Supreme Court (3/23/20) - 4 decisions, 1 per curiam (State's have sovereign immunity to copyright suits, insanity defense may be abolished)

Today’s order list. No new cases, but there was one summary per curiam decision in a habeas case out of the Fifth Circuit.

The four decisions are below, I have included the Scotusblog record link and the link to the actual Opinion of the Court for each case:

Holding : A plaintiff who sues for racial discrimination in contracting under 42 U. S. C. § 1981 bears the burden of showing that race was a but-for cause of the plaintiff’s injury, and that burden remains constant over the life of the lawsuit.

Judgment : Vacated and remanded, 9-0, in an opinion by Justice Gorsuch on March 23, 2020. Justice Ginsburg filed an opinion concurring in part and concurring in the judgment.

Holding : Congress lacked authority to abrogate the states’ sovereign immunity from copyright infringement suits in the Copyright Remedy Clarification Act of 1990.

Judgment : Affirmed, 9-0, in an opinion by Justice Kagan on March 23, 2020. Justice Thomas filed an opinion concurring in part and concurring in the judgment. Justice Breyer filed an opinion concurring in the judgment, in which Justice Ginsburg joined.

Holding : Due process does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong.

Judgment : Affirmed, 6-3, in an opinion by Justice Kagan on March 23, 2020. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg and Sotomayor joined.

Holding : Because the phrase “questions of law” in the Immigration and Nationality Act’s Limited Review Provision, 8 U. S. C. §1252(a)(2)(D), includes the application of a legal standard to undisputed or established facts, the U.S. Court of Appeals for the 5th Circuit erred in holding that it had no jurisdiction to consider the petitioners’ “factual” due diligence claims for equitable tolling purposes.

Judgment : Vacated and remanded, 7-2, in an opinion by Justice Breyer on March 23, 2020. Justice Thomas filed a dissenting opinion, in which Justice Alito joined as to all but Part II–A–1.

Going briefly into Allen v Cooper.

The wreckage of Queen Anne’s Revenge, under the command of Pirate Blackbeard at the time of its grounding, was discovered in North Carolina State waters and thus the wreckage came under the ownership of the State of North Carolina. The State hired a salvage crew, who in turn hired a photographer, the Petitioner Allen in this case. Allen took numerous photographs and copyrighted them all properly. Sometime later, without Allen’s permission, North Carolina displayed the photographs without Allen’s permission. Allen sued under the Copyright Act. North Carolina moved to dismiss the case on the basis of sovereign immunity, but the District Court declined. North Carolina appealed the District Court’s decision to the 4th Circuit, which reversed the District Court and dismissed the case. Allen then appealed to the Supreme Court.

This case comes down to the scope of what specific portions of State Sovereign Immunity Congress may Constitutionally abrogate by law. The Supreme Court has concluded that Congress may NOT abrogate State Sovereign Immunity for purposes of exercising an Article I power.

However, it is well established that State Sovereign Immunity is abrogated for anything falling under the 14th or 15th Amendments to the Constitution, particularly Civil Rights and Voting Rights.

The Supreme Court, relying on prior precedent, indicated this matter did not involve the equal protection requirements of the 14th Amendment, but only implicated an Article I power. Therefore, Congress cannot abrogate State Sovereign Immunity and the provision in the Copyright Act to the contrary is null and void.

The decision leaves open the possibility that Congress could open a limited window of abrogation.

But for now, States are off the hook for copyright violations, unless they provide remedies in their own State courts.

Here is an article that goes into the decision in plain English.

I agree with the decision. There has to be limits to how far Congress can abrogate State Sovereign Immunity. Civil Rights, Voting Rights, equal treatment before the law and due process are obviously situations that require abrogation. Congress should not be able to do so for lesser policy goals.

At the same time, States should self abrogate and give aggrieved parties a mechanism to sue the State in its own courts for copyright violations.

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For Kahler v Kansas, I will paste the syllabus:

In Clark v. Arizona, 548 U. S. 735, this Court catalogued the diverse strains of the insanity defense that States have adopted to absolve mentally ill defendants of criminal culpability. Two—the cognitive and moral incapacity tests—appear as alternative pathways to acquittal in the landmark English ruling M’Naghten’s Case, 10 Cl. & Fin. 200, 8 Eng. Rep. 718. The moral incapacity test asks whether a defendant’s illness left him unable to distinguish right from wrong with respect to his criminal conduct. Respondent Kansas has adopted the cognitive incapacity test, which examines whether a defendant was able to understand what he was doing when he committed a crime. Specifically, under Kansas law a defendant may raise mental illness to show that he “lacked the culpable mental state required as an element of the offense charged,” Kan. Stat. Ann §21–5209. Kansas does not recognize any additional way that mental illness can produce an acquittal, although a defendant may use evidence of mental illness to argue for a lessened punishment at sentencing. See §§21– 6815©(1)©, 21–6625(a). In particular, Kansas does not recognize a moral-incapacity defense. Kansas charged petitioner James Kahler with capital murder after he shot and killed four family members. Prior to trial, he argued that Kansas’s insanity defense violates due process because it permits the State to convict a defendant whose mental illness prevented him from distinguishing right from wrong. The court disagreed and the jury returned a conviction. During the penalty phase, Kahler was free to raise any argument he wished that mental illness should mitigate his sentence, but the jury still imposed the death penalty. The Kansas Supreme Court rejected Kahler’s due process argument on appeal.

Held: Due process does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong. Pp. 6–24.


A state rule about criminal liability violates due process only if it “offends some principle of justice so rooted in the traditions and conscience our people as to be ranked as fundamental.” Leland v. Oregon, 343 U. S. 790, 798 (internal quotation marks omitted). History is the primary guide for this analysis. The due process standard sets a high bar, and a rule of criminal responsibility is unlikely to be sufficiently entrenched to bind all States to a single approach. As the Court explained in Powell v. Texas, 392 U. S. 514, the scope of criminal responsibility is animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time. This principle applies with particular force in the context of the insanity defense, which also involves evolving understandings of mental illness. This Court has thus twice declined to constitutionalize a particular version of the insanity defense, see Leland, 343 U. S. 790; Clark, 548 U. S. 735, holding instead that a State’s “insanity rule[ ] is substantially open to state choice,” id., at 752. Pp. 6–9.


Against this backdrop, Kahler argues that Kansas has abolished the insanity defense—and, in particular, that it has impermissibly jettisoned the moral-incapacity approach. As a starting point, Kahler is correct that for hundreds of years jurists and judges have recognized that insanity can relieve criminal responsibility. But Kansas recognizes the same: Under Kansas law, mental illness is a defense to culpability if it prevented a defendant from forming the requisite criminal intent; a defendant is permitted to offer whatever evidence of mental health he deems relevant at sentencing; and a judge has discretion to replace a defendant’s prison term with commitment to a mental health facility.

So Kahler can prevail only by showing that due process requires States to adopt a specific test of insanity—namely, the moral-incapacity test. He cannot do so. Taken as a whole, the early common law cases and commentaries reveal no settled consensus favoring Kahler’s preferred right-from-wrong rule. Even after M’Naghten gained popularity in the 19th century, States continued to experiment with new approaches. Clark therefore declared: “History shows no deference to M’Naghten that could elevate its formula to the level of fundamental principle.” 548 U. S., at 749–752. The tapestry of approaches States have adopted shows that no single version of the insanity defense has become so ingrained in American law as to rank as “fundamental.” Id., at 749.

This result is not surprising. Ibid. The insanity defense sits at the juncture of medical views of mental illness and moral and legal theories of criminal culpability—two areas of conflict and change. Small wonder that no particular test of insanity has developed into a constitutional baseline. And it is not for the courts to insist on any single criterion moving forward. Defining the precise relationship between criminal culpability and mental illness requires balancing complex considerations, among them the workings of the brain, the purposes of criminal law, and the ideas of free will and responsibility. This balance should remain open to revision as new medical knowledge emerges and societal norms evolve. Thus—as the Court recognized previously in Leland, Powell, and Clark—the defense is a project for state governance, not constitutional law. Pp. 10–24.

307 Kan. 374, 410 P. 3d 105, affirmed.

KAGAN, J., delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, ALITO, GORSUCH, and KAVANAUGH, JJ., joined. BREYER, J., filed a dissenting opinion, in which GINSBURG and SOTOMAYOR, JJ., joined.

A rather interesting approach to the long standing issue of the insanity defense. Going forward, clearly States will have a very wide latitude to define the insanity defense as they see fit. I am actually not surprised at all either by Kagan joining with the conservative wing or with her writing the Opinion of the Court in this case.

I have not fully digested the Opinion or the Dissent and I have not really decided as of yet where I stand on this. But it is something I wanted to elaborate on here, as it clearly is of major significance for criminal law.

Here is a plain English summary:

I would expect that with no March argument session to either conduct or prepare for, the Justices are likely attempt to expedite the release of Opinions from cases argued earlier in the term. I would expect a number of decisions to be released between now and the April sitting, if that sitting actually happens on schedule.

Question: Does something require the Justices to hear oral arguments? Read the briefs, define the questions submit them to the parties. Since oral arguments are limited to time, say here is a question please provide an answer and the answer is limited to 1 page, single spaced 1" margin.

Nothing requires the Supreme Court to hold oral arguments and they occasionally decide cases without oral arguments. Nothing that prevents them from proceeding as you suggest.


So the Justices can tele-work.

What a concept.



Actually they have been tele-working. Evidently, Chief Justice Roberts was the only Justice physically in the Conference Room during Friday’s conference. The remaining Justices participated by phone.

Must have been a pain in the ass for him, as there are no other person’s permitted in the Conference Room during conferences, meaning the Justices normally must do all the meeting’s administrative work. So all that work would have fallen on the Chief Justice alone.