issued a concurring opinion agreeing with the dissent that the lower courts are misapplying the Supreme Court’s Second Amendment decisions and asserting that the Court “should address that issue soon.”98

This case was watched because the Court could have clarified the Second Amendment “right to keep and bear arms.” By dismissing the case, the Court did not reach the gun (or related travel) issues. Surprising Court observers, the Court also denied certiorari in ten other Second Amendment cases,99 but it is likely that the Court will eventually hear a gun-rights case.100 On the other side of the gun issue was a brief by the American Medical Association asking the Court to take a case to decide the civil liability of an online service connecting gun sellers and buyers (sometimes referred to as a “Craigslist for guns,” although actually unrelated to Craigslist). The Court declined to hear the case.101

Contraception

The Affordable Care Act offered a short and ambiguous provision regarding contraceptive coverage, a gap that a regulatory agency (primarily the Health Resources and Services Administration) has had to fill.102 Contraception was included by regulation, but there have been religious objections by some employers to covering contraceptive services. There have been several rounds of regulations seeking to resolve the conflict between providing contraceptive coverage and the religious beliefs of the “Little Sisters of the Poor” and others. In 2017, the agency expanded the religious exemption, providing a “moral exemption” regarding contraception for employers (nonprofits and for-profits with no publicly traded components) that had “sincerely held moral” objections to providing forms of contraceptive coverage. That regulation is the subject of Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania.103

The Court held that the regulations were within the very broad scope of authority the ACA gave to the agency to adopt regulations related to the undefined term “preventive care.” The regulations had created the contractive mandate, and they could determine the best way of implementing them.104

This is probably not the end of the seven-year battle for the Little Sisters of the Poor. The Court left an opening for the lower courts to once again consider striking down the regulations as arbitrary and capricious.105 In the meantime, however, the regulation granting the exception to the contraceptive mandate stands for a relatively few number employers who wish to take advantage of it.

HIV/AIDS International Program

A major U.S. program for fighting HIV/AIDS worldwide has provided billions of dollars to agencies abroad.106 That act requires that non-governmental organizations (NGOs) receiving funds under the program agree to have a “policy explicitly opposing prostitution and sex trafficking” (“the Policy Requirement”). Some grant recipients in foreign countries, generally affiliates of U.S. NGOs, are opposed to having such a policy. These grantees challenged the Policy Requirement as a violation of First Amendment rights of free speech.

In 2013, the Court held that the Policy Requirement was unconstitutional as applied to American grantees.107 The question this Term was whether the same rules applied to foreign organizations (including affiliates of U.S. organizations). The Court held that the foreign organizations do not have the same First Amendment rights as U.S. organizations because it is a well-settled principle that “foreign citizens outside U.S. territory do not possess rights under the U.S. Constitution.”108 Nor do foreign organizations become entitled to such rights as a result of an affiliation with U.S. organizations.109 This decision means that foreign organizations are free to have whatever polices they wish, but they will be ineligible for funds under the Leadership Act.

Other Interesting Decisions

This was an especially busy year for the Court, with a large number of important, closely watched cases. Here are a few highlights.

Subpoenaing Presidents’ Personal Records

The most anticipated cases (at least by the news media) were cases involving the subpoena of a President’s personal and family records, while in office. The cases involved congressional subpoenas,110 and a state grand jury subpoena.111 The reality is that some balance is needed between “nobody is above the law” and onerously interfering with the office of President. The Court rejected the assertion of absolute presidential immunity, holding that the President may be subject to the subpoenas, but with limitations. In the case of the congressional subpoenas, the lower courts must assess whether the papers are necessary, the subpoena is limited in scope and has a legitimate legislative purpose, and whether the subpoena would unduly interfere with his ability to do the work as President. The state grand jury subpoenas will have to be reviewed by the lower courts in which the President will have the opportunity to raise specific objections to the scope and privacy implications of the subpoenas.112

Consumer Financial Protection Bureau (CFPB)

The CFPB (created by the Dodd-Frank law), has extensive powers, and an extraordinary administrative agency structure. It has a single Director with a five-year term, who cannot be removed by the President (except for cause). It receives its funding not from Congress, but from the Federal Reserve. The Court held that having a federal agency with a single director, who cannot be removed by the President, violates the Constitution.113 The Court saved the agency by “severing” the single-director-no-removal provision from the rest of the law. That likely means that the President can remove the director at will, but most of the other powers of the CFPB remain. The CFPB will likely be back at the Court, perhaps because of problems with funding by the Federal Reserve.114

Robocalls: Winning the Case and Losing the War

This case is evidence that there is some poetic justice in the universe.115 The Telephone Consumer Protection Act of 1991, “prohibits robocalls to cell phones and home phones,” but an amendment to the act allows robocalls to collect debts owed to the federal government. Political robocallers claimed this violated the First Amendment by allowing some kind of speech (federal debt collection), but prohibiting others, so they sought to have the law declared unconstitutional. The Court agreed that the law as amended violates free speech. But the appropriate remedy was to prohibit the federal debt calls too.116 Thus, after the considerable time, and expense of years of litigation, the political robocallers technically won the case, but they still cannot make their robocalls.

Intellectual Property—Generic.com® and Suing States for Copyright

The Court held that adding a “.com” to a generic word (like Psychologist.com, or in this case Booking.com) may make the term trademarkable.117 A legitimate mark must signify to consumers a term “by which the goods of the applicant may be distinguished from the goods of others.” Some psychologists may be interested in this because community or consumer surveys of how people perceive a term are likely to be important in these .com trademark cases.118

In another case, the Court held that federal copyright law does not ordinarily abrogate state sovereign immunity law, so copyright holders generally cannot sue state entities without states’ consent to such suits.119 That does not mean, however, that mental health professionals, faculty, and staff at state universities are free to ignore copyright, because the Court suggested that intentional or systematic infringement might give rise to liability.120

Oklahoma—About Half is a Creek Nation Reservation

The Court held that the eastern half of Oklahoma (including Tulsa) is part of a Creek Nation reservation.121 This was a question of jurisdiction (especially criminal jurisdiction) not property ownership. The practical effect is that for crimes involving Native Americans, serious crimes will have to be tried in federal court, and lesser crimes may be tried in tribal courts. It is likely that a large number of Native Americans who are currently in Oklahoma prisons will have to be released or re-tried in federal courts.

2020 Election Issues

The Court reversed several lower court decisions that sought to change state election laws because of COVID. Those lower court decisions changed Texas’s absentee ballot rules,122 extended the period for absentee votes in a Wisconsin primary election,123 and changed Idaho’s rules for qualify ballot initiatives.124 In each case, the majority of the Court held that lower courts had overreached into election matters that were for state determination.

Religious Schools and State Funds

Montana had a state system that provided some scholarships for private schools, but excluded students at religious schools.125 This Term the Court held that the effect was to penalize religion (discriminate against the “free exercise” of religion).126 While a state need not fund private schools (or their students), if it does so, it cannot broadly disqualify religious schools and their students.

Faithless Electors

Votes for President are actually cast as votes for electors from the state who will cast votes in the Electoral College. Political parties choose the people who will be Electoral College voters, and the delegates of the winner of that state are then eligible to cast the actual votes for President. But once in a while, a “faithless” elector will vote for somebody else. This Term the Court unanimously held that states can penalize or even remove and substitute a new elector when there is a faithless elector.127

Capital Punishment Postscript

Several days after the Court adjourned, federal prisoners who had received capital sentences in federal courts sought to stop their execution on the basis that the use of pentobarbital as the means of execution was cruel and unusual punishment.128 In the first case, a five-justice majority held that this method of execution has been used without incident in over 100 state executions, and there was very little chance the prisoners could prevail on their claim.129 The ruling cleared the way for one execution, occurring shortly thereafter, on July 14.130 (The case of a second inmate, Wesley Purkey, was discussed earlier in the article.)

Analysis of the Term

The Court was gaveled to order on October 7, 2019, and adjourned on July 9, 2020, somewhat later than usual (for reasons noted below). Despite deciding the lowest number of cases since the 1860s, it was an extraordinary Term. In the words of one observer, it was “a buffet of blockbusters.”131

During this Term, the Court decided 60 cases, including 53 “signed” merits opinions after oral argument, two per curiam opinions (after oral argument), and five summary reversals.132 Of those 60 cases, 22 (35%) were unanimous, and 13 (22%) were 5-4. This is somewhat more contentious than the ten-year average, which is 48% unanimous, and 20% 5-4. Given the nature of the cases this Term, that is not surprising.

It was a remarkable Term for Chief Justice Roberts. He presided over the impeachment trial of President Trump in the Senate in the PM, after hearing cases in the AM. He also presided over the Court’s accommodations to the COVID-19 pandemic (discussed below). He is not only the administrative head of the courts, but is now the “median” or “swing” justice. He was in the majority in 12 of the 13 decisions in which the Court split 5-4 (the exception was the Oklahoma Reservation case). He was in the majority in all cases 97% of the time, and in 95% of “divided cases”—the highest of any of the justices this Term. This was somewhat historic—the first time since 1949 that a Chief Justice has been in the majority so often. In some of the most critical decisions, Chief Justice Roberts sided with the “liberal” wing—including the abortion, gay and transgender employment cases, DACA, and two presidential subpoena cases. More often (nine of the 5-4 decisions), however, he sided with the more conservative justices. The commentators have had many theories about the Chief Justice this Term—that he is tacking to the left at a rapid clip, trying to keep the Court out of any major election-year disputes, showing his dislike of pretextual claims (from the President or anyone else), wanting to demonstrate that the judiciary is apart from the partisanship of the other branches of government, etc. It may be any or all of those. Or it could have primarily been the nature of the cases that the Court heard this Term. It is, however, fairly clear that Chief Justice Roberts has an especially strong concern for the place of the Court in our government, and in the minds of the public.

Justice Kavanaugh agreed with Chief Justice Roberts most often (93% of all cases). Among the others, these justices agreed with each other 90% or more of the time: Justices Ginsburg-Breyer (93%), Justices Alito-Thomas (92%), and Breyer-Kagan (90%). In 5-4 cases, three sets of justices agreed with each other all the time: Thomas-Alito, Ginsburg-Breyer, and Sotomayor-Kagan. At the other extreme, the lowest agreement was between Justices Sotomayor and Thomas (45%), Justices Alito and Sotomayor (47%) and Justices Thomas and Ginsburg (50%). In the 5-4 cases, there were six pairs of justices who never agreed with one another (listed in the notes).133

COVID-19 and the Court

Some of the big news for the Term came not from the law, but from medicine: COVID-19. The Court was in the process of preparing a final set of oral arguments when, on March 16, it announced that it was postponing them.134 The Court then rescheduled 10 oral arguments and held them by telephone. Other cases were held over to next Term. The telephone arguments, during the first two weeks of May, necessitated a change in format. Each justice was called on (in order of seniority) by the Chief Justice to ask questions. This was in contrast for the free-for-all of questions that characterizes usual in-person arguments. Justice Thomas, who usually does not ask many questions, was an active participate in the phone arguments.

These arguments were broadcast live, in contrast to the usual process of releasing the recordings of arguments at the end of each week. That public access was on balance a good thing. There are disagreements among Court-watchers about whether this form of argument was as an improvement or terrible. Technically, the arguments went off with few hitches—a couple of failures to unmute (with which all Zoomers can identify), and “the flush heard round the world.”135

The pandemic also almost immediately confronted the Court with legal issues too. In addition to the election issues noted earlier, in late May, a church in San Diego asked the Court for a temporary injunction enjoining enforcement of the California governor’s COVID-19 order, which allowed churches to operate with less than 100 attendees or 25% occupancy (whichever was lower). Meanwhile, businesses, malls, and stores were allowed to reopen with less stringent limitations. The church objected that greater burdens were placed on religion than secular activity. The Court denied the church’s request for an injunction. The Chief Justice wrote an opinion explaining why he opposed granting the injunction, and indicating that substantial deference should be given to executive officials handling COVID-19 issues. Three dissenters who supported the injunction wrote dissenting opinions.136 The church issue arose again, after the Term ended, in July.137 Nevada adopted rules that allowed some commercial establishments (casinos, bowling alleys, breweries, and gyms) to operate at 50% capacity, but limited places of worship to 50 persons, regardless of the capacity. Churches (who wanted the 50% rule too) asked that this rule be enjoined as a violation of the First Amendment. The majority of the Court (again including Justice Roberts) declined to issue an injunction.138

Justice Ruth Bader Ginsburg

On September 18, 2020, Justice Ruth Bader Ginsburg passed away at age 87. In 2009, she had been diagnosed with pancreatic cancer. During the past Term, Justice Ginsburg had been hospitalized twice for gallbladder-related issues. Following the end of the Term she announced that there was a recurrence of pancreatic cancer. She had served on the Court since 1993.

Ruth Bader Ginsburg had an amazing legal mind. Despite being a star law student, it was a time before women were accepted into the profession, and she had difficulty finding a job as an attorney. As a law professor and attorney, she became a leader in equal opportunity and legal rights for women. She won five of six gender equality cases she argued before the Court, helping change the approach of the courts to gender discrimination. She was appointed to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. In 1993, President Clinton nominated her to the Supreme Court, and she was confirmed by the Senate seven weeks later on a 96-3 vote. (It was a different political era.) She was the second woman to serve on the Court. During her 27 years on the Court, she was viewed as a fairly consistent vote for the liberal side of the Court. She was especially known for her opinions—majority and dissents—involving gender equality.

Justice Ginsburg was active in oral arguments, her questions often going to the heart of the issue before the Court. She produced opinions quickly, in most Terms faster than any of the other justices. She also had a crisp writing style, focused on the legal question and coming to clear legal conclusions.

She also became a cultural icon—“The Notorious RGB.” From workout manuals to movies, she was something of a rock star. The public gathered around courthouses throughout the country when her death was announced. In public she often seemed shy, but was actually friendly and funny. She was married to Marty Ginsburg for 56 years (he died in 2010)—he was a gourmet cook, but she was not (apparently their children once banned her from the kitchen). Justices Ginsburg and Scalia were close friends, despite taking polar opposite views on many legal issues. Both were opera enthusiasts, sometimes playing bit roles in operatic productions. Their families spent some holidays together. In the day of hostile political differences, it is perhaps a lesson in personal civility and affection, despite policy differences.

Justice Ginsburg’s death in the middle of a presidential campaign set off a major political struggle about whether a successor could be named and confirmed before the election. There were even threats of “Court packing” by one party if the other party rushed through a nomination. As this article was being completed, it was unclear whether that could occur, or what effect it would have on the election.

The Next Term

The next Term (the “October 2020 Term”) will begin on October 5. There very probably will be only eight justices that day, and perhaps for much of the Term. In recent years, when the Court has worked with eight justices, it has usually managed cases reasonably well. When there is a 4-4 tie vote on a case, the lower court decision is upheld, but the Court generally has managed to avoid many 4-4 splits.

The Court has already taken a number of cases for next Term. The constitutionality of the Affordable Care Act will once again be before the Court, and that has already produced a flood of amicus briefs. Among the other issues are cases related to the sentencing of juveniles to life in prison without the possibility of parole, two cases seeking to hold law-enforcement officials personally liable for civil damages, state regulation of pharmacy benefit managers, a faceoff between Google and Oracle on software copyrights, and arbitration (as always).139 The next Term will also include a return of issues we saw this Term—whether the unanimous jury requirement should be applied retroactively, more on robocalls, religious freedom and Catholic charities, and immigration and removal cases.

There will be, of course, an election a month after the Court reconvenes. The President and party controlling the Senate will affect the makeup and future appointments to the Supreme Court. In turn the court may play a significant role in that election, perhaps with a vacancy immediately available. A 4-4 split in such as case would be problematic. When the opening gavel falls, the Court will be meeting electronically. Live or electronic, it promises to be another remarkable Term.

Author’s Note: Cited Notes for This Article

The citations in this article are to the Slip Opinions of the Court as published on the Court’s website referenced above. In Slip Opinions the Court separately paginates each opinion within a case. Therefore, in a case, the majority opinion begins on page one, a concurring opinion will again begin on page one, and a dissenting opinion will once again begin on page one. When opinions are published in hard copy in the U.S. Reports and other bound sources, however, pagination is continuous.

The opinions published by the Court are subject to correction and minor modification. The Court has been criticized for these changes and has now adopted the practice of noting the date of such revisions. That is included in the “Revised” column on the Court’s opinion website provided above.

For most of the cases in these Endnotes, clicking on the name of the case will take you to the opinion on the Supreme Court’s website. For other materials, many citations have included a link to the cited material. For many non-court citations, there are perma.cc links, which are permanent as of the date they were recorded.

The general format of the citations is based on traditional legal citations, modified to provide some additional information about the cases decided this Term.

U.S. Supreme Court decisions are readily available (and free) on the Court’s website. It is www.supremecourtus.gov. The website for the opinions for this Term is https://www.supremecourt.gov/opinions/slipopinion/19#list. Note that the Court’s opinion page collapses into the months of the Term. To see the opinions for the entire Term, click the “Expand all” located next to “201.” The “Opinions Relating to Orders,” is in a separate web page. It is at https://www.supremecourt.gov/opinions/relatingtoorders/19. Again, it is necessary to “Expand all” to see all of the Orders Opinions for the Term.

There are a number of other very good sources for someone following the Court. One source for free, same-day, digested notification of the decisions of the Supreme Court is http://www.law.cornell.edu/bulletin. An excellent site for all things Supreme Court is SCOTUSblog at http://www.scotusblog.com/.

Additional Information

The author thanks, for their wonderful suggestions, corrections, and assistance, Hannah Arterian, Angelo Corpora, Eric Drogin, Morgan Sammons, Glenn Smith, Lera Smith, and Gary VandenBos.