I started writing up a quick rundown/crib sheet of Supreme Court decisions in June of 2023 and am told readers found this helpful, so “The Skinny on SCOTUS” is returning.
While the 2022 term proved a somewhat “quieter” year at the Court following the Dobbs furor in the 2021 term — the terms start in October of each year and run through September of the following year, but the big ticket decisions tend to be handed down in late Spring — the 2023 term looks to be fairly consequential. There are anticipated decisions affecting elections, former President Trump’s immunity defense, the scope of the regulatory state, the intersection between Big Tech censorship and the First Amendment, the prosecution of J6 defendants, and more. So there is/will be a lot of ground to cover.
There have already been 16 decisions handed down in the 2023 term, so we have a bit of catching up to do. To that end, I’m going to break them down chronologically, with this first batch covering December 2023 through February 2024. (One minor aside on these decisions: Note that all five were 9-0 decisions. Remember that the next time you hear someone contending that the Court is thoroughly partisan.)
As always, this is by no means intended as a thorough analysis — just a quick overview for the non-law-geek sorts:
December 2023 Decision
Acheson Hotels, LLC v. Laufer
Date: December 5, 2023
Author: Barrett
Split: 9-0
Dissent: N/A
Appeal From: First Circuit
Basic Facts:
The Court granted review in this case to consider whether Deborah Laufer has Article III standing to sue hotels whose websites failed to state whether they have accessible rooms for the disabled as required by the Americans with Disabilities Act of 1990, even if Laufer had no thought of staying at the hotels, much less booking a room. After a lower court sanctioned her lawyer, Laufer voluntarily dismissed her pending suits, including her case against Acheson Hotels, LLC, and filed a suggestion of mootness in this Court. Though Laufer’s case is moot, the circuit split on the issue briefed and argued in this Court is very much alive.
Issue: Whether Laufer has standing to sue hotels at which she had no intention of staying and whether her voluntary dismissal of the suit rendered the issue moot.
Holding: Case vacated as moot.
The Court has the authority to address jurisdictional issues of mootness and standing in any order it chooses. And while the Court is sensitive to Acheson’s concern about litigants manipulating this Court’s jurisdiction, the Court is not convinced that Laufer abandoned her case in an effort to evade the Court’s review.
February 2024 Decisions
Murray v. UBS Securities, LLC
Date: February 8, 2024
Author: Sotomayor
Split: 9-0
Dissent: N/A
Appeal From: Second Circuit
Basic Facts:
Congress enacted the whistleblower protections of the Sarbanes-Oxley Act of 2002 to prohibit publicly traded companies from retaliating against employees who report what they reasonably believe to be instances of criminal fraud or securities law violations. Title 18 U. S. C. § 1514A(a) specifically provides that employers may not “discharge, demote, suspend, threaten, harass, or in any other manner discriminate against an employee in the terms and conditions of employment because of” protected whistleblowing activity. In this case, Trevor Murray filed a whistleblower action in federal court alleging that UBS terminated his employment in violation of § 1514A. Murray had worked for UBS as a research strategist in a role that required him to certify—in accordance with applicable Securities and Exchange Commission regulations—that his reports to UBS customers on the firm’s securities business were independently produced and reflected his own views. UBS terminated Murray shortly after he informed his supervisor that two leaders of the UBS trading desk were engaging in what he believed to be unethicaland illegal efforts to skew his independent reporting.
In the District Court, UBS argued it was entitled to judgment as a matter of law on Murray’s whistleblower claim because Murray “failed to produce any evidence that [his supervisor] possessed any sort of retaliatory animus toward him.” The District Court denied the motion. As relevant here, it instructed the jury that, to prove his § 1514A claim, Murray must establish by a preponderance of the evidence that his “protected activity was a contributing factor in the termination of his employment.” If Murray did so, the burden would shift to UBS to “demonstrate by clear and convincing evidence that it would have terminated [Murray’s] employment even if he had not engaged in protected activity.” The jury found that Murray had established his § 1514A claim and UBS had failed to prove that it would have fired Murray even if he had not engaged in protected activity. On appeal, the Second Circuit vacated the jury’s verdict and remanded for a new trial. The Second Circuit held that “[r]etaliatory intent is an element of a section 1514A claim,” and the trial court erred by not instructing the jury on Murray’s burden to prove UBS’s retaliatory intent.
Issue: Whether a whistleblower seeking to invoke the protections of the Sarbanes-Oxley Act need prove that the employer acted with retaliatory intent in terminating his employment.
Holding: Reversed and remanded.
A whistleblower who invokes § 1514A must prove that his protected activity was a contributing factor in the employer’s unfavorable personnel action, but need not prove that his employer acted with “retaliatory intent.”
Department of Agriculture Rural Development Rural Housing Service v. Kirtz
Date: February 8, 2024
Author: Gorsuch
Split: 9-0
Dissent: N/A
Appeal From: Third Circuit
Basic Facts:
The Fair Credit Reporting Act of 1970, as amended by the Consumer Credit Reporting Reform Act of 1996, allows consumers to sue lenders who willfully or negligently supply false information about them to entities that generate credit reports. Respondent Reginald Kirtz secured a loan from a division of the United States Department of Agriculture and later sued the agency for money damages under the FCRA. Kirtz alleged that the USDA falsely told TransUnion—a credit reporting agency—that his account was past due, thus damaging his credit score and his ability to secure loans at affordable rates. The USDA moved to dismiss, invoking sovereign immunity. The District Court sided with the USDA. The Third Circuit reversed, holding that 15 U. S. C. §§ 1681n and 1681o authorize suits for damages against “any person” who violates the FCRA, and § 1681a expressly defines “person” to include “any” government agency.
Issue: Whether the civil-liability provisions of the Fair Credit Reporting Act, 15 U.S.C.1681 et seq., unequivocally and unambiguously waive the sovereign immunity of the United States.
Holding: Affirmed.
A consumer may sue a federal agency for defying the FCRA’s terms.
Great Lakes Ins. SE v. Raiders Retreat Realty Co.
Date: February 21, 2024
Author: Kavanaugh
Split: 9-0
Dissent: N/A
Appeal From: Third Circuit
Basic Facts:
Great Lakes Insurance and Raiders Retreat Realty Co. entered a maritime insurance contract. Great Lakes was organized in Germany and headquartered in the United Kingdom, and Raiders was headquartered in Pennsylvania. The parties’ contract selected New York law to govern any future disputes. Raiders’ boat subsequently ran aground in Florida. Great Lakes denied coverage for the accident and filed a related declaratory judgment action in the U. S. District Court for the Eastern District of Pennsylvania. Raiders responded by advancing contract claims against Great Lakes under Pennsylvania law. The District Court enforced the choice-of-law provision in the parties’ contract and rejected Raiders’ Pennsylvania-law contract claims. The Third Circuit recognized the presumptive validity and enforceability of choice-of-law provisions in maritime contracts, but held that presumption must yield to a strong public policy of the State where a suit is brought. The Third Circuit remanded for the District Court to consider whether applying New York law would violate Pennsylvania’s public policy regarding insurance.
Issue:
- Under federal admiralty law, what is the standard for judging the enforcement of a choice of law clause in a maritime contract?
- Under federal admiralty law, can a choice of law clause in a maritime contract be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced?
Holding: Reversed.
Choice-of-law provisions in maritime contracts are presumptively enforceable under federal maritime law, with narrow exceptions not applicable here.
McElrath v. Georgia
Date: February 2021, 2024
Author: Jackson
Split: 9-0
Dissent: N/A
Appeal From: Georgia Supreme Court
Basic Facts:
After petitioner Damian McElrath killed his mother, the State of Georgia charged him with three crimes related to her death: malice murder, felony murder, and aggravated assault. At trial, the jury returned a split verdict against McElrath: “not guilty by reason of insanity” with respect to malice-murder, and “guilty but mentally ill” as to the other counts. On appeal, the Supreme Court of Georgia determined that the jury’s “guilty but mentally ill” verdict for felony murder was “repugnant” to the jury’s “not guilty by reason of insanity” verdict for malice murder under Georgia law, because the verdicts “required affirmative findings of different mental states that could not exist at the same time.” The court vacated both the malice-murder and felony-murder verdicts pursuant to Georgia’s so-called repugnancy doctrine, and authorized retrial. On remand, McElrath argued that the Double Jeopardy Clause of the Fifth Amendment prohibited Georgia from retrying him for malice murder given the jury’s prior “not guilty by reason of insanity” verdict on that charge. The Georgia courts rejected that argument.
Issue:
Does the Double Jeopardy Clause of the Fifth Amendment prohibit a second prosecution for a crime of which a defendant was previously acquitted?
Holding: Reversed and remanded.
The jury’s verdict that McElrath was not guilty of malice murder by reason of insanity constituted an acquittal for double jeopardy purposes notwithstanding any inconsistency with the jury’s other verdicts.
