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EwokEntourage posted:I really thought I posted that in the current disaster that is USPOL All grand juries are closed and all grand jury proceedings are secret; there's no such thing as an open grand jury.
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May 17, 2019 12:20
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Double Punctuation posted:I really hope the Apple thing goes somewhere. Among other things, they have been using their monopoly to attempt to force everyone on the Internet to use H.264/H.265, because they get paid when people use them.
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May 17, 2019 12:39
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Dead Reckoning posted:I don't know if she has a coherent legal strategy beyond noncompliance as a matter of principle at this point. Grand Juries are often used fishing expeditions to go after undesireables, or to do nothing when it's politically convenient (see: numerous grand juries that are the excuse for not charging cops who commit murder on camera) and there's a lot of good reasons to want nothing to do with their bullshit. Mikl posted:She'd already testified years ago in her own trial about her involvement with Assange and Wikileaks; the whole point of her refusing to testify is making a stand, because the US is trying to go after Assange again. If a journalist if found to have actively worked to break in to government systems they deserve to go to prison. It's one thing for a leaker to send stuff to a journalist but it's another for the journalist to try and use the leaker to break in to systems to grab more info to expose. Even Trump (and Obama) know charging him with the leak is a non-starter but if he actively got in to, or tried to get in to, systems illegally he's absolutely fair game for prosecution. His being a useful idiot (or willing actor) for Russia is irrelevant. If a journalist is digging around in a system without authorization they should never expect 1A protections for those actions.
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May 17, 2019 13:29
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skull mask mcgee posted:Apple is literally part of the group of companies pushing for the royalty-free AV1 to replace HEVC I’ll believe it when they support it in everything, not just WebRTC. The only reason they support it there is because they were forced to, probably by Cisco if I had to guess. It still doesn’t change the fact that they have the only browser of IOS. They are essentially the only mobile browser Web developers can target, because if you don’t, you’ve just lost 20% of your potential customer base.
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May 17, 2019 14:36
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Modus Pwnens posted:Five 4 3/5 if we’re really trying to be strict constructionists. Tangentially, trump judicial nominees have stopped answering whether they think Brown v Board was correctly decided. http://a.msn.com/01/en-us/AABsSgy
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May 17, 2019 14:45
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Evil Fluffy posted:
Nah. In a sane system if the journalist does that to expose crimes committed by the government which abused classification to cover them up, that journalist deserves a medal and the war criminals deserve to go to prison. But we live under an insane system so yeah lock up the press to protect official murderers, sounds good.
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May 17, 2019 18:01
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Main Paineframe posted:All grand juries are closed and all grand jury proceedings are secret; there's no such thing as an open grand jury. Yes I know that certain people are subject to grand jury privacy. I thought she wanted an open grand jury (guess I misremembered something I read previously) which seemed like a dumb request based on Federal rules and since grand jury secrecy probably wouldn't apply to her as a witness
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May 17, 2019 18:56
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VitalSigns posted:Nah.
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May 17, 2019 22:15
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lol
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May 17, 2019 22:24
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The US military concluded that murdering Iraqis is fine, btw we would rather lose the war than agree to be subject to Iraqi court jurisdiction.
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May 17, 2019 22:28
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ilkhan posted:Much as I hate roe as a stupid ruling based purely on judicial activision that needs to be replaced by an actual amendment, I don't think even this court will overrule it based on this Alabama law. This Alabama poo poo is just stupid. Much like Trump v. Hawaii purported to overturn Korematsu while upholding it in practice, whatever case emerges from Fox Nation will purport to uphold Roe while in practice striking it down.
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May 18, 2019 00:15
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EwokEntourage posted:Yes I know that certain people are subject to grand jury privacy. I thought she wanted an open grand jury (guess I misremembered something I read previously) which seemed like a dumb request based on Federal rules and since grand jury secrecy probably wouldn't apply to her as a witness No didn’t you hear anyone can ignore subpoenas if they feel uncomfortable? Now let’s have an extremely facile multipage discussion regarding the role of moral philosophy in the legal system.
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May 18, 2019 01:01
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Dead Reckoning posted:Nothing Manning exposed constituted a crime, IIRC. It’s easy to not commit crimes when you just define every male person you see who looks like they might be between 15 and 70 years old as a valid target
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May 18, 2019 03:17
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*points at all invasions and occupations* criminalized
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May 18, 2019 03:22
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Can't obstruct justice if you weren't gonna be charged with an underlying crime!
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May 18, 2019 03:34
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If it's not illegal, why would the American public need to know about it in the first place? You know, non-illegal things like the military sitting on civilian casualty numbers for years and lying about having them, or refusing to investigate the execution of civilians and then destroying the evidence, or targeting wounded civilians...
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May 18, 2019 04:54
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Stickman posted:If it's not illegal, why would the American public need to know about it in the first place? War is bad and so is lying
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May 18, 2019 16:52
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VitalSigns posted:Nah. In a sane system if a journalist is actively hacking in to systems and they uncover a crime they still committed crimes to do so and "you found bad thing here's your pardon" isn't actually feasible either and would result in a lot of collateral damage when Random Angry Person posts a bunch of trade secrets from Evil Company X and goes beyond whistle-blowing but tries to claim that their extra actions are ok too. I get why you think it should be ok but if you don't think it'd be abused to hell and back in real bad ways 
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May 18, 2019 20:12
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Hmm yes occasional edge cases of people blowing legitimate whistles for impure reasons is certainly objectively worse than an actual war crime going unpunished Jesus loving Christ
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May 19, 2019 04:43
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can someone who reads latin explain to me exactly what the gently caress "subpoena" means related question: does congress have access to any prisons
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May 19, 2019 05:14
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“under penalty”
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May 19, 2019 06:25
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Potato Salad posted:can someone who reads latin explain to me exactly what the gently caress "subpoena" means The Washington post asked the same question: https://www.washingtonpost.com/politics/2019/05/15/how-would-congress-jail-trump-officials-history-says-its-not-easy/ Essentially they do not have any jails under their direct control, but they’ve kept people locked in congress before.
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May 19, 2019 13:20
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Another pro-tribal opinion joined by Gorsuch: this time, agreeing that the Crow can hunt in Bighorn National Forest per an 1868 treaty because nothing since has clearly overridden the treaty and that land is not categorically “occupied” (a condition spelled out in the treaty). The conservatives argue that this exact issue was decided in a case thirty years ago and so should be precluded from being re-argued. The majority argues that that decision was based on a decision from the late 19th century which has since been (effectively, but not explicitly) overruled, and that that should be sufficient to allow reconsideration.
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May 20, 2019 17:50
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Evil Fluffy posted:In a sane system if a journalist is actively hacking in to systems and they uncover a crime they still committed crimes to do so and "you found bad thing here's your pardon" isn't actually feasible either and would result in a lot of collateral damage when Random Angry Person posts a bunch of trade secrets from Evil Company X and goes beyond whistle-blowing but tries to claim that their extra actions are ok too. The "collateral damage" of classification being abused the other way (lost human lives) are much more severe, I don't give a poo poo about the formula for Coke being exposed or whatever the gently caress (lol at equivocating collateral damage of an embarrassed corporation or government versus dead humans even if they are foreign humans). Seems like the easy solution to not getting the whistle blown on your cover-up of crimes is not to do them in the first place, and if you are going to do crimes and coverups anyway the easy solution to avoiding collateral damage is to have an official internal process for reporting wrongdoing and protecting whistleblowers so they aren't driven to leak whatever they have to the media ASAP while they're being hunted down for imprisonment and torture E: Eh I'm going to far here. I do give some bare minimum of a gently caress about trade secrets, and in isolation it's better they be protected than revealed. So my suggestion is this: if you want to prosecute a Random Angry Person™ for maliciously exposing your secrets and using your wrongdoing as an excuse then you need to show that you have a robust process for reporting and resolving whistle-blowing and protecting the whistle-blowers from retaliation. Then you are entitled to the presumption that the Random Angry Person™ was acting in bad faith with whistle-blowing merely an excuse for a malicious leak. On the other hand if your internal process for whistle-blowing is "hunt down the whistle-blower then imprison and torture them as a public example to intimidate others" then hmm you're not entitled to the presumption that it was the whistle-blower's duty to spend the next decade diligently reviewing half a million documents and carefully redacting anything that isn't directly pertinent to your many many crimes while they dodge the assassination squads bent on keeping those crimes secret by any means necessary. I think this is a reasonable compromise. VitalSigns fucked around with this message at 18:41 on May 20, 2019 |
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May 20, 2019 18:15
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 Opinions! MISSION PRODUCT HOLDINGS, INC. v. TEMPNOLOGY, LLC, NKA OLD COLD LLC Holding / Majority Opinion: Section 365 of the Bankruptcy Code enables a debtor to “reject any executory contract”—meaning a contract that neither party has finished performing. The section further provides that a debtor’s rejection of a contract under that authority “constitutes a breach of such contract.” Today we consider the meaning of those provisions in the context of a trademark licensing agreement. The question is whether the debtor-licensor’s rejection of that contract deprives the licensee of its rights to use the trademark. We hold it does not. A rejection breaches a contract but does not rescind it. And that means all the rights that would ordinarily survive a contract breach, including those conveyed here, remain in place. ... Respondent Tempnology, LLC, manufactured clothing and accessories designed to stay cool when used in exercise. It marketed those products under the brand name “Coolcore,” using trademarks (e.g., logos and labels) to distinguish the gear from other athletic apparel. In 2012, Tempnology entered into a contract with petitioner Mission Product Holdings, Inc. The agreement gave Mission an exclusive license to distribute certain Coolcore products in the United States. And more important here, it granted Mission a non-exclusive license to use the Coolcore trademarks, both in the United States and around the world. The agreement was set to expire in July 2016. But in September 2015, Tempnology filed a petition for Chapter 11 bankruptcy. And it soon afterward asked the Bankruptcy Court to allow it to “reject” the licensing agreement. Section 365(a) of the Code provides that a “trustee [or debtor], subject to the court’s approval, may assume or reject any executory contract.” A contract is executory if “performance remains due to some extent on both sides.” Such an agreement represents both an asset (the debtor’s right to the counterparty’s future performance) and a liability (the debtor’s own obligations to perform). Section 365(a) enables the debtor (or its trustee), upon entering bankruptcy, to decide whether the contract is a good deal for the estate going forward. If so, the debtor will want to assume the contract, fulfilling its obligations while benefiting from the counterparty’s performance. But if not, the debtor will want to reject the contract, repudiating any further performance of its duties. ... As both parties here agree, the counterparty thus has a claim against the estate for damages resulting from the debtor’s nonperformance. But such a claim is unlikely to ever be paid in full. That is because the debtor’s breach is deemed to occur “immediately before the date of the filing of the [bankruptcy] petition,” rather than on the actual postpetition rejection date. By thus giving the counterparty a pre-petition claim, Section 365(g) places that party in the same boat as the debtor’s unsecured creditors, who in a typical bankruptcy may receive only cents on the dollar. ... According to Tempnology, its rejection of the contract also terminated the rights it had granted Mission to use the Coolcore trademarks. Tempnology based its argument on a negative inference. Several provisions in Section 365 state that a counterparty to specific kinds of agreements may keep exercising contractual rights after a debtor’s rejection. For example, Section 365(h) provides that if a bankrupt landlord rejects a lease, the tenant need not move out; instead, she may stay and pay rent (just as she did before) until the lease term expires. And still closer to home, Section 365(n) sets out a similar rule for some types of intellectual property licenses: If the debtor-licensor rejects the agreement, the licensee can continue to use the property (typically, a patent), so long as it makes whatever payments the contract demands. But Tempnology pointed out that neither Section 365(n) nor any similar provision covers trademark licenses. So, it reasoned, in that sort of contract a different rule must apply: The debtor’s rejection must extinguish the rights that the agreement had conferred on the trademark licensee. … What is the effect of a debtor’s (or trustee’s) rejection of a contract under Section 365 of the Bankruptcy Code? The parties and courts of appeals have offered us two starkly different answers. According to one view, a rejection has the same consequence as a contract breach outside bankruptcy: It gives the counterparty a claim for damages, while leaving intact the rights the counterparty has received under the contract. According to the other view, a rejection (except in a few spheres) has more the effect of a contract rescission in the non-bankruptcy world: Though also allowing a damages claim, the rejection terminates the whole agreement along with all rights it conferred. Today, we hold that both Section 365’s text and fundamental principles of bankruptcy law command the first, rejection-as-breach approach. We reject the competing claim that by specifically enabling the counterparties in some contracts to retain rights after rejection, Congress showed that it wanted the counterparties in all other contracts to lose their rights. And we reject an argument for the rescission approach turning on the distinctive features of trademark licenses. Rejection of a contract— any contract—in bankruptcy operates not as a rescission but as a breach. … We start with the text of the Code’s principal provisions on rejection—and find that it does much of the work. As noted earlier, Section 365(a) gives a debtor the option, subject to court approval, to “assume or reject any executory contract.” And Section 365(g) describes what rejection means. Rejection “constitutes a breach of [an executory] contract,” deemed to occur “immediately before the date of the filing of the petition.” Or said more pithily for current purposes, a rejection is a breach. And “breach” is neither a defined nor a specialized bankruptcy term. It means in the Code what it means in contract law outside bankruptcy. … Many licensing agreements involving trademarks or other property are [executory] (including, all agree, the Tempnology-Mission contract). The licensor not only grants a license, but provides associated goods or services during its term; the licensee pays continuing royalties or fees. If the licensor breaches the agreement outside bankruptcy (again, barring any special contract term or state law), everything said above goes. In particular, the breach does not revoke the license or stop the licensee from doing what it allows. See, e.g., Sunbeam, 686 F. 3d, at 376 (“Outside of bankruptcy, a licensor’s breach does not terminate a licensee’s right to use [the licensed] intellectual property”). And because rejection “constitutes a breach,” §365(g), the same consequences follow in bankruptcy. The debtor can stop performing its remaining obligations under the agreement. But the debtor cannot rescind the license already conveyed. So the licensee can continue to do whatever the license authorizes. … In preserving those rights, Section 365 reflects a general bankruptcy rule: The estate cannot possess anything more than the debtor itself did outside bankruptcy. … Tempnology’s main argument to the contrary, here as in the courts below, rests on a negative inference. Several provisions of Section 365, Tempnology notes, “identif[y] categories of contracts under which a counterparty” may retain specified contract rights “notwithstanding rejection.” … Each of the provisions Tempnology highlights emerged at a different time, over a span of half a century. And each responded to a discrete problem—as often as not, correcting a judicial ruling of just the kind Tempnology urges. Read as generously as possible to Tempnology, this mash-up of legislative interventions says nothing much of anything about the content of Section 365(g)’s general rule. Read less generously, it affirmatively refutes Tempnology’s rendition. As one bankruptcy scholar noted after an exhaustive review of the history: “What the legislative record [reflects] is that whenever Congress has been confronted with the consequences of the [view that rejection terminates all contractual rights], it has expressed its disapproval.” … [T]he debtor-licensor’s rejection cannot revoke the trademark license. We accordingly reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion. Lineup: Kagan, joined by Roberts, Thomas, Ginsburg, Breyer, Alito, Sotomayor, and Kavanaugh. Concurrence by Sotomayor. Dissent by Gorsuch. Other Opinions: Concurrence (Sotomayor): I write separately to highlight two potentially significant features of today’s holding. First, the Court does not decide that every trademark licensee has the unfettered right to continue using licensed marks postrejection…[T]he baseline inquiry remains whether the licensee’s rights would survive a breach under applicable nonbankruptcy law. Special terms in a licensing contract or state law could bear on that question in individual cases. … Second, the Court’s holding confirms that trademark licensees’ postrejection rights and remedies are more expansive in some respects than those possessed by licensees of other types of intellectual property...For example, a covered licensee that chooses to retain its rights postrejection must make all of its royalty payments; the licensee has no right to deduct damages from its payments even if it otherwise could have done so under nonbankruptcy law. §365(n)(2)(C)(i). This provision and others in §365(n) mean that the covered intellectual property types are governed by different rules than trademark licenses….To the extent trademark licensees are treated differently from licensees of other forms of intellectual property, that outcome leaves Congress with the option to tailor a provision for trademark licenses, as it has repeatedly in other contexts. Dissent (Gorsuch): This Court is not in the business of deciding abstract questions, no matter how interesting. Under the Constitution, our power extends only to deciding “Cases” and “Controversies” where the outcome matters to real parties in the real world. Because it’s unclear whether we have anything like that here, I would dismiss the petition as improvidently granted. This case began when Mission licensed the right to use certain of Tempnology’s trademarks. After Tempnology entered bankruptcy, it sought and won from a bankruptcy court an order declaring that Mission could no longer use those trademarks. On appeal and now in this Court, Mission seeks a ruling that the bankruptcy court’s declaration was wrong. But whoever is right about that, it isn’t clear how it would make a difference: After the bankruptcy court ruled, the license agreement expired by its own terms, so nothing we might say here could restore Mission’s ability to use Tempnology’s trademarks. https://www.supremecourt.gov/opinions/18pdf/17-1657_4f15.pdf HERRERA v. WYOMING Holding / Majority Opinion: In 1868, the Crow Tribe ceded most of its territory in modern-day Montana and Wyoming to the United States. In exchange, the United States promised that the Crow Tribe “shall have the right to hunt on the unoccupied lands of the United States so long as game may be found thereon” and “peace subsists . . . on the borders of the hunting districts.” Petitioner Clayvin Herrera, a member of the Tribe, invoked this treaty right as a defense against charges of off-season hunting in Bighorn National Forest in Wyoming. The Wyoming courts held that the treaty-protected hunting right expired when Wyoming became a State and, in any event, does not permit hunting in Bighorn National Forest because that land is not “unoccupied.” We disagree. The Crow Tribe’s hunting right survived Wyoming’s statehood, and the lands within Bighorn National Forest did not become categorically “occupied” when set aside as a national reserve. … We first consider whether the Crow Tribe’s hunting rights under the 1868 Treaty remain valid. Relying on this Court’s decision in Mille Lacs, Herrera and the United States contend that those rights did not expire when Wyoming became a State in 1890. We agree. Wyoming argues that this Court’s decision in Race Horse establishes that the Crow Tribe’s 1868 Treaty right expired at statehood. But this case is controlled by Mille Lacs, not Race Horse. Race Horse concerned a hunting right guaranteed in a treaty with the Shoshone and Bannock Tribes. The Shoshone-Bannock Treaty and the 1868 Treaty with the Crow Tribe were signed in the same year and contain identical language reserving an off-reservation hunting...The Race Horse Court concluded that Wyoming’s admission to the United States extinguished the Shoshone-Bannock Treaty right. … More than a century after Race Horse and four years after Repsis relied on that decision, however, Mille Lacs undercut both pillars of Race Horse’s reasoning. Mille Lacs considered an 1837 Treaty that guaranteed to several bands of Chippewa Indians the privilege of hunting, fishing, and gathering in ceded lands “‘during the pleasure of the President.’” In an opinion extensively discussing and distinguishing Race Horse, the Court decided that the treaty rights of the Chippewa bands survived after Minnesota was admitted to the Union. … Mille Lacs approached the question before it in two stages. The Court first asked whether the Act admitting Minnesota to the Union abrogated the treaty right of the Chippewa bands. Next, the Court examined the Chippewa Treaty itself for evidence that the parties intended the treaty right to expire at statehood. … In sum, Mille Lacs upended both lines of reasoning in Race Horse. The case established that the crucial inquiry for treaty termination analysis is whether Congress has expressly abrogated an Indian treaty right or whether a termination point identified in the treaty itself has been satisfied. Statehood is irrelevant to this analysis unless a statehood Act otherwise demonstrates Congress’ clear intent to abrogate a treaty, or statehood appears as a termination point in the treaty. … We thus formalize what is evident in Mille Lacs itself. While Race Horse “was not expressly overruled” in Mille Lacs, “it must be regarded as retaining no vitality” after that decision. To avoid any future confusion, we make clear today that Race Horse is repudiated to the extent it held that treaty rights can be impliedly extinguished at statehood. … We now consider whether, applying Mille Lacs, Wyoming’s admission to the Union abrogated the Crow Tribe’s off-reservation treaty hunting right. It did not. First, the Wyoming Statehood Act does not show that Congress intended to end the 1868 Treaty hunting right. If Congress seeks to abrogate treaty rights, “it must clearly express its intent to do so.” … Just as in Mille Lacs, there is no suggestion in the text of the 1868 Treaty with the Crow Tribe that the parties intended the hunting right to expire at statehood. The treaty identifies four situations that would terminate the right: (1) the lands are no longer “unoccupied”; (2) the lands no longer belong to the United States; (3) game can no longer “be found thereon”; and (4) the Tribe and non-Indians are no longer at “peace . . . on the borders of the hunting districts.” Wyoming’s statehood does not appear in this list. Nor is there any hint in the treaty that any of these conditions would necessarily be satisfied at statehood. … Applying Mille Lacs, this is not a hard case. The Wyoming Statehood Act did not abrogate the Crow Tribe’s hunting right, nor did the 1868 Treaty expire of its own accord at that time. The treaty itself defines the circumstances in which the right will expire. Statehood is not one of them. … We turn next to the question whether the 1868 Treaty right, even if still valid after Wyoming’s statehood, does not protect hunting in Bighorn National Forest because the forest lands are “occupied.” We agree with Herrera and the United States that Bighorn National Forest did not become categorically “occupied” within the meaning of the 1868 Treaty when the national forest was created. … Treaty analysis begins with the text, and treaty terms are construed as “‘they would naturally be understood by the Indians.’” Here it is clear that the Crow Tribe would have understood the word “unoccupied” to denote an area free of residence or settlement by non-Indians. … Considering the terms of the 1868 Treaty as they would have been understood by the Crow Tribe, we conclude that the creation of Bighorn National Forest did not remove the forest lands, in their entirety, from the scope of the treaty. Finally, we note two ways in which our decision is limited. First, we hold that Bighorn National Forest is not categorically occupied, not that all areas within the forest are unoccupied. On remand, the State may argue that the specific site where Herrera hunted elk was used in such a way that it was “occupied” within the meaning of the 1868 Treaty. Second, the state trial court decided that Wyoming could regulate the exercise of the 1868 Treaty right “in the interest of conservation.” The appellate court did not reach this issue. On remand, the State may press its arguments as to why the application of state conservation regulations to Crow Tribe members exercising the 1868 Treaty right is necessary for conservation. The judgment of the Wyoming District Court of the Fourth Judicial District, Sheridan County, is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. Lineup: Sotomayor, joined by Ginsburg, Breyer, Kagan, and Gorsuch. Dissent by Alito, joined by Roberts, Thomas and Kavanaugh. Other Opinions: Dissent (Alito): The Court’s opinion in this case takes a puzzling course. The Court holds that members of the Crow Tribe retain a virtually unqualified right under the Treaty Between the United States of America and the Crow Tribe of Indians (1868 Treaty) to hunt on land that is now part of the Bighorn National Forest. This interpretation of the treaty is debatable and is plainly contrary to the decision in Ward v. Race Horse, 163 U. S. 504 (1896), which construed identical language in a closely related treaty. But even if the Court’s interpretation of the treaty is correct, its decision will have no effect if the members of the Crow Tribe are bound under the doctrine of issue preclusion by the judgment in Crow Tribe of Indians v. Repsis, 73 F. 3d 982, 992–993 (CA10 1995) (holding that the hunting right conferred by that treaty is no longer in force). That judgment was based on two independent grounds, and the Court deals with only one of them. The Court holds that the first ground no longer provides an adequate reason to give the judgment preclusive effect due to an intervening change in the legal context. But the Court sidesteps the second ground and thus leaves it up to the state courts to decide whether the Repsis judgment continues to have binding effect. If it is still binding—and I think it is—then no member of the Tribe will be able to assert the hunting right that the Court addresses. Thus, the Court’s decision to plow ahead on the treaty-interpretation issue is hard to understand, and its discourse on that issue is likely, in the end, to be so much wasted ink. … In seeking review in this Court, Herrera framed this case as implicating only a question of treaty interpretation. But unless the state court was wrong in holding that Herrera is bound by the judgment in Repsis, there is no reason to reach the treaty-interpretation question. For this reason, I would begin with the question of issue preclusion, and because I believe that Herrera is bound by the adverse decision on that issue in Repsis, I would not reach the treaty-interpretation issue. … Under federal issue-preclusion principles, “once an issue is actually and necessarily determined by a court of competent jurisdiction, that determination is conclusive in subsequent suits based on a different cause of action involving a party to the prior litigation.” That standard for issue preclusion is met here. In Repsis, the central issue—and the question on which the Crow Tribe sought a declaratory judgment—was whether members of the Tribe “have an unrestricted right to hunt and fish on Big Horn National Forest lands.” The Tenth Circuit’s judgment settled that question by holding that “the Tribe and its members are subject to the game laws of Wyoming.” In this case, Herrera asserts the same hunting right that was actually litigated and decided against his Tribe in Repsis. He does not suggest that either the Federal District Court or the Tenth Circuit lacked jurisdiction to decide Repsis. And, because Herrera’s asserted right is based on his membership in the Tribe, a judgment binding on the Tribe is also binding on him. As a result, the Wyoming appellate court held that Repsis bound Herrera and precluded him from asserting a treaty-rights defense. That holding was correct. The majority concludes otherwise based on an exception to issue preclusion that applies when there has been an intervening “change in the applicable legal context.” Specifically, the majority reasons that the Repsis judgment was based on Race Horse and that our subsequent decision in Minnesota v. Mille Lacs Band of Chippewa Indians, 526 U. S. 172 (1999), represents a change in the applicable law that is sufficient to abrogate the Repsis judgment’s preclusive effect. There is support in the Restatement (Second) of Judgments for the general proposition that a change in law may alter a judgment’s preclusive effect, §28, Comment c, p. 276 (1980), and in a prior case, Bobby v. Bies, 556 U. S. 825, 834 (2009), we invoked that provision. But we have never actually held that a prior judgment lacked preclusive effect on this ground. Nor have we ever defined how much the relevant “legal context” must change in order for the exception to apply. If the exception is applied too aggressively, it could dangerously undermine the important interests served by issue preclusion. So caution is in order in relying on that exception here. The majority thinks that the exception applies because Mille Lacs effectively overruled Race Horse, even though it did not say that in so many words. But that is a questionable interpretation. The fact of the matter is that the Mille Lacs majority held back from actually overruling Race Horse, even though the dissent claimed that it had effectively done so. And while the opinion of the Court repudiated one of the two grounds that the Race Horse Court gave for its decision (the equal-footing doctrine), it is by no means clear that Mille Lacs also rejected the second ground (the conclusion that the terms of the Act admitting Wyoming to the Union manifested a congressional intent not to burden the State with the right created by the 1868 Treaty). … On this reading, it appears that Mille Lacs did not reject the second ground for the decision in Race Horse but simply found it inapplicable to the facts of the case at hand. I do not claim that this reading of Mille Lacs is indisputable, but it is certainly reasonable, and if it is correct, Mille Lacs did not change the legal context as much as the majority suggests. It knocked out some of Race Horse’s reasoning but did not effectively overrule the decision. Is that enough to eliminate the preclusive effect of the first ground for the Repsis judgment? … Although the majority in the present case believes that Mille Lacs unquestionably constitutes a sufficient change in the legal context, see ante, at 13, there is a respectable argument on the other side. I would not decide that question because Herrera and other members of the Crow Tribe are bound by the judgment in Repsis even if the change-in-legal-context exception applies. That is so because the Repsis judgment was based on a second, independently sufficient ground that has nothing to do with Race Horse, namely, that the Bighorn National Forest is not “unoccupied.” Herrera and the United States, appearing as an amicus in his support, try to escape the effect of this alternative ground based on other exceptions to the general rule of issue preclusion. But accepting any of those exceptions would work a substantial change in established principles, and it is fortunate that the majority has not taken that route. … Herrera is precluded by the judgment in Repsis from relitigating the continuing validity of the hunting right conferred by the 1868 Treaty. Because the majority has chosen to disregard this threshold problem and issue a potentially pointless disquisition on the proper interpretation of the 1868 Treaty, I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/17-532_q86b.pdf MERCK SHARP & DOHME CORP. v. ALBRECHT ET AL. Holding / Majority Opinion: When Congress enacted the Federal Food, Drug, and Cosmetic Act, ch. 675, 52 Stat. 1040, as amended, 21 U. S. C. §301 et seq., it charged the Food and Drug Administration with ensuring that prescription drugs are “safe for use under the conditions prescribed, recommended, or suggested” in the drug’s “labeling.” When the FDA exercises this authority, it makes careful judgments about what warnings should appear on a drug’s label for the safety of consumers. For that reason, we have previously held that “clear evidence” that the FDA would not have approved a change to the drug’s label pre-empts a claim, grounded in state law, that a drug manufacturer failed to warn consumers of the change-related risks associated with using the drug. We here determine that this question of pre-emption is one for a judge to decide, not a jury. We also hold that “clear evidence” is evidence that shows the court that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning. The central issue in this case concerns federal preemption, which as relevant here, takes place when it is “‘impossible for a private party to comply with both state and federal requirements.’” The state law that we consider is state common law or state statutes that require drug manufacturers to warn drug consumers of the risks associated with drugs. The federal law that we consider is the statutory and regulatory scheme through which the FDA regulates the information that appears on brand-name prescription drug labels. The alleged conflict between state and federal law in this case has to do with a drug that was manufactured by petitioner Merck Sharp & Dohme and was administered to respondents without a warning of certain associated risks. The FDA regulates the safety information that appears on the labels of prescription drugs that are marketed in the United States. Although we commonly understand a drug’s “label” to refer to the sticker affixed to a prescription bottle, in this context the term refers more broadly to the written material that is sent to the physician who prescribes the drug and the written material that comes with the prescription bottle when the drug is handed to the patient at the pharmacy. These (often lengthy) package inserts contain detailed information about the drug’s medical uses and health risks. … Petitioner Merck Sharp & Dohme manufactures Fosamax, a drug that treats and prevents osteoporosis in postmenopausal women...Fosamax (like other bisphosphonates) slows the breakdown of old bone cells and thereby helps postmenopausal women avoid osteoporotic fractures. However, the mechanism through which Fosamax decreases the risk of osteoporotic fractures may increase the risk of a different type of fracture...The Fosamax label that the FDA approved in 1995 did not warn of the risk of atypical femoral fractures. … In 2008, Merck applied to the FDA for preapproval to change Fosamax’s label to add language to both the “Adverse Reaction[s]” and the “Precaution[s]” sections of the label. In particular, Merck proposed adding a reference to “‘low-energy femoral shaft fracture’” in the Adverse Reactions section, and cross-referencing a longer discussion in the Precautions section that focused on the risk of stress fractures associated with Fosamax. The FDA approved the addition to the Adverse Reactions section, but rejected Merck’s proposal to warn of a risk of “stress fractures.” … A warning about “atypical femoral fractures” did not appear on the Fosamax label until 2011, when the FDA ordered that change based on its own analyses. … The respondents here are more than 500 individuals who took Fosamax and who suffered atypical femoral fractures between 1999 and 2010. … Merck, in defense, argued that respondents’ state-law failure-to-warn claims should be dismissed as pre-empted by federal law. Both Merck and the FDA have long been aware that Fosamax could theoretically increase the risk of atypical femoral fractures. But for some period of time between 1995 (when the FDA first approved a drug label for Fosamax) and 2010 (when the FDA decided to require Merck to add a warning about atypical femoral fractures to Fosamax’s label), both Merck and the FDA were unsure whether the developing evidence of a causal link between Fosamax and atypical femoral fractures was strong enough to require adding a warning to the Fosamax drug label. Merck conceded that the FDA’s CBE regulation would have permitted Merck to try to change the label to add a warning before 2010, but Merck asserted that the FDA would have rejected that attempt. In particular, Merck pointed to the FDA’s rejection of Merck’s 2008 attempt to amend the Fosamax label to warn of the risk of “stress fractures” associated with Fosamax. On that basis, Merck claimed that federal law prevented Merck from complying with any state-law duty to warn the respondents of the risk of atypical femoral fractures associated with Fosamax. … Merck filed a petition for a writ of certiorari. Merck’s petition asked the Court to decide whether Merck’s case and others like it “must . . . go to a jury” to determine whether the FDA, in effect, has disapproved a state-lawrequired labeling change. In light of differences and uncertainties among the courts of appeals and state supreme courts in respect to the application of Wyeth, we granted certiorari. … We stated in Wyeth v. Levine that state law failure-to-warn claims are pre-empted by the Federal Food, Drug, and Cosmetic Act and related labeling regulations when there is “clear evidence” that the FDA would not have approved the warning that state law requires. We here decide that a judge, not the jury, must decide the pre-emption question. And we elaborate Wyeth’s requirements along the way. … In a case like Wyeth, showing that federal law prohibited the drug manufacturer from adding a warning that would satisfy state law requires the drug manufacturer to show that it fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve changing the drug’s label to include that warning. … We turn now to what is the determinative question before us: Is the question of agency disapproval primarily one of fact, normally for juries to decide, or is it a question of law, normally for a judge to decide without a jury? The complexity of the preceding discussion of the law helps to illustrate why we answer this question by concluding that the question is a legal one for the judge, not a jury. The question often involves the use of legal skills to determine whether agency disapproval fits facts that are not in dispute. … Because the Court of Appeals treated the pre-emption question as one of fact, not law, and because it did not have an opportunity to consider fully the standards we have described in Part II of our opinion, we vacate its judgment and remand the case to that court for further proceedings consistent with this opinion. Lineup: Breyer, joined by Thomas, Ginsburg, Sotomayor, Kagan, and Gorsuch. Concurrence by Thomas. Concurrence in the judgment by Alito, joined by Roberts and Kavanaugh. Other Opinions: Concurrence (Thomas): I join the Court’s opinion and write separately to explain my understanding of the relevant pre-emption principles and how they apply to this case. … Although the Court has articulated several theories of pre-emption, Merck’s sole argument here is that state law is pre-empted because it is impossible for Merck to comply with federal and state law. I remain skeptical that “physical impossibility” is a proper test for deciding whether a direct conflict exists between federal and state law. But even under our impossibility precedents, Merck’s pre-emption defense fails. As I have explained before, it is not obvious that the “‘physical impossibility’ standard is the best proxy for determining when state and federal laws ‘directly conflict’ for purposes of the Supremacy Clause.” Evidence from the founding suggests that, under the original meaning of the Supremacy Clause, federal law pre-empts state law only if the two are in logical contradiction. Sometimes, federal law will logically contradict state law even if it is possible for a person to comply with both. For instance, “if federal law gives an individual the right to engage in certain behavior that state law prohibits, the laws would give contradictory commands notwithstanding the fact that an individual could comply with both by electing to refrain from the covered behavior.” … Merck does not advance this logical-contradiction standard, and it is doubtful that a pre-emption defense along these lines would succeed here….Absent a federal statutory right to sell a brand-name drug with an FDA-approved label, FDA approval “does not represent a finding that the drug, as labeled, can never be deemed unsafe by later federal action, or as in this case, the application of state law.” … Applying the Court’s impossibility precedents leads to the same conclusion. The question for impossibility is whether it was “lawful under federal law for [Merck] to do what state law required of ” it. … Here, Merck’s impossibility pre-emption defense fails because it does not identify any federal law that “prohibited [it] from adding any and all warnings . . . that would satisfy state law.” … Merck’s argument that the 2009 letter and other agency communications suggest that the FDA would have denied a future labeling change fares no better: hypothetical agency action is not “Law.” … Because Merck points to no statute, regulation, or other agency action with the force of law that would have prohibited it from complying with its alleged state-law duties, its pre-emption defense should fail as a matter of law. Concurrence in the Judgment (Alito): I concur in the judgment because I agree with the Court’s decision on the only question that it actually decides, namely, that whether federal law allowed Merck to include in the Fosamax label the warning alleged to be required by state law is a question of law to be decided by the courts, not a question of fact. I do not, however, join the opinion of the Court because I am concerned that its discussion of the law and the facts may be misleading on remand. I begin with the law. The Court correctly notes that a drug manufacturer may prove impossibility pre-emption by showing that “federal law (including appropriate [Food and Drug Administration (FDA)] actions) prohibited the drug manufacturer from adding any and all warnings to the drug label that would satisfy state law.” But in expounding further on the pre-emption analysis, the Court provides a skewed summary. While dwelling on our decision in Wyeth v. Levine, 555 U. S. 555 (2009), see ante, at 9–14, the Court barely notes a statutory provision enacted after the underlying events in that case that may have an important bearing on the ultimate pre-emption analysis in this case. Under 21 U. S. C. §355(o)(4)(A), which was enacted in 2007, Congress has imposed on the FDA a duty to initiate a label change “[i]f the Secretary becomes aware of new information, including any new safety information . . . that the Secretary determines should be included in the labeling of the drug.”* This provision does not relieve drug manufacturers of their own responsibility to maintain their drug labels, see §355(o)(4)(I), but the FDA’s “actions,” ante, at 13, taken pursuant to this duty arguably affect the pre-emption analysis. This is so because, if the FDA declines to require a label change despite having received and considered information regarding a new risk, the logical conclusion is that the FDA determined that a label change was unjustified....On remand, I assume that the Court of Appeals will consider the effect of §355(o)(4)(A) on the preemption issue in this case. Two other aspects of the Court’s discussion of the legal background must also be mentioned. First, although the Court’s discussion of the point is a bit opaque, the Court holds—correctly, in my view—that Wyeth’s use of the phrase “clear evidence” was merely a rhetorical flourish. ... Second, for reasons that entirely escape me, the Court refuses to acknowledge that there are two ways in which a drug manufacturer may attempt to alter a drug’s label. The Court notes that a manufacturer may proceed under the FDA’s “‘changes being effected’” or “‘CBE’” regulation, which permits a manufacturer to change a label without prior FDA approval under some circumstances. But the Court refuses to note that a manufacturer may (and, in many circumstances, must) submit a Prior Approval Supplement (PAS). As the name suggests, changes proposed in a PAS must receive FDA approval before drug manufacturers may make the changes. And “[h]istorically,” the FDA has “accepted PAS applications instead of CBE supplements, as occurred in this case, particularly where significant questions exist on whether to revise or how to modify existing drug labeling.” I now turn to the facts. Resolution of the legal question that the Court decides does not require much discussion of the facts, but if the Court wishes to include such a summary, its presentation should be balanced. Instead, the Court provides a one-sided account. For example, it highlights historical accounts dating back to the 1990s that purportedly linked atypical femoral fractures with Fosamax use, see ante, at 5, 7, but it omits any mention of the extensive communication between Merck and the FDA during the relevant period. A reader of the Court’s opinion will inevitably be left with the impression that, once the FDA rejected Merck’s proposed warning in 2009, neither the FDA nor Merck took any other actions related to atypical femoral fractures “until 2011,” ante, at 6. But that is simply not true. … [F]or years the FDA was: aware of this issue, communicating with drug manufacturers, studying all relevant information, and instructing healthcare professionals and patients alike to continue to use Fosamax as directed. For this reason, the FDA itself, speaking through the Solicitor General, takes the position that the FDA’s decision not to require a label change prior to October 2010 reflected the FDA’s “determin[ation]” that a new warning “should [not] be included in the labeling of the drug,” For these reasons, I concur in the judgment only. https://www.supremecourt.gov/opinions/18pdf/17-290_i425.pdf [internal citations inconsistently omitted throughout]
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May 20, 2019 18:15
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ulmont posted:Dissent (Gorsuch): Yes, Neil, but the court deciding this way means that the decision can be used as precedent in similar cases in the future, even if it doesn't apply to the present case. Jesus christ, how are you this bad? 
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May 20, 2019 18:39
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Hes kinda right though, they're not supposed to take cases that are moot but the supreme court ignores that sometimes because of the nature of its decisions. Since its an 8-1 hes just taking the opportunity to be grumpy about something.
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May 20, 2019 18:43
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Well there's a reason that the doctrine exists that if a controversy is expected to repeat that the court should still take it even if justice is too slow for an eventual decision to matter in any given instance, since the existence of that decision will matter for future instances which can be resolved immediately by referencing it while there's still time for the effect to make a difference. E: "well by the time we're hearing your abortion case you've already given birth, sorry ladies, give us a call when one of you can cross your legs hard enough to hold that fetus in for 8 years" VitalSigns fucked around with this message at 18:50 on May 20, 2019 |
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May 20, 2019 18:46
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hobbesmaster posted:Hes kinda right though, they're not supposed to take cases that are moot but the supreme court ignores that sometimes because of the nature of its decisions. Don’t you mean he’s taking the “Opportunity” to be “Grumpy” about “Something”?
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May 20, 2019 19:08
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I do find it surprising though, that level of whining about technical details in an otherwise 9-0 decision is usually a Thomas move.
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May 20, 2019 19:12
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Mikl posted:Yes, Neil, but the court deciding this way means that the decision can be used as precedent in similar cases in the future, even if it doesn't apply to the present case. That's not enough for a case not to be moot, though. As the court noted: Majority Opinion posted:Mission has presented a claim for money damages—essentially lost profits—arising from its inability to use the Coolcore trademarks between the time Tempnology rejected the licensing agreement and its scheduled expiration date. Such claims, if at all plausible, ensure a live controversy. For better or worse, nothing so shows a continuing stake in a dispute’s outcome as a demand for dollars and cents. See 13C C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure §3533.3, p. 2 (3d ed. 2008) (Wright & Miller) (“[A] case is not moot so long as a claim for monetary relief survives”). Ultimate recovery on that demand may be uncertain or even unlikely for any number of reasons, in this case as in others. But that is of no moment. If there is any chance of money changing hands, Mission’s suit remains live. VitalSigns posted:E: "well by the time we're hearing your abortion case you've already given birth, sorry ladies, give us a call when one of you can cross your legs hard enough to hold that fetus in for 8 years" "Capable of repetition, yet avoiding review" is the name of the doctrine. Roe v. Wade posted:The usual rule in federal cases is that an actual controversy must exist at stages of appellate or certiorari review, and not simply at the date the action is initiated.
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May 20, 2019 19:14
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So whats the difference between a "concurrence" and a "concurrence in the judgment"
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May 20, 2019 23:33
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Nissin Cup Nudist posted:So whats the difference between a "concurrence" and a "concurrence in the judgment" Concurrence: I agree with the majority opinion but want to say more about it Concurrence in the judgement: I agree with the result but not how it was reached.
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May 20, 2019 23:37
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Opinions! SMITH v. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY Holding / Majority Opinion: The Social Security Act allows for judicial review of “any final decision . . . made after a hearing” by the Social Security Administration (SSA). Petitioner Ricky Lee Smith was denied Social Security benefits after a hearing by an administrative law judge (ALJ) and later had his appeal from that denial dismissed as untimely by the SSA’s Appeals Council—the agency’s final decisionmaker. This case asks whether the Appeals Council’s dismissal of Smith’s claim is a “final decision . . . made after a hearing” so as to allow judicial review under §405(g). We hold that it is. … Modern-day claimants must generally proceed through a four-step process before they can obtain review from a federal court. First, the claimant must seek an initial determination as to his eligibility. Second, the claimant must seek reconsideration of the initial determination. Third, the claimant must request a hearing, which is conducted by an ALJ. Fourth, the claimant must seek review of the ALJ’s decision by the Appeals Council. If a claimant has proceeded through all four steps on the merits, all agree, §405(g) entitles him to judicial review in federal district court. The tension in this case stems from the deadlines that SSA regulations impose for seeking each successive stage of review. A party who seeks Appeals Council review, as relevant here, must file his request within 60 days of receiving the ALJ’s ruling, unless he can show “good cause for missing the deadline.” The Appeals Council’s review is discretionary: It may deny even a timely request without issuing a decision. If a claimant misses the deadline and cannot show good cause, however, the Appeals Council does not deny the request but rather dismisses it. Dismissals are “binding and not subject to further review” by the SSA. The question here is whether a dismissal for untimeliness, after the claimant has had an ALJ hearing, is a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g). Petitioner Ricky Lee Smith applied for disability benefits under Title XVI in 2012. Smith’s claim was denied at the initial-determination stage and upon reconsideration. Smith then requested an ALJ hearing, which the ALJ held in February 2014 before issuing a decision denying Smith’s claim on the merits in March 2014. The parties dispute what happened next. Smith’s attorney says that he sent a letter requesting Appeals Council review in April 2014, well within the 60-day deadline. The SSA says that it has no record of receiving any such letter. In late September 2014, Smith’s attorney sent a copy of the letter that he assertedly had mailed in April. The SSA, noting that it had no record of prior receipt, counted the date of the request as the day that it received the copy. The Appeals Council accordingly determined that Smith’s submission was untimely, concluded that Smith lacked good cause for missing the deadline, and dismissed Smith’s request for review. Smith sought judicial review of that dismissal in the U. S. District Court for the Eastern District of Kentucky. The District Court held that it lacked jurisdiction to hear his suit. The U. S. Court of Appeals for the Sixth Circuit affirmed, maintaining that “an Appeals Council decision to refrain from considering an untimely petition for review is not a ‘final decision’ subject to judicial review in federal court.’” Smith petitioned this Court for certiorari. Responding to Smith’s petition, the Government stated that while the Sixth Circuit’s decision accorded with the SSA’s longstanding position, the Government had “reexamined the question and concluded that its prior position was incorrect.” Section 405(g), as noted above, provides for judicial review of “any final decision . . . made after a hearing.” This provision, the Court has explained, contains two separate elements: first, a “jurisdictional” requirement that claims be presented to the agency, and second, a “waivable . . . requirement that the administrative remedies prescribed by the Secretary be exhausted.” … The question here is whether a dismissal by the Appeals Council on timeliness grounds after a claimant has received an ALJ hearing on the merits qualifies as a “final decision . . . made after a hearing” for purposes of allowing judicial review under §405(g). In light of the text, the context, and the presumption in favor of the reviewability of agency action, we conclude that it does. … We begin with the text. Taking the first clause (“any final decision”) first, we note that the phrase “final decision” clearly denotes some kind of terminal event,8 and Congress’ use of the word “any” suggests an intent to use that term “expansive[ly],” see Ali v. Federal Bureau of Prisons, 552 U. S. 214, 218–219 (2008). … Turning to the second clause (“made after a hearing”), we note that this phrase has been the subject of some confusion over the years….There is no need today to give §405(g) a definition for all seasons, because, in any event, this is a mine-run case and Smith obtained the kind of hearing that §405(g) most naturally suggests: an ALJ hearing on the merits. … The statutory context weighs in Smith’s favor as well. Appeals from SSA determinations are, by their nature, appeals from the action of a federal agency, and in the separate administrative-law context of the Administrative Procedure Act (APA), an action is “final” if it both (1) “mark[s] the ‘consummation’ of the agency’s decisionmaking process” and (2) is “one by which ‘rights or obligations have been determined,’ or from which ‘legal consequences will flow.’” … Smith’s entitlement to judicial review is confirmed by “the strong presumption that Congress intends judicial review of administrative action.” ... We hold that where the SSA’s Appeals Council has dismissed a request for review as untimely after a claimant has obtained a hearing from an ALJ on the merits, that dismissal qualifies as a “final decision . . . made after a hearing” within the meaning of §405(g). The judgment of the United States Court of Appeals for the Sixth Circuit is therefore reversed, and the case is remanded for further proceedings consistent with this opinion. Lineup: Sotomayor, unanimous. https://www.supremecourt.gov/opinions/18pdf/17-1606_868c.pdf KRISTINA BOX, COMMISSIONER, INDIANA DEPARTMENT OF HEALTH, ET AL. v. PLANNED PARENTHOOD OF INDIANA AND KENTUCKY, INC., ET AL. Holding / Majority Opinion: Indiana’s petition for certiorari argues that the Court of Appeals for the Seventh Circuit incorrectly invalidated two new provisions of Indiana law: the first relating to the disposition of fetal remains by abortion providers; and the second barring the knowing provision of sex-, race-, or disability-selective abortions by abortion providers. We reverse the judgment of the Seventh Circuit with respect to the first question presented, and we deny the petition with respect to the second question presented. The first challenged provision altered the manner in which abortion providers may dispose of fetal remains. Among other changes, it excluded fetal remains from the definition of infectious and pathological waste, thereby preventing incineration of fetal remains along with surgical byproducts. It also authorized simultaneous cremation of fetal remains, which Indiana does not generally allow for human remains. The law did not affect a woman’s right under existing law “to determine the final disposition of the aborted fetus.” Respondents have never argued that Indiana’s law creates an undue burden on a woman’s right to obtain an abortion. Respondents have instead litigated this case on the assumption that the law does not implicate a fundamental right and is therefore subject only to ordinary rational basis review. To survive under that standard, a state law need only be “rationally related to legitimate government interests.” … This Court has already acknowledged that a State has a “legitimate interest in proper disposal of fetal remains.” The Seventh Circuit clearly erred in failing to recognize that interest as a permissible basis for Indiana’s disposition law. See Armour v. Indianapolis, 566 U. S. 673, 685 (2012) (on rational basis review, “the burden is on the one attacking the legislative arrangement to negative every conceivable basis which might support it”). The only remaining question, then, is whether Indiana’s law is rationally related to the State’s interest in proper disposal of fetal remains. We conclude that it is, even if it is not perfectly tailored to that end. … Our opinion[] expresses no view on the merits of the second question presented, i.e., whether Indiana may prohibit the knowing provision of sex-, race-, and disability-selective abortions by abortion providers. Only the Seventh Circuit has thus far addressed this kind of law. We follow our ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals. See this Court’s Rule 10. In sum, we grant certiorari with respect to the first question presented in the petition and reverse the judgment of the Court of Appeals with respect to that question. We deny certiorari with respect to the second question presented. Lineup: Per curiam. https://www.supremecourt.gov/opinions/18pdf/18-483_3d9g.pdf HOME DEPOT U. S. A., INC. v. JACKSON Holding / Majority Opinion: The general removal statute, 28 U. S. C. §1441(a), provides that “any civil action” over which a federal court would have original jurisdiction may be removed to federal court by “the defendant or the defendants.” The Class Action Fairness Act of 2005 (CAFA) provides that “[a] class action” may be removed to federal court by “any defendant without the consent of all defendants.” 28 U. S. C. §1453(b). In this case, we address whether either provision allows a third-party counterclaim defendant— that is, a party brought into a lawsuit through a counterclaim filed by the original defendant—to remove the counterclaim filed against it. Because in the context of these removal provisions the term “defendant” refers only to the party sued by the original plaintiff, we conclude that neither provision allows such a third party to remove. … In June 2016, Citibank, N. A., filed a debt-collection action against respondent George Jackson in North Carolina state court. Citibank alleged that Jackson was liable for charges he incurred on a Home Depot credit card. In August 2016, Jackson answered and filed his own claims: an individual counterclaim against Citibank and third-party class-action claims against Home Depot U. S. A., Inc., and Carolina Water Systems, Inc. Jackson’s claims arose out of an alleged scheme between Home Depot and Carolina Water Systems to induce homeowners to buy water treatment systems at inflated prices. The crux of the claims was that Home Depot and Carolina Water Systems engaged in unlawful referral sales and deceptive and unfair trade practices in violation of North Carolina law, Gen. Stat. Ann. §§25A–37, 75–1.1 (2013). Jackson also asserted that Citibank was jointly and severally liable for the conduct of Home Depot and Carolina Water Systems and that his obligations under the sale were null and void. In September 2016, Citibank dismissed its claims against Jackson. One month later, Home Depot filed a notice of removal, citing 28 U. S. C. §§1332, 1441, 1446, and 1453. Jackson moved to remand, arguing that precedent barred removal by a “third-party/additional counter defendant like Home Depot.” App. 51–52. Shortly thereafter, Jackson amended his third-party class-action claims to remove any reference to Citibank. The District Court granted Jackson’s motion to remand, and the Court of Appeals for the Fourth Circuit granted Home Depot permission to appeal and affirmed. Relying on Circuit precedent, it held that neither the general removal provision, §1441(a), nor CAFA’s removal provision, §1453(b), allowed Home Depot to remove the class-action claims filed against it. … We first consider whether 28 U. S. C. §1441(a) permits a third-party counterclaim defendant to remove a claim filed against it.2 Home Depot contends that because a third-party counterclaim defendant is a “defendant” to the claim against it, it may remove pursuant to §1441(a). … Home Depot emphasizes that it is a “defendant” to a “claim,” but the statute refers to “civil action[s],” not “claims.” This Court has long held that a district court, when determining whether it has original jurisdiction over a civil action, should evaluate whether that action could have been brought originally in federal court.…This requires a district court to evaluate whether the plaintiff could have filed its operative complaint in federal court, either because it raises claims arising under federal law or because it falls within the court’s diversity jurisdiction. Section 1441(a) thus does not permit removal based on counterclaims at all, as a counterclaim is irrelevant to whether the district court had “original jurisdiction” over the civil action. And because the “civil action . . . of which the district cour[t]” must have “original jurisdiction” is the action as defined by the plaintiff ’s complaint, “the defendant” to that action is the defendant to that complaint, not a party named in a counterclaim. … The use of the term “defendant” in related contexts bolsters our determination that Congress did not intend for the phrase “the defendant or the defendants” in §1441(a) to include third-party counterclaim defendants. For one, the Federal Rules of Civil Procedure differentiate between third-party defendants, counterclaim defendants, and defendants….Moreover, in other removal provisions, Congress has clearly extended the reach of the statute to include parties other than the original defendant. For instance, §1452(a) permits “[a] party” in a civil action to “remove any claim or cause of action” over which a federal court would have bankruptcy jurisdiction….Finally, our decision in Shamrock Oil suggests that third-party counterclaim defendants are not “the defendant or the defendants” who can remove under §1441(a). Shamrock Oil held that a counterclaim defendant who was also the original plaintiff could not remove under §1441(a)’s predecessor statute. … We next consider whether CAFA’s removal provision, §1453(b), permits a third-party counterclaim defendant to remove.4 Home Depot contends that even if it could not remove under §1441(a), it could remove under §1453(b) because that statute is worded differently. It argues that although §1441(a) permits removal only by “the defendant or the defendants” in a “civil action,” §1453(b) permits removal by “any defendant” to a “class action.” (Emphasis added.) Jackson responds that this argument ignores the context of §1453(b), which he contends makes clear that Congress intended only to alter certain restrictions on removal, not expand the class of parties who can remove a class action. Although this is a closer question, we agree with Jackson. The two clauses in §1453(b) that employ the term “any defendant” simply clarify that certain limitations on removal that might otherwise apply do not limit removal under §1453(b). Section 1453(b) first states that “[a] class action may be removed . . . without regard to whether any defendant is a citizen of the State in which the action is brought.” There is no indication that this language does anything more than alter the general rule that a civil action may not be removed on the basis of diversity jurisdiction “if any of the . . . defendants is a citizen of the State in which such action is brought.” §1441(b)(2). Section 1453(b) then states that “[a] class action . . . may be removed by any defendant without the consent of all defendants.” This language simply amends the rule that “all defendants who have been properly joined and served must join in or consent to the removal of the action.” §1446(b)(2)(A). Rather than indicate that a counterclaim defendant can remove, “here the word ‘any’ is being employed in connection with the word ‘all’ later in the sentence—‘by any . . . without . . . the consent of all.’” Neither clause—nor anything else in the statute—alters §1441(a)’s limitation on who can remove, which suggests that Congress intended to leave that limit in place. … Because neither §1441(a) nor §1453(b) permits removal by a third-party counterclaim defendant, Home Depot could not remove the class-action claim filed against it. Accordingly, we affirm the judgment of the Fourth Circuit. Lineup: Thomas, joined by Ginsburg, Breyer, Sotomayor, and Kagan. Dissent by Alito, joined by Roberts, Gorsuch, and Kavanaugh. Other Opinions: Dissent (Alito): The rule of law requires neutral forums for resolving disputes. Courts are designed to provide just that. But our legal system takes seriously the risk that for certain cases, some neutral forums might be more neutral than others. Or it might appear that way, which is almost as deleterious. For example, a party bringing suit in its own State’s courts might (seem to) enjoy, so to speak, a home court advantage against outsiders. Thus, from 1789 Congress has opened federal courts to certain disputes between citizens of different States. Plaintiffs, of course, can avail themselves of the federal option in such cases by simply choosing to file a case in federal court. But since their defendants cannot, the law has always given defendants the option to remove (transfer) cases to federal court. The general removal statute, which authorizes removal by “the defendant or the defendants,” thus ensures that defendants get an equal chance to choose a federal forum. But defendants cannot remove a case unless it meets certain conditions. Some of those conditions have long made important (and often costly) consumer class actions virtually impossible to remove. Congress, concerned that state courts were biased against defendants to such actions, passed a law facilitating their removal. The Class Action Fairness Act of 2005 (CAFA) allows removal of certain class actions “by any defendant.” Our job is not to judge whether Congress’s fears about state-court bias in class actions were warranted or indeed whether CAFA should allay them. We are to determine the scope of the term “defendant” under CAFA as well as the general removal provision, §1441. All agree that if one party sues another, the latter—the original defendant—is a “defendant” under both removal laws. But suppose the original defendant then countersues, bringing claims against both the plaintiff and a new party. Is this new defendant—the “third-party defendant”—also a “defendant” under CAFA and §1441? There are, of course, some differences between original and third-party defendants. One is brought into a case by the first major filing, the other by the second. The one filing is called a complaint, the other a counter-complaint. But both kinds of parties are defendants to legal claims. Neither chose to be in state court. Both might face bias there, and with it the potential for crippling unjust losses. Yet today’s Court holds that third-party defendants are not “defendants.” It holds that Congress left them unprotected under CAFA and §1441. This reads an irrational distinction into both removal laws and flouts their plain meaning, a meaning that context confirms and today’s majority simply ignores. To appreciate what Congress sought to achieve with CAFA, consider what Congress failed to accomplish a decade earlier with the Private Securities Litigation Reform Act of 1995. The Reform Act was “targeted at perceived abuses of the class-action vehicle in litigation involving nationally traded securities,” including spurious lawsuits, “vexatious discovery requests, and ‘manipulation by class action lawyers of the clients whom they purportedly represent.’ ” … But “at least some members of the plaintiffs’ bar” found a workaround: They avoided the Reform Act’s limits on federal litigation by “avoid[ing] the federal forum altogether” and heading to state court. Id., at 82. Once there, they were able to keep defendants from taking them back to federal court (under the rules then in force) simply by naming an in-state defendant. … So Congress again took action. But rather than get at the problem by imposing limits on federal litigation that plaintiffs could sidestep by taking defendants to state court, Congress sought to make it easier for defendants to remove to federal court: thus CAFA. ... While complete diversity of parties is normally required, CAFA eliminates that rule for class actions involving at least 100 members and more than $5 million in controversy. In such cases, CAFA vests district courts with diversity jurisdiction anytime there is minimal diversity—which occurs when at least one plaintiff and defendant reside in different States. We were asked to decide whether these loosened requirements are best read to allow removal by third-party defendants like Home Depot. The answer is clear when one considers Home Depot’s situation against CAFA’s language and history. … All agree that the one dispute that now constitutes this lawsuit—Jackson’s class action against Home Depot and CWS—would have been removable under CAFA had it been present from the start of a case. Is it ineligible for removal just because it was not contained in the filing that launched this lawsuit? Several lower courts think so. In holding as much, they have created what Judge Niemeyer called a “loophole” that only this Court “can now rectify.” The potential for that “loophole” was first spotted by a civil procedure scholar writing shortly after CAFA took effect. See Tidmarsh, Finding Room for State Class Actions in a Post-CAFA World: The Case of the Counterclaim Class Action, 35 W. St. U. L. Rev. 193, 198 (2007). The article outlined a “tactic” for plaintiffs to employ if they wanted to thwart a defendant’s attempt to remove a class action to federal court under CAFA: They could raise their class-action claim as a counterclaim and “hope that CAFA does not authorize removal.” The article is right to call this approach a tactic; it subverts CAFA’s evident aims. … [A]s we have unanimously declared, a “plain and unambiguous” text “must” be enforced “according to its terms.” And yet, though the text and key term here is “any defendant,” 28 U. S. C. §1453(b), the majority has not one jot or tittle of analysis on the plain meaning of “defendant.” Any such analysis would have compelled a different result. According to legal as well as standard dictionary definitions available in 2005, a “defendant” is a “person sued in a civil proceeding.”...What we have before us is a civil proceeding in which Home Depot is not a plaintiff and is being sued. So Home Depot is a defendant, as that term is ordinarily understood...If further confirmation were needed, it could be found in CAFA’s use of the word “any” to modify “defendant.”...For these reasons, unless third-party defendants like Home Depot differ in some way that is relevant to removal (as a matter of text, precedent, or common sense), they fall within CAFA’s coverage of “any defendant.” … Respondent and the majority contend that Congress meant to incorporate into CAFA a specialized sense of “defendant,” derived from its use in the general removal statute….The first basis for reading CAFA to extend more broadly than §1441 is that CAFA’s text is broader. As discussed, see supra, at 10, CAFA sweeps in “any defendant,” in contrast to §1441’s “the defendant or the defendants.” … Respondent and the majority object that this reading ignores the backdrop against which CAFA was enacted and the significance of CAFA’s contrast with the language of other (subject-matter-specific) removal statutes. And to these objections, respondent adds a third and bolder claim: that CAFA does not empower petitioner to remove because it does not create removal authority at all, but only channels removals already authorized by §1441 (on which petitioner cannot rely in this case). All three objections fail. … First, though respondent repeatedly declares that the lower courts have reached a “consensus,” they have not...Even a treatise cited by respondent destroys his “consensus” claim, as it admits that courts take “myriad and diverging views on whether third-party defendants may remove an action.” … Respondent also thinks we should read CAFA to exclude third-party defendants in light of the contrast between CAFA’s “any defendant” and the language of two other removal laws that more clearly encompass third-party defendants. The America Invents Act (AIA), for example, allows “any party” to remove a lawsuit involving patent or copyright claims. The Bankruptcy Code likewise allows “[a] party” to remove in cases related to bankruptcy. Thus, respondent says, when Congress wanted to include more than original defendants, it knew how. It used terms like “any party” and “a party”—as CAFA did not. Note, however, that the cited terms would have covered even original plaintiffs, whom no one thinks CAFA meant to reach (and for good reason, see Part II, supra). So CAFA’s terms had to be narrower than (say) the AIA’s “any party,” regardless of whether CAFA was going to cover third-party defendants. Its failure to use the AIA’s and Bankruptcy Code’s broader terms, then, tells us nothing about third-party defendants’ status under CAFA. Only the meaning of CAFA’s “any defendant” does that. And it favors petitioner. Respondent’s final and most radical argument against petitioner’s CAFA claim is that CAFA’s removal language does not independently authorize removal at all. On this view, all that §1453(b) does is “make a few surgical changes [in certain class-action cases] to the procedures that ordinarily govern removal,” while the actual power to remove comes from the general removal provision, §1441(a). And so, the argument goes, removals under CAFA are still subject to §1441(a)’s restriction to “civil action[s]” over which federal courts have “original jurisdiction.” Since this limitation is often read to mean that federal jurisdiction must have existed from the start of the civil action, see Part IV–C, infra, and that was not the case here, no removal is possible. The premise of this objection is as weak as it is audacious. If CAFA does not authorize removal, then neither does §1441. After all, they use the same operative language, with the one providing that a class action “may be removed,” §1453(b), and the other providing that a civil action “may be removed,” §1441(a). So §1453(b) must, after all, be its own font of removal power and not a conduit for removals sourced by §1441(a). … All the resources of statutory interpretation confirm that under CAFA and §1441, third-party defendants are defendants. I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/17-1471_e2p3.pdf NIEVES ET AL. v. BARTLETT Holding / Majority Opinion: Respondent Russell Bartlett sued petitioners—two police officers—alleging that they retaliated against him for his protected First Amendment speech by arresting him for disorderly conduct and resisting arrest. The officers had probable cause to arrest Bartlett, and we now decide whether that fact defeats Bartlett’s First Amendment claim as a matter of law. Bartlett was arrested during “Arctic Man,” a weeklong winter sports festival held in the remote Hoodoo Mountains near Paxson, Alaska. Paxson is a small community that normally consists of a few dozen residents. But once a year, upwards of 10,000 people descend on the area for Arctic Man, an event known for both extreme sports and extreme alcohol consumption. ... On the last night of Arctic Man 2014, Sergeant Luis Nieves and Trooper Bryce Weight arrested Bartlett. The parties dispute certain details about the arrest but agree on the general course of events, some of which were captured on video by a local news reporter. ... The officers took Bartlett to a holding tent, where he was charged with disorderly conduct and resisting arrest. He had sustained no injuries during the episode and was released a few hours later. The State ultimately dismissed the criminal charges against Bartlett, and Bartlett then sued the officers under 42 U. S. C. §1983, which provides a cause of action for state deprivations of federal rights. As relevant here, he claimed that the officers violated his First Amendment rights by arresting him in retaliation for his speech. The protected speech, according to Bartlett, was his refusal to speak with Nieves earlier in the evening and his intervention in Weight’s discussion with the underage partygoer. The officers responded that they arrested Bartlett because he interfered with an investigation and initiated a physical confrontation with Weight. … We are asked to resolve whether probable cause to make an arrest defeats a claim that the arrest was in retaliation for speech protected by the First Amendment. … “[A]s a general matter the First Amendment prohibits government officials from subjecting an individual to retaliatory actions” for engaging in protected speech....To prevail on such a claim, a plaintiff must establish a “causal connection” between the government defendant’s “retaliatory animus” and the plaintiff ’s “subsequent injury.” It is not enough to show that an official acted with a retaliatory motive and that the plaintiff was injured—the motive must cause the injury. … For example, in Mt. Healthy, a teacher claimed that a school district refused to rehire him in retaliation for his protected speech. We held that even if the teacher’s “protected conduct played a part, substantial or otherwise, in [the] decision not to rehire,” he was not entitled to reinstatement “if the same decision would have been reached” absent his protected speech. … Hartman requires plaintiffs in retaliatory prosecution cases to show more than the subjective animus of an officer and a subsequent injury; plaintiffs must also prove as a threshold matter that the decision to press charges was objectively unreasonable because it was not supported by probable cause. … Officers Nieves and Weight argue that the same no-probable-cause requirement should apply to First Amendment retaliatory arrest claims. Their primary contention is that retaliatory arrest claims involve causal complexities akin to those we identified in Hartman, and thus warrant the same requirement that plaintiffs plead and prove the absence of probable cause. As a general matter, we agree. As we recognized in Reichle and reaffirmed in Lozman, retaliatory arrest claims face some of the same challenges we identified in Hartman: Like retaliatory prosecution cases, “retaliatory arrest cases also present a tenuous causal connection between the defendant’s alleged animus and the plaintiff ’s injury.” The causal inquiry is complex because protected speech is often a “wholly legitimate consideration” for officers when deciding whether to make an arrest. Officers frequently must make “split-second judgments” when deciding whether to arrest, and the content and manner of a suspect’s speech may convey vital information—for example, if he is “ready to cooperate” or rather “present[s] a continuing threat.” Indeed, that kind of assessment happened in this case. The officers testified that they perceived Bartlett to be a threat based on a combination of the content and tone of his speech, his combative posture, and his apparent intoxication. … Bartlett, in defending the decision below, argues that the “causation in retaliatory-arrest cases is not inherently complex” because the “factfinder simply must determine whether the officer intended to punish the plaintiff for the plaintiff ’s protected speech.” That approach fails to account for the fact that protected speech is often a legitimate consideration when deciding whether to make an arrest, and disregards the resulting causal complexity previously recognized by this Court. Bartlett’s approach dismisses the need for any threshold showing, moving directly to consideration of the subjective intent of the officers. In the Fourth Amendment context, however, “we have almost uniformly rejected invitations to probe subjective intent.” … Adopting Hartman’s no-probable-cause rule in this closely related context addresses those familiar concerns. Absent such a showing, a retaliatory arrest claim fails. But if the plaintiff establishes the absence of probable cause, “then the Mt. Healthy test governs: The plaintiff must show that the retaliation was a substantial or motivating factor behind the [arrest], and, if that showing is made, the defendant can prevail only by showing that the [arrest] would have been initiated without respect to retaliation.” … Our conclusion is confirmed by the common law approach to similar tort claims. When defining the contours of a claim under §1983, we look to “common-law principles that were well settled at the time of its enactment.” As the parties acknowledge, when §1983 was enacted in 1871, there was no common law tort for retaliatory arrest based on protected speech. We therefore turn to the common law torts that provide the “closest analogy” to retaliatory arrest claims. HThe parties dispute whether the better analog is false imprisonment or malicious prosecution. At common law, false imprisonment arose from a “detention without legal process,” whereas malicious prosecution was marked “by wrongful institution of legal process.” Here, both claims suggest the same result: The presence of probable cause should generally defeat a First Amendment retaliatory arrest claim. … [This paragraph Thomas does not join] Although probable cause should generally defeat a retaliatory arrest claim, a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so [jaywalking etc.]...[W]e conclude that the no-probable-cause requirement should not apply when a plaintiff presents objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been. ... Because there was probable cause to arrest Bartlett, his retaliatory arrest claim fails as a matter of law. Accordingly, the judgment of the United States Court of Appeals for the Ninth Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. Lineup: Roberts, joined by Breyer, Alito, Kagan, and Kavanaugh, and joined by Thomas (other than Part II-D). Concurrence in part and in the judgment by Thomas. Concurrence in part and dissent in part by Gorsuch. Concurrence in the judgment and dissent in part by Ginsburg. Dissent by Sotomayor. Other Opinions: Concurrence in part and in the judgment (Thomas): When 42 U. S. C. §1983 was enacted, “the common law recognized probable cause as an important element for ensuring that arrest-based torts did not unduly interfere with the objectives of law enforcement.” Applying that principle resolves this case: “[P]laintiffs bringing a First Amendment retaliatory-arrest claim under §1983 should have to plead and prove a lack of probable cause.” The Court acknowledges as much, ante, at 12–13, and I join the portions of the Court’s opinion adopting that rule. I do not join Part II–D, however, because I do not agree that “a narrow qualification is warranted for circumstances where officers have probable cause to make arrests, but typically exercise their discretion not to do so.” That qualification has no basis in either the common law or our First Amendment precedents. Concurrence in part and dissent in part (Gorsuch): No one agrees who started the trouble at the 2014 Alaska Arctic Man Festival, but everyone agrees two troopers ended it by arresting Russell Bartlett for harassing one of them. And it’s that arrest that led to this lawsuit. Mr. Bartlett alleges that the real reason the troopers arrested him had nothing to do with harassment and everything to do with his decision to exercise his First Amendment free speech rights by voicing his opinions to the troopers. Mr. Bartlett contends that the officers’ retaliation against his First Amendment protected speech entitles him to damages under 42 U. S. C. §1983. For their part, the troopers insist that the fact they had probable cause to arrest Mr. Bartlett for some crime, or really any crime, should be enough to shield them from liability. The parties approach their dispute from some common ground. Both sides accept that an officer violates the First Amendment when he arrests an individual in retaliation for his protected speech. They seem to agree, too, that the presence of probable cause does not undo that violation or erase its significance. And for good reason….So if probable cause can’t erase a First Amendment violation, the question becomes whether its presence at least forecloses a civil claim for damages as a statutory matter under §1983. But look at that statute as long as you like and you will find no reference to the presence or absence of probable cause as a precondition or defense to any suit. Instead, the statute imposes liability on anyone who, under color of state law, subjects another person “to the deprivation of any rights, privileges, or immunities secured by the Constitution.” Maybe it would be good policy to graft a no-probable-cause requirement onto the statute, as the officers insist; or maybe not. Either way, that’s an appeal better directed to Congress than to this Court. Our job isn’t to write or revise legislative policy but to apply it faithfully. Admittedly, though, that’s not quite the end of the statutory story. Courts often assume that Congress adopts statutes against the backdrop of the common law. And, for this reason, we generally read §1983’s terms “in harmony with general principles of tort immunities and defenses” that existed at the time of the statute’s adoption. As the officers before us are quick to point out, too, law enforcement agents who made a lawful arrest at the time of §1983’s adoption couldn’t be held liable at common law for the tort of false arrest or false imprisonment. … So maybe probable cause should be enough today to defeat claims for false arrest or false imprisonment, given that arrests today are usually legally authorized if supported by probable cause. But that doesn’t mean probable cause is also enough to defeat a First Amendment retaliatory arrest claim. The point of this kind of claim isn’t to guard against officers who lack lawful authority to make an arrest. Rather, it’s to guard against officers who abuse their authority by making an otherwise lawful arrest for an unconstitutional reason. Here’s another way to look at it. The common law tort of false arrest translates more or less into a Fourth Amendment claim. That’s because our precedent considers a warrantless arrest unsupported by probable cause— the sort that gave rise to a false arrest claim at common law—to be an unreasonable seizure in violation of the Fourth Amendment. But the First Amendment operates independently of the Fourth and provides different protections. It seeks not to ensure lawful authority to arrest but to protect the freedom of speech … Here’s a way to test the point, too. Everyone accepts that a detention based on race, even one otherwise authorized by law, violates the Fourteenth Amendment’s Equal Protection Clause. In Yick Wo v. Hopkins, 118 U. S. 356 (1886), for example, San Francisco jailed many Chinese immigrants for operating laundries without permits but took no action against white persons guilty of the same infraction. Even if probable cause existed to believe the Chinese immigrants had broken a valid law—even if they had in fact violated the law—this Court held that the city’s discriminatory enforcement violated the Fourteenth Amendment. Following our lead, the courts of appeals have recognized that §1983 plaintiffs alleging racially selective arrests in violation of the Fourteenth Amendment don’t have to show a lack of probable cause, even though they might have to show a lack of probable cause to establish a violation of the Fourth Amendment: “[S]imply because a practice passes muster under the Fourth Amendment (arrest based on probable cause) does not mean that unequal treatment with respect to that practice is consistent with equal protection.” I can think of no sound reason why the same shouldn’t hold true here….We[] have no legitimate basis for engrafting a no-probable-cause requirement onto a First Amendment retaliatory arrest claim. Concurrence in part and dissent in part (Ginsburg): Arrest authority, as several decisions indicate, can be abused to disrupt the exercise of First Amendment speech and press rights….Given the array of laws proscribing, e.g., breach of the peace, disorderly conduct, obstructing public ways, failure to comply with a peace officer’s instruction, and loitering, police may justify an arrest as based on probable cause when the arrest was in fact prompted by a retaliatory motive. If failure to show lack of probable cause defeats an action under 42 U. S. C. §1983, only entirely baseless arrests will be checked. I remain of the view that the Court’s decision in Mt. Healthy City Bd. of Ed. v. Doyle, 429 U. S. 274 (1977), strikes the right balance: The plaintiff bears the burden of demonstrating that unconstitutional animus was a motivating factor for an adverse action; the burden then shifts to the defendant to demonstrate that, even without any impetus to retaliate, the defendant would have taken the action complained of. In this case, I would reverse the Ninth Circuit’s judgment as to Trooper Weight. As the Court points out, the record is bereft of evidence of retaliation on Weight’s part...In any event, I would not use this thin case to state a rule that will leave press members and others exercising First Amendment rights with little protection against police suppression of their speech. Dissent (Sotomayor): We granted certiorari to decide whether probable cause alone always suffices to defeat a First Amendment retaliatory arrest claim under 42 U. S. C. §1983. The Court answers that question “no”—a correct and sensible bottom line on which eight Justices agree. There is no basis in §1983 or in the Constitution to withhold a remedy for an arrest that violated the First Amendment solely because the officer could point to probable cause that some offense, no matter how trivial or obviously pretextual, has occurred. Unfortunately, a slimmer majority of the Court chooses not to stop there. The majority instead announces a different rule: that a showing of probable cause will defeat a §1983 First Amendment retaliatory arrest claim unless the person arrested happens to be able to show that “otherwise similarly situated individuals” whose speech differed were not arrested. Ante, at 14. The Court barely attempts to explain where in the First Amendment or §1983 it finds any grounding for that rule, which risks letting flagrant violations go unremedied. Because the correct approach would be simply to apply the well-established, carefully calibrated standards that govern First Amendment retaliation claims in other contexts, I respectfully dissent. https://www.supremecourt.gov/opinions/18pdf/17-1174_m5o1.pdf [internal citations inconsistently omitted throughout]
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May 28, 2019 16:22
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Goddam Gorsuch just does not get how to write in judicial voice. Contractions everywhere It's not so much that it's badly written as that he can't get the appropriate tone
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May 28, 2019 16:29
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Hieronymous Alloy posted:Goddam Gorsuch just does not get how to write in judicial voice. Contractions everywhere at the risk of endorsing something Gorsuch writes: that part is Actually Good
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May 28, 2019 16:40
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eke out posted:at the risk of endorsing something Gorsuch writes: that part is Actually Good Maybe but it makes it really hard for me to take anything he's writing seriously. I keep wanting to get out a pen and correct it. I mean in the abstract sure vernacular is better, readability is good, put cameras in the federal courtrooms etc., but in practice i'm not ready yet.
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May 28, 2019 16:42
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I don't have a problem with contractions or the overall tone but his writing would be dramatically improved by throwing out the content-free transitions. It reads like a lecture transcript without any editing.
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May 28, 2019 16:43
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OTOH at least he's doing his writing himself instead of making his clerks do it
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May 28, 2019 16:45
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