US Supreme Court Series Wrapping up 2018/2019

By Roman Friedrich

The U.S. Supreme Court’s 2018 Term, having witnessed the arrival of a new Justice, is now over and the Nine Justices have receded into their summer break.

This term the US Supreme Court decided 73 cases, ranging from the usual share of criminal cases to cases dealing with the Court’s newly-found passion for patent and trademark law (Holbrook, Timothy R. [2013] “Explaining the Supreme Court’s Interest in Patent Law,” IP Theory: Vol. 3: Iss. 2, Article 1).

Nevertheless, there has also been a number of highly interesting cases involving constitutional law. Three of them were discussed in the Supreme Court series here on in the blog: Madison v. Alabama, Timbs v. Indiana andManhattan Community Access Corp. v. Halleck. Let’s take a recap:


In Madison v. Alabama, 586 U.S. __ (2019), a case involving a seriously ill death row inmate convicted of a murder committed in 1985. The Court had to decide whether the Eighth Amendment (prohibition of cruel and unusual punishment) prohibits a state from executing a prisoner whose mental disability leaves him with no memory of the commission of the offense. In a 5-3 decision (Kavanaugh did not vote and the Chief Justice joined the Court’s four liberals) the Court held that the answer was „no“.

But, in a rare departure from the petition’s initial argument (ALITO, J., dissenting, at 1), the majority held that the Eighth Amendment indeed does prohibit executing a prisoner who cannot rationally understand the reasons for his execution, whether that inability is due to psychosis or dementia.

It is unclear whether the decision goes beyond what the Court already decided in Panetti v. Quarterman, 551 U.S. 930 (2007), namely that the Eighth Amendment forbids executing a prisoner whose mental illness makes him unable to “reach a rational understanding of the reason for [his] execution.“ The majority opinion suggests that it does not (Opinion of the Court at 9). Anyway, the proceedings are not over for Madison; the Court remanded to the Alabama courts to ascertain whether Madison is competent to reach a “rational understanding” of why the State wants to execute him.


The second case discussed in the series, Timbs v. Indiana, No. 17–1091, also revolves around the Eighth Amendment. An Indiana man whose Land Rover was taken away after his conviction on state drug charges complained that this forfeiture violated the Eighth Amendment’s prohibition of excessive fines. The car was worth roughly four times more than the maximum monetary fine that the state could impose for the offense.

Until Timbs, the prohibition of excessive fines had been one of the few rights contained in the Bill of Rights which did not provide protection against the individual states. The Indiana Supreme Court therefore held the prohibition inapplicable to Timbs.

The Supreme Court unanimously reversed. Acknowledging that „the protection against excessive fines has been a constant shield throughout Anglo-American history“ Justice Ginsburg simply concludes that „[t]he Excessive Fines Clause is therefore incorporated by the Due Process Clause of the Fourteenth Amendment.“ (Opinion of the Court, at 2 and 6).

Recognizing the prohibition of excessive fines as a „core right“ tracing „its lineage back in English law nearly a millennium, and from the founding of our country“ Justice Thomas, in concurrence, similarly concluded that „the Eighth Amendment’s prohibition on excessive fines applies in full to the States.“ (THOMAS, J., concurring in judgment, at 13).


The third case of the series, Manhattan Community Access Corp. v. Halleck, No. 17-1702, departed from the criminal law area and asked whether the actions of Manhattan Neighborhood Network (MNN), a not‐for‐profit, non-membership corporation overseeing public access channels, constitute „state action“, rendering them subject to the First Amendment guaranteeing freedom of speech.

MNN had restricted Halleck’s access to the public access channels because of the content of their film. That, of course, would be a First Amendment problem if MNN were subject to it.

The Court, splitting 5-4 across the usual ideological lines, however, said „no“: MNN is a private entity and what MNN does, namely the operation of public access channels on a cable system, is not a traditional, exclusive public function. Therefore, MNN is not a „state actor“ and hence „not subject to First Amendment constraints on its editorial discretion“ (Opinion of the Court, at 2).

Justice Sotomayor, joined by three other Justices, disagreed and underscored the agency relationship between MNN and the City of New York which had granted a cable franchise to a cable company, overseen by MNN. „By accepting that agency relationship, MNN stepped into the City’s shoes and thus qualifies as a state actor, subject to the First Amendment like any other“ (SOTOMAYOR, J., dissenting, at 1).


There have been a few more cases involving controversial constitutional questions:

In a politically high-profile decision, Rucho v. Common Cause, No. 18-422, the Court, splitting 5-4, held that claims addressing partisan gerrymandering of legislative electoral districts present „political questions“ and are therefore beyond the reach of the federal courts. The Court reasoned that „none of the proposed “tests” for evaluating partisan gerrymandering claims meets the need for a limited and precise standard that is judicially discernible and manageable.“ (Syllabus at 2; see Opinion of the Court at 22-30).

Justice Kagan, writing for the Court’s four liberal-leaning Justices, accused the majority of „refus[ing] to remedy a constitutional violation because it thinks the task beyond judicial capabilities.“ (KAGAN, J., dissenting, at 1). This decision certainly is a blow to democracy. In her dissent Justice Kagan pointed out that lower courts have “largely converged on a standard for adjudicating partisan gerrymandering claims” and scathingly criticized that the decision will have the effect of emboldening state legislators who have “debased and dishonored our democracy, turning upside-down the core American idea that all governmental power derives from the people” (ibid.).

In American Legion v. American Humanist Assn., No. 17-1717,the Court had to decide whether a 40-foot tall cross erected in Bladensburg, Maryland, in 1918 as part of a memorial park honoring veterans violated the Establishment Clause of the First Amendment.

An interestingly-large 7-2-majority concluded that it did not, given its historical importance beyond its admittedly Christian symbolism.

Justice Ginsburg, joined by Justice Sotomayor, disagreed, holding that the cross as a genuinely Christian symbol displayed in public land „elevates Christianity over other faiths, and religion over non-religion“, (GINSBURG, J., dissenting, at 3), in contravention to the Establishment Clause.

Finally, in Gamble v. United States, No. 17-646, the Court reaffirmed its prior jurisprudence that the right against double jeopardy contained in the Fifth Amendment does not prevent the federal government from prosecuting a person for the same conduct for which he or she had been prosecuted and sentenced by a state, or vice versa. This conclusion rests on the „separate sovereigns doctrine“ whereby the federal government and each State are “separate sovereigns” entitled to try the same person for the same crime“ (GORSUCH, J., dissenting at 1).

Justices Ginsburg and Gorsuch, an interesting alliance, disagreed with the majority. The “‘separate sovereigns exception to the bar against double jeopardy finds no meaningful support in the text of the Constitution, its original public meaning, structure, or history. Instead, the Constitution promises all Americans that they will never suffer double jeopardy“ (GORSUCH, J., dissenting at 1).




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