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Kloaked00 posted:Congress: Excuse me federal court, what should we do about this constitutional situation? I'm sure they'd rule the same way after administration officials complain about being detained indefinitely in congressional broom closet?
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Mar 2, 2020 02:33
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Stickman posted:I'm sure they'd rule the same way after administration officials complain about being detained indefinitely in congressional broom closet? Anyone else realize the long term effect of this is for Congress to create its own law enforcement agency with congress itself as Judge and Jury? That can't go wrong at all.
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Mar 2, 2020 03:13
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Looking forward to every veto being decided by ritual combat between the Secret Service and the Sergeant at Arms.
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Mar 2, 2020 04:13
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Kloaked00 posted:Congress: Excuse me federal court, what should we do about this constitutional situation? Seems clear to me; send the loving capitol police
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Mar 2, 2020 15:08
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Potato Salad posted:Seems clear to me; send the loving capitol police Kidnapping someone seems like a bad idea, as does suggesting Trump send in the feds when he loses his next lawsuit against the NYT.
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Mar 2, 2020 15:19
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Drone Jett posted:Kidnapping someone seems like a bad idea, as does suggesting Trump send in the feds when he loses his next lawsuit against the NYT. A constitutionally necessary kidnapping 
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Mar 2, 2020 15:21
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Drone Jett posted:Kidnapping someone seems like a bad idea, as does suggesting Trump send in the feds when he loses his next lawsuit against the NYT. Calling it “kidnapping” is off base - Congress’ direct power to enforce subpoenas via inherent contempt is already well established. They’re just loathe to use it when using the court system’s third-party oversight adds an air of legitimacy. If the courts refuse to adjudicate then they’ll need to use their enforcement powers unless they want to cede their constitutional oversight duties. E: Of course, it’d be a terrible idea for the court to cede moderation and there’s hope yet, even if it’s just “we retain jurisdiction, but lol it’s too late for that subpoena should have asked earlier” Stickman fucked around with this message at 17:50 on Mar 2, 2020 |
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Mar 2, 2020 17:30
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 Opinion! KANSAS v. GARCIA Holding / Majority Opinion (Alito): Kansas law makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. Respondents—three aliens who are not authorized to work in this country—were convicted under these provisions for fraudulently using another person’s Social Security number on state and federal tax-withholding forms that they submitted when they obtained employment. The Supreme Court of Kansas held that a provision of the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, expressly preempts the Kansas statutes at issue insofar as they provide a basis for these prosecutions. We reject this reading of the provision in question, as well as respondents’ alternative arguments based on implied preemption. We therefore reverse. The foundation of our laws on immigration and naturalization is the Immigration and Nationality Act (INA), 66 Stat. 163, as amended, 8 U. S. C. §1101 et seq., which sets out the “‘terms and conditions of admission to the country and the subsequent treatment of aliens lawfully in the country.’” As initially enacted, the INA did not prohibit the employment of illegal aliens, and this Court held that federal law left room for the States to regulate in this field. With the enactment of [the Immigration Reform and Control Act of 1986], Congress took a different approach. IRCA made it unlawful to hire an alien knowing that he or she is unauthorized to work in the United States. To enforce this prohibition, IRCA requires employers to comply with a federal employment verification system. … Like other States, Kansas has laws against fraud, forgeries, and identity theft. These statutes apply to citizens and aliens alike and are not limited to conduct that occurs in connection with employment. The Kansas identity-theft statute criminalizes the “using” of any “personal identifying information” belonging to another person with the intent to “[d]efraud that person, or anyone else, in order to receive any benefit.” … The respondents in the three cases now before us are aliens who are not authorized to work in this country but nevertheless secured employment by using the identity of other persons on the I–9 forms that they completed when they applied for work. They also used these same false identities when they completed their W–4’s and K–4’s. All three respondents were convicted under one or both of the Kansas laws just mentioned for fraudulently using another person’s Social Security number on tax-withholding forms. … In all three cases, respondents argued before trial that IRCA preempted their prosecutions. They relied on 8 U. S. C. §1324a(b)(5), which, as noted, provides that I–9 forms and “any information contained in or appended to such form[s] may not be used for purposes other than for enforcement of ” the INA or other listed federal statutes. In response, the State dismissed the charges that were based on I–9’s and agreed not to rely on the I–9’s at trial. The State maintained, however, that §1324a(b)(5) did not apply to the respondents’ use of false Social Security numbers on the tax-withholding forms. … The Supremacy Clause provides that the Constitution, federal statutes, and treaties constitute “the supreme Law of the Land.” Art. VI, cl. 2. The Clause provides “a rule of decision” for determining whether federal or state law applies in a particular situation. If federal law “imposes restrictions or confers rights on private actors” and “a state law confers rights or imposes restrictions that conflict with the federal law,” “the federal law takes precedence and the state law is preempted. In all cases, the federal restrictions or rights that are said to conflict with state law must stem from either the Constitution itself or a valid statute enacted by Congress. “There is no federal preemption in vacuo,” without a constitutional text, federal statute, or treaty made under the authority of the United States. In some cases, a federal statute may expressly preempt state law. But it has long been established that preemption may also occur by virtue of restrictions or rights that are inferred from statutory law. ... In these cases, respondents do not contend that the Kansas statutes under which they were convicted are preempted in their entirety. Instead, they argue that these laws must yield only insofar as they apply to an unauthorized alien’s use of false documents on forms submitted for the purpose of securing employment. In making this argument, respondents invoke all three categories of preemption identified in our cases. They defend the Kansas Supreme Court’s holding that provisions of IRCA expressly bar their prosecutions. And they also argue that the decision below is supported by “field” or “conflict” preemption or some combination of the two. We consider these arguments in turn. We begin with the argument that the state criminal statutes under which respondents were convicted are expressly preempted. As noted, IRCA contains a provision that expressly preempts state law, but it is plainly inapplicable here….The Kansas Supreme Court did not base its holding on this provision but instead turned to §1324a(b)(5), which is far more than a preemption provision. This provision broadly restricts any use of an I–9, information contained in an I–9, and any documents appended to an I–9. Thus, unlike a typical preemption provision, it applies not just to the States but also to the Federal Government and all private actors. The Kansas Supreme Court thought that the prosecutions in these cases ran afoul of this provision because the charges were based on respondents’ use in their W–4’s and K–4’s of the same false Social Security numbers that they also inserted on their I–9’s. Taken at face value, this theory would mean that no information placed on an I–9— including an employee’s name, residence address, date of birth, telephone number, and e-mail address—could ever be used by any entity or person for any reason. This interpretation is flatly contrary to standard English usage. … We therefore proceed to consider respondents’ alternative argument that the Kansas laws, as applied, are preempted by implication. Respondents contend, first, that the Kansas statutes, as applied, fall into a field that is implicitly reserved exclusively for federal regulation. In rare cases, the Court has found that Congress “legislated so comprehensively” in a particular field that it “left no room for supplementary state legislation,” but that is certainly not the situation here. In order to determine whether Congress has implicitly ousted the States from regulating in a particular field, we must first identify the field in which this is said to have occurred. In their merits brief in this Court, respondents’ primary submission is that IRCA preempts “the field of fraud on the federal employment verification system,” but this argument fails because, as already explained, the submission of tax-withholding forms is not part of that system. … Contrary to respondents’ suggestion, IRCA certainly does not bar all state regulation regarding the “use of false documents . . . when an unauthorized alien seeks employment.” Nor does IRCA exclude a State from the entire “field of employment verification.” For example, IRCA certainly does not prohibit a public school system from requiring applicants for teaching positions to furnish legitimate teaching certificates. And it does not prevent a police department from verifying that a prospective officer does not have a record of abusive behavior. … federal law does not create a comprehensive and unified system regarding the information that a State may require employees to provide. In sum, there is no basis for finding field preemption in these cases. We likewise see no ground for holding that the Kansas statutes at issue conflict with federal law. It is certainly possible to comply with both IRCA and the Kansas statutes, and respondents do not suggest otherwise. ... For these reasons, the judgments of the Supreme Court of Kansas are reversed, and these cases are remanded for further proceedings not inconsistent with this opinion. Lineup: Alito, joined by Roberts, Thomas, Gorsuch, and Kavanaugh. Concurrence by Thomas, joined by Gorsuch. Dissent-in-part and concurrence-in-part by Breyer, joined by Ginsburg, Sotomayor and Kagan. Concurrence (Thomas, joined by Gorsuch): I agree that Kansas’ prosecutions and convictions of respondents for identity theft and making false information are not pre-empted by §101(a)(1) of the Immigration Reform and Control Act of 1986, 8 U. S. C. §1324a. I write separately to reiterate my view that we should explicitly abandon our “purposes and objectives” pre-emption jurisprudence. The founding generation treated conflicts between federal and state laws as implied repeals. Then, as now, courts disfavored repeals by implication. To overcome this disfavor, legislatures included non obstante clauses in statutes. Courts understood non obstante provisions to mean that, “[r]ather than straining the new statute in order to harmonize it with prior law, [they] were supposed to give the new statute its natural meaning and to let the chips fall where they may.” … The Founders included a non obstante provision in the Supremacy Clause. It directs that “the Judges in every State shall be bound” by the “Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, . . . any Thing in the Constitution or Laws of any state to the Contrary notwithstanding.” If we interpret the Supremacy Clause as the founding generation did, our task is straightforward. We must use the accepted methods of interpretation to ascertain whether the ordinary meaning of federal and state law “directly conflict.” “[F]ederal law pre-empts state law only if the two are in logical contradiction.” The doctrine of “purposes and objectives” pre-emption impermissibly rests on judicial guesswork about “broad federal policy objectives, legislative history, or generalized notions of congressional purposes that are not contained within the text of federal law.” I therefore cannot apply “purposes and objectives” pre-emption doctrine, as it is contrary to the Supremacy Clause.* *I am also skeptical of field pre-emption, “at least as applied in the absence of a congressional command that a particular field be preempted.” Dissent-in-Part and Concurrence-in-Part (Breyer, joined by Ginsburg, Sotomayor, and Kagan): I agree with the majority that nothing in the Immigration Reform and Control Act of 1986 (IRCA), 100 Stat. 3359, expressly preempts Kansas’ criminal laws as they were applied in the prosecutions at issue here. But I do not agree with the majority’s conclusion about implied preemption. When we confront a question of implied preemption, the words of the statute are especially unlikely to determine the answer by themselves. Nonetheless, in my view, IRCA’s text, together with its structure, context, and purpose, make it “‘clear and manifest’” that Congress has occupied at least the narrow field of policing fraud committed to demonstrate federal work authorization. That is to say, the Act reserves to the Federal Government—and thus takes from the States—the power to prosecute people for misrepresenting material information in an effort to convince their employer that they are authorized to work in this country. The Act creates what we have called “a comprehensive scheme” to “comba[t] the employment of illegal aliens.” To that end, the statute’s text sets forth highly detailed requirements. … What Kansas did was prosecute Morales for misrepresenting his federal work-authorization status for the purpose of obtaining employment. Kansas’ prosecution of Morales thus fell squarely within the field that, in my view, the federal Act preempts. By permitting these prosecutions, the majority opens a colossal loophole. Starting a new job almost always involves filling out tax-withholding forms alongside an I–9. So unless they want to give themselves away, people hoping to hide their federal work-authorization status from their employer will put the same false information on their tax-withholding forms as they do on their I–9. To let the States prosecute such people for the former is, in practical effect, to let the States police the latter. And policing the latter is what the Act expressly forbids. For these reasons, I would hold that federal law impliedly preempted Kansas’ criminal laws as they were applied in these cases. Because the majority takes a different view, with respect, I dissent. https://www.supremecourt.gov/opinions/19pdf/17-834_k53l.pdf https://twitter.com/Popehat/status/1234858681218498568 ulmont fucked around with this message at 17:32 on Mar 3, 2020 |
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Mar 3, 2020 16:42
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Potato Salad posted:Seems clear to me; send the loving capitol police Right. Political question doctrine goes back to Marbury v Madison, the courts really don't want to stick out their necks on things like this.
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Mar 3, 2020 18:09
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Why, because it'd show the fact that the executive has always held all of the power and the other two branches are equal only in theory?
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Mar 4, 2020 00:28
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Well that wasn't always the case. It's hilarious(ly sad) that a group of supposedly originalist judges have ushered in the Imperial presidency the founding fathers eventually compromised on definitely not creating.
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Mar 4, 2020 08:55
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MrNemo posted:Well that wasn't always the case. It's hilarious(ly sad) that a group of supposedly originalist judges have ushered in the Imperial presidency the founding fathers eventually compromised on definitely not creating. Congress delegating all of their power to the executive certainly hasn't helped either
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Mar 4, 2020 15:22
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MrNemo posted:Well that wasn't always the case. It's hilarious(ly sad) that a group of supposedly originalist judges have ushered in the Imperial presidency the founding fathers eventually compromised on definitely not creating. The founding fathers would've been fine with agents of the federal government recklessly firing weapons into another country's territory.
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Mar 4, 2020 17:58
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hobbesmaster posted:The founding fathers would've been fine with agents of the federal government recklessly firing weapons into another country's territory. Not just that, the founding fathers would have been fine with filibusters in the original meaning of the word so one dead foreigner wouldn't even have bothered them a little bit.
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Mar 4, 2020 18:28
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One of the primary purposes of the Revolution was to get away from George III and his stupid rules about respecting borders with Native American lands.
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Mar 4, 2020 22:09
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My understanding of the case is that the lawyer for Louisiana looked like an unprepared fool throughout.
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Mar 5, 2020 20:41
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lol we're down to hoping Republican lawyers are so stupid that they annoy Roberts more than women wearing pants and voting
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Mar 5, 2020 20:48
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Sodomy Hussein posted:My understanding of the case is that the lawyer for Louisiana looked like an unprepared fool throughout. which circuit is he getting tapped for?
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Mar 5, 2020 20:49
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VitalSigns posted:lol we're down to hoping Republican lawyers are so stupid that they annoy Roberts more than women wearing pants and voting
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Mar 5, 2020 20:58
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FlamingLiberal posted:He’s the only thing left that you can possibly call a ‘swing vote’ on this court Unfortunately he swings between far right and extreme far right.
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Mar 6, 2020 00:07
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FlamingLiberal posted:He’s the only thing left that you can possibly call a ‘swing vote’ on this court
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Mar 6, 2020 05:59
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There doesn't have to a be any swing votes. If we had two Alitos and no Roberts, we'd see a lot less 5-4 decisions with 4 liberal + 1 conservative majorities. As it stands, Roberts is the most likely conservative to be the liberal's +1 on most (but not all) issues and the only one that can be consistently counted on to waffle.
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Mar 6, 2020 06:17
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Stickman posted:There doesn't have to a be any swing votes. If we had two Alitos and no Roberts, we'd see a lot less 5-4 decisions with 4 liberal + 1 conservative majorities. Yes, there has to be a swing vote. Currently, that median Justice is actually Kavanaugh, although Roberts is next up and often plays a part. If you replaced Roberts with Alito₂, the median Justice would definitely be Kavanaugh, and Kavanaugh's vote would drive the outcome of 5-4 cases.  ...this isn't always 100% as depending on the issue the justices might rank slightly differently (Gorsuch is much further left on criminal justice / gently caress the government issues, for ex).
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Mar 6, 2020 19:03
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lol at this chart trying to paint Sotomayor as more liberal than Thomas is conservative, or Alito significantly less conservative than RBG is liberal.
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Mar 6, 2020 19:44
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By God it's obvious that he's a 3.4 not a 3.1 total fake news
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Mar 6, 2020 21:35
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Papercut posted:lol at this chart trying to paint Sotomayor as more liberal than Thomas is conservative, or Alito significantly less conservative than RBG is liberal. my grasp of the martin-quinn estimation process is imperfect, but it's pretty neat reading my understanding is that it's largely delineated around two choices on any given issue or case - not how liberal or conservative those issue positions are, but simply how consistently the justice picks the liberal/conservative option the calculation of each justice' "ideal point" is more complicated than that but that's the general gist ...and if i can't quite get my head around the nuance i guarantee that the average person reading that article or whatever won't lol but let's go find out, i assume it's this article: https://fivethirtyeight.com/features/the-supreme-court-might-have-three-swing-justices-now/ edit: he doesn't really go into explaining martinquinn, which is probably for the best Goatse James Bond fucked around with this message at 22:20 on Mar 6, 2020 |
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Mar 6, 2020 22:17
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Most people take it as a given at this point that Thomas is insane and probably kept from being a historically awful justice only because he can't realistically order antebellum slavery back into effect
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Mar 7, 2020 01:03
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I think that chart makes sense if -2 represents a rough centre point of left right spectrum. I also assume it doesn't really capture how much a justice has a traditional jurisprudence rather than being a radical 'textualist'
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Mar 7, 2020 01:23
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I listened to the June Medical Services oral argument, and a thing that made my blood boil I haven't seen talked about (there's so much to talk about), is Alito minute two of argument launching into how the providers shouldn't have standing because, despite being the directly affected regulated party, they have a "conflict of interest" due to not wanting to be regulated. It was infuriating to listen to, and I finally exhaled when Ginsberg stepped in to recommend that they actually say they have direct standing rather than third party standing.
ErIog fucked around with this message at 08:14 on Mar 7, 2020 |
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Mar 7, 2020 08:09
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Opinions! GUERRERO-LASPRILLA v. BARR, ATTORNEY GENERAL Holding / Majority Opinion (Breyer): Section 242(a) of the Immigration and Nationality Act, codified as 8 U. S. C. §1252(a), provides for judicial review of a final Government order directing the removal of an alien from this country. A subdivision of that section limits the scope of that review where the removal rests upon the fact that the alien has committed certain crimes, including aggravated felonies and controlled substance offenses. §1252(a)(2)(C). Another subdivision, §1252(a)(2)(D), which we shall call the Limited Review Provision, says that in such instances courts may consider only “constitutional claims or questions of law.” The question that these two consolidated cases present is whether the phrase “questions of law” in the Provision includes the application of a legal standard to undisputed or established facts. We believe that it does. The two petitioners before us, Pedro Pablo GuerreroLasprilla and Ruben Ovalles, are aliens who lived in the United States. Each committed a drug crime and consequently became removable. … Guerrero-Lasprilla (in 2016) and Ovalles (in 2017) asked the Board to reopen their removal proceedings. Recognizing that the 90-day time limit had long since passed, both petitioners argued that the time limit should be equitably tolled. Both petitioners, who had become eligible for discretionary relief due to various judicial and Board decisions years after their removal, rested their claim for equitable tolling on Lugo-Resendez v. Lynch, 831 F. 3d 337 (CA5 2016). In that case, the Fifth Circuit had held that the 90-day time limit could be “equitably tolled.” … Both petitioners claim that the underlying facts were not in dispute, and they asked us to grant certiorari in order to determine whether their claims that the Board incorrectly applied the equitable tolling due diligence standard to the “undisputed” (or established) facts is a “question of law,” which the Limited Review Provision authorizes courts of appeals to consider. We agreed to do so. The Limited Review Provision provides that, in this kind of immigration case (involving aliens who are removable for having committed certain crimes), a court of appeals may consider only “constitutional claims or questions of law.” The issue before us is, as we have said, whether the statutory phrase “questions of law” includes the application of a legal standard to undisputed or established facts. If so, the Fifth Circuit erred in holding that it “lack[ed] jurisdiction” to consider the petitioners’ claims of due diligence for equitable tolling purposes. We conclude that the phrase “questions of law” does include this type of review, and the Court of Appeals was wrong to hold the contrary. Consider the statute’s language. Nothing in that language precludes the conclusion that Congress used the term “questions of law” to refer to the application of a legal standard to settled facts. Indeed, we have at times referred to the question whether a given set of facts meets a particular legal standard as presenting a legal inquiry. Do the facts alleged in a complaint, taken as true, state a claim for relief under the applicable legal standard? … [W]e have often used the phrase “mixed questions” in determining the proper standard for appellate review of a district, bankruptcy, or agency decision that applies a legal standard to underlying facts. … [T]he Government claims that Congress intended to exclude from judicial review all mixed questions. We do not agree. Rather, a longstanding presumption, the statutory context, and the statute’s history all support the conclusion that the application of law to undisputed or established facts is a “questio[n] of law” within the meaning of §1252(a)(2)(D). Consider first “a familiar principle of statutory construction: the presumption favoring judicial review of administrative action.” Under that “well-settled” and “strong presumption,” when a statutory provision “is reasonably susceptible to divergent interpretation, we adopt the reading that accords with traditional understandings and basic principles: that executive determinations generally are subject to judicial review.” … [the general clause consolidating review refers to review of “all questions of law and fact, including interpretation and application of constitutional and statutory provisions”, which means that either “question of law” includes a “mixed question” or that the combination “questions of law and fact” does, but clearly means that “question of fact” can’t include mixed questions by itself.] … The parties agree that Congress enacted the Limited Review Provision in response to this Court’s decision in St. Cyr….This Court interpreted that predecessor [of the review provision] and the other purportedly jurisdiction-stripping provisions as not barring (i.e., as permitting) review in habeas corpus proceedings, to avoid the serious constitutional questions that would be raised by a contrary interpretation….The Court ultimately made clear that “Congress could, without raising any constitutional questions, provide an adequate substitute [for habeas review] through the courts of appeals.” Congress took up this suggestion...This statutory history strongly suggests that Congress added the words before us because it sought an “adequate substitute” for habeas in view of St. Cyr’s guidance. If so, then the words “questions of law” in the Limited Review Provision must include the misapplication of a legal standard to undisputed facts, for otherwise review would not include an element that St. Cyr said was traditionally reviewable in habeas. … For these reasons, we reverse the Fifth Circuit’s “jurisdictional” decisions, vacate its judgments, and remand these cases for further proceedings consistent with this opinion. It is so ordered. Lineup: Breyer, joined by Roberts, Ginsburg, Sotomayor, Kagan, Gorsuch, and Kavanaugh. Dissent by Thomas, joined by Alito except for Part II-A-1. Dissent (Thomas, joined by Alito except for Part II-A-1): We granted certiorari to decide whether a denial of equitable tolling for lack of due diligence is reviewable as a “question of law” under 8 U. S. C. §1252(a)(2)(D). Not content with resolving that narrow question, the Court categorically proclaims that federal courts may review immigration judges’ applications of any legal standard to established facts in criminal aliens’ removal proceedings. In doing so, the majority effectively nullifies a jurisdiction-stripping statute, expanding the scope of judicial review well past the boundaries set by Congress. Because this arrogation of authority flouts both the text and structure of the statute, I respectfully dissent. … Equitable tolling’s due-diligence requirement presents a mixed question of law and fact. A litigant will qualify for equitable tolling only if he “has pursued his rights diligently but some extraordinary circumstance prevents him from bringing a timely action.” ... The text of §1252(a)(2)(D) authorizes courts to review only “constitutional claims or questions of law.” It does not refer to mixed questions of law and fact, and cannot be divined to do so. As the statute’s plain language and structure demonstrate, “questions of law” cannot reasonably be read to include mixed questions. Although the statute does not define “questions of law,” longstanding historical practice indicates that the phrase does not encompass mixed questions of law and fact. For well over a century, this Court has recognized questions of law, questions of fact, and mixed questions of law and fact as three discrete categories. … The majority resists this conclusion by pointing to cases in which the Court has characterized mixed questions as either legal or factual. But this occasional emphasis on either law or fact does not change the reality that many questions include both. … Reading “questions of law” to include all mixed questions would turn §1252(a)(2)’s structure on its head. It would transform §1252(a)(2)(D)’s narrow exception into a broad provision permitting judicial review of all criminal aliens’ challenges to their removal proceedings except the precious few that raise only pure questions of fact. Because those questions are already effectively unreviewable under the Immigration and Nationality Act’s (INA’s) extremely deferential standard, §1252(b)(4)(B) (Board’s “findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary”), this interpretation would reduce the jurisdiction-stripping provision to a near nullity. Put another way, the exception would all but swallow the rule. [This is the part Alito doesn’t join] As an initial matter, I have come to have doubts about our modern cases applying the presumption of reviewability. Courts have long understood that they “generally have jurisdiction to grant relief ” when individuals are injured by unlawful administrative action. Applying this well-settled principle, we have refused to read a statute’s “silence . . . as to judicial review” to preclude such review. But the modern presumption of reviewability relied on by the majority today goes far beyond this traditional approach. … [Ok, Alito’s back] Even assuming that the modern presumption is justified and can properly be applied to actions outside the APA context, it does no work in these cases. First, as explained above, “questions of law” cannot reasonably be read to include mixed questions. But even if it could, the sweeping language of §1252(a)(2)(C) provides clear and convincing evidence that judicial review of mixed questions is barred. … Ironically, the majority refers to §1252(a)(2)(D) as the “Limited Review Provision.” But according to the majority’s interpretation, it is anything but “limited”— nearly all claims are reviewable. That reading contradicts the plain text and structure of §1252(a)(2), which was enacted to strip federal courts of their jurisdiction to review most criminal aliens’ claims challenging removal proceedings. The Constitution gives the Legislative Branch the authority to curtail that jurisdiction. We cannot simply invoke this presumption of reviewability to circumvent Congress’ decision. Doing so upsets, not preserves, the separation of powers reflected in the Constitution’s text. I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/18-776_8759.pdf ALLEN ET AL. v. COOPER, GOVERNOR OF NORTH CAROLINA, ET AL. Holding / Majority Opinion (Kagan): In two basically identical statutes passed in the early 1990s, Congress sought to strip the States of their sovereign immunity from patent and copyright infringement suits. Not long after, this Court held in Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), that the patent statute lacked a valid constitutional basis. Today, we take up the copyright statute. We find that our decision in Florida Prepaid compels the same conclusion. … For over a decade, Allen created videos and photos of divers’ efforts to salvage the Revenge’s guns, anchors, and other remains. He registered copyrights in all those works. ... Allen complained that North Carolina had impermissibly posted five of his videos online and used one of his photos in a newsletter. When the State declined to admit wrongdoing, Allen filed this action in Federal District Court. It charges the State with copyright infringement (call it a modern form of piracy) and seeks money damages. North Carolina moved to dismiss the suit on the ground of sovereign immunity. It invoked the general rule that federal courts cannot hear suits brought by individuals against nonconsenting States. But Allen responded that an exception to the rule applied because Congress had abrogated the States’ sovereign immunity from suits like his. … The District Court agreed. Quoting the CRCA’s text, the court first found that “Congress has stated clearly its intent to abrogate sovereign immunity for copyright claims against a state.”…On interlocutory appeal, the Court of Appeals for the Fourth Circuit reversed. ...Because the Court of Appeals held a federal statute invalid, this Court granted certiorari. 587 U. S. ___ (2019). We now affirm. … In our constitutional scheme, a federal court generally may not hear a suit brought by any person against a nonconsenting State. That bar is nowhere explicitly set out in the Constitution. The text of the Eleventh Amendment (the single most relevant provision) applies only if the plaintiff is not a citizen of the defendant State. But this Court has long understood that Amendment to “stand not so much for what it says” as for the broader “presupposition of our constitutional structure which it confirms.” That premise, the Court has explained, has several parts. First, “each State is a sovereign entity in our federal system.”Next, “[i]t is inherent in the nature of sovereignty not to be amenable to [a] suit” absent consent. And last, that fundamental aspect of sovereignty constrains federal “judicial authority.” … This Court has permitted a federal court to entertain a suit against a nonconsenting State on two conditions. First, Congress must have enacted “unequivocal statutory language” abrogating the States’ immunity from the suit. And second, some constitutional provision must allow Congress to have thus encroached on the States’ sovereignty. Not even the most crystalline abrogation can take effect unless it is “a valid exercise of constitutional authority.” No one here disputes that Congress used clear enough language to abrogate the States’ immunity from copyright infringement suits. … The contested question is whether Congress had authority to take that step. Allen maintains that it did, under either of two constitutional provisions. He first points to the clause in Article I empowering Congress to provide copyright protection. If that fails, he invokes Section 5 of the Fourteenth Amendment, which authorizes Congress to “enforce” the commands of the Due Process Clause. Neither contention can succeed. … Congress has power under Article I “[t]o promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” That provision—call it the Intellectual Property Clause—enables Congress to grant both copyrights and patents. And the monopoly rights so given impose a corresponding duty (i.e., not to infringe) on States no less than private parties. In Allen’s view, Congress’s authority to abrogate sovereign immunity from copyright suits naturally follows. ... The problem for Allen is that this Court has already rejected his theory. The Intellectual Property Clause, as just noted, covers copyrights and patents alike. So it was the first place the Florida Prepaid Court looked when deciding whether the Patent Remedy Act validly stripped the States of immunity from infringement suits….[W]e said, Congress could not use its Article I power over patents to remove the States’ immunity. … Section 5 of the Fourteenth Amendment, unlike almost all of Article I, can authorize Congress to strip the States of immunity. The Fourteenth Amendment “fundamentally altered the balance of state and federal power” that the original Constitution and the Eleventh Amendment struck.Its first section imposes prohibitions on the States, including (as relevant here) that none may “deprive any person of life, liberty, or property, without due process of law.” Section 5 then gives Congress the “power to enforce, by appropriate legislation,” those limitations on the States’ authority. That power, the Court has long held, may enable Congress to abrogate the States’ immunity and thus subject them to suit in federal court. For an abrogation statute to be “appropriate” under Section 5, it must be tailored to “remedy or prevent” conduct infringing the Fourteenth Amendment’s substantive prohibitions. Congress can permit suits against States for actual violations of the rights guaranteed in Section 1. And to deter those violations, it can allow suits against States for “a somewhat broader swath of conduct,” including acts constitutional in themselves. But Congress cannot use its “power to enforce” the Fourteenth Amendment to alter what that Amendment bars. … All this raises the question: When does the Fourteenth Amendment care about copyright infringement? Sometimes, no doubt. Copyrights are a form of property. And the Fourteenth Amendment bars the States from “depriv[ing]” a person of property “without due process of law.” But even if sometimes, by no means always. Under our precedent, a merely negligent act does not “deprive” a person of property.So an infringement must be intentional, or at least reckless, to come within the reach of the Due Process Clause. And more: A State cannot violate that Clause unless it fails to offer an adequate remedy for an infringement, because such a remedy itself satisfies the demand of “due process.” That means within the broader world of state copyright infringement is a smaller one where the Due Process Clause comes into play. Because the same is true of patent infringement, Florida Prepaid again serves as the critical precedent. That decision defined the scope of unconstitutional infringement in line with the caselaw cited above—as intentional conduct for which there is no adequate state remedy. It then searched for evidence of that sort of infringement in the legislative record of the Patent Remedy Act. And it determined that the statute’s abrogation of immunity—again, the equivalent of the CRCA’s—was out of all proportion to what it found. … Florida Prepaid all but prewrote our decision today. That precedent made clear that Article I’s Intellectual Property Clause could not provide the basis for an abrogation of sovereign immunity. And it held that Section 5 of the Fourteenth Amendment could not support an abrogation on a legislative record like the one here. For both those reasons, we affirm the judgment below. Lineup: Kagan, joined by Roberts, Alito, Sotomayor, Gorsuch, and Kavanaugh, and Thomas (except for the last paragraph of Part II-A and the last paragraph of Part II-B). Concurrence in part and concurrence in the judgement by Thomas. Concurrence in the judgment by Breyer, joined by Ginsburg. Concurrence in part and Concurrence in the judgement (Thomas): I agree with the Court’s conclusion that the Copyright Remedy Clarification Act of 1990, 17 U. S. C. §501 et seq., does not validly abrogate States’ sovereign immunity. But I cannot join the Court’s opinion in its entirety. I write separately to note two disagreements and one question that remains open for resolution in a future case. First, although I agree that Florida Prepaid Postsecondary Ed. Expense Bd. v. College Savings Bank, 527 U. S. 627 (1999), is binding precedent, I cannot join the Court’s discussion of stare decisis. The Court claims we need “‘special justification[s]’” to overrule precedent because error alone “cannot overcome stare decisis.” That approach “does not comport with our judicial duty under Article III.” If our decision in Florida Prepaid were demonstrably erroneous, the Court would be obligated to “correct the error, regardless of whether other factors support overruling the precedent.” … Second, I do not join the Court’s discussion regarding future copyright legislation. In my view, we should opine on “only the case before us in light of the record before us.” We should not purport to advise Congress on how it might exercise its legislative authority, nor give our blessing to hypothetical statutes or legislative records not at issue here. Finally, I believe the question whether copyrights are property within the original meaning of the Fourteenth Amendment’s Due Process Clause remains open. The Court relies on Fox Film Corp. v. Doyal, 286 U. S. 123 (1932), to conclude that “[c]opyrights are a form of property.” But Fox Film Corp. addressed “property” in the context of state tax laws, not the Due Process Clause. And although we stated in Florida Prepaid that patents are “property” for due process purposes, we did not analyze the Fourteenth Amendment’s text, and neither of the cases we cited involved due process. … For these reasons, I join all of the Court’s opinion except for the final paragraph in Part II–A and the final paragraph in Part II–B. Concurrence in the judgement (Breyer, joined by Ginsburg): One might[] expect that someone injured by a State’s violation of that duty could “resort to the laws of his country for a remedy,” especially where, as here, Congress has sought to provide one. Or more concretely, one might think that Walt Disney Pictures could sue a State (or anyone else) for hosting an unlicensed screening of the studio’s 2003 blockbuster film, Pirates of the Caribbean (or any one of its many sequels). Yet the Court holds otherwise. In its view, Congress’ power under the Intellectual Property Clause cannot support a federal law providing that, when proven to have pirated intellectual property, States must pay for what they plundered. To subject nonconsenting States to private suits for copyright or patent infringement, says the Court, Congress must endeavor to pass a more “tailored statute” than the one before us, relying not on the Intellectual Property Clause, but on §5 of the Fourteenth Amendment. Whether a future legislative effort along those lines will pass constitutional muster is anyone’s guess. But faced with the risk of unfairness to authors and inventors alike, perhaps Congress will venture into this great constitutional unknown. That our sovereign-immunity precedents can be said to call for so uncertain a voyage suggests that something is amiss….But recognizing that my longstanding view has not carried the day, and that the Court’s decision in Florida Prepaid controls this case, I concur in the judgment. https://www.supremecourt.gov/opinions/19pdf/18-877_dc8f.pdf KAHLER v. KANSAS Holding / Majority Opinion (Kagan): This case is about Kansas’s treatment of a criminal defendant’s insanity claim. In Kansas, a defendant can invoke mental illness to show that he lacked the requisite mens rea (intent) for a crime. He can also raise mental illness after conviction to justify either a reduced term of imprisonment or commitment to a mental health facility. But Kansas, unlike many States, will not wholly exonerate a defendant on the ground that his illness prevented him from recognizing his criminal act as morally wrong. The issue here is whether the Constitution’s Due Process Clause forces Kansas to do so—otherwise said, whether that Clause compels the acquittal of any defendant who, because of mental illness, could not tell right from wrong when committing his crime. We hold that the Clause imposes no such requirement. In Clark v. Arizona, 548 U. S. 735, 749 (2006), this Court catalogued state insanity defenses, counting four “strains variously combined to yield a diversity of American standards” for when to absolve mentally ill defendants of criminal culpability. The first strain asks about a defendant’s “cognitive capacity”—whether a mental illness left him “unable to understand what he [was] doing” when he committed a crime. The second examines his “moral capacity”—whether his illness rendered him “unable to understand that his action [was] wrong.” Ibid. Those two inquiries, Clark explained, appeared as alternative pathways to acquittal in the landmark English ruling M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718 (H. L. 1843), as well as in many follow-on American decisions and statutes: If the defendant lacks either cognitive or moral capacity, he is not criminally responsible for his behavior. Yet a third “building block[]” of state insanity tests, gaining popularity from the mid-19th century on, focuses on “volitional incapacity”—whether a defendant’s mental illness made him subject to “irresistible[] impulse[s]” or otherwise unable to “control[] his actions.” And bringing up the rear, in Clark’s narration, the “product-of-mental-illness test” broadly considers whether the defendant’s criminal act stemmed from a mental disease. As Clark explained, even that taxonomy fails to capture the field’s complexity. Most notable here, M’Naghten’s “moral capacity” prong later produced a spinoff, adopted in many States, that does not refer to morality at all. Instead of examining whether a mentally ill defendant could grasp that his act was immoral, some jurisdictions took to asking whether the defendant could understand that his act was illegal. … Kansas law provides that “[i]t shall be a defense to a prosecution under any statute that the defendant, as a result of mental disease or defect, lacked the culpable mental state required as an element of the offense charged.” Under that statute, a defendant may introduce any evidence of any mental illness to show that he did not have the intent needed to commit the charged crime. Suppose, for example, that the defendant shot someone dead and goes on trial for murder. He may then offer psychiatric testimony that he did not understand the function of a gun or the consequences of its use— more generally stated, “the nature and quality” of his actions. And a jury crediting that testimony must acquit him. As everyone here agrees, Kansas law thus uses M’Naghten’s “cognitive capacity” prong—the inquiry into whether a mentally ill defendant could comprehend what he was doing when he committed a crime. If the defendant had no such capacity, he could not form the requisite intent—and thus is not criminally responsible. At the same time, the Kansas statute provides that “[m]ental disease or defect is not otherwise a defense.” In other words, Kansas does not recognize any additional way that mental illness can produce an acquittal. Most important for this case, a defendant’s moral incapacity cannot exonerate him, as it would if Kansas had adopted both original prongs of M’Naghten. Assume, for example, that a defendant killed someone because of an “insane delusion that God ha[d] ordained the sacrifice.” The defendant knew what he was doing (killing another person), but he could not tell moral right from wrong; indeed, he thought the murder morally justified. In many States, that fact would preclude a criminal conviction, although it would almost always lead to commitment in a mental health facility. In Kansas, by contrast, evidence of a mentally ill defendant’s moral incapacity—or indeed, of anything except his cognitive inability to form the needed mens rea—can play no role in determining guilt. … Kahler[] asked this Court to decide whether the Due Process Clause requires States to provide an insanity defense that acquits a defendant who could not “distinguish right from wrong” when committing his crime—or, otherwise put, whether that Clause requires States to adopt the moral-incapacity test from M’Naghten. We granted certiorari, 586 U. S. ___ (2019), and now hold it does not. A challenge like Kahler’s must surmount a high bar. Under well-settled precedent, a state rule about criminal liability—laying out either the elements of or the defenses to a crime—violates due process only if it “offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.”...The question is whether a rule of criminal responsibility is so old and venerable—so entrenched in the central values of our legal system—as to prevent a State from ever choosing another. An affirmative answer, though not unheard of, is rare. … [U]ncertainties about the human mind loom large. Even as some puzzles get resolved, others emerge. And those perennial gaps in knowledge intersect with differing opinions about how far, and in what ways, mental illness should excuse criminal conduct. “This whole problem,” we have noted, “has evoked wide disagreement.” On such unsettled ground, we have hesitated to reduce “experimentation, and freeze [the] dialogue between law and psychiatry into a rigid constitutional mold.” … [Kahler’s] central claim[] is that Kansas has impermissibly jettisoned the moral-incapacity test for insanity. As earlier noted, both Clark and Leland described that test as coming from M’Naghten.. But according to Kahler (and the dissent), the moral-incapacity inquiry emerged centuries before that decision, thus forming part of the English common-law heritage this country inherited. And the test, he claims, served for all that time—and continuing into the present—as the touchstone of legal insanity: If a defendant could not understand that his act was morally wrong, then he could not be found criminally liable. So Kahler concludes that the moral-incapacity standard is a “principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.” In essence—and contra Clark—that test is the “single canonical formulation of legal insanity” and thus the irreducible “baseline for due process.” One point, first, of agreement: Kahler is right that for hundreds of years jurists and judges have recognized insanity (however defined) as relieving responsibility for a crime. … But neither do we think Kansas departs from that broad principle. First, Kansas has an insanity defense negating criminal liability—even though not the type Kahler demands….Second, and significantly, Kansas permits a defendant to offer whatever mental health evidence he deems relevant at sentencing. ... So Kahler can prevail here only if he can show...that adopting the moral-incapacity version of the insanity rule is not a choice at all—because, again, that version is “so rooted in the traditions and conscience of our people as to be ranked as fundamental.” And he cannot. The historical record is, on any fair reading, complex—even messy. As we will detail, it reveals early versions of not only Kahler’s proposed standard but also Kansas’s alternative. [History omitted] … Defining the precise relationship between criminal culpability and mental illness involves examining the workings of the brain, the purposes of the criminal law, the ideas of free will and responsibility. It is a project demanding hard choices among values, in a context replete with uncertainty, even at a single moment in time. And it is a project, if any is, that should be open to revision over time, as new medical knowledge emerges and as legal and moral norms evolve. Which is all to say that it is a project for state governance, not constitutional law. We therefore decline to require that Kansas adopt an insanity test turning on a defendant’s ability to recognize that his crime was morally wrong. Contrary to Kahler’s view, Kansas takes account of mental health at both trial and sentencing. It has just not adopted the particular insanity defense Kahler would like. That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds. No insanity rule in this country’s heritage or history was ever so settled as to tie a State’s hands centuries later. For that reason, we affirm the judgment below. Lineup: Kagan, joined by Roberts, Thomas, Alito, Gorsuch, and Kavanaugh. Dissent by Breyer, joined by Ginsburg and Sotomayor. Dissent (Breyer, joined by Ginsburg and Sotomayor): Like the Court, I believe that the Constitution gives the States broad leeway to define state crimes and criminal procedures, including leeway to provide different definitions and standards related to the defense of insanity. But here, Kansas has not simply redefined the insanity defense. Rather, it has eliminated the core of a defense that has existed for centuries: that the defendant, due to mental illness, lacked the mental capacity necessary for his conduct to be considered morally blameworthy. Seven hundred years of Anglo-American legal history, together with basic principles long inherent in the nature of the criminal law itself, convince me that Kansas’ law “‘offends . . . principle[s] of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.’” A much-simplified example will help the reader understand the conceptual distinction that is central to this case. Consider two similar prosecutions for murder. In Prosecution One, the accused person has shot and killed another person. The evidence at trial proves that, as a result of severe mental illness, he thought the victim was a dog. Prosecution Two is similar but for one thing: The evidence at trial proves that, as a result of severe mental illness, the defendant thought that a dog ordered him to kill the victim. Under the insanity defense as traditionally understood, the government cannot convict either defendant. Under Kansas’ rule, it can convict the second but not the first. … I do not mean to suggest that M’Naghten’s particular approach to insanity is constitutionally required. As we have said, “[h]istory shows no deference to M’Naghten.” M’Naghten’s second prong is merely one way of describing something more fundamental. Its basic insight is that mental illness may so impair a person’s mental capacities as to render him no more responsible for his actions than a young child or a wild animal. Such a person is not properly the subject of the criminal law. As I shall explain in the following section, throughout history, the law has attempted to embody this principle in a variety of ways. As a historical matter, M’Naghten is by far its most prominent expression, but not its exclusive one. Other ways of capturing it may well emerge in the future. The problem with Kansas’ law is that it excises this fundamental principle from its law entirely. … Few doctrines are as deeply rooted in our common-law heritage as the insanity defense. Although English and early American sources differ in their linguistic formulations of the legal test for insanity, with striking consistency, they all express the same underlying idea: A defendant who, due to mental illness, lacks sufficient mental capacity to be held morally responsible for his actions cannot be found guilty of a crime. This principle remained embedded in the law even as social mores shifted and medical understandings of mental illness evolved. Early American courts incorporated it into their jurisprudence. The States eventually codified it in their criminal laws. And to this day, the overwhelming majority of U. S. jurisdictions recognize insanity as an affirmative defense that excuses a defendant from criminal liability even where he was capable of forming the mens rea required for the offense. Consider the established common-law background of the insanity defense at and around the time the Framers wrote the Constitution. The four preeminent common-law jurists, Bracton, Coke, Hale, and Blackstone, each linked criminality to the presence of reason, free will, and moral understanding. … English treatises on the law of mental disability adopted the same view. George Collinson explained that “[t]o excuse a man in the commission of a crime, he must at the period when he committed the offense, have been wholly incapable of distinguishing between good and evil, or of comprehending the nature of what he is doing.” … The majority believes that I am “cherry-pick[ing]” references to moral understanding while ignoring references to intent and mens rea. With respect, I disagree. The Court points out, correctly, that many of the common-law sources state that the insane lack mens rea or felonious intent. But what did they mean by that? At common law, the term mens rea ordinarily incorporated the notion of “general moral blameworthiness” required for criminal punishment The modern meaning of mens rea is narrower and more technical. Ibid. It refers to the “state of mind or inattention that, together with its accompanying conduct, the criminal law defines as an offense.” Ibid. When common-law writers speak of intent or mens rea, we cannot simply assume that they use those terms in the modern sense. … These fundamental principles of criminal responsibility were incorporated into American law from the early days of the Republic. Early American commentaries on the criminal law generally consisted of abridgments of the works of prominent English jurists. As early as 1792, one such abridgment instructed that “lunaticks, who are under a natural disability of distinguishing between good and evil are not punishable by any criminal prosecution.” … The majority responds that Kansas has not removed the element of blameworthiness from its treatment of insanity; it has simply made a different judgment about what conduct is blameworthy...I doubt that the Court would declare, for example, that a State may do away with the defenses of duress or self-defense on the ground that, in its idiosyncratic judgment, they are not required. With respect to the defense of insanity, I believe that our history shows clearly that the criminal law has always required a higher degree of individual culpability than the modern concept of mens rea. And in my view, Kansas’ departure from this long uniform tradition poses a serious problem. To see why Kansas’ departure is so serious, go back to our two simplified prosecutions: the first of the defendant who, because of serious mental illness, believes the victim is a dog; the second of a defendant who, because of serious mental illness, believes the dog commanded him to kill the victim. Now ask, what moral difference exists between the defendants in the two examples? Assuming equivalently convincing evidence of mental illness, I can find none at all. In both cases, the defendants differ from ordinary persons in ways that would lead most of us to say that they should not be held morally responsible for their acts. I cannot find one defendant more responsible than the other. And for centuries, neither has the law. https://www.supremecourt.gov/opinions/19pdf/18-6135_j4ek.pdf COMCAST CORP. v. NATIONAL ASSOCIATION OF AFRICAN AMERICAN-OWNED MEDIA ET AL. Holding / Majority Opinion (Gorsuch): Few legal principles are better established than the rule requiring a plaintiff to establish causation. In the law of torts, this usually means a plaintiff must first plead and then prove that its injury would not have occurred “but for” the defendant’s unlawful conduct. The plaintiffs before us suggest that 42 U. S. C. §1981 departs from this traditional arrangement. But looking to this particular statute’s text and history, we see no evidence of an exception. This case began after negotiations between two media companies failed. African-American entrepreneur Byron Allen owns Entertainment Studios Network (ESN), the operator of seven television networks—Justice Central.TV, Comedy.TV, ES.TV, Pets.TV, Recipe.TV, MyDestination.TV, and Cars.TV. For years, ESN sought to have Comcast, one of the nation’s largest cable television conglomerates, carry its channels. But Comcast refused, citing lack of demand for ESN’s programming, bandwidth constraints, and its preference for news and sports programming that ESN didn’t offer. With bargaining at an impasse, ESN sued. Seeking billions in damages, the company alleged that Comcast systematically disfavored “100% African American-owned media companies.” ESN didn’t dispute that, during negotiations, Comcast had offered legitimate business reasons for refusing to carry its channels. But, ESN contended, these reasons were merely pretextual. To help obscure its true discriminatory intentions and win favor with the Federal Communications Commission, ESN asserted, Comcast paid civil rights groups to advocate publicly on its behalf. As relevant here, ESN alleged that Comcast’s behavior violated 42 U. S. C. §1981(a), which guarantees, among other things, “[a]ll persons . . . the same right . . . to make and enforce contracts . . . as is enjoyed by white citizens.” … The district court twice allowed ESN a chance to remedy its complaint’s deficiencies by identifying additional facts to support its case. But each time, the court concluded, ESN’s efforts fell short of plausibly showing that, but for racial animus, Comcast would have contracted with ESN. After three rounds of pleadings, motions, and dismissals, the district court decided that further amendments would prove futile and entered a final judgment for Comcast. The Ninth Circuit reversed. As that court saw it, the district court used the wrong causation standard when assessing ESN’s pleadings. A §1981 plaintiff doesn’t have to point to facts plausibly showing that racial animus was a “but for” cause of the defendant’s conduct. Instead, the Ninth Circuit held, a plaintiff must only plead facts plausibly showing that race played “some role” in the defendant’s decisionmaking process. … Other circuits dispute the Ninth Circuit’s understanding of §1981. Like the district court in this case, for example, the Seventh Circuit has held that “to be actionable, racial prejudice must be a but-for cause . . . of the refusal to transact.” To resolve the disagreement among the circuits over §1981’s causation requirement, we agreed to hear this case. … It is “textbook tort law” that a plaintiff seeking redress for a defendant’s legal wrong typically must prove but-for causation. Under this standard, a plaintiff must demonstrate that, but for the defendant’s unlawful conduct, its alleged injury would not have occurred. This ancient and simple “but for” common law causation test, we have held, supplies the “default” or “background” rule against which Congress is normally presumed to have legislated when creating its own new causes of action. … At times, ESN seems to argue that a §1981 plaintiff only bears the burden of showing that race was a “motivating factor” in the defendant’s challenged decision, not a but-for cause of its injury. At others, ESN appears to concede that a §1981 plaintiff does have to prove but-for causation at trial, but contends the rules should be different at the pleading stage. According to this version of ESN’s argument, a plaintiff should be able to overcome at least a motion to dismiss if it can allege facts plausibly showing that race was a “motivating factor” in the defendant’s decision. ESN admits this arrangement would allow some claims to proceed past the pleading stage that are destined to fail later as a matter of law. Still, the company insists, that is what the statute demands. We don’t doubt that most rules bear their exceptions. But, taken collectively, clues from the statute’s text, its history, and our precedent persuade us that §1981 follows the general rule. Here, a plaintiff bears the burden of showing that race was a but-for cause of its injury. And, while the materials the plaintiff can rely on to show causation may change as a lawsuit progresses from filing to judgment, the burden itself remains constant. Congress passed the Civil Rights Act of 1866 in the aftermath of the Civil War to vindicate the rights of former slaves. Section 1 of that statute included the language found codified today in §1981(a), promising that “[a]ll persons . . . shall have the same right . . . to make and enforce contracts, to sue, be parties, [and] give evidence . . . as is enjoyed by white citizens.” While the statute’s text does not expressly discuss causation, it is suggestive. The guarantee that each person is entitled to the “same right . . . as is enjoyed by white citizens” directs our attention to the counterfactual—what would have happened if the plaintiff had been white? This focus fits naturally with the ordinary rule that a plaintiff must prove but-for causation. … Though Congress did not adopt a private enforcement mechanism for violations of §1981, it did establish criminal sanctions in a neighboring section. That provision permitted the prosecution of anyone who “depriv[es]” a person of “any right” protected by the substantive provisions of the Civil Rights Act of 1866 “on account of ” that person’s prior “condition of slavery” or “by reason of ” that person’s “color or race.” To prove a violation, then, the government had to show that the defendant’s challenged actions were taken “‘on account of ’” or “‘by reason of ’” race—terms we have often held indicate a but-for causation requirement. Nor did anything in the statute hint that a different and more forgiving rule might apply at one particular stage in the litigation. … What does ESN offer in reply? The company asks us to draw on, and then innovate with, the “motivating factor” causation test found in Title VII of the Civil Rights Act of 1964. But a critical examination of Title VII’s history reveals more than a few reasons to be wary of any invitation to import its motivating factor test into §1981. This Court first adopted Title VII’s motivating factor test in Price Waterhouse v. Hopkins, 490 U. S. 228 (1989). There, a plurality and two Justices concurring in the judgment held that a Title VII plaintiff doesn’t have to prove but-for causation; instead, it’s enough to show that discrimination was a motivating factor in the defendant’s decision. … But this arrangement didn’t last long. Congress soon displaced Price Waterhouse in favor of its own version of the motivating factor test. … While this is all well and good for understanding Title VII, it’s hard to see what any of it might tell us about §1981. Title VII was enacted in 1964; this Court recognized its motivating factor test in 1989; and Congress replaced that rule with its own version two years later. Meanwhile, §1981 dates back to 1866 and has never said a word about motivating factors. So we have two statutes with two distinct histories, and not a shred of evidence that Congress meant them to incorporate the same causation standard. … All the traditional tools of statutory interpretation persuade us that §1981 follows the usual rules, not any exception. To prevail, a plaintiff must initially plead and ultimately prove that, but for race, it would not have suffered the loss of a legally protected right. We do not, however, pass on whether ESN’s operative amended complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face’ ” under the but-for causation standard. The Ninth Circuit has yet to consider that question because it assessed ESN’s pleadings under a different and mistaken test. To allow that court the chance to determine the sufficiency of ESN’s pleadings under the correct legal rule in the first instance, we vacate the judgment of the court of appeals and remand the case for further proceedings consistent with this opinion. Lineup: Gorsuch, unanimous except for the footnote (which throws shade at Ginsburg’s concurrence). Concurrence in part and concurrence in the judgment by Ginsburg. Concurrence in part and concurrence in the judgment (Ginsburg): I join the Court’s opinion requiring a plaintiff who sues under 42 U. S. C. §1981 to plead and prove race was a butfor cause of her injury. In support of that holding, Comcast advances a narrow view of §1981’s scope. Section 1981’s guarantee of “the same right . . . to make . . . contracts,” Comcast urges, covers only the final decision whether to enter a contract, not earlier stages of the contract-formation process. The Court devotes a page and a half to this important issue but declines to resolve it, as it does not bear on the choice of causation standards before us. I write separately to resist Comcast’s attempt to cabin a “sweeping” law designed to “break down all discrimination between black men and white men” regarding “basic civil rights.” Under Comcast’s view, §1981 countenances racial discrimination so long as it occurs in advance of the final contract-formation decision. Thus, a lender would not violate §1981 by requiring prospective borrowers to provide one reference letter if they are white and five if they are black. Nor would an employer violate §1981 by reimbursing expenses for white interviewees but requiring black applicants to pay their own way. The employer could even “refus[e] to consider applications” from black applicants at all. That view cannot be squared with the statute. An equal “right . . . to make . . . contracts,” §1981(a), is an empty promise without equal opportunities to present or receive offers and negotiate over terms. A plaintiff hindered from enjoying those opportunities may be unable effectively to form a contract, and a defendant able to impair those opportunities can avoid contracting without refusing a contract outright. It is implausible that a law “intended to . . . secure . . . practical freedom” would condone discriminatory barriers to contract formation. … The Court holds today that Entertainment Studios must plead and prove that race was the but-for cause of its injury—in other words, that Comcast would have acted differently if Entertainment Studios were not African-American owned. But if race indeed accounts for Comcast’s conduct, Comcast should not escape liability for injuries inflicted during the contract-formation process. The Court has reserved that issue for consideration on remand, enabling me to join its opinion. https://www.supremecourt.gov/opinions/19pdf/18-1171_4425.pdf
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CHARLES EARL DAVIS v. UNITED STATES Holding / Majority Opinion (Per Curiam): In the Fifth Circuit, Davis acknowledged that he had failed to raise that argument in the District Court. When a criminal defendant fails to raise an argument in the district court, an appellate court ordinarily may review the issue only for plain error. But the Fifth Circuit refused to entertain Davis’ argument at all. The Fifth Circuit did not employ plain-error review because the court characterized Davis’ argument as raising factual issues, and under Fifth Circuit precedent, “[q]uestions of fact capable of resolution by the district court upon proper objection at sentencing can never constitute plain error.” By contrast, almost every other Court of Appeals conducts plain-error review of unpreserved arguments, including unpreserved factual arguments. In this Court, Davis challenges the Fifth Circuit’s outlier practice of refusing to review certain unpreserved factual arguments for plain error. We agree with Davis, and we vacate the judgment of the Fifth Circuit. Rule 52(b) states in full: “A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention.” The text of Rule 52(b) does not immunize factual errors from plain-error review. Our cases likewise do not purport to shield any category of errors from plain-error review.Put simply, there is no legal basis for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error. The petition for certiorari and the motion for leave to proceed in forma pauperis are granted, the judgment of the Fifth Circuit is vacated, and the case is remanded for further proceedings consistent with this opinion. We express no opinion on whether Davis has satisfied the plain-error standard. https://www.supremecourt.gov/opinions/19pdf/19-5421_o7jq.pdf [internal citations inconsistently omitted throughout]
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Mar 27, 2020 13:20
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So maybe I misread and/or misunderstand, but the copyright ruling says that a state can totally violate copyright protection, and there’s no redress?
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Mar 28, 2020 00:56
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LongSack posted:So maybe I misread and/or misunderstand, but the copyright ruling says that a state can totally violate copyright protection, and there’s no redress? No, you got it in one. The Supreme Court suggested that a more tailored statute - possibly only barring wilful infringement or at least reckless infringement - might be enforceable against the States, but  at Congress bothering to pass that.
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Mar 28, 2020 01:13
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That line about "merely negligent" acts not depriving a person of property, just seems so blatantly out there. Does intent really factor in to copyright law in a way that can negate effective harm, or is this just for the government?
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Mar 28, 2020 01:36
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I think you already know the answer to that. It only affects the government and soon it'll only affect the poor and smaller companies that don't buy politicians.
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Mar 28, 2020 01:46
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Stickman posted:That line about "merely negligent" acts not depriving a person of property, just seems so blatantly out there. Does intent really factor in to copyright law in a way that can negate effective harm, or is this just for the government? It references this: https://supreme.justia.com/cases/federal/us/474/327/
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Mar 28, 2020 01:57
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That's what I thought, but I was afraid I missed something. There's a million obvious ways that negligence can deprive people of property that it just felt like there had to be something else. Thanks for the link!
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Mar 28, 2020 01:59
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Opinion! A little behind but blame the ‘Rona and general distraction. CITGO ASPHALT REFINING CO. ET AL. v. FRESCATI SHIPPING CO., LTD., ET AL. Holding / Majority Opinion (Sotomayor): In 2004, the M/T Athos I, a 748-foot oil tanker, allided [“[t]he contact of a vessel with a stationary object such as an anchored vessel or a pier.”] with a nine-ton anchor abandoned on the bed of the Delaware River. The anchor punctured the tanker’s hull, causing 264,000 gallons of heavy crude oil to spill into the river. As required by federal statute, respondents Frescati Shipping Company—the Athos I’s owner—and the United States covered the costs of cleanup. They then sought to reclaim those costs from petitioners CITGO Asphalt Refining Company and others (collectively CARCO), which had chartered the Athos I for the voyage that occasioned the oil spill. According to Frescati and the United States, CARCO had breached a contractual “safe-berth clause” obligating CARCO to select a “safe” berth that would allow the Athos I to come and go “always safely afloat.” The question before us is whether the safe-berth clause is a warranty of safety, imposing liability for an unsafe berth regardless of CARCO’s diligence in selecting the berth. We hold that it is. … At the core of the parties’ dispute is a clause in the charter party requiring the charterer, CARCO, to designate a safe berth at which the vessel may load and discharge cargo. This provision, a standard feature of many charter parties, is customarily known as a safe-berth clause. The safe-berth clause here provides, as relevant, that “[t]he vessel shall load and discharge at any safe place or wharf, . . . which shall be designated and procured by the Charterer, provided the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat, any lighterage being at the expense, risk and peril of the Charterer.” … We granted certiorari, 587 U. S. ___ (2019), to resolve whether the safe-berth clause at issue here merely imposes a duty of diligence, as the Fifth Circuit has held in a similar case, or establishes a warranty of safety, as the Second Circuit has held in other analogous cases. The former interpretation allows a charterer to avoid liability by exercising due diligence in selecting a berth; the latter imposes liability for an unsafe berth without regard to the care taken by the charterer. Because we find it plain from the language of the safe-berth clause that CARCO warranted the safety of the berth it designated, we affirm the judgment of the Third Circuit. Maritime contracts “must be construed like any other contracts: by their terms and consistent with the intent of the parties.” … Our analysis starts and ends with the language of the safe-berth clause. That clause provides, as relevant, that the charterer “shall . . . designat[e] and procur[e]” a “safe place or wharf,” “provided [that] the Vessel can proceed thereto, lie at, and depart therefrom always safely afloat.” As even CARCO acknowledges, the clause plainly imposes on the charterer at least some “duty to select a ‘safe’ berth.”Given the unqualified language of the safe-berth clause, it is similarly plain that this acknowledged duty is absolute. The clause requires the charterer to designate a “safe” berth: That means a berth “free from harm or risk.” And the berth must allow the vessel to come and go “always” safely afloat: That means afloat “at all times” and “in any event.” Selecting a berth that does not satisfy those conditions constitutes a breach. The safe-berth clause, in other words, binds the charterer to a warranty of safety. No matter that the safe-berth clause does not expressly invoke the term “warranty.” It is well settled as a matter of maritime contracts that “[s]tatements of fact contained in a charter party agreement relating to some material matter are called warranties,” regardless of the label ascribed in the charter party. … CARCO resists this plain reading of the safe-berth clause, arguing instead that the clause contains an implicit limitation: The clause does not impose “strict liability,” says CARCO, or “liability without regard to fault.” In effect, CARCO interprets the safe-berth clause as imposing a mere duty of due diligence in the selection of the berth. But as a general rule, due diligence and fault-based concepts of tort liability have no place in the contract analysis required here. Under elemental precepts of contract law, an obligor is “liable in damages for breach of contract even if he is without fault.” … Although contract law generally does not, by its own force, limit liability based on tort concepts of fault, parties are of course free to contract for such limitations. See Restatement (Second), at 309 (obligor who wishes to avoid strict liability for breach may “limi[t] his obligation by agreement”). Here, however, the safe-berth clause is clear that the parties contracted for no such thing. CARCO does not identify—nor can we discern—any language in the clause hinting at “due diligence” or related concepts of “fault.” … CARCO’s remaining arguments point to authorities that have purportedly construed safe-berth clauses to contain limitations on liability. These arguments find no foothold in the language of the charter party at issue here. And none is otherwise convincing. ... For the foregoing reasons, we conclude that the plain language of the safe-berth clause establishes a warranty of safety and therefore affirm the judgment of the Third Circuit. It is so ordered. Lineup: Sotomayor, joined by Roberts, Ginsburg, Breyer, Kagan, Gorsuch, and Kavanaugh. Dissent by Thomas, joined by Alito. Dissent (Thomas, joined by Alito): The majority concludes that the safe-berth clause in the contract at issue unambiguously created a warranty of safety by the charterer. Although this interpretation provides a clear background rule for the maritime industry to contract against, it is the wrong rule and finds no basis in the contract’s plain text. I would hold that the plain language of the safe-berth clause contains no warranty of safety and remand for factfinding on whether industry custom and usage establish such a warranty in this case. Accordingly, I respectfully dissent. The safe-berth clause sets out the rights and obligations of the vessel master and the charterer. The clause requires the vessel master to “load and discharge at [a] safe place or wharf,” but it also gives the master the right to refuse to proceed if the vessel cannot “lie at, and depart therefrom always safely afloat.” The charterer has the right to “designat[e]” a “safe place or wharf ” for discharge. That right, however, must be exercised by the charterer,(using mandatory language), and the act of designation must be made in good faith, see Restatement (Second) of Contracts §205 (1979). The right to designate is limited to places that the vessel can reach, with the charterer bearing the “expense, risk and peril” of any “lighterage” (i.e., transfer of cargo by means of another vessel) resulting from its selection. As the leading admiralty treatise succinctly explains, the safe-berth clause provides that “if the port or the berth is unsafe, the master is excused from taking his ship in, and the charterer must bear the extra expense . . . entailed by [a proper] refusal” of its selected place of discharge. This reading is consistent with this Court’s prior decisions. The Court has interpreted safe-berth clauses as providing a limit on the “right to select a dock.” And it has concluded that, if a charterer selects a place of discharge that cannot be safely reached, the charterer is liable for lighterage expenses. Thus, under the plain language of the safe-berth clause, the vessel master has a duty of discharge and right of refusal, while the charterer has a right of selection and duty to pay for lighterage. The majority does not disagree that the safe-berth clause confers these duties and rights. Quite the opposite. It recognizes our precedents as embracing this understanding. The majority concludes, however, that in addition to the rights of selection and refusal, the language of the safe-berth clause “unambiguously” establishes a warranty of safety by the charterer. With this, I cannot agree. The majority first concludes that the safe-berth clause contains an “express prescription of a warranty of safety.” This assertion finds no support whatsoever in the plain language of the clause. First of all, the contract between Star and CARCO contains no express warranty of safety by the charterer, though the parties repeatedly used express language to create warranties elsewhere in the contract. See Addendum to Brief for Petitioners 26a (“Charterer’s warrant . . .”), 30a (“Owners warrant . . .”), ibid. (“Owner warrants . . .”), 31a (“Owner warrants . . .”), 41a (“Owner warrants . . .”), 42a (“Owner warrants . . .”), 43a (“Owner warrants . . .”), 44a (“Owner warrants . . .”), 45a (“Owner warrants . . .”). In contrast, they did not state that the charterer “warrants” the safety of the place of discharge in the safe-berth clause. … But even setting aside this evidence of the parties’ intent (as the majority does), the safe-berth clause contains no language that can be construed to create a warranty of safety. Nor does the clause so much as suggest that the charterer is liable for all damages arising out of unsafe port conditions. In fact, the trade association that promulgated the ASBATANKVOY form used in this case specifically acknowledged that the language of “the clause does not specify whether the charterer absolutely warrants the safety of the berth.” … In a contract replete with express language creating warranties, I would not construe the plain language of the safe-berth clause as indirectly creating contradictory warranties of safety. And I certainly cannot agree with the majority’s conclusion that the safe-berth clause “unambiguously” establishes a warranty of safety by the charterer. Perhaps recognizing the weakness of its assertion that the safe-berth clause contains a duty or warranty of safety, the majority pivots to an independent legal theory. It claims that the safe-berth clause constitutes a material statement of fact and therefore creates a warranty. The majority’s invocation of this theory is puzzling, to say the least. As an initial matter, this issue was not preserved in the Court of Appeals, which, understandably, did not address the question. Nor was the issue developed before this Court. All we have before us is one conclusory paragraph in the United States’ brief.. Accordingly, I would decline to address this unpreserved and undeveloped issue. Even setting aside forfeiture, the majority’s analysis is questionable in multiple respects. First, the majority asserts that “the safe-berth clause contains a statement of material fact regarding the condition of the berth selected by the charterer.” Not so. The safe-berth clause says nothing about the safety of the port actually selected by CARCO (the Paulsboro berth), or any specific berth for that matter. It states only that the charter “shall . . . designat[e]” a place or wharf. The majority infers from CARCO’s selection of the Paulsboro berth that CARCO believed the place or wharf was safe. But that is not a statement of fact; it is an inference. I hesitate to equate the two without briefing on the issue, or even a single example of a court adopting this approach. Second, even assuming the safe-berth clause contains a statement of fact, it is not clear that the Court is in a position to decide whether that statement of fact is “material.” Many jurisdictions appear to treat materiality as a question of fact when determining whether a statement creates a warranty. … Third, assuming the contract contains a statement of fact regarding the safety of the berth and further assuming that materiality is a question of law, I am unpersuaded by the majority’s materiality analysis. Materiality must turn at least in part on a statement’s “tendency to induce the making of the contract.” The majority’s opinion says nothing about that (likely fact-driven) question. It first states that the safety of the selected berth is “the entire root of the safe-berth clause” and “the very reason for the clause’s inclusion.” Even accepting the majority’s interpretation, merely proving that a statement is included in a contract does not mean that it is material. If that were the law, then every statement in a contract would be material and therefore constitute a warranty. That cannot be right. … The lack of unambiguous language creating a warranty of safety in the safe-berth clause does not end our inquiry. “‘In this endeavor, as with any other contract, the parties’ intentions control.’” The vessel’s owner and the United States argue that, setting aside the plain meaning of the contract’s text, longstanding industry custom supports interpreting the safe-berth clause as a warranty of safety. I would remand for factfinding on this issue. … I appreciate the majority’s desire to interpret the safeberth clause in a manner that provides clarity to the maritime industry. The plain meaning of the contract’s text, however, does not support the majority’s interpretation. Fortunately, the majority’s opinion applies only to this specific contract, and its assertions regarding a material statement of fact are but dicta. Because I would reverse the judgment of the Court of Appeals and remand for further proceedings, I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/18-565_3d93.pdf
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Apr 3, 2020 21:25
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Opinions! NORIS BABB, PETITIONER v. ROBERT WILKIE, SECRETARY OF VETERANS AFFAIRS Holding / Majority Opinion (Alito): The federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA), 88 Stat. 74, 29 U. S. C. §633a(a), provides (with just a few exceptions) that “personnel actions” affecting individuals aged 40 and older “shall be made free from any discrimination based on age.” We are asked to decide whether this provision imposes liability only when age is a “but-for cause” of the personnel action in question. We hold that §633a(a) goes further than that. The plain meaning of the critical statutory language (“made free from any discrimination based on age”) demands that personnel actions be untainted by any consideration of age. This does not mean that a plaintiff may obtain all forms of relief that are generally available for a violation of §633a(a), including hiring, reinstatement, backpay, and compensatory damages, without showing that a personnel action would have been different if age had not been taken into account. To obtain such relief, a plaintiff must show that age was a but-for cause of the challenged employment decision. But if age discrimination played a lesser part in the decision, other remedies may be appropriate. … Evaluating each of Babb’s claims under the burden-shifting framework outlined in McDonnell Douglas Corp. v. Green, 411 U. S. 792 (1973), the court found that Babb had established a prima facie case [of age and sex discrimination], that the Secretary had proffered legitimate reasons for the challenged actions, and that no jury could reasonably conclude that those reasons were pretextual. Babb appealed, contending that the District Court should not have used the McDonnell Douglas framework because it is not suited for “mixed motives” claims. She argued that under the terms of the ADEA’s federal-sector provision, a personnel action is unlawful if age is a factor in the challenged decision. As a result, she explained that even if the VA’s proffered reasons were not pretextual, it would not necessarily follow that age discrimination played no part. … That provision of the ADEA [633(a)] states in relevant part: “All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . shall be made free from any discrimination based on age.” 29 U. S. C. §633a(a). The Government interprets this provision to impose liability only when age is a but-for cause of an employment decision. According to the Government, even if age played a part in such a decision, an employee or applicant for employment cannot obtain any relief unless it is shown that the decision would have been favorable if age had not been taken into account. This interpretation, the Government contends, follows both from the meaning of the statutory text and from the “default rule” that we have recognized in other employment discrimination cases, namely, that recovery for wrongful conduct is generally permitted only if the injury would not have occurred but for that conduct. Babb interprets the provision differently. She maintains that its language prohibits any adverse consideration of age in the decision-making process. Accordingly, she argues proof that age was a but-for cause of a challenged employment decision is not needed. Which interpretation is correct? To decide, we start with the text of the statute, see Gross v. FBL Financial Services, Inc., 557 U. S. 167, 175 (2009), and as it turns out, it is not necessary to go any further. The plain meaning of the statutory text shows that age need not be a but-for cause of an employment decision in order for there to be a violation of §633a(a). To explain the basis for our interpretation, we will first define the important terms in the statute and then consider how they relate to each other. Section 633a(a) concerns “personnel actions,” and while the ADEA does not define this term, its meaning is easy to understand. The Civil Service Reform Act of 1978, which governs federal employment, broadly defines a “personnel action” to include most employment-related decisions, such as appointment, promotion, work assignment, compensation, and performance reviews. See 5 U. S. C. §2302(a)(2)(A). That interpretation is consistent with the term’s meaning in general usage, and we assume that it has the same meaning under the ADEA. Under §633a(a), personnel actions must be made “free from” discrimination. The phrase “free from” means “untainted” or “[c]lear of (something which is regarded as objectionable).” Thus, under §633a(a), a personnel action must be made “untainted” by discrimination based on age, and the addition of the term “any” (“free from any discrimination based on age”) drives the point home.And as for “discrimination,” we assume that it carries its “‘normal definition,’” which is “‘differential treatment.’” Under §633a(a), the type of discrimination forbidden is “discrimination based on age,” and “[i]n common talk, the phrase ‘based on’ indicates a but-for causal relationship.” Therefore, §633a(a) requires that age be a but-for cause of the discrimination alleged. What remains is the phrase “shall be made.” “[S]hall be made” is a form of the verb “to make,” which means “to bring into existence,” “to produce,” “to render,” and “to cause to be or become.” Random House Dictionary of the English Language, at 866. Thus, “shall be made” means “shall be produced,” etc. And the imperative mood, denoting a duty, see Black’s Law Dictionary 1233 (5th ed. 1979), emphasizes the importance of avoiding the taint. So much for the individual terms used in §633a(a). What really matters for present purposes is the way these terms relate to each other. Two matters of syntax are critical. First, “based on age” is an adjectival phrase that modifies the noun “discrimination.” It does not modify “personnel actions.” The statute does not say that “it is unlawful to take personnel actions that are based on age”; it says that “personnel actions . . . shall be made free from any discrimination based on age.” §633a(a). As a result, age must be a but-for cause of discrimination—that is, of differential treatment—but not necessarily a but-for cause of a personnel action itself. Second, “free from any discrimination” is an adverbial phrase that modifies the verb “made.” Ibid. Thus, “free from any discrimination” describes how a personnel action must be “made,” namely, in a way that is not tainted by differential treatment based on age. If age discrimination plays any part in the way a decision is made, then the decision is not made in a way that is untainted by such discrimination. This is the straightforward meaning of the terms of §633a(a), and it indicates that the statute does not require proof that an employment decision would have turned out differently if age had not been taken into account. … The Government has no answer to this parsing of the statutory text. It makes two correct points: first, that “‘discrimination based on age’” “requires but-for causation,” and, second, that “‘discrimination’” means “‘“differential treatment.”’” But based on these two points, the Government draws the unwarranted conclusion that “[i]t is thus not enough for a federal employer merely to consider age . . . if that consideration does not actually cause the employer to make a less favorable personnel action than it would have made for a similarly situated person who is younger.” That conclusion does not follow from the two correct points on which it claims to be based. What follows instead is that, under §633a(a), age must be the but-for cause of differential treatment, not that age must be a but-for cause of the ultimate decision. … The Government’s primary argument rests not on the text of §633a(a) but on prior cases interpreting different statutes. But contrary to the Government’s argument, nothing in these past decisions undermines our interpretation of §633a(a). … We are not persuaded by the argument that it is anomalous to hold the Federal Government to a stricter standard than private employers or state and local governments. That is what the statutory language dictates, and if Congress had wanted to impose the same standard on all employers, it could have easily done so. … While Babb can establish that the VA violated §633a(a) without proving that age was a but-for cause of the VA’s personnel actions, she acknowledges—and we agree—that but-for causation is important in determining the appropriate remedy. It is bedrock law that “requested relief ” must “redress the alleged injury.” Thus, §633a(a) plaintiffs who demonstrate only that they were subjected to unequal consideration cannot obtain reinstatement, backpay, compensatory damages, or other forms of relief related to the end result of an employment decision. To obtain such remedies, these plaintiffs must show that age discrimination was a but-for cause of the employment outcome. … The judgment of the United States Court of Appeals for the Eleventh Circuit is reversed, and the case is remanded for further proceedings consistent with this opinion. It is so ordered. Lineup: Alito, joined by Roberts, Breyer, Sotomayor, Kagan, Gorsuch, and Kavanaugh, and Ginsburg (other than footnote 3). Concurrence by Sotomayor, joined by Ginsburg. Dissent by Thomas. Concurrence (Sotomayor, joined by Ginsburg): I join the majority opinion because I agree that 29 U. S. C. §633a imposes liability even when age is not a “‘but-for cause’” of a personnel action. I write separately to make two observations. First, the Court does not foreclose §633a claims arising from discriminatory processes. If, for example, an employer hires a 50-year-old person who passed a computer-aptitude test administered only to applicants above 40, clearly a question could arise as to whether the hiring decision was “made free from” differential treatment. Second, this same example may suggest that §633a permits damages remedies, even when the Government engages in nondispositive “age discrimination in the ‘ma[king]’ of a personnel decision.” If an applicant incurs costs to prepare for the discriminatorily administered aptitude test, a damages award compensating for such out-of-pocket expenses could restore the applicant to the “position tha[t] he or she would have enjoyed absent discrimination.” Dissent (Thomas): Until now, the rule for pleading a claim under a federal antidiscrimination statute was clear: A plaintiff had to plausibly allege that discrimination was the but-for cause of an adverse action, unless the statute’s text unequivocally replaced that standard with a different one. Today, however, the Court departs from this rule, concluding that the federal-sector provision of the Age Discrimination in Employment Act of 1967 (ADEA) imposes liability if an agency’s personnel actions are at all tainted by considerations of age. See ante, at 1. This rule is so broad that a plaintiff could bring a cause of action even if he is ultimately promoted or hired over a younger applicant. This novel “any consideration” standard does serious damage to our interpretation of antidiscrimination statutes and disrupts the settled expectations of federal employers and employees. I therefore respectfully dissent. In my view, the default rule of but-for causation applies here because it is not clearly displaced by the text of the ADEA’s federal-sector provision. Though the Court engages at length with the provision’s text, it barely acknowledges our default rule, which undergirds our antidiscrimination jurisprudence. Because the interpretation of an antidiscrimination statute must be assessed against the backdrop of this default rule, I begin by describing the rule in detail. We have explained that “[c]ausation in fact—i.e., proof that the defendant’s conduct did in fact cause the plaintiff ’s injury—is a standard requirement of any tort claim,” including claims of discrimination. … Today’s decision is inconsistent with the default rule underlying our interpretation of antidiscrimination statutes and our precedents, which have consistently applied that rule. Perhaps just as important, the Court’s holding unnecessarily risks imposing hardship on those tasked with managing thousands of employees within our numerous federal agencies. I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/18-882_3ebh.pdf KANSAS v. CHARLES GLOVER Holding / Majority Opinion (Thomas): This case presents the question whether a police officer violates the Fourth Amendment by initiating an investigative traffic stop after running a vehicle’s license plate and learning that the registered owner has a revoked driver’s license. We hold that when the officer lacks information negating an inference that the owner is the driver of the vehicle, the stop is reasonable. Kansas charged respondent Charles Glover, Jr., with driving as a habitual violator after a traffic stop revealed that he was driving with a revoked license. See Kan. Stat. Ann. §8–285(a)(3) (2001). Glover filed a motion to suppress all evidence seized during the stop, claiming that the officer lacked reasonable suspicion. Neither Glover nor the police officer testified at the suppression hearing. Instead, the parties stipulated to the following facts: … 3. Deputy Mehrer ran Kansas plate 295ATJ through the Kansas Department of Revenue’s file service. The registration came back to a 1995 Chevrolet 1500 pickup truck. 4. Kansas Department of Revenue files indicated the truck was registered to Charles Glover Jr. The files also indicated that Mr. Glover had a revoked driver’s license in the State of Kansas. 5. Deputy Mehrer assumed the registered owner of the truck was also the driver, Charles Glover Jr. 6. Deputy Mehrer did not observe any traffic infractions, and did not attempt to identify the driver [of] the truck. Based solely on the information that the registered owner of the truck was revoked, Deputy Mehrer initiated a traffic stop. ... Under this Court’s precedents, the Fourth Amendment permits an officer to initiate a brief investigative traffic stop when he has “a particularized and objective basis for suspecting the particular person stopped of criminal activity.” “Although a mere ‘hunch’ does not create reasonable suspicion, the level of suspicion the standard requires is considerably less than proof of wrongdoing by a preponderance of the evidence, and obviously less than is necessary for probable cause.” … We have previously recognized that States have a “vital interest in ensuring that only those qualified to do so are permitted to operate motor vehicles [and] that licensing, registration, and vehicle inspection requirements are being observed.” With this in mind, we turn to whether the facts known to Deputy Mehrer at the time of the stop gave rise to reasonable suspicion. We conclude that they did. Before initiating the stop, Deputy Mehrer observed an individual operating a 1995 Chevrolet 1500 pickup truck with Kansas plate 295ATJ. He also knew that the registered owner of the truck had a revoked license and that the model of the truck matched the observed vehicle. From these three facts, Deputy Mehrer drew the commonsense inference that Glover was likely the driver of the vehicle, which provided more than reasonable suspicion to initiate the stop. The fact that the registered owner of a vehicle is not always the driver of the vehicle does not negate the reasonableness of Deputy Mehrer’s inference. ... Glover and the dissent respond with two arguments as to why Deputy Mehrer lacked reasonable suspicion. Neither is persuasive. First, Glover and the dissent argue that Deputy Mehrer’s inference was unreasonable because it was not grounded in his law enforcement training or experience. Nothing in our Fourth Amendment precedent supports the notion that, in determining whether reasonable suspicion exists, an officer can draw inferences based on knowledge gained only through law enforcement training and experience. We have repeatedly recognized the opposite....The inference that the driver of a car is its registered owner does not require any specialized training; rather, it is a reasonable inference made by ordinary people on a daily basis. … Glover and the dissent also contend that adopting Kansas’ view would eviscerate the need for officers to base reasonable suspicion on “specific and articulable facts” particularized to the individual, see Terry, 392 U. S., at 21, because police could instead rely exclusively on probabilities. Their argument carries little force. As an initial matter, we have previously stated that officers, like jurors, may rely on probabilities in the reasonable suspicion context. Moreover, as explained above, Deputy Mehrer did not rely exclusively on probabilities. He knew that the license plate was linked to a truck matching the observed vehicle and that the registered owner of the vehicle had a revoked license. Based on these minimal facts, he used common sense to form a reasonable suspicion that a specific individual was potentially engaged in specific criminal activity—driving with a revoked license. Lineup: Thomas, joined by Roberts, Ginsburg, Breyer, Alito, Kagan, Gorsuch, and Kavanaugh. Concurrence by Kagan, joined by Ginsburg. Dissent by Sotomayor. Concurrence (Kagan, joined by Ginsburg): When you see a car coming down the street, your common sense tells you that the registered owner may well be behind the wheel. Not always, of course. Families share cars; friends borrow them. Still, a person often buys a vehicle to drive it himself. So your suspicion that the owner is driving would be perfectly reasonable. Now, though, consider a wrinkle: Suppose you knew that the registered owner of the vehicle no longer had a valid driver’s license. That added fact raises a new question. What are the odds that someone who has lost his license would continue to drive? The answer is by no means obvious. You might think that a person told not to drive on pain of criminal penalty would obey the order—so that if his car was on the road, someone else (a family member, a friend) must be doing the driving. Or you might have the opposite intuition—that a person’s reasons for driving would overcome his worries about violating the law, no matter the possible punishment. But most likely (let’s be honest), you just wouldn’t know. Especially if you’ve not had your own license taken away, your everyday experience has given you little basis to assess the probabilities. Your common sense can therefore no longer guide you. Even so, Deputy Mark Mehrer had reasonable suspicion to stop the truck in this case, and I join the Court’s opinion holding as much. Crucially for me, Mehrer knew yet one more thing about the vehicle’s registered owner, and it related to his proclivity for breaking driving laws. As the Court recounts, Mehrer learned from a state database that Charles Glover, the truck’s owner, had had his license revoked under Kansas law. And Kansas almost never revokes a license except for serious or repeated driving offenses. Crimes like vehicular homicide and manslaughter, or vehicular flight from a police officer, provoke a license revocation; so too do multiple convictions for moving traffic violations within a short time. In other words, a person with a revoked license has already shown a willingness to flout driving restrictions. That fact, as the Court states, provides a “reason[] to infer” that such a person will drive without a license—at least often enough to warrant an investigatory stop. … But as already suggested, I would find this a different case if Kansas had barred Glover from driving on a ground that provided no similar evidence of his penchant for ignoring driving laws. Consider, for example, if Kansas had suspended rather than revoked Glover’s license. Along with many other States, Kansas suspends licenses for matters having nothing to do with road safety, such as failing to pay parking tickets, court fees, or child support.Indeed, several studies have found that most license suspensions do not relate to driving at all; what they most relate to is being poor. So the good reason the Court gives for thinking that someone with a revoked license will keep driving—that he has a history of disregarding driving rules—would no longer apply. And without that, the case for assuming that an unlicensed driver is at the wheel is hardly self-evident. … In this strange case, contested on a barebones stipulation, the record contains no evidence of these kinds. There is but a single, simple fact: A police officer learned from a state database that a car on the road belonged to a person with a revoked license. Given that revocations in Kansas nearly always stem from serious or repeated driving violations, I agree with the Court about the reasonableness of the officer’s inference that the owner, “Glover[,] was driving while his license was revoked.” And because Glover offered no rebuttal, there the matter stands. But that does not mean cases with more complete records will all wind up in the same place. Dissent (Sotomayor): In upholding routine stops of vehicles whose owners have revoked licenses, the Court ignores key foundations of our reasonable-suspicion jurisprudence and impermissibly and unnecessarily reduces the State’s burden of proof. I therefore dissent. I begin with common ground. The Fourth Amendment permits “brief investigatory” vehicle stops, on “facts that do not constitute probable cause,” To assess whether an officer had the requisite suspicion to seize a driver, past cases have considered the “totality of the circumstances—the whole picture,” and analyzed whether the officer assembled “fact on fact and clue on clue,” The stop at issue here, however, rests on just one key fact: that the vehicle was owned by someone with a revoked license. The majority concludes—erroneously, in my view— that seizing this vehicle was constitutional on the record below because drivers with revoked licenses (as opposed to suspended licenses) in Kansas “have already demonstrated a disregard for the law or are categorically unfit to drive.” This analysis breaks from settled doctrine and dramatically alters both the quantum and nature of evidence a State may rely on to prove suspicion. … For starters, the majority flips the burden of proof. It permits Kansas police officers to effectuate roadside stops whenever they lack “information negating an inference” that a vehicle’s unlicensed owner is its driver. This has it backwards: The State shoulders the burden to supply the key inference that tethers observation to suspicion. The majority repeatedly attributes such an inference to Deputy Mehrer. But that is an after-the-fact gloss on a seven-paragraph stipulation. Nowhere in his terse submission did Deputy Mehrer indicate that he had any informed belief about the propensity of unlicensed drivers to operate motor vehicles in the area—let alone that he relied on such a belief in seizing Glover. The consequence of the majority’s approach is to absolve officers from any responsibility to investigate the identity of a driver where feasible. But that is precisely what officers ought to do—and are more than capable of doing. ... With no basis in the record to presume that unlicensed drivers routinely continue driving, the majority endeavors to fill the gap with its own “common sense.” But simply labeling an inference “common sense” does not make it so, no matter how many times the majority repeats it. Whether the driver of a vehicle is likely to be its unlicensed owner is “by no means obvious.” And like the concurrence, I “doubt” that our collective judicial common sense could answer that question, even if our Fourth Amendment jurisprudence allowed us to do so. Vehicle stops “interfere with freedom of movement, are inconvenient, and consume time.” Worse still, they “may create substantial anxiety” through an “unsettling show of authority.” Before subjecting motorists to this type of investigation, the State must possess articulable facts and officer inferences to form suspicion. The State below left unexplained key components of the reasonable-suspicion inquiry. In an effort to uphold the conviction, the Court destroys Fourth Amendment jurisprudence that requires individualized suspicion. I respectfully dissent. https://www.supremecourt.gov/opinions/19pdf/18-556_e1pf.pdf
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Apr 6, 2020 16:52
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