top of page
  • Writer's pictureElizabeth Slattery

Recapped: That’s a Wrap, Almost

It’s the end of June but not quite the end of the Supreme Court’s term. The justices have been churning out opinions this week in the most closely-watched cases of the past year. I’ll hit the highlights before Ilike the justiceshightail it out of Washington. By now, you’ve surely seen the news that it was a no good, very bad week for the administrative state. But that’s not all that happened at the Court. Let’s dig in!

Snyder v. United States 

This case involves the corruption prosecution of a small town mayor from Indiana who was convicted of soliciting and accepting $13,000 as a gratuity from a business that won a contract from the town to supply trash trucks. In a 6-3 decision authored by Justice Brett Kavanaugh, the Court determined that a federal law prohibiting state and local officials from accepting bribes does not include accepting “gratuities.” Kavanaugh explained that Congress left it up to state and local governments to decide how to regulate gratuities. The federal government’s reading of the law, he noted, would “radically upend gratuities rules and turn [it] into a vague and unfair trap for 19 million state and local officials.” Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justices Sonia Sotomayor and Elena Kagan, charging the majority with “ignoring the plain text” of the law. In her view, the former mayor’s “absurd and atexual reading of the statute is one only today’s Court could love.” 

Murthy v. Missouri

This case concerns an effort by Missouri, Louisiana, and a group of individual plaintiffs to sue the Surgeon General and other executive officials and agencies for its pressure campaign to get social media companies to suppress their speech. Justice Amy Coney Barrett wrote for the 6-3 majority, finding the plaintiffs lacked standing to sue over the government’s jawboning efforts. In brief, the plaintiffs’ injuries resulted from the actions of private parties, not the government, and they failed to show there was a substantial and imminent risk of future restrictions. Justice Samuel Alito dissented, joined by Justices Clarence Thomas and Neil Gorsuch, underscoring that just a few weeks ago, the Court held in NRA v. Vullo that government may not coerce private parties to suppress speech, and the “vast” record in this case shows that is precisely what happened here as well. 

SEC v. Jarkesy

This case challenges the SEC's relatively new power to seek civil penalties for securities fraud from any person, not just those regulated by the SEC. The Commission prosecuted investment adviser George Jarkesy for securities fraud in its in-house tribunal, rather than bringing suit in federal court. The lower court held that this in-house proceeding violated the Seventh Amendment. For those who don't have a pocket Constitution handy, the Seventh Amendment guarantees the right of trial by jury in “Suits at common law.”

In a 6-3 ruling by Chief Justice John Roberts, the Court sidestepped two issues (whether there was an improper delegation of legislative power to the Executive Branch and whether limits on removal of administrative law judges violate the Constitution) but found that when the SEC seeks civil penalties for securities fraud, the defendant is entitled to a jury trial. Justice Sotomayor dissented, joined by Justices Kagan and Jackson, arguing that the majority “fail[ed] to act as a neutral umpire” and “rewr[ote] established rules” for how agencies adjudicate statutory rights. 

The decision left a lot of questions open for future litigation, such as what other types of agency enforcement actions might also be subject to the Seventh Amendment and whether the 1977 decision in Atlas Roofing Co. v. Occupational Safety and Health Review Commission still stands on firm legal ground. Friends of the administrative state should take note: I’d wager this is a shot across the bow.

Harrington v. Purdue Pharma L.P.

Hey hey ho ho this bankruptcy settlement has got to go.

This case stems from the deluge of lawsuits against the makers of OxyContinPurdue Pharma and the Sackler familybrought by people suffering from opioid addiction and the families of those who overdosed. In order to settle the civil claims, Purdue Pharma and the Sacklers agreed that the company and its various entities would file for bankruptcy, the Sacklers would contribute roughly $6 billion to a fund that would be used to resolve public and private claims, and all civil claims against the Sacklers would be released. This was ultimately approved by an appeals court. The U.S. Trustee (a Justice Department bankruptcy watchdog) objected to the settlement, arguing that the Bankruptcy Code doesn’t allow courts to release third parties (i.e. the Sacklers) from liability without consent from all of the claimants.

In a 5-4 decision written by Justice Gorsuch, the Supreme Court agreed. Gorsuch explained that “beneath th[e] complexity lies a simple bargain: A debtor can win a discharge of its debts if it proceeds with honesty and places virtually all its assets on the table for its creditors.” The Sacklers did not file for bankruptcy and drained the company’s total assets by 75%, yet they obtained an order extinguishing existing and future claims against them, without the claimants’ consent.

Justice Kavanaugh dissented, joined by the Chief and Justices Sotomayor and Kagan (not a lineup you see every day!), observing that this plan was “a shining example of the bankruptcy system at work.” The majority “categorically prohibits non-debtor releases, which have long been a critical tool for bankruptcy courts to manage mass-tort bankruptcies like this one.” 

Ohio v. EPA   

These cases stem from EPA’s disapproval of nearly two dozen states’ plans to implement air-quality standards for ozone pollution set by the agency in 2015. EPA imposed the Good Neighbor rule, requiring 23 states to follow a federal plan to reduce smog-forming emissions that affect downwind states' ability to meet mandated air quality standards.

Several industry groups and businesses, as well as Indiana, Ohio, and West Virginia filed petitions for review of the rule, arguing it is arbitrary and capricious agency action. The U.S. Court of Appeals for the D.C. Circuit denied requests to stay the Good Neighbor rule while it considers the merits of these petitions. The challengers sought emergency relief, which the Supreme Court granted in a 5-4 decision written by Justice Gorsuch. 

As law prof Steve Vladeck pointed out, this is a bit of an anomaly because the Court usually issues per curiam (aka unsigned) opinions when it deals with emergency applications. But I digress. Justice Barrett dissented, joined by Justices Sotomayor, Kagan and Jackson, asserting that the majority enjoined EPA’s enforcement based on “an underdeveloped theory that is unlikely to succeed on the merits.”

Moyle v. United States

This case concerns a conflict between Idaho’s near-complete ban on abortions and the federal Emergency Medical Treatment and Labor Act (EMTALA), which requires Medicare-funded hospitals to perform emergency medical care, including abortions in certain situations. A district court enjoined the state law, and Idaho sought emergency relief first from an appeals court and then the Supreme Court. After temporarily staying the district court injunction and hearing oral arguments this spring, the Supreme Court dismissed the case as improvidently granted (a DIG as we call it in the SCOTUS biz) and will instead allow the law to be enjoined while the case continues in the lower courts. This may not be the last we hear of Idaho and EMTALA. Can y’all DIG it? 

City of Grants Pass, Oregon v. Johnson  

This case concerns the City of Grants Pass, Oregon’s effort to deal with a growing homeless population. Among other things, the city adopted an ordinance barring encampments on public property. In 2019, the U.S. Court of Appeals for the Ninth Circuit held that the Eighth Amendment’s prohibition on cruel and unusual punishments prevents enforcement of a similar law with criminal penalties when the number of homeless people in a city exceeds the available space in shelters. In 2022, the Ninth Circuit extended that ruling to ordinances with civil citations. With Justice Gorsuch writing for the majority, the Court held 6-3 that enforcement of generally applicable laws prohibiting camping on public grounds does not constitute cruel and unusual punishment. Gorsuch explained that the Eighth Amendment prohibition concerns the “method or kind of punishment” that may be imposed after a criminal conviction and not “whether a government may criminalize particular behavior in the first place.” 

Justice Thomas wrote a concurrence staking out the position that Robinson v. California, a 1962 decision holding that the Eighth Amendment bars enforcement of laws criminalizing a person’s status and which the Grants Pass respondents relied upon, was wrongly decided and the Court should “dispose of it once and for all.” 

Justice Sotomayor dissented, joined by Justices Kagan and Jackson, relying extensively on Robinson, which she asserts “should squarely resolve this case.”

Fischer v. United States  

This is the case of Joseph Fischer, who was charged with various offenses stemming from his participation in the events of January 6, 2021 (including allegedly assaulting a Capitol police officer). The issue before the Supreme Court is whether his actions that halted a joint session of Congress violated 18 U.S.C. § 1512(c)(2), which prohibits obstructing, influencing, or impeding congressional proceedings. In a 6-3 ruling with Chief Justice Roberts writing for the majority (which included Justice Jackson!), the Court held that to prove a violation of this provision, the government must establish a defendant “impaired the availability or integrity for use in an official proceeding of records, documents, objects, or other things used in an official proceeding, or attempted to do so.”

Justice Jackson wrote a concurrence, explaining that “[n]otwithstanding the shocking circumstances involved in this case or the Government’s determination that they warrant prosecution … this Court’s task is to determine what conduct is proscribed by the criminal statute that has been invoked as the basis for the obstruction charge at issue here. I join in the Court’s opinion because I agree with the majority that §1512(c)(2) does not reach ‘all forms of obstructive conduct’ and is, instead, ‘limited by the preceding list of criminal violations’ in §1512(c)(1).”

Justice Barrett dissented, joined by Justices Sotomayor and Kagan. Barrett observed: 

Loper Bright Enterprises v. Raimondo

This case concerns the Supreme Court’s 1984 decision in Chevron v. NRDC, an accidental landmark, which set up a framework for courts to assess (and often defer to) agency interpretations of laws they are charged with administering. Congress is not always perfectly clear when it crafts statutory language, leaving gaps for the agency to fill. Naturally, this sometimes led agencies to interpret the language to increase their power.

Chevron had two steps: (1) Did Congress directly address the issue at hand? If so, and the statute is clear, that’s the end of the matter and there’s no need to defer to an agency’s interpretation. (2) If the language was ambiguous or didn’t address the particular issue at hand, a court would consider if the agency’s interpretation was reasonable. It didn’t have to be the best interpretation, just a reasonable one. If it was, then the court would defer to the agency. Sounds simple enough, but it amounted to a thumb on the scale for one party, which isn’t exactly the impartial and independent review we expect from courts.

Loper Bright and Relentless fish Atlantic herring in New England, and they that challenged a National Marine Fisheries Service requirement that they pay the salary of a federal observer on their boats to ensure they comply with federal law. Congress didn’t authorize this arrangement but the Service decided to impose it anyways and lower courts deferred to the Service’s “reasonable” interpretation of the fishery management law. 

In yet another 6-3 ruling written by Chief Justice Roberts, the Court overruled Chevron. Roberts explained that requiring judges to defer to executive and administrative agency officials’ interpretation of the law was inconsistent with the Administrative Procedure Act, aka the “fundamental charter of the administrative state.” He explained that the APA incorporates “the traditional understanding of the judicial function, under which courts must exercise independent judgment in determining the meaning of statutory provisions.” 

Justice Gorsuch wrote a eulogy … er … concurrence trumpeting, “Today, the Court places a tombstone on Chevron no one can miss.”

Justice Kagan dissented, joined by Justices Sotomayor and Jackson, decrying the majority’s power grab that will place judges at the center of policy debates ranging from climate change to health care to A.I. “In every sphere of current or future federal regulation, expect courts from now on to play a commanding role.”

That’s all for now. The justices will be back Monday to announce decisions in the remaining cases. And there are still some big ones to come.


bottom of page