The U.S. Supreme Court expanded First Amendment rights, empowered the criminal justice system and tackled jurisdiction during its most recent term, which ended Thursday.

University of Virginia School of Law resident faculty were cited in seven cases: Professors Douglas Laycock with three; Caleb Nelson with two; and Rachel Bayefsky, John Duffy and Saikrishna Prakash, and UVA Provost M. Elizabeth Magill ’95 with one each. (Two cases cited more than one professor.) Two professors had multiple books or articles cited: Laycock with three and Nelson with two.

Several Law School faculty recently discussed some of the justices’ most impactful rulings.

Americans for Prosperity Foundation v. Bonta

Holding: The policy of the California attorney general’s office requiring charities to disclose the names and addresses of their major donors violates the First Amendment.

Professor Julia Mahoney teaches courses in property, government finance, constitutional law and nonprofit organizations.

“In AFP v. Bonta, the Supreme Court held invalid a California requirement that charitable organizations disclose the identities of their major donors to state officials. Writing for a six-justice majority, Chief Justice Roberts stressed that the court has ‘long understood as implicit in the right to engage in activities protected by the First Amendment a corresponding right to associate with others.’ Compelled disclosure requirements, wrote the chief justice, must be reviewed under a standard of ‘exacting scrutiny,’ and while California has a strong interest in monitoring charities to prevent wrongdoing, the state’s demanding disclosure regime is a ‘mismatch’ with the state interests it is designed to protect. In dissent, Justice Sotomayor (joined by Justices Kagan and Breyer) expressed skepticism that the complaining nonprofit organizations can prove that the disclosure requirements at issue are likely to cause actual harms, arguing that the majority’s approach represents a departure from the court’s ‘traditional, nuanced approach to First Amendment challenges.’ Going forward, AFP v. Bonta may have important ramifications for campaign finance disclosure laws, as the imposition of an ‘exacting scrutiny’ framework has the potential to make it harder for courts to sustain such laws as constitutional.” 

California v. Texas

Holding: Plaintiffs lack standing to challenge the Patient Protection and Affordable Care Act’s minimum essential coverage provision.

Professor Richard Bonnie ’69, director of the Institute of Law, Psychiatry and Public Policy at UVA, has co-authored leading textbooks on criminal law and public health law.

“In my opinion, much of the litigation relating to the Affordable Care Act has been political rhetoric masquerading as constitutional litigation. The opponents lost repeatedly in the Congress in their efforts to repeal Obamacare, but they persisted in what has been a futile effort to get the Supreme Court to give them what they could not achieve in the Congress. The implausibility of their legal arguments was especially apparent. The court decided, 7-2, that being politically opposed to Obamacare doesn’t provide a legal basis for a lawsuit. The plaintiffs have to have a genuine personal stake in the outcome, not just a political interest. In the absence of such an interest, they have no ‘standing to sue,’ and the court has no constitutional authority to decide the case.”

Edwards v. Vannoy

Holding: The jury-unanimity rule announced in Ramos v. Louisiana does not apply retroactively on federal collateral review.

Professor Thomas Frampton studies criminal law and constitutional criminal procedure. He was the author of an amicus brief in Edwards.

“The court held that its decision last term in Ramos v. Louisiana, requiring jury unanimity for criminal convictions, would not apply retroactively to cases that were already final. In so doing, the court overturned Teague v. Lane, a case suggesting that certain ‘watershed’ rules of criminal procedure could apply retroactively to benefit defendants convicted in years past. Importantly, though, Edwards applies only in the federal habeas context: The court expressly left open the door for Louisiana and Oregon to grant retroactive relief to prisoners convicted by nonunanimous verdicts under state law, in years or decades past, should they so choose.” 

Ford Motor Co. v. Montana Eighth Judicial ​District Court

Holding: A state court may, consistent with the due process clause, exercise personal jurisdiction over a nonresident defendant when none of the defendant’s contacts with that state caused the plaintiff’s claims.

Professor Lawrence B. Solum is an internationally recognized legal theorist who works in constitutional theory, procedure and the philosophy of law.

“The Supreme Court decided an important question of ‘personal jurisdiction’ under the Due Process of Law Clause of the 14th Amendment. The court revisited a question that it has ducked in several prior decisions. What legal standard governs the question whether a claim ‘arises from’ or ‘is related to’ the contacts of the defendant with the forum state? This threshold issue is important, because a plaintiff must meet a very high standard if the claim is not sufficiently related to the contacts. Justice Kagan’s opinion for the court says that Ford Motor Co. does have sufficient contacts with Montana — even if the particular car that was involved in an accident was purchased outside the state, but the court once again fails to tell us what the legal test should be.”

Fulton v. City of Philadelphia

Holding: Philadelphia’s refusal to contract with Catholic Social Services for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the First Amendment.

Professor Naomi Cahn is an expert in family law, trusts and estates, feminist jurisprudence, reproductive technology, and aging and the law.

“For the more than 400,000 children in foster care in the United States, [the court’s] decision is disappointing, allowing foster care agencies to eliminate potentially eligible foster parents solely on the basis of their sexual orientation. Nonetheless, the justices did not dramatically undermine existing First Amendment law.” 

Professor Douglas Laycock is perhaps the nation’s leading authority on the law of religious liberty and also on the law of remedies. He has argued before the Supreme Court five times. Laycock has co-authored an amicus brief in Fulton.

Fulton v. Philadelphia is an important win for religious liberty. Teachings about sex and marriage have been central to many religions for millennia; if they cannot act on those teachings, little of free exercise would be left. The biggest news here is that Fulton is unanimous on the result.

“The case is complicated to explain. The key precedent, Employment Division v. Smith, famously holds that the free exercise clause does not apply to laws that are neutral and generally applicable. That is Smith’s unprotective rule. But Smith also states a more protective rule: If a law that burdens religion is not neutral, or not generally applicable, then the burden on religion must be justified by a compelling government interest. Fulton substantially clarifies that more protective rule and gives it real content.

Fulton holds that a law is not generally applicable if a government official has discretion to grant exceptions, even if he never grants any, because that discretion empowers the official to discriminate.

“This case is a symbolic loss for the gay rights movement, but same-sex couples are fully served in Philadelphia. It is a critical practical win for Catholic Social Services. Philadelphia could rewrite its contracts, eliminate any discretion to grant exceptions and take the case right back up to the Supreme Court again. But with five justices saying explicitly that Smith’s unprotective rule was a mistake, the city may choose not to do that.”

Johnson v. Guzman Chavez

Holding: The detention of a noncitizen ordered removed from the United States who reenters without authorization is governed by 8 U.S.C. § 1231.

Professor Kevin Cope is most interested in the law and politics of international institutions, migration, and relationships between domestic institutional structure and international behavior.

“The court’s 6-3 decision involves a technical interpretation of two provisions of the U.S. Immigration and Nationality Act. The case concerned noncitizens who were previously deported and later apprehended after reentering the country without permission. The question was whether those detained noncitizens who then seek ‘withholding of removal’ relief — because they claim they would face persecution or torture in some other country — have a right to a bond hearing and a chance for release pending adjudication of their claim, pursuant to 8 U.S.C. § 1226, or whether they can be detained indefinitely, pursuant to 8 U.S.C. § 1231. The majority opinion by Justice Alito held that the latter provision applies: They can be detained until their case is resolved. Justice Thomas wrote a concurrence joined by Justice Gorsuch. Justice Breyer’s dissent was joined by Justices Sotomayor and Kagan.”

NCAA v. Alston

Holding: The District Court’s injunction pertaining to certain NCAA rules limiting the education-related benefits that schools may make available to student-athletes is consistent with established antitrust principles.

Professor Thomas Nachbar’s research focuses on the nature of regulation: how the law is used (and by whom) to shape and control behavior. He authored an amicus brief in Alston.

NCAA v. Alston had the potential to remake the NCAA and antitrust law along with it, but the court’s unanimous opinion was extremely narrow, on both the law and the facts. The court unsurprisingly rejected the NCAA’s attempt for something like wholesale deference for its rules. But in doing so, the court accentuated the fact-specific nature of every ‘rule of reason’ case, to the point of providing no definitive statement of how to perform rule of reason analysis. The court accepted the lower court’s three-step approach to the rule of reason, but did so by saying that the ‘Court has sometimes spoken of “a three-step, burden-shifting framework”’ like the one the lower court applied. At the same time, the court noted the NCAA’s extreme market position, the narrow nature of the district court injunction and the potential for Congress to intervene in this set of disputes. The narrowness of the case was important enough to Justice Kavanaugh for him to write separately to point out how narrow the case was and to cast doubt on the NCAA rules not challenged at the Supreme Court. Thus, it remains to be seen how significant the case will be for antitrust law, although the court’s emphasis on the fact-specific nature of the rule of reason (and specifically the role of less restrictive alternatives, which played an important role in this case) could lead to more drawn out antitrust cases by giving plaintiffs and defendants more to argue over in rule of reason cases.”

Nestlé v. Doe

Holding: To plead facts sufficient to support a domestic application of the Alien Tort Statute, plaintiffs must allege more domestic conduct than general corporate activity.

Professor George Rutherglen has chaired the advisory committee on Fourth Circuit Rules and clerked for U.S. Supreme Court Justices William O. Douglas and John Paul Stevens.

Nestlé USA v. Doe exemplifies two trends in recent decisions on human rights claims under the Alien Tort Statute. First, a nearly unanimous court found insufficient activity within the United States to support coverage of a federal remedy for human rights violations. All the relevant activity giving rise to the alleged human rights violations occurred overseas in Ivory Coast. Second, at least three justices (Thomas, Kavanaugh and Gorsuch) expressed great skepticism about implying any federal remedy from the Alien Tort Statute, which is framed entirely in jurisdictional terms. Justice Alito, although he dissented on other grounds, expressed sympathy for this position.”

Tanzin v. Tanvir

Holding: The Religious Freedom Restoration Act of 1993’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities for violating litigants’ right to free exercise of religion under the First Amendment.

Professor Richard Schragger’s scholarship focuses on the intersection of constitutional law and local government law, federalism, urban policy, and the constitutional and economic status of cities. He also writes about law and religion.

“This case was fairly straightforward, as civil rights statutes generally have been read to include a damages remedy. The court decided to treat the Religious Freedom Restoration Act no differently. The Muslim plaintiffs won in this case, but it is important to remember that this court previously upheld President Trump’s Muslim ban in 2018 — a much more consequential case for religious liberty. There is some irony in the fact that Muslim travelers improperly subjected to no-fly orders can receive damages under RFRA, but that travel to this country from predominantly Muslim countries can at the same time be categorical curtailed or eliminated.”

Founded in 1819, the University of Virginia School of Law is the second-oldest continuously operating law school in the nation. Consistently ranked among the top law schools, Virginia is a world-renowned training ground for distinguished lawyers and public servants, instilling in them a commitment to leadership, integrity and community service.

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