OPINIONS

(1)  Ziglar v. Abbasi (with Ashcroft v. Abbasi and Hasty v. Abbasi):  By a vote of 4-2, the judgment of the U.S. Court of Appeals for the Second Circuit is reversed in part and vacated and remanded in part.  Per Justice Kennedy's opinion for the Court:  "After the September 11 terrorist attacks in this country, and in response to the deaths, destruction, and dangers they caused, the United States Government ordered hundreds of illegal aliens to be taken into custody and held. Pending a determination whether a particular detainee had connections to terrorism, the custody, under harsh conditions to be described, continued. In many instances custody lasted for days and weeks, then stretching into months. Later, some of the aliens who had been detained filed suit, leading to the cases now before the Court. The complaint named as defendants three high executive officers in the Department of Justice and two of the wardens at the facility where the detainees had been held. Most of the claims, alleging various constitutional violations, sought damages under the implied cause of action theory adopted by this Court in Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971). Another claim in the complaint was based upon the statutory cause of action authorized and created by Congress under Rev. Stat. §1980, 42 U. S. C. §1985(3). This statutory cause of action allows damages to persons injured by conspiracies to deprive them of the equal protection of the laws.... The first question to be discussed is whether petitioners can be sued for damages under Bivens and the ensuing cases in this Court defining the reach and the limits of that precedent.... If Bivens liability were to be imposed, high officers who face personal liability for damages might refrain from taking urgent and lawful action in a time of crisis. And, as already noted, the costs and difficulties of later litigation might intrude upon and interfere with the proper exercise of their office. On the other side of the balance, the very fact that some executive actions have the sweeping potential to affect the liberty of so many is a reason to consider proper means to impose restraint and to provide some redress from injury. There is therefore a balance to be struck, in situations like this one, between deterring constitutional violations and freeing high officials to make the lawful decisions necessary to protect the Nation in times of great peril.... The proper balance is one for the Congress, not the Judiciary, to undertake. For all of these reasons, the Court of Appeals erred by allowing respondents’ detention policy claims to proceed under Bivens.... One of respondents’ claims under Bivens requires a different analysis: the prisoner abuse claim against the MDC’s warden, Dennis Hasty. The allegation is that Warden Hasty violated the Fifth Amendment by allowing prison guards to abuse respondents.... [B]efore allowing this claim to proceed under Bivens, the Court of Appeals should have performed a special factors analysis. It should have analyzed whether there were alternative remedies available or other 'sound reasons to think Congress might doubt the efficacy or necessity of a damages remedy' in a suit like this one.... One issue remains to be addressed: the claim that petitioners are subject to liability for civil conspiracy under 42 U. S. C. §1985(3).... [T]he Court has held that qualified immunity protects 'all but the plainly incompetent or those who knowingly violate the law.' Malley v. Briggs, 475 U. S. 335, 341 (1986).... Under these principles, it must be concluded that reasonable officials in petitioners’ positions would not have known, and could not have predicted, that §1985(3) prohibited their joint consultations and the resulting policies that caused the injuries alleged.... The judgment of the Court of Appeals is reversed as to all of the claims except the prisoner abuse claim against Warden Hasty. The judgment of the Court of Appeals with respect to that claim is vacated, and that case is remanded for further proceedings."

Justice Kennedy delivered (a) the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which the Chief Justice and Justices Thomas and Alito joined, and (b) an opinion with respect to Part IV–B, in which the Chief Justice and Justice Alito joined.  Justice Thomas filed an opinion concurring in part and concurring in the judgment.  Justice Breyer filed a dissenting opinion in which Justice Ginsburg joined.  Justices Sotomayor, Kagan, and Gorsuch took no part in the consideration or decision of the cases.

(2)  Matal v. Tam (formerly Lee v. Tam):  By a vote of 8-0, the judgment of the U.S. Court of Appeals for the Federal Circuit is affirmed.  Per Justice Alito's opinion for the Court:  "This case concerns a dance-rock band’s application for federal trademark registration of the band’s name, 'The Slants.' 'Slants' is a derogatory term for persons of Asian descent, and members of the band are Asian-Americans. But the band members believe that by taking that slur as the name of their group, they will help to 'reclaim' the term and drain its denigrating force. The Patent and Trademark Office (PTO) denied the application based on a provision of federal law prohibiting the registration of trademarks that may 'disparage ... or bring ... into contemp[t] or disrepute' any 'persons, living or dead.' 15 U. S. C. §1052(a). We now hold that this provision violates the Free Speech Clause of the First AmendmentIt offends a bedrock First Amendment principle: Speech may not be banned on the ground that it expresses ideas that offend."

Justice Alito (a) announced the judgment of the Court and (b) delivered the opinion of the Court with respect to Parts I, II, and III–A, in which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan joined, and in which Justice Thomas joined except for Part II; and (c) delivered an opinion with respect to Parts III-B, III-C, and IV, in which the Chief Justice and Justices Thomas and Breyer joined.  Justice Kennedy filed an opinion concurring in part and concurring in the judgment, in which Justices Ginsburg, Sotomayor, and Kagan joined.  Justice Thomas also filed an opinion concurring in part and concurring in the judgment.  Justice Gorsuch took no part in the consideration or decision of the case.

(3)  Packingham v. North Carolina:  By a vote of 8-0, the judgment of the Supreme Court of North Carolina is reversed and the case remanded.  Per Justice Kennedy's opinion for the Court:  "In 2008, North Carolina enacted a statute making it a felony for a registered sex offender to gain access to a number of websites, including commonplace social media websites like Facebook and Twitter. The question presented is whether that law is permissible under the First Amendment’s Free Speech Clause, applicable to the States under the Due Process Clause of the Fourteenth Amendment.... It is necessary to make two assumptions to resolve this case. First, given the broad wording of the North Carolina statute at issue, it might well bar access not only to commonplace social media websites but also to websites as varied as Amazon.com, Washingtonpost.com, and Webmd.com....  Second, this opinion should not be interpreted as barring a State from enacting more specific laws than the one at issue. Specific criminal acts are not protected speech even if speech is the means for their commission....  Even with these assumptions about the scope of the law and the State’s interest, the statute here enacts a prohibition unprecedented in the scope of First Amendment speech it burdens. Social media allows users to gain access to information and communicate with one another about it on any subject that might come to mind. Supra, at 5. By prohibiting sex offenders from using those websites, North Carolina with one broad stroke bars access to what for many are the principal sources for knowing current events, checking ads for employment, speaking and listening in the modern public square, and otherwise exploring the vast realms of human thought and knowledge.... [T]to foreclose access to social media altogether is to prevent the user from engaging in the legitimate exercise of First Amendment rights."  

Justice Kennedy's majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Alito filed an opinion concurring in the judgment, in which the Chief Justice and Justice Thomas joined.  Justice Gorsuch took no part in the consideration or decision of the case.

(4)  Bristol-Myers Squibb v. Superior Court By a vote of 8-1, the judgment of the Supreme Court of California is reversed and the case remanded.  Per Justice Alito's opinion for the Court:  "More than 600 plaintiffs, most of whom are not California residents, filed this civil action in a California state court against Bristol-Myers Squibb Company (BMS), asserting a variety of state-law claims based on injuries allegedly caused by a BMS drug called Plavix. The California Supreme Court held that the California courts have specific jurisdiction to entertain the nonresidents’ claimsWe now reverse.... Our settled principles regarding specific jurisdiction control this case. In order for a court to exercise specific jurisdiction over a claim, there must be an 'affiliation between the forum and the underlying controversy, principally, [an] activity or an occurrence that takes place in the forum State.' Goodyear, 564 U. S., at 919 (internal quotation marks and brackets in original omitted). When there is no such connection, specific jurisdiction is lacking regardless of the extent of a defendant’s unconnected activities in the State.... For this reason, the California Supreme Court’s 'sliding scale approach' is difficult to square with our precedents. Under the California approach, the strength of the requisite connection between the forum and the specific claims at issue is relaxed if the defendant has extensive forum contacts that are unrelated to those claimsOur cases provide no support for this approach, which resembles a loose and spurious form of general jurisdiction. For specific jurisdiction, a defendant’s general connections with the forum are not enough."

Justice Alito's majority opinion was joined by all other members of the Court except Justice Sotomayor, who filed a dissenting opinion.

(5)  McWilliams v. Dunn:  By a vote of 5-4, the judgment of the U.S. Court of Appeals for the Eleventh Circuit is reversed and the case remanded.  Per Justice Breyer's opinion for the Court:  "Thirty-one years ago, petitioner James Edmond McWilliams, Jr., was convicted of capital murder by an Alabama jury and sentenced to death. McWilliams challenged his sentence on appeal, arguing that the State had failed to provide him with the expert mental health assistance the Constitution requires, but the Alabama courts refused to grant reliefWe now consider, in this habeas corpus case, whether the Alabama courts’ refusal was 'contrary to, or involved an unreasonable application of, clearly established Federal law.' 28 U. S. C. §2254(d)(1). We hold that it was. Our decision in Ake v. Oklahoma, 470 U. S. 68 (1985), clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively 'assist in evaluation, preparation, and presentation of the defense.' Id., at 83. Petitioner in this case did not receive that assistance."

Justice Breyer's majority opinion was joined by Justices Kennedy, Ginsburg, Sotomayor, and Kagan.  Justice Alito filed a dissenting opinion, in which the Chief Justice and Justices Thomas and Gorusch joined.

(6)  Jenkins v. Hutton (pp. 11-15 of the Order List):  The judgment of the U.S. Court of Appeals for the Sixth Circuit is reversed and the case remanded.  Per curiam:  "Neither Hutton nor the Sixth Circuit has 'show[n] by clear and convincing evidence that'—if properly instructed—'no reasonable juror would have' concluded that the aggravating circumstances in Hutton’s case outweigh the mitigating circumstances.'... In fact, the trial court, Ohio Court of Appeals, and Ohio Supreme Court each independently weighed those factors and concluded that the death penalty was justified. On the facts of this case, the Sixth Circuit was wrong to hold that it could review Hutton’s claim under the miscarriage of justice exception to procedural default."

ORDERS

 

​(1)  No new action was taken regarding the Trump Administration's travel ban.

(2)  Aside from one GVR, there were no new grants of cert.

(3)  In Gil v. Whitford (Wisconsin gerrymandering case) the Court postponed "[f]urther consideration of the question of jurisdiction" to "the hearing of the case on the merits."  Per SCOTUSblog this appears to be a rather important case as the Court had previously split 5-4 on whether federal courts should review partisan gerrymandering claims (Vieth v. Jubelirer), with Justice Kennedy in the "no" camp but leaving the door open for review if a workable standard could be found.

(4)  CVSG:  Lamar, Archer & Corfin, LLP v. Appling

​(5) ​ No action was taken on Masterpiece Cakeshop v. Colorado Civil Rights Comm'n (SSM wedding cake dispute) or on Peruta v. California (right to carry handgun outside the home for self-defense).​

(6)  Cert was denied in Lenz v. Universal Music Corp.,  the "dancing baby" case re: whether a copyright owner can be liable for an improper takedown notice based on a sincere belief that the challenged material is infringing.