Supreme Court Oral Arguments

Rutledge v. Pharmaceutical Care Management Association Justia · Docket · oyez.org Argued on Oct 6, 2020. Petitioner: Leslie Rutlege, Arkansas Attorney General.Respondent: Pharmaceutical Care Management Association. Advocates: Nicholas J. Bronni (for the petitioner) Frederick Liu (for the United States, as amicus curiae, supporting the petitioner) Seth P. Waxman (for the respondent) Facts of the case (from oyez.org) In 2015, the legislature of Arkansas passed a law regulating the conduct of pharmacy benefits managers ("PBMs")—the entities that serve as intermediaries between health plans and pharmacies—in an attempt to address the trend in that state of significantly fewer independent and rural-serving pharmacies. PBMs perform numerous functions in this rule, including creating a maximum allowable cost ("MAC") list which sets reimbursement rates to pharmacies dispensing generic drugs. As a result of contracts between PBMs and some pharmacies, some other pharmacies might actually lose money on a particular prescription transaction. The Act sought to address this and other situations where the conduct of PBMs could cause harm to pharmacies. Pharmaceutical Care Management Association (PCMA), a pharmacy trade association, filed a lawsuit on behalf of its members claiming, among other arguments, that Arkansas Act 900 is preempted by both ERISA and Medicare Part D. The district court found that ERISA did preempt some portions of the Act but that Medicare Part D did not preempt the Act. On appeal, the U.S. Court of Appeals for the Eighth Circuit affirmed in part and reversed in part, finding that Act 900 was preempted by both ERISA and Medicare Part D. The appellate court noted that ERISA broadly preempts "any and all State laws insofar as they may now or hereafter relate to any employee benefit plans." Because Act 900 “both relates to and has a connection with employee benefit plans,” ERISA preempts it. Question Does ERISA preempt an Arkansas law regulating pharmacy benefit managers’ drug-reimbursement rates?

Texas v. New Mexico Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on Oct 5, 2020.Decided on Dec 14, 2020. Petitioner: Texas.Respondent: New Mexico. Advocates: Kyle D. Hawkins (for the State of Texas) Jeffrey J. Wechsler (for the State of New Mexico) Masha G. Hansford (for the United States, as amicus curiae, supporting New Mexico) Facts of the case (from oyez.org) Texas and New Mexico entered into the Pecos River Compact to resolve disputes about the Pecos River, which traverses both states. A River Master performs annual calculations of New Mexico's water delivery to ensure it complies with its Compact obligations. A party may seek the Supreme Court's review of the River Master's calculations within 30 days of its final determination. In 2014 and 2015, after heavy rainfall, a federally owned reservoir in New Mexico retained large amounts of flood waters in the Pecos Basin. When the reservoir's authority to hold the water expired, it began to release the water. Texas could not use the released water, so it also released the water to make room for water flowing from New Mexico. When the River Master calculated and reported New Mexico's obligations for 2014 and 2015, it did not reduce Texas's rights to delivery based on the evaporation of water stored in the federal reservoir in New Mexico that Texas could not use. The 30-day review period lapsed, and New Mexico filed no objection. However, in 2018, New Mexico filed a motion challenging the River Master's calculations. Rather than dismiss the untimely objection, the River Master modified the governing manual to allow retroactive changes to final reports, gave that modification retroactive effect, and amended the 2015 report to credit New Mexico for the evaporative loss. Question 1. Did the River Master err in retroactively amending the River Master Manual? 2. Did the River Master err in charging Texas for evaporative losses? Conclusion Texas’s motion to review the Pecos River Master’s determination is denied. Justice Brett Kavanaugh authored the majority opinion of the Court. New Mexico’s motion for credit for the evaporated water was not untimely. As Texas and New Mexico agreed to postpone the River Master’s resolution of the evaporated water issue, neither party may now object to the negotiation procedure the River Master outlined for resolving the dispute. Additionally, Texas’s request that Net Mexico store water at a facility in New Mexico was based on Texas’s understanding that the water belonged to Texas. Justice Samuel Alito filed an opinion concurring in the judgment in part and dissenting in part. He agreed with the Court’s rejection of Texas’s argument that New Mexico forfeited any objection to the River Master’s 2014 report because it did not file an objection by the deadline imposed by the amended decree. However, he would vacate and remand the case for the River Master to redo his analysis in accordance with the relevant terms of the amended decree and the manual. Justice Amy Coney Barrett took no part in the consideration or decision of this case.

Carney v. Adams Justia (with opinion) · Docket · oyez.org Argued on Oct 5, 2020.Decided on Dec 10, 2020. Petitioner: John C. Carney, Governor of Delaware.Respondent: James R. Adams. Advocates: Michael W. McConnell (for the petitioner) David L. Finger (for the respondent) Facts of the case (from oyez.org) James R. Adams is a resident of Delaware and member of that state’s bar. Adams considered applying for a judicial position but ultimately decided not to because the state required the candidate to be a Republican, and Adams was neither a Republican nor a Democrat. Adams filed a lawsuit against the governor, challenging the provision of the Delaware Constitution that limits judicial service to members of the Democratic and Republican Parties. First, the district court held Adams had Article III (“constitutional”) standing as to some, but not all of the provisions, but that because he had prudential standing to the other provisions, it would consider his challenge as to all of them. Turning to the merits, the district court noted that under the U.S. Supreme Court’s precedent in Elrod v. Burns and Branti v. Finkel, a government employer may not make employment decisions based on political allegiance except with respect to policymakers. The court found that a judge’s job is to apply, rather than create, the law, and thus that judges do not fall within the policymaking exception of Elrod and Burns. As such, the court found the provision unconstitutional in its entirety. On appeal, the U.S. Court of Appeals for the Third Circuit affirmed in part and reversed only as to the provisions for which Adams lacked Article III standing. Question 1. Does the plaintiff in this case have Article III standing to challenge Delaware’s judicial service requirements? 2. Does a state law that effectively limits judicial service to members of the Democratic and Republican parties violate the First Amendment? Conclusion Because Adams had not shown that he was “able and ready” to apply for a judicial vacancy in the imminent future, he failed to demonstrate Article III standing to challenge the Delaware Constitution’s political balance requirement for appointments to the State’s major courts. Justice Stephen Breyer authored the unanimous (8-0) opinion of the Court. Article III standing requires that an “injury in fact” be “concrete and particularized” and “actual or imminent.” In this context, Adams needed to show that he was likely to apply to become a judge in the reasonably foreseeable future, which required a showing that he was “able and ready” to apply. He did not adequately make this showing, supporting his claim only with two statements he made that he wanted to be a judge without other supporting evidence of his intent to do so. As such, his grievance is generalized and does not meet the requirement for an “injury in fact.” Justice Sonia Sotomayor authored a concurring opinion expressing her agreement that Adams did not demonstrate Article III standing. In anticipation that the constitutional questions raised in the case were likely to be raised again, she highlighted two considerations that “may inform their answers”: the possibility of material difference between the “major party” requirement and the “bare majority” requirement, and a question of the severability of those two requirements. Justice Amy Coney Barrett took no part in the consideration or decision of this case. 

Chiafalo v. Washington Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on May 13, 2020.Decided on Jul 6, 2020. Petitioner: Peter Bret Chiafalo, Levi Jennet Guerra, and Esther Virginia John.Respondent: State of Washington. Advocates: Lawrence Lessig (for the petitioners) Noah Purcell (for the respondent) Facts of the case (from oyez.org) Under Washington State law, each political party with presidential candidates is required to nominate for the Electoral College electors from its party equal to the number of senators and representatives allotted to the state. Nominees must pledge to vote for the candidate of their party, and any nominee who does not vote for their party candidate is subject to a fine of up to $1,000. Washington, as is the case with all but two other states, has a “winner-take-all” electoral system, which means that all of a state’s electoral votes go to the winner of the popular vote in that state. In the 2016 Presidential Election, petitioner Chiafolo and others were nominated as presidential electors for the Washington State Democratic Party. When Hillary Clinton and Tim Kaine won the popular vote in Washington State, the electors were required by law to cast their ballots for Clinton/Kaine. Instead, they voted for Colin Powell for President and a different individual for Vice President. The Washington secretary of state fined the electors $1,000 each for failing to vote for the nominee of their party in violation of state law. The electors challenged the law imposing the fine as violating the First Amendment. An administrative law judge upheld the fine, and a state trial court on appeal affirmed. This case was originally consolidated with a similar case arising in Colorado, Colorado Department of State v. Baca, No. 19-518, but is no longer consolidated as of the Court's order of March 10, 2020. Question Does a state law requiring presidential electors to vote the way state law directs or else be subject to a fine violate the electors’ First Amendment rights? Conclusion A state may constitutionally enforce a presidential elector’s pledge to support his party’s nominee—and the state voters’ choice—for President. Justice Elena Kagan authored the majority opinion that was unanimous in the judgment. Article II, §1 gives the States the authority to appoint electors “in such Manner as the Legislature thereof may direct,” which the Court has interpreted as conveying to the states “the broadest power of determination” over who becomes an elector. The Twelfth Amendment, which also addresses the Electoral College, only sets out the electors’ voting procedures. Thus, the appointment power of the states is extensive, and nothing in the Constitution prohibits states from taking away the discretion of presidential electors’ discretion, as Washington does. The history of voting in this country supports the conclusion that electors do not have the discretion to vote however they like; indeed “long settled and established practice” of voting in this nation requires finding that electors are required to vote for the candidate whom the state’s voters have chosen. Justice Clarence Thomas authored an opinion concurring in the judgment, but for a different reason. Justice Thomas disagreed with the Court that Article II determines the outcome in this case; he would resolve this case by simply recognizing the principle enshrined in the Tenth Amendment that “[a]ll powers that the Constitution neither delegates to the Federal Government nor prohibits to the States are controlled by the people of each State.” Justice Neil Gorsuch joined as to the discussion of the Tenth Amendment.

Colorado Department of State v. Baca Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on May 13, 2020.Decided on Jul 6, 2020. Petitioner: Colorado Department of State.Respondent: Micheal Baca, et al.. Advocates: Philip J. Weiser (for the petitioner) Jason Harrow (for the respondents) Facts of the case (from oyez.org) Michael Baca, Polly Baca, and Robert Nemanich were appointed as three of Colorado’s nine presidential electors for the 2016 general election. Colorado law requires presidential electors to cast their votes for the winner of the popular vote in the state for President and Vice President. When Hillary Clinton won the popular vote in that state, instead of casting his vote for her, Mr. Baca cast his vote for John Kasich. The Colorado Secretary of State discarded his vote and removed him as an elector. As a result, Ms. Baca and Mr. Nemanich voted for Hillary Clinton, despite their desire to vote for John Kasich. The three presidential electors sued the Colorado Department of State, alleging that the law requiring presidential electors to vote for the presidential candidate who wins the popular vote in that state violates their constitutional rights under Article II and the Twelfth Amendment of the federal Constitution. The district court dismissed the action, finding the electors lacked standing to bring the lawsuit, and in the alternative, because the electors failed to state a legal claim because the Constitution does not prohibit states from requiring electors to vote for the winner of the state’s popular vote. The U.S. Court of Appeals for the Tenth Circuit affirmed the district court as to Mr. Baca’s standing, but reversed as to the standing of the other two electors who did not cast their votes in violation of the law. On the merits, the Tenth Circuit reversed the lower court, finding the state’s removal of Mr. Baca and nullification of his vote were unconstitutional. Question 1. Do the petitioners in this case, the presidential electors, have judicial standing to sue the state of Colorado over a law requiring them to vote in the Electoral College for the winner of the popular vote in that state? 2. Is that Colorado law unconstitutional? Conclusion In a per curiam (unsigned) opinion, the Court reversed the judgment of U.S. Court of Appeals for the Tenth Circuit below, for the reasons stated in Chiafalo v. Washington. Justice Clarence Thomas concurred in the judgment for the reasons stated in his concurring opinion in that case, and Justice Sonia Sotomayor took no part in the decision of this case.

Trump v. Vance Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on May 12, 2020.Decided on Jul 9, 2020. Petitioner: Donald J. Trump.Respondent: Cyrus R. Vance, Jr., in His Official Capacity as District Attorney of the County of New York, et al.. Advocates: Jay Alan Sekulow (for the petitioner) Noel J. Francisco (for the United States, as amicus curiae, supporting the petitioner) Carey R. Dunne (for the respondents) Facts of the case (from oyez.org) The district attorney of New York County issued a grand jury subpoena to an accounting firm that possessed the financial records of President Donald Trump and one of his businesses. Trump asked a federal court to restrain enforcement of that subpoena, but the district court declined to exercise jurisdiction and dismissed the case based on Supreme Court precedent regarding federal intrusion into ongoing state criminal prosecutions. The court held, in the alternative, that there was no constitutional basis to temporarily restrain or preliminarily enjoin the subpoena at issue. The U.S. Court of Appeals for the Second Circuit affirmed the lower court with respect to the alternative holding, finding that any presidential immunity from state criminal process does not extend to investigative steps like the grand jury subpoena. However, it found that the Supreme Court precedent on which the lower court relied did not apply to the situation and vacated the judgment as to that issue and remanded the case to the lower court. Question Does the Constitution permit a county prosecutor to subpoena a third-party custodian for the financial and tax records of a sitting president, over which the president has no claim of executive privilege? Conclusion Article II and the Supremacy Clause neither categorically preclude, nor require a heightened standard for, the issuance of a state criminal subpoena to a sitting President. All nine justices agreed that a President does not have absolute immunity from the issuance of a state criminal subpoena, but a seven-justice majority voted to affirm the decision of the Second Circuit below. Chief Justice John Roberts wrote the opinion of the Court. The Chief Justice noted from the outset that the Supreme Court has long held that the President is subject to subpoena in federal criminal proceedings. In this case, the question was whether the President has absolute immunity from state criminal subpoenas. The Court held in Clinton v. Jones, 520 U.S. 681 (1997), that federal criminal subpoenas do not rise to the level of constitutionally forbidden impairment of the Executive’s ability to perform its constitutionally mandated functions, and here, it rejected the President’s argument that state criminal subpoenas pose a unique and greater threat. A properly tailored state criminal subpoena will not hamper the performance of a President’s constitutional duties, there is nothing inherently stigmatizing about a President performing a normal citizen’s duty of furnishing information relevant to a criminal investigation, and the risk that subjecting sitting Presidents to state criminal subpoenas will make them targets for harassment is minimal given that federal law allows for a President to challenge allegedly unconstitutional influences. For these reasons, the Constitution does not categorically preclude the issuance of a state criminal subpoena to a sitting President. Next the Court turned to the question whether a state grand jury subpoena must satisfy a heightened need standard, finding that it does not, for three reasons. First, the Supreme Court in Burr v. United States (1807) made clear that a President “stands in nearly the same situation with any other individual” with respect to production of private papers. Second, the President in this case did not show that the protection of a heightened need standard is necessary to allow him to fulfill his Article II functions. Third, absent a need for protection, the public interest in fair and effective law enforcement weighs in favor of comprehensive access to evidence. Still, the President has multiple avenues to challenge the subpoena under state law if it is issued in bad faith or is unduly broad. Thus, the Constitution does not require a heightened need standard for a state grand jury subpoena. Justice Brett Kavanaugh authored an opinion concurring in the judgment, in which Justice Neil Gorsuch joined, noting that he would apply the standard articulated in United States v. Nixon, 418 U.S. 683 (1974)—that the prosecutor demonstrate a specific need for the President’s information.  Justice Clarence Thomas authored a dissenting opinion in which he looked to the text of the Constitution to find no support for the President’s claim of absolute immunity from the issuance of a grand jury subpoena. However, he drew a distinction between immunity from issuance of the subpoena and relief against its enforcement. Based on this distinction, Justice Thomas would vacate and remand. Justice Samuel Alito authored a dissenting opinion in which he characterized the issue in the case as necessarily implicating the broader question whether the Constitution imposes restrictions on a State’s deployment of its criminal law enforcement powers against a sitting President. Justice Alito would grant the President greater protection from state law enforcement powers than the majority’s opinion does.

Trump v. Mazars USA, LLP Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on May 12, 2020.Decided on Jul 9, 2020. Petitioner: Donald J. Trump, et al..Respondent: Mazars USA, LLP, et al.. Advocates: Patrick Strawbridge (for the petitioners) Jeffrey B. Wall (for the United States, as amicus curiae, supporting the petitioners) Douglas N. Letter (for the respondents) Facts of the case (from oyez.org) The U.S. House of Representatives Committee on Oversight and Reform issued a subpoena to Mazars USA, the accounting firm for Donald Trump (in his capacity as a private citizen) and several of his businesses, demanding private financial records belonging to Trump. According to the Committee, the requested documents would inform its investigation into whether Congress should amend or supplement its ethics-in-government laws. Trump argued that the information serves no legitimate legislative purpose and sued to prevent Mazars from complying with the subpoena. The district court granted summary judgment for the Committee, and the U.S. Court of Appeals for the D.C. Circuit affirmed, finding the Committee possesses the authority under both the House Rules and the Constitution. In the consolidated case, Trump v. Deutsche Bank AG, No. 19-760, two committees of the U.S. House of Representatives—the Committee on Financial Services and the Intelligence Committee—issued a subpoena to the creditors of President Trump and several of his businesses. The district court denied Trump’s motion for a preliminary injunction to prevent compliance with the subpoenas, and the U.S. Court of Appeals for the Second Circuit affirmed in substantial part and remanded in part. Question Does the Constitution prohibit subpoenas issued to Donald Trump’s accounting firm requiring it to provide non-privileged financial records relating to Trump (as a private citizen) and some of his businesses? Conclusion The courts below did not take adequate account of the significant separation of powers concerns implicated by congressional subpoenas for the President’s information. Chief Justice John Roberts authored the 7-2 majority opinion of the Court. The Court first acknowledged that this dispute between Congress and the Executive is the first of its kind to reach the Court and that the Court does not take lightly its responsibility to resolve the issue in a manner that ensures “it does not needlessly disturb ‘the compromises and working arrangements’ reached by those branches. Each house of Congress has “indispensable” power “to secure needed information” in order to legislate, including the power to issue a congressional subpoena, provided that the subpoena is “related to, and in furtherance of, a legitimate task of the Congress.” However, the issuance of a congressional subpoena upon the sitting President raises important separation-of-powers concerns. The standard advocated by the President—a “demonstrated, specific need”—is too stringent. At the same time, the standard advocated by the House—a “valid legislative purpose”—does not adequately safeguard the President from an overzealous and perhaps politically motivated Congress. Rather than adopt either party’s approach, the Court proposed a balancing test that considers four factors. First, courts should carefully assess whether the asserted legislative purpose requires involving the President and his papers, or whether the information is available elsewhere. Second, courts should consider whether the subpoena is no broader than reasonably necessary in scope so as to still serve Congress’s legislative purpose. Third, courts should evaluate the evidence Congress has offered to “establish that a subpoena advances a valid legislative purpose”—the more “detailed and substantial,” the better. Finally, courts should assess what burdens a subpoena imposes on the President. Justice Clarence Thomas authored a dissenting opinion, in which he argued that Congress can never issue a legislative subpoena for private, unofficial documents. Justice Samuel Alito authored a dissenting opinion, in which he argued that even accepting the balancing test adopted by the majority, the House subpoenas should fail without a greater showing from the House as to each of the four considerations outlined by the majority.

Our Lady of Guadalupe School v. Morrissey-Berru Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on May 11, 2020.Decided on Jul 8, 2020. Petitioner: Our Lady of Guadalupe School.Respondent: Agnes Morrissey-Berru. Advocates: Eric C. Rassbach (for the petitioners) Morgan L. Ratner (for the United States, as amicus curiae, supporting the petitioners) Jeffrey L. Fisher (for the respondents) Facts of the case (from oyez.org) Agnes Deirdre Morrissey-Berru was an teacher at Our Lady of Guadalupe School and brought a claim against the school under the Age Discrimination in Employment Act (ADEA). The district court granted summary judgment in favor of the school on the basis that Morrissey-Berru was a “minister.” In Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC, the Supreme Court first recognized a ministerial exception, which exempts religious institutions from anti-discrimination laws in hiring employees deemed “ministers.” The U.S. Court of Appeals for the Ninth Circuit reversed the lower court, finding that Morrissey-Berru was not a “minister”; she had taken one course on the history of the Catholic church but otherwise did not have any religious credential, training, or ministerial background. Given that she did not hold herself out to the public as a religious leader or minister, the court declined to classify her as a minister for the purposes of the ministerial exception. Question Do the First Amendment’s religion clauses prevent civil courts from adjudicating employment-discrimination claims brought by an employee against her religious employer, when the employee carried out important religious functions but was not otherwise a “minister”? Conclusion The “ministerial exception,” which derives from the religion clauses of the First Amendment, prevents civil courts from adjudicating the former employee's discrimination claims in this case, and in the consolidated case, St. James School v. Biel, against the religious schools that employed them. Justice Samuel Alito authored the 7-2 majority opinion. Courts generally try to stay out of matters involving employment decisions regarding those holding certain important positions with churches and other religious institutions, and the Court formally first recognized this principle, known as the “ministerial exception,” in Hosanna-Tabor Evangelical Lutheran Church & School v. EEOC. In that case, the Court considered four factors before reaching its conclusion that the employee was a “minister” for purposes of an exception to generally applicable anti-discrimination laws. However, the Court expressly declined “to adopt a rigid formula for deciding when an employee qualifies as a minister.” The factors relied upon in Hosanna-Tabor were specific to that case, and courts may consider different factors to decide whether another employee is a “minister” in another context. The key inquiry is what the employee does. Educating young people in their faith, which was the responsibility of the plaintiffs in these two cases, is at the very core of a private religious school’s mission, and as such, Morrissey-Berru and Biel qualify for the exception recognized in Hosanna-Tabor. Justice Clarence Thomas authored a concurring opinion, in which Justice Neil Gorsuch joined, arguing that courts should “defer to religious organizations’ good-faith claims that a certain employee’s position is ‘ministerial.’” Justice Sonia Sotomayor authored a dissenting opinion, in which Justice Ruth Bader Ginsburg joined, arguing that the Court incorrectly classified the teachers as “ministers,” given that the teachers taught primarily secular subjects, lacked substantial religious titles and training, and were not even required to be Catholic. Moreover, Justice Sotomayor argued, the majority’s approach “has no basis in law and strips thousands of schoolteachers of their legal protections.”

McGirt v. Oklahoma Wikipedia · Justia (with opinion) · Docket · oyez.org Argued on May 11, 2020.Decided on Jul 9, 2020. Petitioner: Jimcy McGirt.Respondent: Oklahoma. Advocates: Ian H. Gershengorn (for the petitioner) Riyaz A. Kanji (for the Muscogee (Creek) Nation, as amicus curiae, supporting the petitioner) Mithun Mansinghani (for the respondent) Edwin S. Kneedler (for the United States, as amicus curiae, supporting the respondent) Facts of the case (from oyez.org) Jimcy McGirt, a member of the Muscogee (Creek) Nation was convicted of sex crimes against a child by the state of Oklahoma within the historical Creek Nation boundaries. He argued that Oklahoma could not exercise jurisdiction over him because under the Indian Major Crimes Act, any crime involving a Native American victim or perpetrator, or occurring within recognized reservation boundaries, is subject to federal jurisdiction, not state jurisdiction. Question Can a state prosecute an enrolled member of the Creek Tribe for crimes committed within the historical Creek boundaries? Conclusion Land reserved for the Creek Nation since the 19th century remains “Indian country” under the Major Crimes Act (MCA), which grants the federal government exclusive jurisdiction to try certain major crimes committed by enrolled members of a tribe on that land. Justice Neil Gorsuch authored the 5-4 majority opinion holding that Oklahoma lacked jurisdiction to prosecute Jimcy McGirt. The Court first noted that all parties agreed that McGirt’s crimes were committed on lands described as belonging to the Creek Nation in an 1866 treaty and federal statute. Though the early treaties did not refer to the Creek lands as a “reservation,” the Court has held that similar language in treaties from the same era was sufficient to create a reservation. An 1856 treaty promised that “no portion” of Creek lands “would ever be embraced or included within, or annexed to, any Territory or State” and that the Creek Nation would have the “unrestricted right of self-government,” with “full jurisdiction” over enrolled Tribe members and their property. Once a federal reservation is established, only Congress can diminish or disestablish it through a “clear expression of congressional intent.” The Court acknowledged that Congress has broken many promises to the Tribe but none has manifested “clear expression of congressional intent” to disestablish the Creek Reservation. The Court rejected Oklahoma’s argument that Congress never established a reservation in the first place, finding that such a conclusion “would require willful blindness to the statutory language.” The Court also rejected Oklahoma’s argument that the Oklahoma Enabling Act transferred jurisdiction from federal courts to state courts as contrary to the plain terms of the MCA. The mere fact that Oklahoma has been exercising jurisdiction in these cases does not make it in any more correct. Indeed, “unlawful acts, performed long enough and with sufficient vigor, are never enough to amend the law.” Chief Justice John Roberts authored a dissenting opinion, in which Justices Samuel Alito and Brett Kavanaugh joined, and in which Justice Clarence Thomas joined in part. The dissent accused the majority of examining the statutes in isolation rather than considering a broader inquiry, which would have led to the conclusion that a reservation did not exist when McGirt committed his crimes. Justice Thomas authored a dissenting opinion to argue that the Court had no jurisdiction to review the judgment of the Oklahoma Court of Criminal Appeals because it rests on adequate and independent state ground.

Barr v. American Association of Political Consultants Inc. Justia (with opinion) · Docket · oyez.org Argued on May 6, 2020.Decided on Jul 6, 2020. Petitioner: William P. Barr, Attorney General; Federal Communications Commission.Respondent: American Association of Political Consultants, Inc., et al.. Advocates: Malcolm L. Stewart (for the petitioners) Roman Martinez (for the respondents) Facts of the case (from oyez.org) Congress enacted the Telephone Consumer Protection Act of 1991 to address intrusive and unwanted phone calls to Americans. One provision of that Act—the automatic call ban—prohibits phone calls to cell phones that use “any automatic telephone dialing system or an artificial or prerecorded voice.” As passed, the Act recognized two exceptions to the ban: automated calls “for emergency purposes” and those made to a cell phone with “the prior express consent of the called party.” In 2015, Congress amended the Act to add a third exception for calls made to cell phones “to collect a debt owed to or guaranteed by the United States.” Moreover, automated calls made by the federal government itself are not barred by the automated call ban. The American Association of Political Consultants, Inc. challenged this third provision of the Act, alleging that it violates the Free Speech Clause of the First Amendment by imposing a content-based restriction on speech. The district court granted summary judgment to the government, finding unpersuasive the free speech argument. The district court applied strict scrutiny review (testing whether the government had demonstrated the law is necessary to a "compelling state interest," that the law is "narrowly tailored" to achieving this compelling purpose, and that the law uses the "least restrictive means" to achieve that purpose) to the debt-collection exemption and ruled that it does not violate the Free Speech Clause. On appeal the U.S. Court of Appeals for the Fourth Circuit agreed with the lower court that strict scrutiny review applied but concluded that the debt-collection exemption does not satisfy that level of review. Finding that the provision was severable from the Act, the Fourth Circuit struck down only that provision. Question 1. Does a provision of the Telephone Consumer Protection Act of 1991 exempting government debt collection calls from the ban on automated calls violate the First Amendment? 2. If so, is that provision severable from the rest of the Act? Conclusion The Fourth Circuit’s judgment—that the robocall restriction’s government-debt exception in 47 U.S.C. § 227(b)(1)(A)(iii) violates the First Amendment but is severable from the remainder of the statute—is affirmed. A majority of the justices—Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh—believed that the statute at issue regulated speech based on its content and was thus subject to strict scrutiny. In their view, the law is a content-based restriction because it favors speech made for the purpose of collecting government debt over political and other speech. Under strict scrutiny, a law must be “necessary” to achieve a “compelling” state interest and must be “narrowly tailored” to achieve that interest. Justice Kavanaugh authored an opinion applying strict scrutiny and concluding that the government-debt exception fails this level of scrutiny because the Government did not sufficiently justify the differentiation between government-debt collection speech and other categories of robocall speech, such as political speech, issue advocacy, etc. Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan argued in multiple opinions that the speech at issue in this case was commercial speech and thus restrictions on such speech were subject only intermediate scrutiny. Under this test, the restriction must only be “narrowly tailored to serve a significant governmental interest.” Justice Sotomayor concurred in the judgment because, in her view, the provision at issue failed intermediate scrutiny. She argued that the government did not adequately explain “how a debt-collection robocall about a government-backed debt is any less intrusive or could be any less harassing than a debt-collection robocall about a privately backed debt.” In contrast, Justice Breyer’s partial dissent argued that the provision at issue does satisfy intermediate scrutiny, noting that the effect of the law is to disadvantage non-governmental debt collectors, who are already subject to substantial regulation, and the law is narrowly tailored to protect “the public fisc”—an important government interest. A majority of the Court—Chief Justice Roberts and Justices Ginsburg, Breyer, Alito, Sotomayor, Kagan, and Kavanaugh—found the provision severable from the rest of the Act. Justices Thomas and Gorsuch dissented from this conclusion, arguing that the doctrine of severability amounts to rewriting legislation.