Faculty Discuss Supreme Court Term

Justices reshaped parameters for federal power — from presidential immunity to administrative agency deference to business regulation — in the U.S. Supreme Court’s most recent term, which ended Monday.

The justices cited professors at the University of Virginia School of Law 18 times: Caleb Nelson had five citations; Aditya Bamzai and John C. Harrison had two each; and Rachel Bayefsky, A. E. Dick Howard ’61, John C. Jeffries Jr. ’73, John Monahan, Saikrishna Prakash, Lawrence B. Solum and Ann Woolhandler each had one. Professors Emeriti Richard Bonnie ’69 and Peter W. Low ’63 also had one citation each.

Visiting professor Neil Duxbury was also cited.

Several Law School faculty provided commentary on some of the justices’ most consequential rulings. (Read more comments and news coverage here.)

Ramping Up Presidential Power

Trump v. U.S.

Holding: The nature of presidential power entitles a former president to absolute immunity from criminal prosecution for actions within his conclusive and preclusive constitutional authority; he is also entitled to at least presumptive immunity from prosecution for all his official acts; there is no immunity for unofficial acts.

Professor Payvand Ahdout said the court avoided the most challenging issues in the case, a pattern she has also documented in her award-winning paper, “Separation-of-Powers Avoidance.”

“Perhaps the most significant practical effect is that it adds more process into this time-sensitive separation of powers dispute, where it is unlikely that allegations of election subversion can be dealt with before another election,” she said.

Ahdout said the decision provides little clarity on the path forward for the prosecution of the related Jan. 6 case, in which former President Donald Trump faces charges for his efforts to overturn the 2020 election, and “trifurcates” the issue of presidential immunity from criminal liability.

“First, for ‘official acts’ within ‘core constitutional powers,’ the president enjoys absolute immunity. Only two sets of allegations in the criminal indictment — that President Trump threatened to remove his attorney general to force him to conduct sham election crime investigations into targeted states and that President Trump pressured Vice President Pence to abuse his ceremonial role on Jan. 6 not to certify the election — potentially involve such acts,” she said.

“Second, and by far the least clear aspect of the opinion, for ‘official acts’ within shared zones of power between the president and Congress, the president enjoys ‘presumptive’ immunity. The government bears the burden of rebutting such a presumption, but the court does not clarify how it might do so. Third, for ‘unofficial acts,’ the president has no immunity from criminal liability. Many allegations contained in the indictment involve these unofficial acts.”

In an interview with WTOP, Professor Saikrishna Prakash said he agreed with Justice Sonia Sotomayor’s dissent.

“I don’t believe the president has any official immunity from prosecution arising out of his or her official acts, and I’ve been critical of the court’s jurisprudence with respect to civil immunity, so I think that [Sotomayor’s dissent] has it right,” he said.

Prakash is the author of “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers” and “Imperial from the Beginning: The Constitution of the Original Executive.”

Prakash said Sotomayor’s concerns — that presidents will take actions and then not be found liable criminally for them and not be found civilly liable, leaving only impeachment as a recourse — are legitimate.

“[I]mpeachment is very hard to successfully conclude in the modern era. It’s easy to impeach a president, it’s very hard to convict them because of the two-thirds requirement. And so the court’s opinions in this area have the cumulative effect of strengthening the presidency by diminishing its accountability to the criminal process and the civil process.”

He also suggested the majority has different concerns when it comes to prosecuting the president.

“[F]rom the majority’s perspective, to be fair to them, they’re looking at this and thinking every Tom, Dick and Harry prosecutor will go after the president, and we’ll have presidents going after successors once they become president. And of course, if Donald Trump succeeds, and had there been no immunity for the president’s official acts, then he might have prosecuted Joe Biden for them as well. So there are intuitions and good points made on both sides, even as I ultimately agree with Justice Sotomayor’s overall conclusion.”

Reigning in Administrative Agencies

Loper Bright Enterprises v. Raimondo

Holding: The Administrative Procedure Act requires courts to exercise their independent judgment in deciding whether an agency has acted within its statutory authority, and courts may not defer to an agency interpretation of the law simply because a statute is ambiguous. The decision overruled the Chevron precedent.

“The case appears to work a big change empowering the judiciary at the expense of the president, who indirectly controls most administrative agencies. The proof, though, is in how the lower courts interpret and apply it,” said Professor Dan Ortiz, who teaches constitutional law, administrative law, electoral law, civil procedure and legal theory. From 2006-2023, he directed the Law School’s Supreme Court Litigation Clinic.  

“We must remember that before [the 1984 decision] Chevron, courts, including the Supreme Court, often deferred to agencies, and that after Chevron, they, again including the Supreme Court, often just ignored Chevron when it seemingly applied. Today’s move may represent a legal sea change. Or it may represent a big expressive statement of whether the judiciary or the president has more power but make little difference on the ground. We’ll see.”

Ortiz and Professor John Duffy discussed Chevron and Loper Bright case on a “Common Law” episode this spring.

Professor Kristen Eichensehr, who directs the school’s National Security Law Center and is a faculty senior fellow at UVA’s Miller Center, said in an op-ed that Loper Bright “may continue the court’s pattern of sending shock waves through parts of administrative law.”

For foreign relations and national security cases though, any effects are more likely to be ripples than waves, she added.

“The Supreme Court has long given weight to the executive branch’s views in foreign relations and national security cases based on functional justifications — like executive branch expertise and access to information — that the court today [June 28] emphasizes are consistent with the Administrative Procedure Act (APA), which governs how many agencies create regulations and enforce laws.”

Addressing Homelessness

City of Grants Pass, Oregon v. Johnson

Holding: The enforcement of laws regulating camping on public property does not constitute “cruel and unusual punishment” prohibited by the Eighth Amendment. The Oregon city had enacted ordinances barring the use of blankets, pillows or cardboard boxes while sleeping within city limits.

Professor Kevin Cope noted that Grants Pass not only reversed the Ninth Circuit’s decision but overturns its 2019 Martin v. City of Boise decision, which struck down Boise’s even broader anti-sleeping ordinance.

“Though disappointing for homeless advocates, the court did essentially what a coalition of Democratic local officials asked it to do: restore local authorities’ power to enact and enforce sweeping laws banning sleeping in public spaces,” said Cope, who co-directs the school’s Immigration Law Program and is co-author of the paper “The New Homelessness.”

“The question now is what officials have learned in the five years since the Ninth Circuit’s 2018 Martin holding, and whether they’ll follow through on their assurances that elected officials are better positioned than courts to tackle the country’s homelessness epidemic.”

Federal/State Divides on Abortion

Mayle v. United States and Idaho v. United States

Holding: The court dismissed the cases as improvidently granted, leaving in place a federal judge’s order blocking a near-total abortion ban in Idaho and allowing for emergency abortions.

FDA v. Alliance for Hippocratic Medicine

Holding: The plaintiffs lacked standing to challenge the Food and Drug Administration’s regulatory actions regarding the abortion drug mifepristone.

Professor Naomi Cahn, who co-directs the school’s Family Law Center, said the court punted on ruling on the merits of important issues facing pregnant women in the wake of reversing Roe v. Wade.

As Kagan noted in her Idaho, concurrence, in the rare cases when abortion is necessary to stabilize an obstetric emergency, the pregnancy “is ‘often of a non-viable fetus,’” Cahn noted in a Q&A with Sonia Suter, a George Washington University law professor. “Thus, if the federal law is followed, rather than wait until the patient is near death to perform the inevitable abortion, the necessary medical care can be provided earlier to prevent health complications.”

The pair write that the court will have another opportunity to consider whether the federal Emergency Medical Treatment and Labor Act overrides state abortion bans that conflict with it.

“The case is going back to the 9th Circuit to decide whether there is a conflict between Idaho and federal law. The losing party will probably appeal to the Supreme Court.”

Cahn and Suter wrote that the FDA decision “did not take on legal questions concerning the validity of the FDA regulations or any other question concerning the FDA’s authority, which means many questions remain unanswered. For example, it is not fully clear to what extent the FDA regulations take precedence over state regulations regarding the prescription of mifepristone, which is at the heart of some of the lower court cases.”

Regulating Guns

U.S. v. Rahimi

Holding: When an individual has been found by a court to pose a credible threat to the physical safety of another, that individual may be temporarily disarmed, consistent with the Second Amendment. The ruling upheld federal a law barring gun possession by certain persons subject to a domestic violence restraining order.

Professor Scott Ballenger ’96, who directs the school’s Appellate Litigation Clinic, called the ruling a “very significant shift in the law.”

Ballenger has argued three cases in the U.S. Supreme Court and dozens in the courts of appeals and trial courts across the country.

“The court reaffirms Bruen’s history-focused test for gun regulations but makes clear that the lower courts have significantly ‘misunderstood’ that test,” Ballenger said. “The chief justice’s opinion, speaking for eight members of the court, says that the law is not ‘trapped in amber’ and that new firearms regulations are acceptable if they are ‘consistent with the principles that underpin our regulatory tradition’ even if they are not ‘identical to ones that could be found in 1791.’ And the opinion looks at the history in a much broader and more general way than most of the recent lower court opinions.”

Court Power in Immigration Cases

Wilkinson v. Garland

Holding: Federal courts have jurisdiction to review immigration judges’ determinations of mixed questions of law and fact in removal cases, ensuring that the federal courts continue to oversee executive branch decisions to deport noncitizens.

In the immigration case, Situ Kamu Wilkinson argued that his deportation would cause “exceptional and extremely unusual hardship” to his 7-year-old U.S. citizen son, qualifying him for relief from removal under federal law, explains Professor Amanda Frost, who co-directs the school’s Immigration Law Program. The immigration judge, who is an employee of the Department of Justice, disagreed and ordered his removal.

“The U.S. Court of Appeals for the Third Circuit refused to review that decision, concluding that federal law, 8 U.S.C. 1252(a)(2)(B)(i), barred federal courts from reviewing a decision that turned on the facts of Wilkinson’s case,” Frost said. “The Supreme Court reversed, explaining that federal courts have jurisdiction to review mixed questions of fact and law, which includes the application of the legal ‘exceptional and extremely unusual hardship’ standard to the facts of Wilkinson’s case. The Supreme Court’s decision clarifies that federal courts have the power to review immigration courts’ decisions involving legal standards, even when they require analysis of the facts of individual cases, reinvigorating the federal judicial role in removal cases.”

A Challenge to Federal Regulatory Power

CFPB v. Community Financial Services Association of America

Holding: Congress’ statutory authorization allowing the Consumer Financial Protection Bureau to draw money from the earnings of the Federal Reserve System to carry out the bureau’s duties satisfies the Constitution’s appropriations clause.

The Consumer Financial Protection Bureau has weathered a number of court challenges in recent years. In the latest, the CFPB fended off a challenge based on how it is funded.

“Congress’ power of the purse is one of its most potent tools, both politically and constitutionally. Part of that authority, the court determined, is the ability to decide how appropriations are structured,” Ahdout said.

Federal courts have generally recognized that Congress’ appropriations power is integral to the constitutional plan and, therefore, is not a power onto which the federal courts lightly interpret additional constraints.”

Voting Rights

Alexander v. South Carolina State Conference of the NAACP

Holding: Because the District Court’s finding that race predominated in the design of South Carolina’s 1st Congressional District was clearly erroneous, the District Court’s racial-gerrymandering and vote-dilution holdings cannot stand.

Professor Bertrall Ross, who co-directs the school’s Karsh Center for Law and Democracy, told Salon that the decision was “unsurprising.”

“What I think the court has done is set up these cases in a way that’s easier for the state to make the argument that all we were doing was taking partisanship into account,” Ross said. “We weren’t thinking about race. And to the extent that it’s easier for the state to do that, it makes it harder for the court to police real instances of racial gerrymandering.”

Insanity Defense and Double Jeopardy

McElrath v. Georgia

Holding: The jury’s verdict that the defendant was not guilty by reason of insanity of malice murder constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts.

Professor Emeritus Richard Bonnie ’69, the former director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia and an expert on the insanity defense, said the court’s ruling “rests on a traditional understanding of the insanity defense.”

The facts of the case involved an 18-year-old defendant who killed his mother because he was afraid that she was trying to poison him. The jury found him “not guilty as a result of insanity” and the court committed him to a secure hospital from which he will be released only when he is no longer dangerous.

“The Georgia attorney general had argued that the court could ignore the insanity verdict because the jury was confused by the jury instructions and the state should have a chance to try him again,” Bonnie said. “However, a unanimous Supreme Court said that the insanity verdict was final and that it would violate the double jeopardy clause of the Constitution to try him again.”

Federal-State Conflict on Banking

Cantero v. Bank of America

Holding: The U.S. Supreme Court declined to decide whether Bank of America Corp. must pay interest on New York mortgage borrowers’ escrow accounts, and sent the case back to the 2nd U.S. Circuit Court of Appeals. The case involved a conflict between state and federal law, and whether federal law preempted state law.

“The court concluded that the Second Circuit’s test put too big a thumb on the side of federal preemption,” wrote Professor Paul G. Mahoney, an expert in securities regulation and corporate law, in an op-ed on the decision. “It didn’t, however, accept the plaintiffs’ invitation to declare that the New York statute is not preempted. Instead, it sent the case back to the Second Circuit to reconsider under the correct standard.”

Mahoney said the volume of such preemption cases, on a range of issues, may grow in the coming years.

“While neither political party can get everything it wants in Congress, there are dark-blue states like New York dominated by Democrats and dark-red states like Texas dominated by Republicans. Both sides may seek to achieve at the state level what they can’t at the federal level. Opponents will argue these state laws conflict with federal law.”

A ‘Test’ Case Flops

Acheson ​Hotels v. Laufer

Holding: As a “civil rights tester,” Deborah Laufer filed a lawsuit under the Americans with Disabilities Act of 1990, alleging a hotel had failed to provide details about its accessibility on its website. Because Laufer voluntarily dropped her pending suit, the court dismissed the case.

“Acheson is a case about the Article III standing of a plaintiff with disabilities who sought to ‘test’ a hotel’s compliance with disability discrimination laws, though she lacked concrete plans to visit the hotel,” explained Professor Rachel Bayefsky. “The Supreme Court dismissed Acheson as moot for case-specific reasons, leaving unanswered the broader question about the standing of disability tester plaintiffs.”

Bayeksky’s paper “Public-Law Litigation at a Crossroads: Article III Standing and ‘Tester’ Plaintiffs” analyzes the issues at stake in Acheson before the ruling.

Workers and Arbitration

Bissonnette v. LePage Bakeries Park St. LLC

Holding: A transportation worker need not work in the transportation industry to be exempt from coverage under Section 1 of the Federal Arbitration Act. The decision exempted bakery truck workers from an arbitration requirement.

Professor Rip Verkerke, who teaches contracts and employment law courses, said the Bissonnette decision confirms the reasoning of past arbitration cases Circuit City and Southwest Airlines v. Saxon.

“The court holds that the FAA Section 1 exception is limited to transportation workers engaged in moving goods in interstate commerce, but those workers don’t have to be in the transportation industry,” Verkerke said. “That’s an extremely modest extension of the Section 1 exclusion from FAA coverage, and one that’s completely consistent with the rationale of Circuit City and Saxon. The focus remains on what duties ‘transportation workers’ perform rather than on the industry within which they do that work.”

​Some descriptions of cases or holdings are derived from SCOTUSBlog.