Every 10 years, the U.S. undertakes an “Enumeration” of its population “in such Manner” as Congress “shall by Law direct.” The Secretary of Commerce must “take a decennial census of population . . . in such form and content as he may determine,” 13 U.S.C. 141(a), and report to the President, who must transmit to Congress a “statement showing the whole number of persons in each State, excluding Indians not taxed, as ascertained” under the census, 2 U.S.C. 2a(a), applying the “method of equal proportions” formula to the population counts to calculate the number of House seats for each state.

In July 2020, the President issued a memorandum to the Secretary, announcing a policy of excluding from the apportionment base aliens who are not in lawful immigration status. The President ordered the Secretary “to provide information permitting the President, to the extent practicable, to exercise the President’s discretion to carry out the policy.”

The Supreme Court vacated an injunction, prohibiting the Secretary from including the information needed to implement the President’s memorandum and directed dismissal of the lawsuits for lack of jurisdiction. The threatened impact of an unlawful apportionment on congressional representation and federal funding does not establish a “legally cognizable injury.” Any chilling effect from the memorandum dissipated upon the conclusion of the census. The Secretary has not altered census operations in a concrete manner that will predictably change the count. Any prediction of how the Executive Branch might eventually implement the general statement of policy is conjecture. It is unclear how many aliens have administrative records that would allow the Secretary to avoid impermissible estimation; whether the Census Bureau can timely match its records to census data; and to what extent the President might direct the Secretary to “reform the census” to implement his general policy. The plaintiffs suffer no concrete harm from the challenged policy, which does not require them “to do anything or to refrain from doing anything.”

Annotation

Primary Holding

Supreme Court dismisses, as premature, challenges to the President’s policy of excluding undocumented immigrants from census calculations.

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Kayer murdered Haas in 1994. Kayer was convicted of premeditated first-degree murder, refused to fully cooperate with a mitigation specialist, and refused to agree to a continuance. The court ruled him competent to make that choice. At sentencing, Kayer again refused an offer of more time and stated he would not cooperate.

Arizona law authorized a death sentence only if a judge found at least one aggravating circumstance and found no mitigating circumstance sufficient to call for leniency. The judge found two aggravating factors beyond a reasonable doubt: Kayer’s 1981 conviction for first-degree burglary and that Kayer murdered Haas for “pecuniary gain.” The court found one nonstatutory mitigator: his importance in his son’s life. Judge Kiger sentenced Kayer to death; the Arizona Supreme Court affirmed.

Kayer sought postconviction relief, arguing ineffective assistance of counsel because his attorneys failed to investigate mitigating circumstances at the outset of their representation. The judge considered evidence of Kayer’s addictions to alcohol and gambling; his heart attack weeks before the murder; mental illness, including a diagnosis of bipolar disorder; and of his childhood difficulties. The court found that trial counsel’s performance was not deficient because Kayer had refused to cooperate and, alternatively, that there was no prejudice because it had considered the assertions of mental illness, physical illness, jail conditions, childhood development, and addictions. The Arizona Supreme Court denied review.

Kayer filed an unsuccessful federal habeas petition, 28 U.S.C. 2254. The Ninth Circuit reversed.

The Supreme Court vacated. A state prisoner may not obtain federal habeas relief with respect to an ineffective assistance claim that was adjudicated on the merits in state court unless the decision was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court. The Arizona decision is not so obviously wrong that its error lies “beyond any possibility for fair-minded disagreement.” The Ninth Circuit “essentially evaluated the merits de novo, only tacking on a perfunctory statement” that the state court’s decision was unreasonable and that “there is a reasonable probability Kayer’s sentence would have been less than death.” The most probable reason for Judge Kiger’s determination is that the new mitigation evidence offered in the post-conviction proceeding did not create a substantial likelihood of a different sentence. A fair-minded jurist could see Kayer’s past conviction as having substantial weight. Fair-minded jurists also could take a different view of Kayer’s mitigating evidence.

Annotation

Primary Holding

Supreme Court vacates a Ninth Circuit order granting habeas relief on grounds of ineffective assistance in a trial for premeditated first-degree murder.

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Pharmacy benefit managers (PBMs) reimburse pharmacies for the cost of drugs covered by prescription-drug plans by administering maximum allowable cost (MAC) lists. In 2015, Arkansas passed Act 900, which requires PBMs to reimburse Arkansas pharmacies at a price at least equal to the pharmacy’s wholesale cost, to update their MAC lists when drug wholesale prices increase, and to provide pharmacies an appeal procedure to challenge MAC reimbursement rates, Ark. Code 17–92–507(c). Arkansas pharmacies may refuse to sell a drug if the reimbursement rate is lower than its acquisition cost. PCMA, representing PBMs, sued, alleging that Act 900 is preempted by the Employee Retirement Income Security Act (ERISA), 29 U.S.C. 1144(a).

Reversing the Eighth Circuit, the Supreme Court held that Act 900 is not preempted by ERISA. ERISA preempts state laws that “relate to” a covered employee benefit plan. A state law relates to an ERISA plan if it has a connection with or reference to such a plan. State rate regulations that merely increase costs or alter incentives for ERISA plans without forcing plans to adopt any particular scheme of substantive coverage are not preempted. Act 900 is a form of cost regulation that does not dictate plan choices. Act 900 does not “refer to” ERISA; it regulates PBMs whether or not the plans they service fall within ERISA’s coverage. Allowing pharmacies to decline to dispense a prescription if the PBM’s reimbursement will be less than the pharmacy’s cost of acquisition does not interfere with central matters of plan administration. The responsibility for offering the pharmacy a below-acquisition reimbursement lies first with the PBM. Any “operational inefficiencies” caused by Act 900 are insufficient to trigger ERISA preemption, even if they cause plans to limit benefits or charge higher rates.

Annotation

Primary Holding

ERISA does not preempt an Arkansas law that requires pharmacy benefit managers to reimburse pharmacies at a price at least equal to the pharmacy’s wholesale cost.

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Delaware’s Constitution contains a political balance requirement for appointments to the state’s major courts. No more than a bare majority of judges on any of its five major courts “shall be of the same political party.” Art. IV, section 3. On three of those courts, those members not in the bare majority “shall be of the other major political party.” Adams, a Delaware lawyer and political independent, sued, claiming that those requirements violate his First Amendment right to freedom of association by making him ineligible to become a judge unless he joins a major political party.

The Supreme Court held that because Adams has not shown that he was “able and ready” to apply for a judicial vacancy in the imminent future, he failed to show a “personal,” “concrete,” and “imminent” injury necessary for Article III standing. A grievance that amounts to nothing more than abstract and generalized harm to a citizen’s interest in the proper application of the law is not an “injury in fact.” Adams must at least show that he is likely to apply to become a judge in the reasonably foreseeable future if not barred because of political affiliation. Adams’ only supporting evidence is his statements that he wanted to be, and would apply to be, a judge on any of Delaware’s courts. The evidence fails to show that, when he filed suit, Adams was “able and ready” to apply for a judgeship in the reasonably foreseeable future. Adams’ statements lack supporting evidence, like efforts to determine possible judicial openings or other preparations. Adams did not apply for numerous existing judicial vacancies while he was a registered Democrat. He then read a law review article arguing that Delaware’s judicial eligibility requirements unconstitutionally excluded independents, changed his political affiliation, and filed suit.

Annotation

Primary Holding

Plaintiff lacked standing to challenge Delaware’s political balance requirement for appointments to the state’s major courts, absent any evidence that he was “able and ready” to apply for a judicial vacancy in the imminent future.

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The Religious Freedom Restoration Act of 1993 (RFRA) provides a remedy to redress federal government violations of the right to free exercise under the First Amendment. Practicing Muslims sued under RFRA, claiming that federal agents placed them on the No Fly List for refusing to act as informants against their religious communities. They sought injunctive relief against the agents in their official capacities and monetary damages against the agents in their individual capacities.

The Supreme Court affirmed the Second Circuit in holding that RFRA’s express remedies provision permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities. RFRA’s text provides that persons may “obtain appropriate relief against a government,” including an “official (or other person acting under color of law) of the United States,” 42 U.S.C. 2000bb–2(1). RFRA supplants the ordinary meaning of “government” with an express definition that includes “official[s]” and underscores that “official[s]” are “person[s].” Under RFRA’s definition, relief that can be executed against an “official . . . of the United States” is “relief against a government.” What relief is “appropriate” is context-dependent. In the context of suits against government officials, damages have long been awarded as appropriate relief. Damages are available under section 1983 for clearly established violations of the First Amendment; that means RFRA provides, as one avenue for relief, a right to seek damages against government employees.

Annotation

Primary Holding

The Religious Freedom Restoration Act permits litigants, when appropriate, to obtain money damages against federal officials in their individual capacities.

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Under the Uniform Code of Military Justice (UCMJ), a military offense, “punishable by death, may be tried and punished at any time without limitation,” 10 U.S.C. 843(a). Other military offenses are subject to a five-year statute of limitations. Three military service members, each convicted of rape at a time when the UCMJ provided that rape could be “punished by death” argued that the five-year limitations period barred their prosecutions because the Supreme Court held in 1977 (Coker v. Georgia) that the Eighth Amendment forbids a death sentence for the rape of an adult woman.

Reversing the Court of Appeals for the Armed Forces, the Supreme Court held that the prosecutions were timely. The UCMJ is a uniform code. The most natural place to determine whether rape was “punishable by death” within the meaning of section 843(a) is section 920’s directive that rape could be “punished by death,” regardless of the UCMJ’s separate prohibition on “cruel or unusual punishment.” If “punishable by death” requires consideration of all applicable law, the deadline for filing rape charges would be unclear. That deadline would depend on an unresolved constitutional question about Coker’s application to military prosecutions, on “evolving standards of decency” under the Eighth Amendment, and on whether UCMJ section 855 independently prohibits a death sentence for rape. The ends served by statutes of limitations differ from those served by the Eighth Amendment or UCMJ 855. Factors legislators may find important in setting a limitations period—such as the difficulty of gathering evidence and mounting a prosecution—play no part in an Eighth Amendment analysis.

Annotation

Primary Holding

Although the Supreme Court has held that the Eighth Amendment forbids a death sentence for the rape of an adult woman, such a rape may be considered a military offense punishable by death for purposes of the statute of limitations under the Uniform Code of Military Justice.

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A New York Executive Order imposed restrictions on attendance at religious services. In “red zones,” no more than 10 persons could attend each religious service; in “orange zones,” attendance was capped at 25. In challenges under the Free Exercise Clause of the First Amendment, the Supreme Court enjoined enforcement of the restrictions pending appellate review.

The congregations made a strong showing that the challenged restrictions violate the minimum requirement of neutrality to religion. Some statements made in connection with the rules can be viewed as targeting the “ultra-Orthodox [Jewish] community,” but even disregarding those comments, the regulations single out houses of worship for harsh treatment. In red zones “essential” businesses may admit as many people as they wish; “essential” businesses include acupuncture facilities, campgrounds, garages, plants manufacturing chemicals and microelectronics, and all transportation facilities. In an orange zone, even non-essential businesses may decide how many persons to admit. A large store in Brooklyn could have hundreds of people shopping on any given day but a nearby church or synagogue would be prohibited from allowing more than 10 or 25 people inside for worship services. The Governor stated that factories and schools have contributed to the spread of COVID–19 but they are treated less harshly than churches and synagogues, which have rigorously adhered to health protocols and have admirable safety records.

Stemming the spread of COVID–19 is a compelling interest for purposes of “strict scrutiny” but the regulations are not “narrowly tailored.” Less restrictive rules could minimize the risk to those attending religious services; maximum attendance could be tied to the size of the facility. The challenged restrictions, if enforced, will cause irreparable harm. Many important religious traditions require personal attendance. Granting the applications will not harm the public.

Annotation

Primary Holding

Supreme Court enjoins the enforcement of a New York Executive Order that imposed restrictions on attendance at religious services.

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Taylor, a Texas inmate, alleges that in September 2013, correctional officers confined him in a cell covered, nearly floor to ceiling, in “ ‘massive amounts’ of feces.” Taylor did not eat or drink for nearly four days. Officers then moved Taylor to another, frigidly cold cell, which was equipped with only a clogged floor drain to dispose of bodily wastes. Taylor held his bladder for over 24 hours, but eventually, involuntarily relieved himself, causing the drain to overflow and raw sewage to spill across the floor. The cell lacked a bunk and Taylor was confined without clothing; he was left to sleep naked in sewage.

The Fifth Circuit held that such conditions of confinement violate the Eighth Amendment’s prohibition on cruel and unusual punishment but, concluding that “[t]he law wasn’t clearly established” that “prisoners couldn’t be housed in cells teeming with human waste” “for only six days,” the court held that the prison officials did not have “ ‘fair warning’ that their specific acts were unconstitutional.”

The Supreme Court vacated. The officers were not entitled to qualified immunity; no reasonable correctional officer could have concluded that, under these extreme circumstances, it was constitutionally permissible to house Taylor in such deplorably unsanitary conditions for an extended period of time. There was no evidence that the conditions of Taylor’s confinement were compelled by necessity or exigency nor that those conditions could not have been mitigated, either in degree or duration. While an officer-by-officer analysis will be necessary on remand, the record suggests that at least some officers involved in Taylor’s ordeal were deliberately indifferent to the conditions of his cells.

Annotation

Primary Holding

Supreme Court vacates a grant of qualified immunity: No reasonable correctional officer could have concluded that the confinement of an inmate, for several days, in a cell filled with sewage, was constitutionally permissible.

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Mckesson organized a demonstration in Baton Rouge to protest a shooting by a police officer. The protesters, allegedly at Mckesson’s direction, occupied the highway in front of the police headquarters. As officers began making arrests to clear the highway, an unknown individual threw a rock-like object, striking Officer Doe in the face. Doe suffered devastating injuries. Doe sued Mckesson on the theory that he negligently staged the protest in a manner that caused the assault.

The Fifth Circuit reversed the dismissal of the claim, reasoning that a jury could plausibly find that Mckesson breached his duty not to negligently precipitate the crime of a third party; a violent confrontation with a police officer was a foreseeable effect of negligently directing a protest onto the highway. The First Amendment does not bar tort liability if the rock-throwing incident was a consequence of tortious activity, which was authorized, directed, or ratified by Mckesson, who allegedly directed an unlawful obstruction of a highway.

The Supreme Court vacated. The constitutional issue is implicated only if Louisiana law permits recovery under these circumstances. Certification to the Louisiana Supreme Court is advisable for the questions: whether Mckesson could have breached a duty of care in organizing and leading the protest and whether Doe has alleged a particular risk within the scope of protection afforded by any such duty. Speculation by a federal court about how a state court would weigh the moral value of protest against the economic consequences of withholding liability is gratuitous when Louisiana courts stand willing to address these questions on certification to ensure that any conflict between state law and the First Amendment is not purely hypothetical.

Annotation

Primary Holding

Supreme Court vacates a Fifth Circuit holding that the First Amendment does not bar tort liability for a violent incident during a protest; certification of state tort law questions to the Louisiana Supreme Court is advisable.

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The Patient Protection and Affordable Care Act of 2010 (ACA) requires covered employers to provide women with “preventive care and screenings” without cost-sharing requirements and relies on Preventive Care Guidelines “supported by the Health Resources and Services Administration” (HRSA) to define “preventive care and screenings,” 42 U.S.C. 300gg–13(a)(4). Those Guidelines mandate that health plans cover all FDA-approved contraceptive methods. When the Federal Departments incorporated the Guidelines, they gave HRSA the discretion to exempt religious employers from providing contraceptive coverage. Later, the Departments promulgated a rule accommodating qualifying religious organizations, allowing them to opt out of coverage by self-certifying that they met certain criteria to their health insurance issuer, which would then exclude contraceptive coverage from the employer’s plan and provide participants with separate payments for contraceptive services without any cost-sharing requirements.

In its 2014 “Hobby Lobby” decision, the Supreme Court held that the contraceptive mandate substantially burdened the free exercise of closely-held corporations with sincerely held religious objections. In a later decision, the Court remanded challenges to the self-certification accommodation so that the parties could develop an approach that would accommodate employers’ concerns while providing women full and equal coverage.

The Departments then promulgated interim final rules. One significantly expanded the church exemption to include an employer that objects, based on its sincerely held religious beliefs, to coverage or payments for contraceptive services. Another created an exemption for employers with sincerely held moral objections to providing contraceptive coverage. The Third Circuit affirmed a preliminary nationwide injunction against the implementation of the rules.

The Supreme Court reversed. The Departments had the authority under the ACA to promulgate the exemptions. Section 300gg–13(a)(4) states that group health plans must provide preventive care and screenings “as provided for” in comprehensive guidelines, granting HRSA sweeping authority to define that preventive care and to create exemptions from its Guidelines. Concerns that the exemptions thwart Congress’ intent by making it significantly harder for women to obtain seamless access to contraception without cost-sharing cannot justify supplanting that plain meaning. “It is clear … that the contraceptive mandate is capable of violating the Religious Freedom Restoration Act.” The rules promulgating the exemptions are free from procedural defects.

Annotation

Primary Holding

Supreme Court upholds agency rules providing religious and moral exemptions to the contraception mandate created under the Affordable Care Act.

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