11 Wake Forest L. Rev. Online 93 (2021)

Introduction

In 2018, 128 people died every day from an opioid overdose, twenty-five percent of patients misused opioids prescribed for chronic pain, and approximately 1.7 million people developed a substance use disorder directly from prescription opioid use.[1]  The effects were so devastating that the opioid epidemic was declared a national emergency.[2]  In response, government officials and courts sought criminal and civil retribution to hold pharmaceutical executives responsible for their roles in the epidemic, most recently with the Racketeer Influenced and Corrupt Organizations Act (“RICO”).[3]  When applied in the civil context, however, courts disagree on whether a fraudulent misrepresentation can satisfy the proximate cause requirements under RICO.[4]  This Comment seeks to identify whether a misrepresentation of the addictive qualities of opioids would be a sufficient showing of proximate cause for a civil RICO claim to succeed and argues that such misrepresentations would be sufficient.

This Comment proceeds in five parts.  Part I explains the progression of the opioid epidemic, pharmaceutical companies’ fraudulent misrepresentations, and the recovery options available to combat the epidemic—particularly RICO.  Part II discusses RICO’s role in addressing fraudulent misrepresentations in the pharmaceutical industry.  Part III describes the circuit split regarding fraudulent misrepresentations in civil RICO causation.  Part IV analyzes the fraudulent misrepresentations that led to the opioid epidemic and argues that those misrepresentations are sufficient to establish proximate cause in a civil RICO claim.  Part V recommends that the Supreme Court should grant certiorari on this issue and hold that misrepresentations of a drug’s harmful side effects are sufficient to show proximate cause in civil RICO cases.

I. Background

A. The United States Opioid Epidemic

The United States opioid epidemic is a major public health issue that has devastated the country’s social and economic welfare.[5]  The epidemic began in the late 1990s when pharmaceutical companies began encouraging the medical community to prescribe prescription opioids to their patients.[6]  During this time, pharmaceutical companies paid physicians to host informational seminars on drugs for their peers.[7]  While hosting these events can be a positive source of information in the medical community, the speakers of these programs often received kickbacks to prescribe the drugs they were promoting.[8]  The more prescriptions the physicians wrote, the more kickbacks they received.[9]  By 2015, nearly fifty percent of physicians received kickbacks for prescribing pharmaceutical drugs.[10]

Often, physicians knew little about the drugs they were prescribing.[11] Pharmaceutical companies assured physicians of opioid safety, guaranteeing that patients would not become addicted.[12]  As a result, physicians prescribed the drugs at high rates and quantities, leading to widespread addiction.[13]  Newly addicted and reliant, patients soon turned to more potent drugs—like cocaine and heroin—culminating in the opioid epidemic now overtaking the United States.[14]

B. The History of Fraudulent Misrepresentations in the Pharmaceutical Industry

The pharmaceutical industry has a long history of systemic fraud related to the “testing, marketing, and distribution of dangerous pharmaceutical drugs.”[15]  Throughout this history, pharmaceutical representatives have routinely concealed harmful side effects from physicians to convince them to prescribe dangerous drugs using “lies, bribes, and kickbacks.”[16]  In fact, in the pharmaceutical industry, it is so common for physicians to be deceived about dangerous products “that it’s often dismissed as the equivalent of driving slightly over the speed limit.”[17]

Drug representatives are also targeted as these individuals are often offered large bonuses for selling harmful drugs.[18]  For example, to increase sales of OxyContin, Purdue Pharma developed a “bonus system [that] encouraged sales representatives”[19] to use “any means necessary” to increase sales rates, even if it meant downplaying OxyContin’s addictive tendencies.[20]  In this way, pharmaceutical manufacturers frequently engage in a “coordinated conspiracy to deceive the American public and the medical profession about the efficacy and safety of opioids.”[21]

C. RICO

In 2017, the federal government and state governments began to pursue criminal and civil retribution against pharmaceutical companies for their role in the opioid epidemic.[22]  These entities often sought to recover for the economic harm they incurred due to increased rates of addiction in their communities.[23]  While civil lawsuits were routinely unsuccessful early on, settlements have begun to increase in recent years, indicating their growing success.[24]  For example, in 2007, Purdue Pharma settled in a civil suit with twenty-six states for $19.5 million.[25]  In 2016, Cardinal Health and AmerisourceBergen, distributors of prescription opioids, did the same, settling with the State of West Virginia for $34 million.[26]

Generally, individual plaintiffs seeking damages for personalized injuries have also sought to recover via direct-injury lawsuits.[27]  In the pharmaceutical context, direct-injury lawsuits “generally target opioid manufacturers for alleged misrepresentations during advertisement or opioid distributors for an alleged failure to monitor illicit distribution.”[28]  When asserting direct-injury claims, plaintiffs generally rely on tort-based theories, one of which is RICO.[29] 

RICO makes it “unlawful for any person employed by or associated with any enterprise . . . to conduct or participate, directly or indirectly, in the conduct of such [an] enterprise’s affairs through a pattern of racketeering activity” that affects interstate commerce.[30]  To assert a RICO violation, a claimant must establish an “association-in-fact” enterprise, defined as a “group of persons associated together for a common purpose.”[31]  To be a part of such an enterprise, a defendant must have either made decisions or intentionally performed acts that furthered the enterprise’s common purpose.[32]  The enterprise’s common purpose must be “separate from the pattern of racketeering activity” that the enterprise is engaging in; otherwise, it will not amount to a RICO violation, only a general conspiracy to commit a crime.[33] 

To establish a pattern of racketeering activity, there must be two or more acts that are “‘chargeable’ . . . under a host of state and federal laws,”[34] as well as interrelated, continuous, and occurring within a ten-year period.[35]  Otherwise, the acts will be deemed “isolated” and will fail to constitute a pattern.[36]  Furthermore, either the enterprise itself or the predicate acts of the enterprise must have a de minimis impact on interstate commerce.[37]  This is generally a low threshold, as courts routinely find that most, if not all, economic behavior impacts interstate commerce.[38]  Thus, to prosecute a defendant under RICO, a plaintiff must show that (i) a defendant performed two or more acts, (ii) those activities together formed a pattern of racketeering activity, (iii) the defendant benefitted from or participated in an enterprise, and (iv) the activities of that enterprise affected interstate commerce.[39] 

II. RICO and the Pharmaceutical Industry

In the pharmaceutical context, defendants participate in a RICO enterprise when they give or follow a directive to engage in fraud or when they exert influence or control in a scheme to fraudulently profit from the sale of prescription drugs.[40]  Thus, a RICO enterprise is formed when pharmaceutical companies conspire to misrepresent the efficacy and risks of opioids and opioid addiction.[41] While pharmaceutical executives are typically the easiest to implicate in such an enterprise, any person engaged in “false claims, kickback schemes, and acts of clinical and publication bias” are potential defendants for inclusion.[42]

A. Proving Causation in Civil RICO Claims

Standing to bring a civil RICO claim is stated under 18 U.S.C. § 1964(c).[43]  Under the statute, a plaintiff has standing for a civil RICO claim when their injury (i) is to their business or property, and (ii) was caused “by reason of” the RICO violation.[44]  The Supreme Court’s interpretation of “by reason of” requires the plaintiff to prove both proximate and but-for causation.[45]  But-for causation asks whether the plaintiff’s injury would have occurred but for the defendant’s conduct.[46]  Proximate causation serves to prevent liability when the link between the defendant’s conduct and the plaintiff’s injury has been severed.[47]  Thus, proximate causation requires a plaintiff to show some sort of direct relationship between the defendant’s actions and the plaintiff’s injury.[48]

Holmes v. Securities Investor Protection Corp.[49] sets out three principles to guide the causation analysis[50]

First, the less direct an injury is, the more difficult it becomes to ascertain the amount of a plaintiff’s damages attributable to the violation, as distinct from other, independent, factors.  Second, . . . recognizing claims of the indirectly injured would force courts to adopt complicated rules apportioning damages among plaintiffs removed at different levels of injury from the violative acts, to obviate the risk of multiple recoveries.  And, finally, the need to grapple with these problems is simply unjustified by the general interest in deterring injurious conduct, since directly injured victims can generally be counted on to vindicate the law as private attorneys general . . . .[51]

The first Holmes principle asserts that an injured party must be readily identifiable with readily apparent damages.[52]  Damages are considered to be readily apparent when the action that caused the plaintiff’s injury has already occurred, because this negates the need for factual speculation.[53]  The second principle requires damages to be awarded to the plaintiffs without fear that multiple parties will receive overlapping damages.[54]  To conform with this principle, a court can award damages when only one party is seeking recovery for their payments towards a drug or when each individual plaintiff seeks only to recover for the damages they individually paid for a prescription drug.[55]  Finally, the third principle requires that those most directly injured are bringing the suit; thus, the parties bringing the suit must be those best suited to do so.[56]

Since Holmes, however, the Supreme Court has eased the proximate cause standard for plaintiffs bringing RICO claims on mail and wire fraud.[57]  In Bridge v. Phoenix Bond & Indemnity Co.,[58] the Court held that a plaintiff asserting a RICO claim on mail or wire fraud does not need to show that they relied on the defendant’s alleged misrepresentations to establish proximate cause.[59]  As such, the plaintiff may recover whether or not they are the direct recipient of the false statements made.[60]  But because a plaintiff must establish both but-for and proximate causation, they often still must show that someone relied on the defendant’s misrepresentation.[61]

B. Criminal RICO Application

In 2019, a Massachusetts court found John Kapoor (“Kapoor”), former executive of pharmaceutical company Insys, guilty of conducting a national scheme to pay physicians to prescribe a highly potent and addictive fentanyl-spray.[62]  In Kapoor’s case, United States v. Michael Babich,[63] the Insys executives knowingly instructed physicians to prescribe the fentanyl-spray at six times the FDA-approved limit to guarantee patient reliance.[64]  To ensure compliance, the executives held speaker programs disguised as “educational lunches and dinners,” which they used to pay bribes and kickbacks to high-prescribing physicians.[65]  The Insys executives also targeted third-party payors (“TPPs”) using fake call centers to trick insurance companies into covering the spray at higher rates than they otherwise would have if they had known of the spray’s addictive tendencies.[66] 

Kapoor and six other Insys executives were found guilty of racketeering, wire fraud, and mail fraud conspiracy, marking the “first successful prosecution of top pharmaceutical executives for crimes related to the illicit marketing and prescribing of opioids.”[67]  As such, this case serves as the beginning of a new era in civil litigation to hold executives responsible for their role in the opioid epidemic.[68]

III.  Conflicting Interpretations of Misrepresentations Under RICO

Several federal circuit courts have addressed the question of whether, in the civil context, fraudulent misrepresentation can satisfy the direct-injury requirements necessary to establish proximate cause under RICO.[69]  The First, Third, and recently the Ninth Circuit have held that fraudulent misrepresentations can satisfy the direct-injury requirement, while the Second and Seventh Circuit have held that they cannot.[70]  To date, the Supreme Court has not granted certiorari to resolve this issue.[71]

A. Fraudulent Misrepresentation as a Sufficient Assertion of Proximate Cause

  1. Ninth Circuit

In Painters & Allied Trades District Council 82 Health Care Fund v. Takeda Pharmaceuticals,[72] the Ninth Circuit reviewed whether patients and TPPs can sufficiently meet the proximate cause requirements in a civil RICO claim when a pharmaceutical manufacturer fraudulently misrepresents a drug’s allegedly known safety risks.[73]  There the defendants allegedly knew of and concealed that Actos, a drug prescribed to regulate blood sugar for Type II diabetics, increased a patient’s risk of developing bladder cancer.[74]  The plaintiffs alleged that they would never have paid for or taken the drug if they had known of the risk of bladder cancer.[75]

The court concluded that the plaintiffs were the direct victims of the defendants’ alleged misrepresentations and therefore that the defendants’ fraudulent misrepresentations were directly related to the plaintiff’s harm.[76]  Thus, the Ninth Circuit held that both patients and TPPs who paid for Actos could successfully meet the proximate cause requirements.[77]  In so holding, the Ninth Circuit noted that because physicians commonly prescribe prescription drugs—like Actos—it is foreseeable that physicians would prescribe such a drug and therefore “play a causative role” in the defendant’s fraudulent scheme.[78]  Accordingly, physician actions do not sever proximate cause.[79]

The Painters decision marked an express change of opinion for the Ninth Circuit.[80]  Ten years prior, in 2009, the Ninth Circuit conversely found that misrepresentation claims could not successfully assert proximate cause in civil RICO claims.[81]  Now, with the Ninth Circuit basing its decision on policy implications and societal interest, Painters introduces new considerations on the issue that cannot be ignored.[82] 

  1. First Circuit

In In re Neurontin,[83] the First Circuit considered whether the Kaiser Foundation (“Kaiser”) could recover for an alleged injury arising from Pfizer’s alleged fraudulent marketing of Neurontin for off-label uses.[84]  Kaiser argued that Pfizer’s campaign explicitly targeted TPPs to influence formulary and prescribing decisions and encouraged physicians to serve on speaker’s bureaus and sponsor informational sessions to promote Pfizer drugs, while disguising bribe and kickback payments.[85]  Through expert witness testimony, the court found that three out of ten Neurontin prescriptions made for such off-label uses would not have been written but for Pfizer’s fraudulent marketing scheme.[86]  As such, the court held that Kaiser was a primary, intended, and direct victim that successfully met the proximate cause requirements under RICO.[87] 

  1. Third Circuit

In In re Avandia,[88] GlaxoSmithKline (“GSK”) marketed Avandia as a safer and more effective alternative to existing medications currently available for Type II diabetes treatment.[89]  As a result, TPPs added Avandia to their formularies and covered Avandia prescriptions at preferred rates.[90]  Soon after, however, risks arose regarding heart-related side effects, which GSK actively denied and countered despite knowledge to the contrary.[91] 

The Third Circuit held that the presence of intermediaries did not sever proximate cause because the TPPs’ injury was a foreseeable result of GSK’s scheme.[92]  Since TPPs covered the costs of Avandia directly because of GSK’s misrepresentations of Avandia’s risks, the TPPs were held to be intended and direct victims.[93]  Thus, the court concluded that reliance on GSK’s misrepresentations was sufficient to allege proximate cause.[94]

B. Fraudulent Misrepresentation as an Insufficient Assertion of Proximate Cause

In a Seventh Circuit case, Sidney Hillman Health Center of Rochester v. Abbott Labs.,[95] Abbott Labs allegedly solicited physicians to prescribe Depakote, a drug approved to treat seizures and migraines, for off-label uses.[96]  There the Seventh Circuit reasoned that because it would be too difficult to calculate the plaintiff’s damages due to unknown factors—some patients likely benefitted from taking Depakote for an off-label use, and some physicians would undoubtedly have prescribed Depakote for off-label uses regardless of solicitation—misrepresentations made to physicians fail the first Holmes factor and do not constitute a direct injury.[97]  As such, the Seventh Circuit held that such misrepresentations cannot meet the proximate cause requirements of civil RICO claims.[98]  Similarly, in UFCW Local 1776 v. Eli Lilly & Co.,[99] the Second Circuit concluded that a physicians’ reliance on misrepresentations is not a but-for cause of a drug’s higher price because physicians do not consider a drug’s price when they order prescriptions.[100]  Thus, the Second Circuit held that fraudulent misrepresentations do not sufficiently establish proximate cause for a civil RICO claim.[101]

IV. Analysis

Painters, In re Avandia, and In re Neurontin discuss the issue of recovery for TPPs (and patients as well in the case of Painters) when dealing with fraudulent misrepresentations of a prescription drug’s harmful side effects.[102]  These cases more closely align with the issues arising out of the opioid epidemic—as seen in Michael Babich—where pharmaceutical manufacturers and their executives fraudulently misrepresented the addictive qualities of opioids, in the form of a fentanyl-spray, resulting in economic injury to both patients and TPPs.[103]

A. The Opioid Epidemic Compared to Other Civil Applications

Like the pharmaceutical manufacturers in In re Avandia who falsely promoted Avandia as safe for use, the Insys executives in Michael Babich misrepresented the risks of the addictive qualities of their fentanyl-spray to ensure its coverage and use.[104]  In In re Avandia, the pharmaceutical manufacturer knew of Avandia’s increased cardiac complications; in Michael Babich, the pharmaceutical manufacturer knew their fentanyl-spray risked addiction and misuse.[105]  Like the pharmaceutical manufacturer in In re Avandia who promoted Avandia knowing its cardiac risks, the pharmaceutical executives in Painters also actively misled physicians, consumers, and TPPs to prescribe and use Actos despite knowing its risk for bladder cancer.[106]  Thus, in all three cases, pharmaceutical manufacturers formulated schemes to misrepresent the harmful side effects of their touted drugs to increase prescription rates at the expense of patients and TPPs.

Michael Babich also mimicked these cases’ use of speakers’ bureaus and physician targeting.  Both Michael Babich and In re Neurontin used speaker programs to target physicians with high prescription numbers and pay bribes and kickbacks to these physicians in exchange for increased prescription orders and dosages.[107]  Furthermore, like Pfizer’s marketing scheme in In re Neurontin that actively targeted TPPs to add drugs to their formularies and influence prescribing decisions, Insys’ marketing scheme in Michael Babich targeted TPPs through the use of a fake call center that was used to guarantee insurance coverage of their fentanyl-spray.[108]  In both cases, the use of these schemes directly targeted TPPs, causing them to prescribe more opioids than they otherwise would have prescribed.[109]  In these ways, the facts of Michael Babich reflect those of Painters, In re Avandia, and In re Neurontin.

Thus, as the fraudulent misrepresentations presented in the aforementioned cases all constituted a direct injury,[110] it is likely that a civil RICO claim based on the fraudulent misrepresentations of the opioid epidemic would be successful.  Therefore, opioid epidemic plaintiffs should bring civil—as well as criminal—suits when seeking retribution for their injuries caused by pharmaceutical companies’ fraudulent misrepresentations of the addictive qualities of opioids.

B. Analyzing the Proximate Cause Requirements of Civil RICO Claims

  1. How Opioid Epidemic Plaintiffs Can Meet the Damages Attributable Requirement

In situations where plaintiffs can allege damages due to the failure to warn of a drug’s harmful side effects, damages are not based on factual speculation and are thus readily apparent.[111]  In these situations, plaintiffs bring suit because they incurred an injury from taking a drug.  To have such an injury, a plaintiff must have already taken the drug, meaning that their injury has already occurred and cannot be based on factual speculation.  In the context of the opioid epidemic, a plaintiff brings suit asserting injury for the harm incurred from taking a drug with addictive characteristics.  Because the factual scenario seen in the opioid epidemic falls squarely into this context, a plaintiff’s damages will be readily apparent and meet the damages attributable requirement.

Damages in these cases will also be readily determinable.[112]  When a plaintiff’s injury is based on a fraudulent misrepresentation of a drug’s harmful side effects, the amount of damages attributable would amount to the difference between the cost of the injurious drug and the cost of a cheaper, alternative drug.[113]  Thus, in the context of the opioid epidemic, the damages alleged would amount to the cost between what a patient, or TPPs, would have paid for an alternative drug and what they paid for the harmful drug prescribed.  Because this amount is easily determinable, patients and TPPs would likely meet this requirement in any civil litigation arising from the opioid epidemic.

  1. How Opioid Epidemic Plaintiffs Can Avoid Duplicative Recovery

In opioid epidemic cases, multiple parties, including patients and TPPs, will likely look to recover damages.  In these cases, each individual plaintiff will be limited in what they can recover while still conforming with the second Holmes principle.[114]  To ensure that there is no duplicative recovery, and thus no violation of the second principle, each plaintiff will only be able to recover damages for what they individually paid for a prescription drug.[115]  Because both TPPs and patients will have incurred economic injury in a civil litigation suit, such a limitation is the only way to ensure compliance with the second Holmes principle and sufficiently assert proximate cause.[116] 

  1. How Opioid Epidemic Plaintiffs Can Meet the Direct-Injury Requirement

In civil opioid epidemic litigation, patients are directly injured parties because they incur financial and personal injury when they suffer harmful effects from using dangerous drugs.[117]  Patients suffer financial injury in paying out-of-pocket for expensive, harmful drugs that often lead to complications and further health problems, including addiction and drug misuse.  TPPs are directly injured parties that incur financial loss when they are targeted to add drugs to their formularies at preferred rates.[118]  For the preceding reasons, TPPs and patients are the most directly injured parties of pharmaceutical companies’ fraudulent schemes to market and promote harmful drugs; thus, they are the best suited plaintiffs to bring suits against pharmaceutical companies.  As such, both patients and TPPs would meet this third and final requirement in any future civil litigation related to the opioid epidemic.

C. Policy Considerations

Policy considerations further drive the argument in favor of allowing pharmaceutical companies’ fraudulent misrepresentations to sufficiently constitute proximate cause for patients and TPPs in civil RICO claims.  For one, if courts hold that the causal chain is too attenuated to constitute proximate cause for TPPs and patients—like the Second and Seventh Circuits do—the implications would effectively allow pharmaceutical companies to avoid liability for their fraudulent marketing schemes.[119]  In this way, pharmaceutical companies would be shielded from liability and permitted to hide behind the physicians who prescribed their drugs.[120]

For example, in the context of the opioid epidemic, such a holding would allow pharmaceutical companies to go unpunished for encouraging physicians to prescribe opioids at dangerous doses and rates.  While arguably physicians should still be held liable for their own roles in the opioid epidemic, by not extending this same liability to pharmaceutical companies there would be no deterrence to stop pharmaceutical companies from engaging in these fraudulent schemes too.  As such, pharmaceutical companies are likely to continue utilizing these harmful and fraudulent methods and will undoubtedly continue to use physicians as a proxy for engaging in such methods in the future if such actions are not met with liability.

Fraudulent misrepresentations should also be held to constitute proximate cause in civil RICO claims to allow plaintiffs to recover for their injuries.  Patients and TPPs routinely incur economic injury in paying for expensive drugs.[121]  Patients often incur additional financial harm when forced to sustain their habits.[122]  For example, following the onset of addiction, patients must often pay to continue to use prescription opioids, or when prescription opioids are unavailable, they must pay for other drugs, such as heroin and cocaine.[123]  When the financial harm stems from the patients’ continued use of prescription opioids, TPPs are also financially affected.[124]  Since addiction to these drugs results in the need for continued use, permitting such recovery would allow patients and TPPs to obtain some compensation for the harms wrongfully inflicted upon them.[125]  Therefore, pharmaceutical companies should not be allowed to cause such extreme harm and avoid responsibility,[126] especially when the societal harm caused by these misrepresentations far outweighs the corporate gains.  Thus, for society to fully recover, adequate recovery must be allowed.

Ensuring liability would also allow trust to be restored in the medical system. Patients need to feel comfortable seeking care from their physicians.  For this to occur, patients and other medical consumers must maintain a certain level of trust in the field of science and medicine.  Patients need to feel that their physicians are prescribing them medications for their own betterment, not for the personal gain or profit of the prescribing physician.  Thus, if pharmaceutical schemes, aimed to profit to the detriment of patients and TPPs, are ensured to be met with litigation, then pharmaceutical companies’ wrongful conduct will be deterred while increasing societal trust in the medical system.

Pharmaceutical executives must be held accountable before progress can be efficiently made.  Allowing plaintiffs to satisfy the requirements of proximate cause in civil RICO claims will allow the largest societal benefit.  Therefore, this position should be upheld in future civil litigation surrounding the opioid epidemic.

V. Recommendation

While pharmaceutical companies misrepresenting drugs to consumers and insurers to increase profits is certainly not a new occurrence, the opioid epidemic has arguably been the most widespread incidence of such an event.  Because the opioid epidemic can affect anyone and everyone, the opioid epidemic is arguably one of the most transcendent public health issues that the United States has ever encountered.  For this reason, the Supreme Court should grant certiorari on the issue of whether a fraudulent misrepresentation can constitute proximate cause in a civil RICO claim, especially regarding recovery for cases dealing with the opioid epidemic and the addictive tendencies of opioids.

The Supreme Court should grant certiorari on this issue because it is crucial for a uniform approach to be created and adhered to in the United States.  If the Supreme Court denies certiorari and allows this issue to remain with the various circuits, then pharmaceutical companies could continue to avoid liability.  Without a uniform approach, pharmaceutical companies can continue to bypass responsibility, establishing their companies in circuits that do not regard fraudulent misrepresentations as a sufficient means of causation in civil RICO claims.  Thus, by failing to grant certiorari on this issue, the Supreme Court would be allowing pharmaceutical companies, and their executives, to avoid prosecution for their wrongful acts by allowing them the opportunity to reside in circuits with favorable precedent.  Since the opioid epidemic affects every state on a national level, this sort of piecemeal approach across the circuits is not a suitable option; instead, the only way to truly curb these immense harms is with a uniform, national standard guaranteed to be consistently applied.

Should the Supreme Court grant certiorari to hear this issue of fraudulent misrepresentation as sufficient for proximate cause, the Court should follow the approach taken by the First, Third, and Ninth Circuits.  Victims of the opioid epidemic have suffered.  Not only have patients suffered physical injury, dealing with increased risk of disease or a newfound lifelong addiction, but patients have incurred financial injury in paying for drugs that not only did not ease their existing medical ailments, but also created new conditions that have further exacerbated their financial situations.  States and local communities have also suffered economic injury.  These communities have seen spikes in crime rates as consumers seek to maintain their habits and incur increased costs stemming from the need to provide treatment for their constituents.  As such, if the Court grants certiorari on the issue, not only should it hold that fraudulent misrepresentations are enough to assert proximate cause, but it should also hold that patients, TPPs, state governments, and municipal communities are all victims of such misrepresentations, and thus, are entitled to recovery.

The Supreme Court should also hold that fraudulent misrepresentations should be sufficient allegations of proximate cause because of the effect that such a holding would have on the legal system moving forward.  Allowing pharmaceutical companies to fraudulently misrepresent drugs at the peril of consumers and TPPs effectively contributes to the overburdening of the legal system.  With fewer persons addicted to drugs that often lead to addiction of more potent drugs, such as heroin and cocaine, the crime rates in local communities would arguably decrease.  With fewer crimes being committed by addicts attempting to maintain their habits, heavily impacted communities and the legal system would become less strained.  As such, the deterrence of fraudulent misrepresentations of a harmful drug’s side effects, especially opioids, would have immense societal benefit.  Thus, not only should the Court grant certiorari on this issue, but it should also hold that fraudulent misrepresentations of the addictive qualities of opioids are sufficient to allege proximate cause in civil RICO claims.

Conclusion

The opioid epidemic has recently subjected pharmaceutical companies to increased scrutiny, which will likely result in an uproar of future opioid epidemic litigation.  Should this litigation arise, the Supreme Court should grant certiorari on the issue of whether fraudulent misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for civil RICO claims.  Due to the policy considerations and societal implications the opioid epidemic has created, the Supreme Court should hold—as the First, Third, and Ninth Circuits have held—that misrepresentations of the addictive qualities of opioids are sufficient to show proximate cause for a civil RICO claim.

Shannon Porterfield[127]*

       [1].   Opioid Overdose Crisis, Nat’l Inst. on Drug Abuse (Mar. 11, 2021), https://www.drugabuse.gov/drug-topics/opioids/opioid-overdose-crisis.

      [2].   See Edgar Aliferov, Note, The Role of Direct-Injury Government-Entity Lawsuits in the Opioid Litigation, 87 Fordham L. Rev. 1141, 1142 (2018).

      [3].   See 18 U.S.C. §§ 1961–1968.

      [4].   See infra Part III.

      [5].   Societal costs soared in recent years, rising from roughly $55.7 billion in 2011 to $78.5 billion in 2016. Aliferov, supra note 2, at 1144; see also Nat’l Inst. on Drug Abuse, supra note 1.

      [6].   See Nat’l Inst. on Drug Abuse, supra note 1.

      [7].   Aaron Kessler et al., The More Opioids Doctors Prescribe, the More Money They Make, CNN (Mar. 12, 2018, 8:45 AM), https://www.cnn.com/2018/03/11/health/prescription-opioid-payments-eprise/index.html.

      [8].   Id.  Hosting such events is not illegal until and unless physicians receive kickbacks in exchange for prescribing the drugs.  Id.  A kickback is any form of payment provided in exchange for an action or transaction that is usually illegal or improper.  See What Is Kickback?, The Law Dictionary, https://thelawdictionary.org/kickback/#:~:text=Black’s%20Law%20Dictionary)-,What%20is%20KICKBACK%3F,job%2C%20contract%2C%20or%20order (last visited Aug. 24, 2021) (defining kickback as “a bribe for routing a job, contract, or order.”).

      [9].   Kessler et al., supra note 7.

     [10].   Id.

      [11].   Nat’l Inst. on Drug Abuse, supra note 1.

     [12].   Id.

     [13].   Id.

     [14].   Understanding the Epidemic, Ctrs. For Disease Control & Prevention, https://www.cdc.gov/drugoverdose/epidemic/index.html (last visited Aug. 24, 2021).

     [15].   Eugene McCarthy, A Call to Prosecute Drug Company Fraud as Organized Crime, 69 Syracuse L. Rev. 439, 442 (2019).

     [16].   Id.

     [17].   Id. at 478 (quoting Stephanie M. Greene, After Caronia: First Amendment Concerns in Off-Label Promotion, 51 San Diego L. Rev. 645, 648 (2014) (internal citation omitted)).

     [18].   McCarthy, supra note 15, at 478.

      [19].    Id. (brackets in original source) (quoting Art Van Zee, The Promotion and Marketing of OxyContin: Commercial Triumph, Public Health Tragedy, 99 Am. J. Pub. Health 221, 222 (2009)).

     [20].   Id. (quoting Zee, supra note 19, at 222).

     [21].   Richard Ausness, The Current State of Opioid Litigation, 70 S.C. L. Rev. 565, 586 (2019) (quoting Complaint and Demand for Jury Trial at 135, City of Lansing v. Purdue Pharma L.P., No. 1:17-CV-01114 (W.D. Mich. Dec. 19, 2017)).

     [22].   See Aliferov, supra note 2, at 1152–53, 1155.

     [23].   Id. at 1144.

     [24].   Id. at 1152.

     [25].   Id.

     [26].   Id. at 1153–54 (noting that Cardinal Health was sued for its failure to monitor suspicious orders for opioids, which West Virginia argued “facilitated the operation of pill mills throughout the state”).  Cardinal Health agreed to pay $20 million of the $36 million settlement.  Id. at 1154 n.94.

     [27].   See, e.g., id. at 1156–57 (“When initiated by a party other than the government, a direct-injury claim is simple: a plaintiff’s personal interests (e.g., health or property) have been injured by a third party and the plaintiff seeks to recover damages flowing from that injury.”).

     [28].   Id. at 1156.

     [29].   See generally id. at 1160 (noting that “plaintiffs employ either a tort-based theory or equitable theory to complete the direct-injury claim” and subsequently referencing the various tort theories, including RICO).  While RICO was enacted primarily to combat organized crime, its use in other contexts—including the opioid epidemic—has grown substantially, particularly because of its ability to “prosecute an entire criminal enterprise and its constituent members at once.”  McCarthy, supra note 15, at 471, 441.

     [30].   18 U.S.C. § 1962(c).

     [31].   In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *2 (N.D. Ohio Sept. 10, 2019) (quoting Boyle v. United States, 556 U.S. 938, 946 (2009)).

     [32].   Id. at *3; see also 18 U.S.C. § 1962(c) (stating that defendants must participate “directly or indirectly”).

     [33].   In re Nat’l Prescription Opiate Litig., 2019 WL 4279233, at *2 (quoting Frank v. D’Ambrosi, 4 F.3d 1378, 1386 (6th Cir. 1993)).

      [34].  David Farve et al., Racketeer Influenced and Corrupt Organizations, 57 Am. Crim. L. Rev. 1191, 1195, 1197 (2020) (quoting Nat’l Org. for Women, Inc. v. Scheidler, 510 U.S. 249, 256–57 (1994)). 

     [35].   Id. at 1197.  Such acts could include murder, robbery, bribery, extortion, or federal offenses involving bankruptcy or securities fraud.  Id. at 1195–96.  In the criminal context, the required acts that amount to racketeering activity can also include “mail fraud, wire fraud, insurance fraud, false claims, and honest services fraud.”  McCarthy, supra note 15, at 465.

     [36].   Farve et al., supra note 34, at 1197–98.

     [37].   Id. at 1207.

     [38].   McCarthy, supra note 15, at 466.

     [39].   Farve et al., supra note 34, at 1194.

     [40].   McCarthy, supra note 15, at 476.  In the pharmaceutical context, “[pharmaceutical] [e]xecutives, sales representatives, doctors, lawyers, and politicians” often make up such enterprises.  Id.

     [41].   See, e.g., In re Nat’l Prescription Opiate Litig., No. 1:17-md-2804, 2019 WL 4279233, at *3 (N.D. Ohio Sept. 10, 2019) (holding that the plaintiffs “produced sufficient evidence for a reasonable jury to conclude that all [d]efendants . . . associated together for the common purpose of expanding the prescription opioid market,” thereby forming a RICO enterprise).

     [42].   McCarthy, supra note 15, at 477–78.

     [43].   18 U.S.C. § 1964(c); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1248 (9th Cir. 2019).

     [44].   18 U.S.C. § 1964(c); Painters, 943 F.3d at 1248.

     [45].   Painters, 943 F.3d at 1248 (citing Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 268 (1992)).

     [46].   Ausness, supra note 21, at 595 (asking “whether the injury would have occurred in the absence of the defendant’s conduct”).

     [47].   Id. at 599.  In Ashley County v. Pfizer, Inc., drug companies selling over-the-counter cold medicines used to produce methamphetamine were said not to have proximately caused the counties’ increased costs even though they knew the medicine would be used to make methamphetamine.  552 F.3d 659, 662–73 (8th Cir. 2009).  The court held that the act of selling cold medicine was “totally independent” from the defendant’s production of methamphetamine.  Id. at 670; see also Ausness, supra note 21, at 599–600 (discussing the Ashley County opinion).

     [48].   Holmes, 503 U.S. at 268.

     [49].   503 U.S. 258.

     [50].   See id. at 269.

     [51].   Id. at 269–70 (citations omitted).

     [52].   Id. at 269.

     [53].   In re Avandia Mktg., Sales, Pracs. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d. Cir. 2015); see also Sidney Hillman Health Ctr. of Rochester v. Abbott Labs, 873 F.3d 574, 577 (7th Cir. 2017).  In Sidney Hillman, the plaintiffs’ claim was too speculative to meet the first Holmes requirement.  873 F.3d at 577.   The court held that it was too difficult for the court to determine whether TPPs would have incurred costs from paying for another medication or whether physicians would have prescribed the drug for off-label uses without solicitation; thus, there was too much speculation for the damages to be readily apparent.  Id.

     [54].   Holmes, 503 U.S. at 269.

     [55].   In re Neurontin Mktg. & Sales Pracs. Litig., 712 F.3d 21, 37 (1st Cir. 2013); Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharms., 943 F.3d 1243, 1251 (9th Cir. 2019).

     [56].   In re Neurontin, 712 F.3d at 38.

     [57].   Farve et al., supra note 34, at 1235.

     [58].   553 U.S. 639 (2008).

     [59].   Id. at 649 (citing Anza v. Ideal Steel Supply Corp., 547 U.S. 451, 476 (2006) (“Because an individual can commit an indictable act of mail or wire fraud even if no on relies on his fraud, he can engage in a pattern of racketeering activity . . . without proof of reliance.”)). 

     [60].   See id. at 656.  The RICO statute “provides no basis for imposing a first-party reliance requirement.”  Id. at 660.

     [61].   Id. at 658.

     [62].   Gabrielle Emanuel, Opioid Executive John Kapoor Found Guilty in Landmark Bribery Case, NPR (May 2, 2019, 2:37 PM), https://www.npr.org/2019/05/02/711346081/opioid-executive-john-kapoor-found-guilty-inlandmark-bribery-case; see also First Superseding Indictment at 7–8, United States v. Michael Babich, Crim. No. 16cr10343ADB (D. Mass. Oct. 24, 2017), https://www.justice.gov/usao-ma/page/file/1010246/download.

     [63].   First Superseding Indictment, supra note 62 at 16.

     [64].   Id. at 25–26.  This was especially dangerous due to the potency of the fentanyl-spray; if the fentanyl-spray was prescribed at the same dosage as other fentanyl-based products on the market, then the patient could risk a fatal overdose.  Id. at 10.

     [65].   Id. at 16–17.

     [66].   Id. at 32–33.

     [67].   See Emmanuel, supra note 62; see also Hannah Kuchler et al., Insys Executives Are Sentenced to Prison Time, Putting Opioid Makers on Notice, PBS (Jan. 23, 2020), https://www.pbs.org/wgbh/frontline/article/opioid-maker-insys-executives-sentenced-prison-subsys/.

     [68].   See Emmanuel, supra note 62.

     [69].   See infra Part III.A–B.

     [70].   See infra Part III.A–B.

     [71].   See Sergeants Benevolent Assoc. Health & Welfare Fund v. Sanofi-Aventis U.S. LLP, 137 S. Ct. 140 (2016).

     [72].   943 F.3d 1243 (9th Cir. 2019).

     [73].   Id. at 1252–53.

     [74].   Id. at 1246 (alleging that defendants misrepresented the risk of bladder cancer to increase sales of Actos).

     [75].   Id. at 1247, 1251.

     [76].   Id. at 1251.

     [77].   Id. at 1252 (reasoning that “all patients and TPPs who paid for Actos on the premise that it did not cause an increased risk of bladder cancer were allegedly defrauded by Defendants and suffered the same direct, economic injury: payments for a drug which would not have been purchased if suitably described”).

     [78].   Id. at 1257.

     [79].   Id.

     [80].   See generally In re Epogen & Aranesp Off-Label Mktg. & Sales Pracs. Litig., No. MDL 08-1934 PSG, 2009 WL 1703285 (Cal. June 17, 2009) (detailing the contrary holding).

     [81].   See In re Epogen, 2009 WL 1703285, at *7–8.

     [82].   See Painters, 943 F.3d at 1257–59 (discussing the benefits of deterring wrongful conduct and allowing economic recovery for victims).

     [83].   712 F.3d 21 (1st Cir. 2013).

     [84].   Id. at 25–26.

     [85].   Id. at 28.

     [86].   Id. at 30.

     [87].   Id. at 37–38.

     [88].   804 F.3d 633 (3d Cir. 2015).

     [89].   Id. at 635.

     [90].   Id.

     [91].   Id. at 635–36.

     [92].   Id. at 645.

     [93].   Id.

     [94].   Id.

     [95].   873 F.3d 574 (7th Cir. 2017).

     [96].   Id. at 575.  While physicians can prescribe medications to their patients to treat off-label conditions, drug manufacturers are prohibited from promoting drugs for such purposes.  Id.

     [97].   Id. at 577; see also Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269 (1992).

     [98].   Sidney Hillman, 873 F.3d at 578.

     [99].   620 F.3d 121 (2d Cir. 2010).

   [100].   Id. at 133–34.

   [101].   Id. at 134.

   [102].   See supra Part III.A.  Sidney Hillman and UFCW deal with fraudulent promotions of “off-label” uses and pricing decisions rather than a fraudulent failure to warn of a drug’s known risk of harmful side effects.  See supra Part III.B.

   [103].   See First Superseding Indictment, supra note 62, at 7–8.

   [104].   See id. at 26–27; see also Kuchler et al., supra note 67; Emanuel, supra note 62; In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 635 (3d Cir. 2015).

   [105].   See First Superseding Indictment, supra note 62, at 7–8, 26–27; In re Avandia, 804 F.3d at 635.

   [106].   See Painters & Allied Trades Dist. Council 82 Health Care Fund v. Takeda Pharmas., 943 F.3d 1243, 1246 (9th Cir. 2019).

   [107].   See First Superseding Indictment, supra note 62, at 17–18, 20 (quoting Burlakoff telling a sales representative “[t]hey do not need to be good speakers, they need to write a lot of . . . [prescriptions for the Fentanyl-Spray]”); In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 28 (1st Cir. 2013).

   [108].   See In re Neurontin, 712 F.3d at 40; Emanuel, supra note 62; see also First Superseding Indictment, supra note 62, at 32–33 (misleading insurers as to their employment, patient diagnoses, and past medications used).

   [109].   In re Neurontin, 712 F.3d at 40; First Superseding Indictment, supra note 62, at 20–22, 27, 30–31.

   [110].   See supra Part III.A.

   [111].   See In re Avandia Mktg., Sales, Prac. & Prod. Liab. Litig., 804 F.3d 633, 640 (3d Cir. 2015).

   [112].   See supra notes 52–53 and accompanying text.

   [113].   In re Avandia, 804 F.3d at 644.

   [114].   See Holmes v. Sec. Inv. Prot. Corp., 503 U.S. 258, 269–70 (1992); see also supra notes 54–55 and accompanying text.

   [115].   Painters, 943 F.3d at 1251–52; see also In re Neurontin, 712 F.3d at 37.

   [116].   In re Avandia, 804 F.3d at 645–46; Painters, 943 F.3d at 1251–52.

   [117].   See, e.g., Painters, 943 F.3d at 1251–52.  It does not matter if some plaintiffs incurred extra or less harm from taking a drug that has harmful benefits; all patients are held to suffer the same direct economic injury.  Id.

   [118].   In In re Avandia, the court noted that TPPs are held to “suffer[] direct economic harm when, as a result of [a pharmaceutical company’s] alleged misrepresentations, they pa[y] supracompetitive prices for [brand drugs] instead of purchasing lower-priced generic [drugs].”  In re Avandia, 804 F.3d at 639–40 (citing In re Warfarin Sodium Antitrust Litig., 391 F.3d 516, 531 (3d Cir. 2004)).

   [119].   Painters, 943 F.3d at 1257.

   [120].   Id.

   [121].   See, e.g., id. at 1252 (discussing how patients and TPPs suffered economic injury paying for the drug Actos, which they would not have purchased if not for the fraudulent misrepresentation).

   [122].   See generally Nat’l Inst. on Drug Abuse, supra note 1 (discussing the “total ‘economic burden’ of prescription opioid misuse . . . including the costs of healthcare, lost productivity, addiction treatment, and criminal justice involvement”).

   [123].   See id. (stating that roughly five percent of those who developed an opioid addiction transitioned to heroin and roughly eighty percent of those who use heroin misused opioids before using heroin).

   [124].   See, e.g., In re Neurontin Mktg. & Sales Prac. Litig., 712 F.3d 21, 38–39 (1st Cir. 2013) (showing that TPPs incur injury from paying for additional prescriptions due to fraudulent marketing schemes).

   [125].   Id.

   [126].   Id. at 38–39.

       *.   J.D. Candidate 2022, Wake Forest University School of Law.  Shannon would like to thank the Wake Forest Law Review Board and Staff for their hard work and time on this Comment.  She would also like to thank her family and friends for their unyielding support and encouragement.

11 Wake Forest L. Rev. Online 70

Alan J. Meese*

I. Introduction

       Horizontal restraints are unlawful per se unless a court can identify some redeeming virtue that such restraints may create.  In National Collegiate Athletic Association v. Board of Regents of the University of Oklahoma (“NCAA”),[1] the Supreme Court rejected this standard, refusing to condemn horizontal restraints on price and output imposed by the NCAA without specifying any possible redeeming virtues.[2]  The Court emphasized that other restraints not before the Court were necessary to create and maintain athletic competition like that supervised by the NCAA.[3]  This exemption for sports leagues ensures that all restraints imposed by such entities merit Rule of Reason scrutiny, regardless of how harmful they appear.

   Building on a forthcoming article,[4] this Essay contends that NCAA’s sports league exemption contravenes traditional antitrust principles, including the ancillary restraints doctrine (which NCAA ignored). This Essay also argues that the exemption increases the number of false negatives and potentially impedes the conduct of Rule of Reason analysis.  Finally, this Essay explains how the exemption inspired and informed an ill-advised doctrinal innovation, the so-called “Quick Look” methodology of Rule of Reason analysis, whereby courts condemn certain restraints “in the twinkling of an eye.”[5]  Some lower courts have recently extrapolated from this approach and exempted restraints limiting rivalry for the services of student athletes from Rule of Reason scrutiny, rendering such restraints lawful per se.[6]

       The United States Supreme Court is currently reviewing the Ninth Circuit’s holding in National Collegiate Athletic Association v. Alston, which condemned NCAA regulations limiting the size of athletic scholarships.[7]  This Essay provides the Alston Court with a roadmap for eliminating the sports league exemption, thereby placing such restraints on equal footing with restraints imposed by other entities.  The Essay also advises the Court to reject lower court decisions that built upon the Quick Look doctrine and have treated restraints governing student athlete eligibility as lawful per se, thus exempting them from Rule of Reason scrutiny.  Finally, the Essay concludes that the restraints before the Court in Alston may well produce cognizable antitrust benefits by overcoming the market failure that would result from unbridled rivalry for the services of student athletes. The Essay submits that the Court should articulate a Rule of Reason methodology in Alston that reflects the non-technological nature of such efficiencies.

II. The Rule of Reason and the Per Se Rule

The Sherman Act bans agreements “in restraint of trade.”[8] In Standard Oil Co. of New Jersey v. United States,[9] the Court read the Act to prohibit only agreements that restrain trade “unreasonably,”[10] i.e., produce monopoly or its consequences: higher prices, reduced output.  and/or reduced quality.[11]  Ordinary application of this Rule of Reason is fact-intensive, requiring plaintiffs to establish that the restraint produces concrete antitrust harm.[12]  But certain restraints are “unlawful per se,” and do not warrant full-blown analysis.[13]  In Northern Pacific Railway Co. v. United States (“NPR”), the Court articulated a two-part standard for determining whether restraints in a particular category are always unreasonable and thus unlawful per se.[14]  NPR requires courts to ask two questions about restraints in the category: do such restraints produce a “pernicious effect on competition” and, if so, do they also always lack redeeming virtues.[15] 

Despite NPR’s reference to pernicious effects, application of this first prong does not require a judicial prediction that restraints will produce actual economic harm.[16]  Instead, courts treat elimination of rivalry as itself a “pernicious effect.”[17]  Numerous garden variety restraints, including formation of partnerships and restraints ancillary thereto, produce a “pernicious effect” under this prong.[18]  Whether this standard condemns a restraint thus turns on the second prong, namely, whether restraints lack redeeming virtues.[19]  For example, price fixing between two independent lawyers is unlawful per se because such agreements cannot create redeeming virtues.[20]  But formation of a partnership by the same lawyers might produce redeeming virtues and thus merits Rule of Reason treatment.[21]  Both restraints extinguish horizontal price rivalry.  But formation of the partnership may also produce redeeming virtues.[22]

The NPR standard post-dates the ancillary restraints doctrine.[23]  But both doctrines ultimately ask the same question about horizontal restraints: can eliminating rivalry also produce efficiency benefits?  While the NPR standard takes a categorical approach, the ancillary restraints doctrine applies case-by-case.[24]  Repeated applications of the ancillary restraints doctrine could establish that particular categories of restraints never or sometimes produce redeeming virtues, thus informing application of the NPR standard.[25]

If restraints cannot produce such virtues, courts may safely conclude that parties have invested resources to create an agreement that restricts rivalry with no prospect of efficiencies.  This conclusion implies that the parties believe they can exercise market power.[26]  Even if the parties are incorrect, condemnation of such restraints does no harm and deters future price fixing.[27]

  If restraints may produce such virtues, further inquiry is warranted regarding their ultimate impact.  Moreover, a court assessing such restraints under full-blown Rule of Reason analysis must begin by assuming that the restraint before it might produce such benefits and calibrate the methodology of such inquiry accordingly.

The Court initially recognized very few redeeming virtues, limiting the category to what Nobel Laureate Oliver Williamson describes as technological efficiencies.[28]  Beginning with Continental T.V. v. GTE Sylvania, Inc.,[29] the Court has repeatedly recognized a different category of virtues—namely, correction of market failures that would occur if parties to the restraint had instead continued unbridled rivalry.[30]  As this Essay submits, the methodology of full-blown Rule of Reason analysis should turn upon the nature of these virtues.

III.  NCAA’s Misapplication/Ignorance of NPR and Resulting Sports League Exemption

In Board of Regents of the University of Oklahoma v. National Collegiate Athletic Association,[31] the Court evaluated an agreement setting the price and output of televised college football games.[32]  Plaintiffs University of Georgia and University of Oklahoma, who presumably supported restrictions on player compensation, challenged the price and output restrictions.[33] Courts at the time defined redeeming virtues narrowly in the horizontal context, banning as unlawful per se restraints that seemed plainly ancillary to legitimate ventures.[34]  Nonetheless, the Tenth Circuit rejected automatic condemnation, at least arguendo, and assessed whether the restraints were ancillary to the NCAA’s legitimate venture.[35]  Answering this question in the negative, the court condemned the restraints.[36]

The defendants reiterated their invocation of the ancillary restraints doctrine in the Supreme Court in NCAA.[37]  However, the Court did not mention the NPR standard or the ancillary concept.  Thus, the Court did not ask whether the restraints might produce redeeming virtues or enhance the efficiency of a valid venture.  Instead, the Court immunized the restraints before it from per se condemnation because the NCAA had adopted other restraints not before the Court that would survive per se condemnation.[38]  Such other restraints included horizontal agreements ensuring that players were bona fide students and were not semi-professional athletes that vaguely associated with the university.[39]  These latter rules, the Court said, included bans on paying players.

Lower courts, including the Ninth Circuit in In re National Collegiate Athletic Association Athletic Grant-in-Aid Cap Antitrust Litigation (“Alston”),[40] have properly read NCAA to exempt restraints imposed by sports leagues from per se condemnation, regardless of whether the restraint may produce redeeming virtues.[41]  As Professor Hovenkamp has explained, this exemption would “shelter an agreement between member schools fixing the price of admission tickets or of hot dogs purchased in the stands.”[42]  Unlike restraints that merit Rule of Reason scrutiny because they survive the NPR standard or the ancillary restraints test, restraints enjoying the sports league exemption will necessarily include entire categories of restraints that would ordinarily be unlawful per se because they cannot produce redeeming virtues.  Thus, courts cannot assume there is some probability that such restraints might produce redeeming virtues.  Instead, courts must assume that application of NPR’s second prong would condemn some such restraints as unlawful per se.

By invoking restraints not before it to justify the sports league exemption, the Court assumed that such restraints would themselves avoid per se condemnation.  This assumption was surprising, given the Court’s recent condemnation of apparently beneficial horizontal restraints in decisions it expressly reaffirmed.[43]  While the Court admitted that restrictions on player compensation prevented price competition, it opined that unbridled rivalry for the services of student athletes would transform the NCAA into a semi-professional league, tarnishing the league’s brand—college football—associated with an academic tradition.[44]  The Court analogized such restraints to vertical agreements that simultaneously restricted intra-brand rivalry but enhanced inter-brand competition by overcoming market failure.[45]  Lower courts have read this language as retracting the scope of the per se rule vis a vis horizontal restraints more generally.[46]

IV. The Sports League Exemption Has No Basis

NCAA’s sports league exemption saved numerous restraints, including those before it, from a substantially overinclusive per se rule.[47]  Many such restraints were likely procompetitive.  Perhaps the exemption was a second-best tactic for mitigating the anti-consumer impact of an overly broad per se rule.  The Supreme Court, however, has undermined this justification by narrowing the scope of the per se rule.  Moreover, this exemption contradicts basic antitrust principles and has produced other negative consequences, including an additional and stronger exemption, as described below in Part V.

The Court did not explain why antitrust treatment of restraints not before it determines the per se status of those restraints that are.  Horizontal cooperation is necessary to create and maintain numerous other ventures besides sports leagues.[48]  However, courts do not immunize restraints imposed by such other ventures from per se condemnation simply because the restraints accompany a valid venture.  Instead, courts employ the ancillary restraints doctrine to test whether such restraints might produce cognizable benefits that further the venture and thus warrant an additional fact-based assessment.[49]  The content and nature of this threshold inquiry assumes that sometimes the answer to this question will be “no.” That is, some restraints that accompany an otherwise valid joint venture cannot produce any cognizable benefits but will instead simply reduce rivalry simpliciter.[50]  Courts condemn such restraints while allowing the venture to proceed.[51]

Robert Bork, who rehabilitated the ancillary restraints doctrine, endorsed this approach in a path-breaking article.[52]  Bork explained that horizontal restraints that accompanied lawful ventures were not ancillary if they were “incapable of adding to the efficiency of the integration which they seemingly accompany.”[53]  Bork instanced a restrictive covenant that accompanied formation of a “product safety testing laboratory” by horizontal rivals.[54]  The formation and operation of the laboratory would constitute lawful concerted action, just like formation and continued operation of the NCAA.[55]  Still, Bork concluded that the covenant could not be ancillary and was thus unlawful per se.[56]  Bork’s analysis confirms that is no reason to treat restraints that accompany sports leagues more favorably  than those that accompany other ventures when applying the NPR standard.

V. Retaining the Sports League Exemption Does Positive Harm

Perhaps the sports league exemption is a case of “no harm, no foul.”  Most exempted restraints would merit Rule of Reason scrutiny under more recent applications of the NPR standard anyway.  Moreover, both NPR and Rule of Reason analysis ultimately ask whether challenged restraints produce monopoly or its consequences.[57]  Per se condemnation reflects a conclusion that Rule of Reason analysis will condemn the restraint.[58]  As shown below, however, the sports league exemption still does positive harm, both by weakening the per se rule and also by distorting related aspects of antitrust doctrines. In particular, the exemption has contributed to a distortion of the methodology of Rule of Reason analysis that courts apply and not merely those adopted by sports leagues.

V.A. The Sports League Exemption Deters Legitimate Challenges and Increases False Negatives.

Full-blown Rule of Reason analysis is not free.  Plaintiffs must expend resources to establish a prima facie case by proving either: (1) the restraint produces actual detrimental effects or (2) the parties possess the economic power necessary to impose harm.[59]  Defendants can contest these assertions, further increasing adjudication costs.  Plaintiffs fail to establish such a case 97 percent of the time.[60]  Presumably, numerous potential plaintiffs do not attempt such a showing, leaving harmful restraints unchallenged.  Knowing this, defendants will, at the margin, adopt some unambiguously harmful restraints they otherwise would not have adopted, knowing, as they will, that the sports league exemption will raise the bar for plaintiffs challenging such restraints.[61]  In sum, the sports league exemption both increases the number of false negatives and encourages additional harmful restraints.

V.B. The Sports League Exemption Distorts the Rule of Reason Methodology That Courts Employ.

Rule of Reason methodology should turn upon the nature of possible redeeming virtues that save restraints from per se condemnation.  Application of the NPR standard and ancillary restraints doctrine, both of which NCAA ignored, identifies the relevant virtues, if any, that restraints might produce.  If such virtues are technological, the three-part Rule of Reason test applied in Alston and informed by NCAA is generally appropriate.[62]  Proof of higher prices (or in Alston, reduced compensation) should establish a prima facie case, casting upon the defendants a burden to adduce evidence of such efficiencies.[63]  If defendants satisfy this burden, plaintiffs can prove a less restrictive alternative or show that the restraint’s harms exceed its benefits.[64]  This framework assumes whatever benefits defendants prove coexist with the harms that plaintiffs purportedly demonstrated to establish a prima facie case.[65]

However, some restraints survive per se condemnation because they may produce non-technological efficiencies by overcoming market failure.[66]  Here, a price-based standard makes no sense.  If restraints overcome market failure, pre-restraint prices reflect a poorly functioning market that the restraint corrects.  Such prices are not a useful benchmark for comparison to post-restraint prices.  Instead, proof that post-restraint prices exceed the pre-restraint baseline is entirely consistent with a conclusion that the agreement overcomes a market failure and produces redeeming virtues, the prospect of which resulted in Rule of Reason treatment.[67]  Antitrust procedure thus precludes allowing plaintiffs to prevail based solely upon such evidence.[68]

Moreover, once a plaintiff does make out a prima facie case in whatever way, proof that the restraint produces significant non-technological benefits undermines the rationale for balancing benefits against harms.  Such balancing presumes that the restraint produces simultaneous harms and benefits, like a merger to monopoly that generates economies of scale that may offset the transaction’s harms.[69]  However, a defendant’s showing that a restraint overcomes a market failure undermines the assumption that benefits coexist with harms.[70]  Instead, the evidence is at least equally consistent with the conclusion that the restraint only produces benefits—benefits that manifest themselves as prices higher than those produced by the pre-restraint, poorly functioning market.[71]  Similar logic undermines the search for “less restrictive” alternatives, because there is no reason to assume that the challenged restraint is “restrictive” in the first place.

The sports league exemption deprives courts of the information necessary to ascertain what Rule of Reason methodology makes sense.  Alston may be such a case.

V.C. The Exemption Encouraged Adoption of an Ill-Considered “Quick Look” Methodology of Rule of Reason Analysis.

The restraint before the Court in NCAA expressly set price and output.  Without identifying any redeeming virtues, the Court nonetheless assessed the restraints under the Rule of Reason, because they accompanied a sports league and were thus exempt from the NPR standard.[72]  The Court began by invoking the District Court’s findings that the restraint had increased prices compared to a (hypothetical) non-restraint baseline.[73]  Absent possible redeeming virtues, this price-based method of making out a prima facie case made perfect sense.  Nonetheless, the NCAA contended that the plaintiffs’ case should fail absent proof that the defendants possessed sufficient shares of a properly defined market.[74] 

The Court could have invoked its ultimate conclusion that the defendants did, in fact, possess a large share of a properly defined market.[75]  Instead, the Court issued a broader pronouncement, applicable well-beyond the case before it, regardless of a defendant’s market position.  In a passage that quoted National Society of Professional Engineers v. United States,[76] the Court announced:

As a matter of law, the absence of proof of market power does not justify a naked restriction on price or output. To the contrary, when there is an agreement not to compete in terms of price or output, ‘no elaborate industry analysis is required to demonstrate the anticompetitive character of such an agreement.’[77]

The Court also quoted Professor Areeda’s assertion that some restraints were so obviously harmful that courts could condemn them “‘in the twinkling of an eye.’”[78]

The Court’s quotation of Professional Engineers suggests that it equated “naked” restraints with those that could not produce redeeming virtues.[79]  Combined with the “twinkling of an eye” metaphor, this language inspired the so-called “Quick Look” methodology of Rule of Reason analysis.[80] Under this approach, plaintiffs may avoid establishing actual detrimental effects or market power if they convince the tribunal that, while not unlawful per se, the restraint is nonetheless “inherently suspect.”[81]  Initially, some proponents touted the Quick Look as a pro-defendant “safety valve” that tempered an overbroad per se rule.[82]

As a matter of decision theory, this approach makes perfect sense in a case like NCAA.  If a particular class of restraint is usually anticompetitive and rarely, if ever, produces benefits, the chance of false positives is extremely low.  Reducing plaintiffs’ burden of establishing a prima facie case would (properly) encourage such challenges and minimize the resources expended on litigation. 

However, advocates and courts have not confined the Quick Look to restraints deemed “naked” because they lack redeeming virtues.[83]  Indeed, the Alston plaintiffs began their argument before the Supreme Court by attempting to expand the definition of “naked,” contending that the challenged restraints were “naked,” despite the finding below that they produced significant benefits.[84]  Moreover, scholars and courts have held out the possibility that a restraint may be inherently suspect and thus subject to the Quick Look, regardless of whether it is “naked” as defined by NCAA.[85]  Once courts and agencies created the Quick Look methodology, plaintiffs naturally pressed courts to declare numerous restraints “inherently suspect,” hoping to eliminate the burden of establishing antitrust harm.[86]  The result has been an increase in expensive and distracting disputes about whether various restraints are “inherently suspect”—disputes that defendants almost always win.[87]  The cost of such disputes produces no offsetting social benefits, as failure to establish that a restraint is inherently suspect relegates plaintiffs to the standard requirement to prove anticompetitive harm anyway.

To be sure, a more expansive definition of “inherently suspect” could seemingly lighten plaintiffs’ burdens in a larger number of cases.  However, proponents of the Quick Look have not offered a tractable methodology for distinguishing “inherently suspect” restraints from those properly assessed under full-blown Rule of Reason analysis.[88]  Absent such a methodology, the pro-plaintiff Quick Look is probably best reserved for those restraints that do not merit Rule of Reason scrutiny in the first place—a set that would be empty if courts properly and uniformly applied the NPR standard and ancillary restraints test.

In any event, the Quick Look has always rested on shaky jurisprudential ground.[89]  NCAA’s suggestion that the nakedness of a restraint itself establishes a prima facie case was dicta, given the district court’s finding that the restraint produced actual detrimental effects.[90]  Moreover, Professor Areeda’s “twinkling of an eye” metaphor described a hypothetical case in which courts determined at the summary judgment stage that defendants possessed a dominant market position and thus market power.[91]  This conclusion did not support any suggestion that the mere existence of a restraint, no matter how apparently harmful, could itself establish a prima facie case.[92]  Finally, while the Supreme Court has endorsed the Quick Look in concept,[93] it has never condemned a restraint under the Rule of Reason without first finding that the agreement produced concrete anticompetitive harm.[94]

Moreover, NCAA’s assertion that “naked” restraints should themselves establish a prima facie case regardless of market share or anticompetitive effects was dicta, given the Court’s holding that the plaintiffs had in fact established market power and actual detrimental effects.  Finally, the actual agreement before the Court, which could not produce redeeming virtues, bore little meaningful resemblance to restraints such as those in Alston that could produce such virtues.  It would thus be hazardous, to say the least, to generalize these dicta to apply to potentially beneficial restraints.[95]  Indeed, the only restraints that would seem analogous to those before the NCAA Court are those that should be condemned as unlawful per se in the first place.  NCAA’s unjustified exemption of the restraints before it from per se condemnation thus inspired a methodology of Rule of Reason analysis that was in fact only appropriate for restraints that were not properly subject to Rule of Reason analysis in the first place.

V.D. NCAA Inspired a New and More Powerful Exemption.

NCAA spawned another, more powerful exemption, one squarely before the Court in Alston.  The Quick Look’s logic cuts both ways.  If some restraints that survive per se condemnation are almost always harmful on balance, presumably some are nearly always beneficial.  An antitrust regime could reflect this fact, making it especially difficult for plaintiffs to establish a prima facie case and/or easier for defendants to rebut such a case.  Over a decade ago, the Seventh Circuit embraced such logic, holding that a NCAA Bylaw is “presumed procompetitive” when it is “clearly meant to help maintain the ‘revered tradition of amateurism in college sports’ or the ‘preservation of the student-athlete in higher education.’”[96]  The court built upon dicta in American Needle, Inc v. National Football League,[97] which itself invoked NCAA’s mistranslation of Professor Areeda’s “twinkling of an eye” metaphor.[98]

Defendants have invoked this line of precedent, albeit without the term “Quick Look,” preferring instead the phrase “twinkling of an eye.”[99]  Indeed, this pro-defendant approach is really a rule of per se legality and thus an outright exemption from antitrust scrutiny for covered restraints because the “presumption” in favor of such restraints is irrebuttable.[100]  It is likely no coincidence that this pro-defendant irrebuttable presumption arose in the context of sports leagues in general and the question of student athlete eligibility in particular.  After all, the very existence of NCAA’s sports league exemption broadcasts that “sports are different” and are therefore susceptible to more relaxed antitrust scrutiny than more mundane commercial endeavors.  Thus, a pro-plaintiff methodology born from an unjustified sports league exemption has morphed into a second and more ironclad exemption. This Essay contends that the Court should reject this exemption as contrary to antitrust doctrine and policy.[101]

VI. What the Court Can Do About It In Alston

What, then, can the Supreme Court do to correct for this untethered and harmful sports league exemption and the subsequent doctrinal consequences described above?  Most aggressively, the Court could order re-argument and add three questions for consideration: (1) are all restraints imposed by sports leagues exempt from per se condemnation under the NPR standard?; (2) do restraints such as those reviewed in Alston possibly produce redeeming virtues?; and (3) if so, what are those virtues?  After such re-argument, the Court could overrule that portion of NCAA creating the sports league exemption, while reiterating the condemnation of express limitations on price and output of televised games.[102]  The Court would then have to face the question that has eluded a fully considered decision since 1984, namely, whether horizontal restrictions on player compensation can produce redeeming virtues and thus survive per se condemnation under the NPR standard.

The Court could also take a different approach altogether, confining itself to the present record and arguments.  The Court could still begin by noting that it is only applying the exemption arguendo because neither party challenged it.  It could also note that it generated the exemption when courts misapplied the NPR standard and banned bona fide ancillary restraints, such that the exemption saved many procompetitive restraints from wrongful condemnation.[103]  The Court could then note that, given today’s more accurate application of the NPR standard, the exemption no longer performs this function.[104]  Such a statement could encourage lower courts to abandon the exemption, teeing up Supreme Court review.

Application of the exemption would ordinarily preclude consideration of whether the challenged restraints might produce redeeming virtues until after the plaintiff establishes a prima facie case.  But the Alston Court could answer this question before a full-blown analysis.  The defendants’ bid to exempt their restraints from even Rule of Reason scrutiny necessarily assumes that such restraints usually, or even always, produce redeeming virtues by protecting and enhancing the amateur nature of NCAA sports from unbridled rivalry for players.[105]  While not a sufficient condition for such an exemption, this assumption is certainly necessary.[106]

Recent commentary and some questions at oral argument, however, seem to take issue with this threshold assumption by, for instance, analogizing limits on player compensation to putative limits on coaches’ salaries.[107]  The latter, of course, would be unlawful per se absent the sports league exemption.[108]  Indeed, the plaintiff began its oral argument by characterizing the restraints before the Court as “naked horizontal monopsony restraints that would be per se unlawful in any context.”[109]

This Essay submits that the NCAA dicta correctly signaled that agreements restricting player compensation could create redeeming virtues, notwithstanding Nick Saban’s unregulated salary.[110]  To be sure, the restraints restrict atomistic rivalry for players.  But as Standard Oil itself recognized, some agreements that restrict atomistic rivalry have the “legitimate purpose of reasonably forwarding personal interest and developing trade” and are thus not unreasonable.[111]  The Court in Sylvania concurred, explaining that some restrictions on “a purely competitive situation” can overcome free riding, correct a market failure, and enhance inter-brand competition.[112]  There is no reason to suspend this logic because the restraints govern buying rather than selling.[113]  NCAA’s dicta, which addressed the validity of compensation limits, expressly invoked Sylvania, suggesting that such restraints could “enhance market-wide competition.”[114]

Sylvania and NCAA assumed that product differentiation is beneficial.  Moreover, the “more accurate economic conceptions” that courts must apply when assessing restraints in “the light of reason” bolster NCAA’s assertion that unbridled rivalry will produce insufficient differentiation.[115]  Imagine that schools could include non-students on teams, perhaps providing compensation equal to the cost of attendance.[116]  Each team would fully internalize the private benefits of including non-students. These benefits could include, for example, improved winning percentages.  But no school would internalize the full impact of such participation upon the nature of the product.  If a few schools chose this route, others would predictably follow suit, producing an equilibrium where few, if any, schools fielded teams exclusively populated by students.  Only a horizontal agreement preventing rostering non-students would reliably prevent a race to the bottom that would transform college football into a football team owned by a college but full of non-students.

The agreement just described is as “pernicious” under NPR as one restricting player compensation.[117]  Both restrict rivalry for inputs.  But plaintiffs have properly declined to challenge such restrictions.[118]  This concession reflects recognition that unbridled rivalry over the composition of rosters would produce a market failure manifesting itself in negative differentiation of the NCAA’s product, reduced inter-brand competition, and decreased consumer welfare.[119]  Translated into the NPR standard and ancillary restraints test, such restrictions can produce redeeming virtues and enhance the efficiency of an otherwise valid venture.

Defendants’ bid for a stronger exemption regarding compensation restrictions rests upon a similar claim.  Unbridled compensation rivalry, they say, will result in an additional market failure, also undermining the quality of the NCAA’s product and reducing demand.[120]  Indeed, plaintiffs have asserted that the challenged restraints reduce student-athlete compensation compared to what unfettered rivalry will produce.[121]  Such limits on compensation rivalry reinforce the requirement that participants be students.  If schools could pay whatever the market would bear, the supply of non-student labor would increase significantly, in both numbers and quality, thus increasing schools’ temptation to include non-student participants and undermining the “student-only” policy.

The defendants, district court, and Ninth Circuit agree that the propensity of a restraint to prevent unbridled compensation rivalry helps differentiate collegiate from professional sports, improving consumer welfare.[122]  They only disagree as to the magnitude of benefits and as to whether the restrictions are broader than necessary.[123]  Thus, both lower courts agreed that restrictions on compensation unrelated to education—that is, restrictions that prevent the payment of an outright salary—are procompetitive, even though such restrictions extinguish the very rivalry that would produce the largest increase in student-athlete compensation.[124]  Indeed, one implication of Alston’s result is that a less restrictive means of achieving the objective would entail voluntary integration, independent of any exercise of market power.[125]  No one has articulated a similar account of how limiting coaching staffs to students, for instance, or limiting coaches’ salaries to the cost of attendance, would distinguish the quality of the product that schools offer to paying fans in a manner that would appeal to consumers.[126]

However, a conclusion that compensation restraints may produce redeeming virtues is simply a necessary condition for application of the player eligibility exemption.  Proponents must also explain why this stronger exemption is superior to Rule of Reason scrutiny.  Hopefully, the Court will reject this proposed new exemption, at least for now.  As explained in Subpart V.C of this Essay, the basis for the original Quick Look, on which American Needle’s dicta tried to build, was questionable at best.[127] 

Therefore, the pro-plaintiff Quick Look has very little to recommend it and is surely no model for further doctrinal evolution that completely shields some concerted action from Sherman Act scrutiny.  NCAA’s apparent endorsement of “a great majority of such restrictions” was dicta and rested in part upon a concession by plaintiffs—the University of Georgia and the University of Oklahoma—with strong economic interests to preserve such restrictions.[128]  Even on their own terms, these dicta conceded that some such restrictions did not enhance competition, thereby implying that courts should assess such restraints under the Rule of Reason to separate the wheat from the chaff.

Proponents of narrowing the scope of per se rules in favor of full-blown Rule of Reason analysis in other contexts have persuasively explained that such fact-intensive scrutiny can generate information about the actual impact of restraints previously condemned, thereby informing future assessment regarding whether something other than full-blown analysis is appropriate.[129]  Such scrutiny can also help parties, courts, and scholars hone their theoretical conceptions regarding how to think about the impact of such restraints and what questions a tribunal should ask when examining them.  By analogy, the exemption sought by the defendants would prevent the generation of information about the impact of exempted agreements that decisions such as O’Bannon and Alston have themselves produced, information that scholars and practitioners alike can employ to assess their true economic effect.  Perhaps such assessments would confirm defendants’ assumption regarding the uniformly procompetitive nature of such agreements, but perhaps not.

Of course, at least in the short run, a full-blown Rule of Reason assessment will consume more resources than the defendants’ new exemption.  But this would be true of any exemption from ordinary full-blown analysis.  Moreover, this putative benefit is partly illusory.  Once parties understand that inclusion in a particular category will obviate Rule of Reason scrutiny, defendants will predictably invest resources attempting to convince courts that restraints in fact fall into this category, while plaintiffs will invest resources to prove the opposite.[130]  These additional litigation-related investments will partly offset the savings from eliminating full-blown scrutiny.  Finally, as noted earlier, the prospect of complete exemption from any antitrust scrutiny will encourage potential defendants to adopt some eligibility related restraints that are anticompetitive on balance, knowing as they will that such restraints will be immune from antitrust scrutiny.[131]

Assuming the Court does reject the defendant’s bid for a new exemption, it will finally have to wrestle with the problem that consumed the Ninth Circuit—namely, application of the full-blown Rule of Reason to the challenged restraints.  Here, NCAA itself strongly bolsters the Ninth Circuit’s approach, which found that plaintiffs had established a prima facie case by showing that, but for the restraints, NCAA members would have provided greater compensation to student-athletes—at least those playing football and basketball.[132]  However, as explained in Part V.B of this Essay, this approach seems to contradict the apparent rationale for rejecting per se condemnation of such restraints in the first place.[133]  After all, if such restraints do in fact avoid per se condemnation, they do so because they may produce non-technological efficiencies by eliminating or attenuating a market failure.[134]  Thus, proof that such restraints reduce player compensation below the level that unbridled rivalry would produce is unremarkable given that such restraints would properly survive per se condemnation in the first place.[135]  That is, a conclusion that such proof establishes a prima facie case rests upon an arbitrary choice between two entirely different accounts of the impact of such restraints; one reflecting a harmful exercise of market power and the other reflecting an entirely beneficial example of horizontal voluntary integration, closely analogous to the numerous almost mundane restraints agreed upon by franchisees upon entry into a particular franchise system.[136]

To be sure, the plaintiffs have also convinced the Ninth Circuit that the defendants possess market power—indeed, a monopsony—in a properly defined relevant market, although defendants apparently stipulated this market.[137]  Still, even dominant firms enter agreements that overcome market failures and produce benefits.[138]  Proof that such a firm has entered a contract does not, without more, logically give rise to a presumption that the agreement produces antitrust harm.  This is so even if the restraint produces prices that are higher than those that a non-restraint world would create.  Only proof that the challenged restraint reduces output, properly defined, would, as a logical matter, suffice to establish a prima facie case.[139]  However, plaintiffs apparently made no attempt to define the proper measure of output in this context or link the imposition of the restraints to any reduction in that measure. 

The Court could therefore reverse and remand for additional assessment of whether the plaintiffs have established a prima facie case.  The plaintiffs would thus have an opportunity to define the proper measure of output and prove that the restraint reduced output measured in this manner.

In any event, regardless of how the plaintiffs have established a prima facie case, the defendants have in fact satisfied their burden of producing evidence that the challenged restraints produce significant benefits.  If the defendants had not discharged this burden, there would have been no need for the plaintiffs to adduce evidence of a less restrictive alternative that supposedly produces identical benefits.  Moreover, as explained earlier, proof of such benefits further undermines any presumption that a restraint produces anticompetitive harm, in this case, by establishing that the agreement overcomes a market failure.[140]  As a result, there is no rationale for calculating the magnitude of these benefits or comparing such benefits to presumed harms—because there is no longer any reason to presume that such harms exist.  Indeed, proof that the restraint in fact overcomes a market failure both negates any presumption of harm and establishes that the restraint produces benefits, thus requiring a conclusion that the practice unambiguously improves welfare.

Proponents of the lower court’s decision may respond that courts should nonetheless assess whether there is a less restrictive means of achieving the same benefits as the challenged restraints.  Proof that such an alternative exists, they might say, suggests that the defendants have adopted the restraint mainly or just partly to exercise market power.  But any such argument begins with the assumption that the restraints are restrictive to begin with.  Absent evidence that the restraints have reduced output, proof that they in fact overcome a market failure that would have manifested as lower pre-restraint prices undermines any presumption that such restraints are restrictive in the first place.

* Ball Professor of Law and Co-Director, Center for the Study of Law and Markets, William & Mary Law School. The author thanks the editors of the Wake Forest Law Review, both print and online editions, for their thoughtful edits and diligent efforts.

      [1].   468 U.S. 85 (1984).

      [2].   Infra Part III.

      [3].   Id.

      [4].   See Alan J. Meese, Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. (forthcoming Dec. 2021).

      [5].   See Areeda, infra note 78, at 37–38.

      [6].   See infra nn.96–98. 

      [7].   958 F.3d 1239 (9th Cir.), cert. granted sub nom., 141 S.Ct. 1231 (2020) (mem.).

      [8].   15 U.S.C. § 1.

      [9].   221 U.S. 1 (1911).

     [10].   Id. at 51.

     [11].   Id. at 52 (listing three “evils which led to the public outcry against monopolies”).

     [12].   Cont’l T.V. v. GTE Sylvania, Inc., 433 U.S. 36, 49 n.15 (1977).

     [13].   See generally N. Pac. Ry. Co. v. United States (“NPR“), 356 U.S. 1 (1958).

     [14].   Id. at 5.

     [15].   Id.; see also Sylvania, 433 U.S. at 50 (quoting NPR with approval).

     [16].   Alan J. Meese, Price Theory, Competition, and the Rule of Reason, 2003 U. Ill. L. Rev. 77, 94–95 (2003) (recognizing that the Court defines “anticompetitive” broadly).

     [17].   Id. at 94 (explaining that the Court has “equated the term [‘competition’] with ‘rivalry’ for the purpose of per se analysis, with the result that any coordination of previously independent activity is anticompetitive”).

     [18].   Id. at 95.

     [19].   Id. at 96.

     [20].   See id. at 96–98.

     [21].   See Robert H. Bork, The Rule of Reason and the Per Se Concept: Price Fixing and Market Division II, 75 Yale L. J. 373, 383 (1966) (distinguishing between antitrust’s treatment of naked price fixing and “close-knit combinations” such as partnerships on this basis); Richard A. Givens, Affirmative Benefits to Industrial Mergers and Section 7 of the Clayton Act, 36 Ind. L. J. 51, 52–53 (1960) (concluding that “‘lack of any redeeming virtue’ is the chief distinction between those kinds of loose-knit combinations which are held in unreasonable restraint of trade in and of themselves and the close-knit combinations”); Alan J. Meese, In Praise of All or Nothing Dichotomous Categories: Why Antitrust Law Should Reject the Quick Look, 104 Geo. L.J. 835, 849–51 (2016) (explaining the NPR standard’s disparate treatment of naked price fixing and the formation of partnerships).

     [22].   Bork, supra note 21, at 383.

     [23].   See generally United States v. Addyston Pipe & Steel Co., 85 F. 271 (6th Cir. 1898) (articulating the ancillary restraints doctrine sixty years before NPR).

     [24].   Compare N. Pac. Ry. Co. v. United States (“NPR”), 356 U.S. 1, 5 (stating that “[the] principle of per se unreasonableness . . . makes the type of restraints proscribed by the Sherman Act more certain . . . .”), with Addyston Pipe, 85 F. 271 at 282–83 (illustrating that the “very statement of the rule” implies that the court must determine whether “the contract [at issue is] one in which there is a main purpose, to which the covenant in restraint of trade is merely ancillary”).

     [25].   See Arizona v. Maricopa Cnty. Med. Soc’y, 457 U.S. 332, 344 (1982) (explaining that restraints are condemned as unlawful per se “[o]nce experience with a particular kind of restraint enables the Court to predict with confidence that the Rule of Reason will condemn it”).

     [26].   See FTC v. Superior Ct. Trial Lawyers Ass’n, 493 U.S. 411, 435 n.18 (1990) (“Very few firms that lack power to affect market prices will be sufficiently foolish to enter into conspiracies to fix prices.”) (quoting R. Bork, The Antitrust Paradox, 269 (1978)); Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 221 (D.C. Cir. 1986) (Bork, J., for the court).

     [27].   Areeda, infra note 78, at 21–22.

     [28].   See Oliver E. Williamson, Economic Institutions of Capitalism, 7 (1985) (“The prevailing orientation toward economic organization [during this period] was that technological features of firm and market organization were determinative.”); see also Meese, supra note 16, at 124–32 (documenting how the Supreme Court relied upon the applied price theory tradition that Williamson discusses when expanding the scope of the per se rule).

     [29].   433 U.S. 36 (1977).

     [30].   Id. at 55 (explaining how non-standard agreements could ensure production of services retailers might not provide “in a purely competitive situation”).

     [31].   707 F.2d 1147 (10th Cir. 1983), aff’d, 468 U.S. 85 (1984).

     [32].   Id. at 1149–50.

     [33].   Id.

     [34].   United States v. Topco Assocs., Inc., 405 U.S. 596, 607–12 (1972).

     [35].   Bd. of Regents of the Univ. of Okla., 707 F.2d at 1153–54.

     [36].   Id.

     [37].   Brief for Respondents at 23, Nat. Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984) (No. 83-271), 1984 WL 1036477, *23.

     [38].   NCAA, 468 U.S. at 101.

     [39].   Id. at 102.

     [40].   958 F.3d 1239 (9th Cir. 2020).

     [41].   See, e.g., id. at 1256; O’Bannon v. NCAA, 802 F.3d 1049, 1069–1070 (9th Cir. 2015); Law v. NCAA, 134 F.3d 1010, 1017–1020 (10th Cir. 1998).

     [42].   See Herbert Hovenkamp, The NCAA and the Rule of Reason, 52 Rev. Indus. Org. 323, 324–26 (2017) (reading NCAA in this manner); see also Alan J. Meese, Competition and Market Failure in the Antitrust Jurisprudence of Justice Stevens, 74 Fordham L. Rev. 1775, 1791–92 (2006).

     [43].   See, e.g., Topco, 405 U.S. at 608–12; see also NCAA, 468 U.S. at 99 & nn.18–19 (citing Topco with approval).

     [44].   NCAA, 468 U.S. at 101–02.

     [45].   Id. at 103 (“[A] restraint in a limited aspect of a market may actually enhance market-wide competition.”).

     [46].   Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 226 (D.C. Cir. 1986); Polk Bros, Inc. v. Forest City Enters., Inc., 776 F.2d 185, 188–89 (7th Cir. 1985).

     [47].   See, e.g., O’Bannon, 802 F.3d at 1057.

     [48].   See Alan J. Meese, Requiem for a Lightweight: How NCAA Continues to Distort Antitrust Doctrine, 56 Wake Forest L. Rev. (forthcoming Dec. 2021).

     [49].   Rothery Storage, 792 F.2d at 224 (“To be ancillary, and hence exempt from the per se rule, an agreement eliminating competition must . . . serve[] to make the main transaction more effective in accomplishing its purpose. Of course, the restraint imposed must be related to the efficiency sought to be achieved.”) (emphasis added).

     [50].   See, e.g., In re Brunswick Corp., 94 F.T.C. 1174, 1275 (1979) (Pitofsky, Commissioner), aff’d 657 F. 2d 971 (8th Cir. 1981); see also Polygram Holding v. FTC, 416 F.3d 29 (D.C. Cir. 2004) (holding that a restraint that accompanied an otherwise legitimate venture could produce no cognizable benefits).

     [51].   See, e.g., Polygram Holding, 416 F.3d at 38–39.

     [52].   See Bork, supra note 21, at 380; see also Polk Bros., 776 F.2d at 189 (“A court must ask whether an agreement promoted enterprise and productivity at the time it was adopted. If it arguably did, then the court must apply the Rule of Reason . . . .”) (emphasis added).

     [53].   Bork, supra note 21, at 383 (emphasis added).

     [54].   Id.

     [55].   See Am. Needle, Inc. v. NFL, 560 U.S. 183, 197–200 (2010) (treating conduct of a corporation jointly owned by thirty-two NFL teams as concerted action because agreement joined “independent centers of decision making”); Rothery Storage, 792 F.2d at 214–15 (analogizing challenged restraints to those challenged in Topco and NCAA and concluding that all such restraints were concerted action).

     [56].   Bork, supra note 21, at 382–84; id. at 384 (treating non-ancillary restraints as unlawful per se).  It should not matter that restraints that accompany a joint venture “are likely to survive the Rule of Reason” in the context of sports leagues.  See Am. Needle, 560 U.S. at 203.  This is equally true with respect to restraints that accompany other joint ventures.

     [57].   Professional Engineers, 435 U.S. at 692–93 (explaining that the per se rule and full-blown Rule of Reason scrutiny are “two complimentary categories of Rule of Reason analysis” and that “[i]n either event, the purpose of the analysis is to form a judgment about the competitive significance of the restraint”).

     [58].   See Maricopa Cnty. Med. Soc., 457 U.S. at 344.

     [59].   See Realcomp II, Ltd. v. FTC, 635 F.3d 815, 827 (6th Cir. 2011) (describing these alternative means of establishing a prima facie case).

     [60].   Michael A. Carrier, The Rule of Reason: An Empirical Update for the 21st Century, 16 Geo. Mason L. Rev. 827, 827–29; 837 (2009).

     [61].   This impact will also alter the ratio of harmful to beneficial restraints in this category.

     [62].   Alston, 958 F.3d at 1256 (invoking and applying Rule of Reason’s three-part framework).

     [63].   NCAA opined that the defendants there bore a “heavy burden of establishing an affirmative defense[.]” Nat. Collegiate Athletic Ass’n v. Bd. Of Regents of the Univ. of Okla., 468 U.S. 85, 113 (1984).  Such an approach makes sense with respect to explicit price and/or output restraints that apparently cannot produce redeeming virtues.  However, lower courts, including Alston, have generalized this language, applying this standard to restraints that would survive per se condemnation under the NPR standard because they may produce redeeming virtues.  See Alston, 958 F.3d at 1257 (describing the NCAA’s “‘heavy burden’” of “‘competitively justify[ing]’” its undisputed “‘deviation from the operations of a free market’” under the Rule of Reason) (quoting NCAA, 468 U.S. at 113)).  There is, however, no warrant for imposing upon defendants more than the traditional burden of production when a restraint properly survives per se condemnation under the NPR standard.  See Meese, supra note 16, at 108 n.156 (collecting authorities characterizing defendants’ burden as a burden of production).  Thus, exemption of the naked restraints before it from per se condemnation resulted in a misleading and non-generalizable pronouncement regarding this aspect of Rule of Reason analysis.

     [64].   The exact nature of this balancing, of course, will depend on the welfare standard that the court selects.  See generally Roger D. Blair & D. Daniel Sokol, The Rule of Reason and the Goals of Antitrust: An Economic Approach, 78 Antitrust L.J. 471 (2012).

     [65].   Cf. Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Trade-offs, 58 Amer. Econ. Rev. 18 (1968). See also Law, 134 F.3d at 1017 (holding that, after plaintiffs make out a prima facie case, “[t]he inquiry then shifts to an evaluation of whether the procompetitive virtues of the alleged wrongful conduct justifies the otherwise anticompetitive impacts” (emphasis added)).

     [66].   Alan J. Meese, Market Failure and Non-Standard Contracting: How the Ghost of Perfect Competition Still Haunts Antitrust, 1 J. Comp. L. & Econ. 21 (2005).

     [67].   See, e.g., Leegin Creative Leather Prod., Inc. v. PSKS, Inc., 551 U.S. 877, 878, 882–85, 889–90, 893, 896–98 (2007) (holding that higher retail prices resulting from additional promotion are not antitrust harm). 

     [68].   Meese, supra note 16, at 100–01.

     [69].   See Oliver E. Williamson, Economies as an Antitrust Defense: The Welfare Tradeoffs, 58 Amer. Econ. Rev. 18 (1968).

     [70].   See Thomas G. Krattenmaker & Steven Salop, Anticompetitive Exclusion: Raising Rivals’ Costs to Achieve Power Over Price, 96 Yale L. J. 209, 278, 278 nn.216–17 (1986) (explaining that courts often treat proof of efficiencies as reason to scrutinize more carefully claims that the restraint produced harms in the first place).

     [71].   See Meese, supra note 16, at 163–65. 

     [72].   See NCAA, 468 U.S. at 107–08.

     [73].   See id. at 104–108.  While the Court also claimed that the restraints had reduced output, it made no effort to adjust that reduction for the quality of the remaining games. Id.

     [74].   Brief for Petitioner at 33–34, NCAA, 468 U.S. 85 (1984) (No. 83-271).

     [75].   See NCAA, 468 U.S. at 111–113; see also id. at 115, 115 n.55 (resting the rejection of one of the defendants’ justifications on finding that the defendants possessed market power).

     [76].   435 U.S. 679 (1978).

     [77].   NCAA, 468 U.S. at 109 (quoting Professional Engineers, 435 U.S. at 692).

     [78].   See id. at 109 n.39 (quoting Phillip Areeda, The “Rule of Reason” in Antitrust Analysis: General Issues 37–38 (Federal Judicial Center, June 1981) (parenthetical omitted), https://www.fjc.gov/sites/default/files/2012/Antitrust.pdf (last visited June 9, 2021).

     [79].   See Meese, supra note 42, at 1780, 1789–91, 1800 (reading Professional Engineers in this manner).

     [80].   Id. at 1801–02.

     [81].   See, e.g., Polygram Holding v. FTC, 416 F.3d 29, 32–33, 36–37 (D.C. Cir. 2005) (detailing and applying this approach).

     [82].   See Meese, supra note 21, at 873.

     [83].   See, e.g., Polygram, 416 F.3d at 35 (detailing this approach).

     [84].   Transcript of Oral Argument at 42, NCAA v. Alston, No. 20-512 (Mar. 31, 2021).

     [85].   See Andrew I. Gavil, Moving Beyond Caricature and Characterization: The Modern Rule of Reason in Practice, 85 S. Cal. L. Rev. 733, 777–81 (2012) (endorsing application of the Quick Look to restraints regardless of how they avoid per se condemnation); Meese, supra note 21, at 866 n.165 (collecting numerous decisions asking whether numerous restraints, including exclusive dealing contracts, are “inherently suspect”).

     [86].   See Meese, supra note 21, at 864–65 (describing plaintiffs’ strong incentives to convince tribunals that challenged restraints are “inherently suspect” so as to avoid almost certain failure to establish a prima facie case under standard Rule of Reason analysis); id. at 863 (explaining that the first step in Rule of Reason analysis is to ask whether a restraint is inherently suspect).

     [87].   Id. at 866 n.165 (collecting numerous decisions evaluating and (nearly) always rejecting plaintiff’s claim that restraint was “inherently suspect”).

     [88].   See id. at 876–80.

     [89].   See Alan J. Meese, The Rule of Reason’s Prima Facie Case: Did Harvard Get it Right?, 168 U. Penn. L. Rev. Online (2021) (forthcoming).

     [90].   See Meese, supra note 21, at 856 & n.104 (explaining why this language was dicta).

     [91].   See Areeda, supra note 78, at 37–38.

     [92].   See supra note 89 and accompanying text.

     [93].   See Cal. Dental Ass’n v. FTC, 526 U.S. 756, 770 (1999).

     [94].   See Meese, supra note 21, at 856 & n.104 (explaining that Supreme Court decisions endorsing or implying a Quick Look approach are dicta); see also, e.g., Cal. Dental Ass’n, 526 U.S. at 770–81 (rejecting application of the Quick Look to the case before it).

     [95].   See generally Neal Devins & Alan J. Meese, Judicial Review and Nongeneralizable Cases, 32 Fla. State L. Rev. 323 (2005) (contending that precedents adopted in cases with idiosyncratic facts may not reflect appropriate consideration of factors that should inform the resulting rule).

     [96].   See Deppe v. NCAA, 893 F.3d 498, 501, 503 (7th Cir. 2018); Agnew v. NCAA, 683 F.3d 328, 342–43 (7th Cir. 2012).  But see O’Bannon v. NCAA, 802 F.3d 1049, 1063–64 (9th Cir. 2015) (rejecting this approach and assessing restrictions under the Rule of Reason).

     [97].   560 U.S. 183 (2010).

     [98].   Id. at 203; see also Agnew, 683 F.3d at 341 (quoting Am. Needle, 560 U.S. at 203).

     [99].   Petition for Writ of Certiorari, at 19–20, 24–25, Nat. Collegiate Athletic Ass’n v. Alston, No. 20-512 (Oct. 2020) (invoking Agnew and Deppe); see also Transcript, supra note 84, at 7 (NCAA disclaiming reliance on the term Quick Look).  Of course, the NCAA is seeking more than what the Quick Look provides plaintiffs.

   [100].   See Deppe, 893 F.3d at 501–502 (holding that courts should dismiss challenges to such restraints on the pleadings without opportunity for rebuttal); Agnew, 683 F. 3d at 343, n.6 (same); see also Michael H. v. Gerald D., 491 U.S. 110, 119 (1989) (plurality opinion) (explaining that an irrebuttable presumption is really a substantive rule).

   [101].   See infra notes 122–28 and accompanying text.

   [102].   Transcript, supra note 84, at 33.

   [103].   Cf. Meese, supra note 21, at 873 (describing assertions by proponents of the “Quick Look” Rule of Reason analysis that this approach could soften an over-inclusive per se rule).

   [104].   See id. at 873–74 (explaining how more selective application of the per se rule eliminated any putative need for “safety valve” function of the Quick Look).

   [105].   See Brief for Petitioner at 9–11, 18–21, Nat. Collegiate Athletic Ass’n v. Alston, No. 20-512 (Mar. 31, 2021).

   [106].   Of course, under a straightforward application of the NPR standard or ancillary restraints doctrine, courts would have asked and answered this question earlier in the process of assessing these restraints.

   [107].   See Transcript, supra note 84, at 10 (Thomas, J., asking question).

   [108].   See generally Law v. Nat’l Collegiate Athletics Ass’n, 134 F. 3d 1010 (10th Cir. 1998).

   [109].   Transcript, supra note 84, at 42.

   [110].   See generally Nat’l Collegiate Athletics Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85 (1984).

   [111].   Standard Oil Co. of N.J. v. United States, 221 U.S. 1, 58 (1911).

   [112].   Cont‘l T.V. v. GTE Sylvania, Inc., 433 U.S. 36, 55 (1977).

   [113].   Id. at 54.

   [114].   NCAA, 468 U.S. at 103.

   [115].   Standard Oil, 221 U.S. at 55, 63.

   [116].   The analysis propounded by this paragraph does not depend upon the provision of such compensation.

   [117].   See supra notes 13–18 and accompanying text.

   [118].   Transcript, supra note 84, at 50–51 (“[O]f course, we’re not challenging any restrictions or rules regarding that they be students.”).

   [119].   Id. at 50 (articulating the plaintiffs’ contention that the main distinction between professional and collegiate athletics is that the latter is exclusively comprised of students).

   [120].   See In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 958 F.3d 1239, 1248–50, 1257–58, 1260, 1268 (9th Cir. 2020).

   [121].   See id. at 1256–57 (describing the district court’s finding that elite student-athletes are “forced to accept . . . whatever compensation is offered to them”).  If this is truly the case, then one might ask why the NCAA does not replicate the approach taken by the Ivy League, that is, ban members from providing any athletic financial aid. See Prospective Athlete Information, The Ivy League, https://ivyleague.com/sports/2017/7/28/information-psa-index.aspx (last visited June 9, 2021).

   [122].   See, e.g., Alston, 958 F.3d at 1246–47, 1256–57, 1260.

   [123].   See id. at 1254, 1257 (“The NCAA does, however, quarrel with the district court’s analysis at the Rule of Reason’s second step[.]”).

   [124].   See id. at 1254–55, 1258 (“Not paying student-athletes ‘unlimited payments unrelated to education, akin to salaries seen in professional sports leagues’ is what makes them ‘amateurs.’” (quoting In re Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 375 F. Supp. 3d 1058, 1083 (N.D. Cal. 2019))).

   [125].   The Ivy League, which provides no athletic scholarships, provides an example of such horizontal voluntary integration that would be difficult to attribute to market power.  Indeed, the Ninth Circuit in Alston apparently assumed that individual conferences could, without market power, impose restraints identical to those the court invalidated. See Alston, 958 F.3d at 1256–57; see also Rothery Storage v. Atlas Van Lines, 792 F.2d 210, 221 (D.C. Cir. 1986) (stating that absence of market power established that defendants adopted challenged practice to “make the conduct of their business more effective”); Broad. Music, Inc. v. Columbia Broad. Sys., 441 U.S. 1, 22 & n.39 (1979) (highlighting the fact that firms without market power had adopted a practice similar to challenged restraint, thereby suggesting that the practice might be reasonable).

   [126].   Cf. Law v. Nat’l Collegiate Athletic Ass’n, 134 F. 3d 1010, 1021–24 (10th Cir. 1998) (describing and rejecting different purported redeeming virtues that supposedly justified limits on the salaries of so-called “restricted earnings coaches”).

   [127].   See supra Subpart V.D.

   [128].   Nat’l Collegiate Athletic Ass’n v. Bd. of Regents of the Univ. of Okla., 468 U.S. 85, 103 (1984) (“Respondents concede that the great majority of the NCAA’s regulations enhance competition among member institutions.”).

   [129].   See, e.g., Alan J. Meese, Farewell to the Quick Look: Redefining the Scope and Content of the Rule of Reason, 68 Antitrust L. J. 461, 488–89 & nn.113–14 (2000); see also Cal. Dental Ass’n v. FTC, 526 U.S. 756, 781 (1999) (suggesting that courts can ultimately dispense with full-blown Rule of Reason assessment “if rule-of-reason analyses in case after case reach identical conclusions”).

   [130].   See Meese, supra note 21, at 863–66.

   [131].   See supra Subpart V.D.

   [132].   See NCAA, 468 U.S. at 104–07 (invoking the finding that challenged restraints resulted in higher prices and reduced output compared to a non-restraint baseline to establish prima facie case).

   [133].   See supra text accompanying notes 62–71.

   [134].   See supra notes 66–68 and accompanying text.

   [135].   See Meese, supra note 16, at 149–52.

   [136].   Id.; see also         Alan J. Meese, Intrabrand Restraints and the Theory of the Firm, 83 N.C. L. Rev. 5, 69 & nn.312–14 (2004) (collecting authorities demonstrating that franchising contracts are horizontal).

   [137].   See In re. Nat’l Collegiate Athletic Ass’n Athletic Grant-in-Aid Cap Antitrust Litig. (“Alston”), 958 F.3d 1239, 1248, 1270 (9th Cir. 2020) (reporting that district court adopted this market definition at “the parties’ request”), cert granted sub nom. Nat’l Collegiate Athletic Ass’n v. Alston, 141 S. Ct. 1231 (2020) (mem.).

   [138].   See Alan J. Meese, Monopolization, Exclusion, and the Theory of the Firm, 89 Minn. L. Rev. 743, 845 (2005) (explaining that some “exclusionary agreements can overcome market failures” and result in “significant cognizable benefits”).

   [139].   See Hovenkamp, supra note 42, at 324 (“The plaintiff generally makes out a prima facie case by finding an anticompetitive effect, which means either a restraint that tends to reduce output or that excludes a significant firm or firms.”).

   [140].   See supra Subpart V.B.

By: Ashley Oldfield (Wake Forest School of Law alumnus)

In Niz-Chavez v. Garland,[1] the Supreme Court of the United States addressed, for the second time, what constitutes a notice to appear under 8 U.S.C. § 1229(a)(1).[2] In doing so, the Court may have also resurrected challenges to an immigration court’s jurisdiction which first arose following the Court’s decision in Pereira v. Sessions.[3]

In Pereira, the Court answered a “simple, but important, question of statutory interpretation”: does a putative “notice to appear” that does not specify the time and place of a removal hearing trigger the stop-time rule with regard to cancellation of removal?[4] The Court’s answer? A resounding “no.”[5] In order to trigger the stop time rule under § 1229b(d)(1), a notice must include all of the statutorily required information specified in § 1229(a)(1), including the time and place of the removal proceedings. Absent that information, such a notice is not actually a “notice to appear” at all.[6]

This commonsense decision, however, created an uproar in the immigration world. Immigration advocates saw in Pereira an opportunity to challenge an immigration court’s jurisdiction.[7] They argued that since jurisdiction only vests with the immigration court when a valid charging document (e.g., a notice to appear) is filed, and a notice to appear lacking time-and-date information is not valid, then the filing of an invalid notice to appear fails to vest jurisdiction with the immigration court.[8] Relying on this argument, immigration advocates moved to terminate active removal proceedings, challenge in absentia removal orders, and dismiss illegal reentry charges.[9]

Unsurprisingly, the Board of Immigration Appeals (the “BIA”) rejected this argument. In Matter of Bermudez-Cota,[10] the BIA distinguished Pereira, reasoning that it did not apply where, as in the case at hand, the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” such that he was “sufficiently informed to attend his hearings.”[11] The BIA also insisted that Pereira’s holding was “narrow” and thus only applied when the stop-time rule was at issue.[12] Furthermore, the BIA found support in the regulation applicable to vesting jurisdiction, which did not mandate time-and-date information.[13] Finally, relying on pre-Pereira decisions from the Fifth, Seventh, Eighth, and Ninth Circuits, the BIA determined “that a two-step notice process is sufficient to meet the statutory notice requirements” and “vest[] an Immigration Judge with jurisdiction over the removal proceedings.”[14] Since Bermudez-Cota, the majority of circuits have also rejected Pereira-based jurisdictional challenges, albeit for varying reasons.[15] Furthermore, in Matter of Mendoza-Hernandez,[16] the BIA, again distinguishing Pereira, expressly held that service of a second document with time-and-place information satisfies notice requirements and triggers the stop-time rule.[17] 

In Niz-Chavez, the Court, in an opinion written by Justice Neil Gorsuch, addressed the two-step notice process head-on. There, the government had sought to initiate removal proceedings against Mr. Niz-Chavez by serving him with a document entitled “Notice to Appear,” but which lacked the time and place for the hearing.[18] The government later sent Mr. Niz-Chavez a second document that included the previously missing information, and he appeared at his hearing and was found removable.[19] Following the Court’s decision in Pereira, Mr. Niz-Chavez asserted that the notices he received were insufficient to trigger the stop-time rule, and thus, having now accrued the required period of continuous presence, he should be eligible for cancellation of removal.[20] The government responded that the second document completed the notice to appear and consequently triggered the stop-time rule.[21]

The Court, in a 6:3 decision, rejected this argument, holding that a notice to appear sufficient to trigger the stop-time rule is a single document, which must include all of the information listed in § 1229(a)(1).[22] Much of the Court’s decision hinged on the statute’s use of the indefinite article “a” before the word “notice.”[23] While the government and the dissent argued that “a” could precede “a single thing that can be delivered in multiple installments,”[24] the Court concluded that Congress’s use of “a” here indicated a single notice delivered at a discrete time, similarly to how Congress used indefinite articles before other case-initiating pleadings, such as a civil complaint or an indictment, which are never delivered by installment.[25]

The Court then found support for the single notice requirement in several related statutory provisions: 8 U.S.C. § 1229(e)(1), which provides “special rules the government must follow when it seizes [a noncitizen] at a sensitive location”; 8 U.S.C. § 1229a(b)(7), which speaks to a noncitizen’s ineligibility for relief under certain circumstances; and 8 U.S.C. § 1229(a)(2), which applies when the government wishes to change the noncitizen’s hearing date.[26] Each of these provisions refers to a notice of some type, pairs an article with a singular noun, and seems to contemplate a discrete document.[27]

Turning next to the statute’s history for support, the Court noted that under a previous law, removal proceedings were initiated by “an order to show cause” and that the law expressly permitted the government to specify the time and place for the hearing “in the order to show cause or otherwise.”[28] Congress’s decision not to include “or otherwise” in § 1229(a)(1) indicated that it intended for the government to no longer have the leeway to provide time and place information in a later document, but must instead include it in the notice to appear.[29]

Finally, the Court addressed, with little sympathy, the policy arguments advanced by both the government and the dissent. The Court rejected the idea that the administrative inconvenience of including time and place information in a notice to appear justified allowing the government “to send a person who . . .  may be unfamiliar with English and the habits of American bureaucracies [] a series of letters[] . . . over the course of weeks, months, maybe years, each containing a new morsel of vital information.”[30] As for the dissent’s speculations regarding disadvantages to noncitizens, the Court found these both off the mark and irrelevant.[31] In short, neither administrative inconvenience nor hypothetical disadvantages warranted disregarding the plain statutory command.[32]

Where does this decision leave noncitizens seeking to use Pereira to challenge an immigration court’s jurisdiction? Although the Court did not directly address jurisdiction issues in Niz-Chavez,[33] the decision upends the BIA’s rationale for rejecting Pereira-based jurisdiction arguments.

First, the BIA can no longer argue that Pereira does not apply where the noncitizen was “properly served with both a notice to appear and a subsequent notice of hearing,” because those are the precise facts found in Niz-Chavez.[34] Second, contrary to the BIA’s assertion that Pereira’s holding was “narrow,” the Court indicated that its holding has implications outside of the stop-time rule, explaining that a notice to appear “serves as the basis for commencing a grave legal proceeding”[35] and that references to a “notice to appear” in other statutory provisions refer to the same “specific document in which the government can (and must) ‘include’ the required certification.”[36] Third, the Court explained that “pleas of administrative inconvenience and self-serving regulations never ‘justify departing from the statute’s clear text.’”[37] Finally, Niz-Chavez completely forecloses the two-step notice process championed by the BIA, making crystal clear that a “notice to appear” is a single document containing all of the information listed in § 1229(a)(1).[38]

Thus, Niz-Chavez presents another opportunity to challenge an immigration court’s jurisdiction. After all, “if men must turn square corners when they deal with the government, it cannot be too much to expect the government to turn square corners when it deals with them.”[39]

[1] 2021 U.S. LEXIS 2232 (2021).

[2] Id. at *7–8. This “seemingly simple rule has generated outsized controversy” because service of a notice to appear on a noncitizen triggers the stop-time rule, which stops the clock on a noncitizen’s period of continuous presence in the country. Id. at *7 (citing 8 U.S.C. § 1229b(d)(1)). An otherwise removable noncitizen must accrue ten years of continuous presence in the U.S. in order to qualify for cancellation of removal and remain in the country. Id. at *6–7 (citing 8 U.S.C. § 1229b(b)(1)). Thus, what qualifies as a notice to appear sufficient to trigger the stop-time rule may have life-altering implications for some noncitizens.

[3] 138 S. Ct. 2105 (2018).

[4] Id. at 2113. By 2018, “almost 100 percent” of notices to appear served in the previous three years omitted time-and-date information. Id. at 2111. The government, however, asserted that these initial notices were sufficient to trigger the stop-time rule.

[5] Id. at 2110.

[6] Id.

[7] See, e.g., Kit Johnson, Pereira v. Sessions: A Jurisdictional Surprise for Immigration Courts, 3 Colum. Hum. Trs. L. Rev. Online 1, 2 (2018).

[8] Id. at 2–3.

[9] See generally Dan Kesselbrenner et al., Nat’l Immigration Project of the Nat’l Lawyers Guild & the Immigrant Def. Project, Practice Advisory: Challenging the Validity of Notices to Appear Lacking Time-and-Place Information (2018). For a discussion of Pereira-based challenges to indictments for illegal reentry after deportation, see Ashley Oldfield, Note, Pereira v. Sessions: The Supreme Court’s Call for Common Sense, 55 Wake Forest L. Rev. 415 (2020).

[10] 27 I. & N. Dec. 441 (B.I.A. 2018). 

[11] Id. at 443. In Pereira, the noncitizen did not receive the notice of hearing and was ordered deported in absentia. Pereira, 128 S. Ct. at 2112.

[12] 27 I. & N. Dec. at 443.

[13] Id. at 445.

[14] Id. at 447.

[15] See Goncalves Pontes v. Barr, 938 F.3d 1, 6 (1st Cir. 2019); Banegas Gomez v. Barr, 922 F.3d 101, 105 (2d Cir. 2019), cert. denied, 140 S. Ct. 954 (2020); Nkomo v. Attorney Gen. of the U.S., 930 F.3d 129, 133–34 (3d Cir. 2019), cert. denied, 140 S. Ct. 2740 (2020); United States v. Cortez, 930 F.3d 350, 362–65 (4th Cir. 2019); Pierre-Paul v. Barr, 930 F.3d 684, 690–91 (5th Cir. 2019), cert. denied, 2020 U.S. LEXIS 2490 (2020); Hernandez-Perez v. Whitaker, 911 F.3d 305, 311–15 (6th Cir. 2018); Ortiz-Santiago v. Barr, 924 F.3d 956, 962–64 (7th Cir. 2019), reh’g denied; Ali v. Barr, 924 F.3d 983, 986 (8th Cir. 2019); Karingithi v. Whitaker, 913 F.3d 1158, 1159 (9th Cir. 2019), cert. denied, 140 S. Ct. 1106 (2020); Martinez-Perez v. Barr, 947 F.3d 1273, 1278–79 (10th Cir. 2020); Perez-Sanchez v. U.S. Attorney Gen., 935 F.3d 1148, 1154 (11th Cir. 2019).

[16] 27 I. & N. Dec. 520 (B.I.A. 2019).

[17] Id. at 535.

[18] Niz-Chavez v. Garland, 2021 U.S. LEXIS 2232, at *9 (2021) (No. 19-863).

[19] Id. at *29–30 (Kavanaugh, J., dissenting).

[20] Id. at *31.

[21] Id.

[22] Id. at *27 (majority opinion).

[23] Id. at *10–17.

[24] Id. at *40 (Kavanaugh, J., dissenting).

[25] Id. at *13–16 (majority opinion).

[26] Id. at *17–20.

[27] Id.

[28] Id. at *20.

[29] Id.

[30] Id. at *23–25.

[31] Id. at *25–27.

[32] Id. at *26.

[33] The Court’s failure to address jurisdiction does not indicate that it accepted the immigration court’s jurisdiction. See Oldfield, supra note 10, at 436–37.

[34] See Niz-Chavez, 2021 U.S. LEXIS 2232, at *29–30 (Kavanaugh, J., dissenting).

[35] Id. at *15 (majority opinion).

[36] Id. at *18.

[37] Id. at *23 (citing Pereira v. Sessions, 138 S. Ct. 2105, 2109 (2018)).

[38] See generally Niz-Chavez, 2021 U.S. LEXIS 2232.

[39] Id. at *27.

File:15-23-0154, Supreme Court - panoramio.jpg - Wikimedia Commons

Doron M. Kalir*

11 Wake Forest L. Rev. Online 42

In the short time since its release, Bostock v. Clayton County[1] has well-earned its self-praise as “simple and momentous.”[2]  The opinion, which holds that Title VII of the Civil Rights Act of 1964 applies to homosexuals and transgender persons in the workplace, instructs employers nationwide that discrimination against LGBTQ employees solely “because of [their] sex” is no longer legal.[3]

The Court’s 6:3 opinion is unique in several ways. For one, its author—Justice Neil Gorsuch—was not known for his affinity for LGBTQ rights.[4]  For another, it was joined by Chief Justice Roberts, a first for a conservative who was previously reluctant to expand LGBTQ rights.[5]  Most importantly, while the Court was split as to the result, all three opinions claimed to have relied on the same statutory interpretation theory—textualism.  That claim was not entirely persuasive, however, as the three opinions not only differed markedly but were contradictory at times.  Surely such diversity of conclusions, all allegedly stemming from the same interpretive theory applied to the same statutory language, would lead to some form of intramural textualist controversy.[6] 

And controversy it was.  In his dissenting opinion, Justice Alito (joined by Justice Thomas) castigated the majority opinion as nothing short of “a pirate ship . . . sail[ing] under a textualist flag . . . [but] actually represent[ing] . . . a theory of statutory interpretation that Justice Scalia excoriated—the theory that courts should ‘update’ old statutes so that they better reflect the current values of society.”[7]  Justice Kavanaugh,  in his dissent, claimed that the majority opinion took a “literalist,” rather than a textualist, approach.[8]  In his words, this approach “simply split statutory phrases into their component words, look[ed] up each in a dictionary, and then mechanically put them together again.”[9]  He, too, invoked Justice Scalia’s real interpretive method as the complete opposite of the majority’s opinion, accusing the Court of “miss[ing] the forest for the trees.”[10]

This Article would leave others to resolve the “holy-grail” question of which opinion—if any—best represents Justice Scalia’s “true legacy.”[11]  The aim of this short Article is entirely different: The Bostock majority opinion, it argues, was so convincing not because it was the product of a particular interpretive theory, but because it was a product of formal logic.  The reason both Chief Justice Roberts (who never before agreed to grant meaningful rights to LGBTQ members) and Justice Ruth Bader Ginsburg (whose life mission was to guarantee equality in the workplace to all) have joined the opinion in full was precisely because it was built on the sound foundations of deductive reasoning, rather than the more dubious ones of “textualism.”

 Justice Gorsuch’s opinion, in fact, is written more as an exercise in formal logic than a typical legal opinion.[12]  While paying lip service to textualism, the opinion actually erects a well-reasoned logical structure—complete with sound definitions, logical model, and several hypothetical and actual applications.  Indeed, so solidly built and so well-defended is that structure that neither an institutional conservative nor a liberal icon saw reason to add a single brick to it.  Even more, the attempts by both Justice Alito and Justice Kavanaugh to undermine its foundations (in their dissents) merely emphasize—rather than weaken—its stability.  In short, Justice Gorsuch wrote—in the words of Justice Kagan honoring Justice Scalia—“with the elegance of a mathematical proof.”[13] 

This short Article proceeds as follows: Part I presents the assumptions and definitions that guided Justice Gorsuch in building his Model.  Part II discusses the theorem at the heart of the Model, and its main logical strength.  Part III analyzes eight hypotheticals appearing in the opinion—some in response to questions presented during oral argument—and their relation to the Model.  Part IV applies the Model to three previous Court cases dealing with Title VII discrimination.  Part V applies the Model to the cases at hand.  Finally, Part VI will claim that the logical approach—as opposed to one grounded in politically-identified ideology—is much superior to authoring judicial opinions in general, and especially those expanding statutory and constitutional rights. 

  1. Assumptions & Definitions

Title VII of the Civil Rights Act of 1964 states, in relevant part:

It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual’s race, color, religion, sex, or national origin.[14]

The question presented in Bostock was whether this language outlaws workplace discrimination against LGBTQ employees “simply for being homosexual or transgender.”[15]

Justice Gorsuch opens his opinion with a positive conclusion: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex.  Sex plays a necessary and undistinguishable role in the decision, exactly what Title VII forbids.”[16] 

The Justice then reverse engineers the process that led him to that conclusion.  While not saying so specifically, he relies entirely on a formal logic model (“Model”).  Such Model begins, naturally, with formal assumptions and definitions later used in the Model.  Here is a formal presentation of these assumptions:

Let α be “sex”—which is defined for the purposes of this Model as the “biological distinctions between male and female.”[17]

Let ~ α (“not α[18]) refer to a more expansive definition of sex, including “at least some norms concerning gender identity and sexual orientation.”[19]

Let ß be “because of”—which is defined here as a “but-for” test: “[A] but-for test directs us to change one thing at a time and see if the outcome changes.  If it does, we have found a but-for cause.”[20]  For purposes of Title VII, this standard means that “a defendant cannot avoid liability just by citing some other factor that contributed to its challenged employment decision.  So long as the plaintiff’s sex was one but-for cause of that decision, that is enough to trigger the law.”[21]  Thus, sex may not be “the only factor, or maybe even the main factor [in the decision to discriminate], but [may still constitute] one but-for cause,” which is enough to satisfy the definition.[22]

Let ~ ß (“not ß”) refer to either “solely” or “primarily because of”—two more restricting standards favored by other acts of Congress but avoided here: “If anything, Congress has moved in the opposite direction . . . [toward] a more forgiving standard.”[23]

Let γ be “discriminate against any individual [employee]”—which is defined here as “treating that individual [employee] worse than others who are similarly situated . . . intentionally.”[24]  It should be noted the label, title, or reason given to such discriminatory practice is not relevant for purposes of this definition; what matters is the finding of a discriminatory practice.[25]

Let ~ γ (“not γ”) refer to discrimination against groups of people, as opposed to individual employees.  Indeed, Justice Gorsuch asserts the Act “tells us three times—including immediately after the words ‘discriminate against’—that our focus should be on individuals.”[26]  And, obviously, “individuals are distinguished from a class, species, or collection.”[27]

II. The Theorem

Based on the previous assumptions, Justice Gorsuch arrives at the following conclusion: “An employer violates Title VII when it intentionally fires an individual employee” (γ), and that decision is “based in part” (ß) “on sex” (α).[28]  In more formal terms, a violation (V) of Title VII occurs whenever a court finds all three components (γ, ß, and α) present, such that:

If γ & ß & αthen V (Major Premise)

Thus, “if the employer intentionally relies in part [(ß)] on an individual employee’s sex [(α)] when deciding to discharge the employee” (γ), then Title VII is violated (V).[29]

So far, the proposition seems unremarkable.  All previous Title VII cases would rest comfortably on these—or similar—assumptions.  It is then that Justice Gorsuch adds the logical lynchpin on which his entire case—and logical edifice—relies: For purposes of the Act, Justice Gorsuch holds discrimination based on sex is equal to (and identical with) discrimination based on sexual orientation or sexual identity.[30]

The reason for that is simple: “[I]t is impossible to discriminate against a person for being a homosexual or transgender[31] without discriminating against that person based on sex.”[32]  Indeed, “homosexuality and transgender status are inextricably bound up with sex.”[33]  Therefore, “discrimination on [homosexuality and transgender] grounds requires an employer to intentionally treat individual employees differently because of sex.”[34]  Thus, even if the employer’s “ultimate goal might be to discriminate [solely] on the basis of sexual orientation,” in order to achieve that goal “the employer must, along the way, intentionally treat an employee worse based in part on that individual’s sex.”[35]  Accordingly, “[w]hen an employer fires an employee for being homosexual or transgender, it necessarily and intentionally discriminates against that individual in part because of sex.  And that is all Title VII has ever demanded to establish liability.”[36]

If we let H refer to homosexual or transgender employees, then the following equivalency emerges:

γ & ß & α = γ & ß & H (Minor Premise)

Therefore: if γ & ß & Hthen V (Q.E.D.)[37]

III.   The Hypotheticals

Throughout his opinion, Justice Gorsuch tests the validity of his Model with a variety of hypotheticals.  One by one, he demonstrates how it can apply to a variety of scenarios.  Below are some of those scenarios, transcribed to formal form. 

Hypo # 1: Assume “an employer fires a woman for refusing his sexual advances.”[38]     Could the employer defend himself by arguing that “he gives preferential       treatment to female employees overall”?[39]

If the “group” definition (~ γ) prevails, then an employer could plausibly so argue.  But since γ is defined as the opposite of (~ γ)—that is, discrimination against an individual is not the same as discrimination against a group—the argument fails: The employer “is liable for treating this woman worse [(γ)] in part because of [(ß)] her sex [(α)].”[40]  Since all three components are present, we have a violation (V).

Hypo # 2: Assume “an employer . . . fires a woman, Hannah, because she        is insufficiently feminine and also fires a man, Bob, for being insufficiently   masculine.”[41]  Could the employer defend himself by arguing that he discriminates          (equally) against both men and women “because of sex?”[42]

If the “group” definition (~ γ) prevails, then an employer could plausibly so argue.  But since γ is defined as discrimination against an individual, this argument fails: “[I]n both cases the employer fires an individual [(γ)] in part because of [(ß) their respective] sex [(α)].  Instead of avoiding Title VII exposure, th[e] employer doubles it.”[43]  Thus, since we have two instances of all three components present, we have two violations (V*2).  Or, in less formal terms, two wrongs do not make a right.

Hypo # 3: Assume “an employer with two employees, both of whom are           attracted to men.  The two individuals are, to the employer’s mind, materially         identical in all respects, except that one is a man and the other a woman.”[44]

If the employer fires the male employee [(γ)] for no reason other than [(ß)] the fact that he is attracted to men [(H)], the employer discriminates against him [(γ) but] for [(ß)] traits or actions it tolerates in his female colleague [(α)].”[45]  Thus, a violation (V) occurs.  

Hypo # 4: Assume “an employer who fires a transgender person who was        identified as a male at birth but who now identifies as a female.”[46]

“If the employer retains an otherwise identical employee who was identified as female at birth, the employer intentionally penalizes [(γ)] a person identified as male at birth [but] for [(ß)] traits or actions that it tolerates in an employee identified as female at birth [(α)].”[47]  Again, since all components are present, we have a violation (V).

Hypo # 5: Assume “an employer who fires a female employee [(γ)] [but] for [(ß)           her] tardiness or incompetence or simply supporting the wrong sports team.”[48]

Clearly, missing from that example is any action related to her sex (α); thus, there is no violation of Title VII: If (γ) & (ß) but no (α), then no (V).

Hypo # 6 (The “Multiple Causes” Scenario): Assume “an employer with a policy          of firing any woman he discovers to be a Yankees fan.”[49]

If the employer would have tolerated the same allegiance in a male employee, then a violation has occurred: “Carrying out that rule [(γ)] because [(ß)] the employee is a woman [(α)] and a fan of the Yankees”[50] still constitutes a violation since all the conditions for the occurrence of (V) have been met, and the addition of the new (random) cause for firing does not change the analysis.  Thus, if we mark “random cause for firing” as R, then if γ & ß & α & R–then (still) V.

The same is true for firing homosexuals or transgender (H) employees:

When an employer fires an employee because she is homosexual or transgender, two causal factors may be in play—both the individual sex and something else (the sex to which the individual is attracted or with which the individual identifies).  But Title VII doesn’t care.  If an employer would not have discharged an employee [(γ)] but for [(ß)] that individual’s sex [(α)], that statute’s causation standard is met, and liability may attach.[51]

Hypo # 7 (The “Equal Treatment” Scenario): Assume an employer is   “equally happy to fire male and female employees who are homosexual or    transgender.”[52]

Since “the law makes each instance of discriminating against an individual employee [(γ)] because of [(ß)] that individual’s sex [(α)] an independent violation of Title VII [(V)],” then Title VII liability will be attached.[53] 

Recall Hypo # 2 (“Hannah and Bob”): “So just as an employer who fires both Hannah and Bob for failing to fulfill traditional sex stereotypes doubles rather than eliminates Title VII liability, an employer who fires both Hannah and Bob for being gay or transgender does the same.”[54]

Hypo # 8 (The “Check the Box” Scenario): Assume “an employer asked homosexual or transgender applicants to tick a box on its application form.  The employer then had someone else redact any information that could be used to discern sex.”[55]  Thus, the employer does not know the applicant’s sex, but does know they are homosexual or transgender, which is the reason for the discrimination against them.  Can the employer argue that since it doesn’t know the applicant’s sex, there is no discrimination “based on sex?”[56]

The answer is “no” and relies on the definitions of both “because of” (ß) and “sex” (α).[57]  The employer still must consider the applicant’s sex before deciding to discriminate against them:

Change the hypothetical ever so slightly and its flaws become apparent. Suppose an employer’s application form offered a single box to check if the applicant is either black or Catholic.  If the employer refuses to hire anyone who checks that box, would we conclude the employer has complied with Title VII, so long as it studiously avoids learning any particular applicant’s race or religion?  Of course not: By intentionally setting out a rule that makes hiring turn on race or religion, the employer violates the law, whatever he might know or not know about individual applicants.[58]

The same holds here . . . .  [T]here is no way an employer can discriminate against those who check the homosexual or transgender box without discriminating [(γ)] in part because of [(ß)] an applicant’s sex [(α)].  By discriminating against homosexuals [(H)], the employer intentionally penalizes men for being attracted to men and women for being attracted to women.  By discriminating against transgender persons, the employer unavoidably discriminates against persons with one sex identified at birth and another today.  Any way you slice it, the employer intentionally refuses to hire applicants in part because of the affected individuals’ sex, even if it never learns any applicant’s sex.[59]

IV.   Applying the Model to Previous Cases

Once Justice Gorsuch established the Model’s application on some hypothetical examples, he turned to apply the Model to actual cases.  Specifically, he applies the Model to the three previous Title VII “because of sex” Court cases.[60]  Below is a short description of each, coupled with a Model application.

In Philips v. Martin Marietta Corp.,[61] “a company allegedly refused to hire women with young children, but did hire men with children the same age.”[62]  The company made two arguments: First, the “discrimination depended not only on the employee’s sex as a female but also on the presence of another criterion—namely, being a parent of young children”; second, the company argued that “as a whole, it tended to favor hiring women over men.”[63]  Both arguments fail under Bostock’s logic.

The first argument fails because, as we have seen in Hypo # 6, the fact that another random cause for firing (R) is added—here, having young children—does not change the result that all three other components—discrimination (γ) because of (ß) sex (α)—are present. Thus, a violation (V) is triggered.

The second argument fails because, as we have seen in Hypo # 1, the “group definition” as target of the discrimination has been rejected (~ γ).  Therefore, the fact that the employer prefers (or targets) women as a class does not alter the triggering of a violation (V), so long as an individual employee has been targeted.

In Los Angeles Department of Water v. Manhart,[64] “an employer required women to make larger pension fund contributions than men.”[65]  The employer, trying to justify the discrimination, relied on “what appeared to be a statistically accurate statement about life expectancy” in claiming that women “are likely to receive more from the pension fund over time.”[66]

The employer’s argument fails under the Model.  As we have seen in Hypo # 1, the fact that the employer favored (in its mind) women as a group (~ γ), does not change the fact that it discriminated against individual female employees (γ) because of (ß) their sex (α), thus triggering a violation (V).

In Oncale v. Sundowner Offshore Services, Inc.,[67] “a male plaintiff alleged that he was singled out by his male co-workers for sexual harassment.”[68]  The employer presented three arguments: First, since the discrimination was conducted by “members of the same sex” then no violation was triggered; second, “men as a group were [never] subject to discrimination”; and third, that something else, “in addition to sex contributed to the discrimination, like the plaintiff’s conduct or personal attributes.”[69]  All three arguments fail Bostock’s logic.

The first argument fails because, as we have seen in the definition of “discrimination against [an individual] employee,”[70] (γ), so long as an individual employee was intentionally treated worse than other employees—which all agreed had happened here—then the identity or sex of those who caused such treatment are irrelevant for the purposes of triggering a violation (V).

The second argument also fails because, as demonstrated in Hypo # 1, the fact that men as a group (~ γ) were not discriminated against does not change the fact that the employer did discriminate against an individual male employee (γ) because of (ß) his sex (α), thus triggering a violation (V).

Finally, the third argument fails because, as we have seen in Hypo # 6, the fact that another random cause for discrimination (R) is added—here, the employee’s attributes—does not change the result that all three required factors, namely discrimination (γ) because of (ß) sex (α), are present, thus triggering a Title VII violation (V).

V.    Applying the Model to the Cases at Hand

When it comes to the cases at hand, Justice Gorsuch first noted that the employers in all three cases “do not dispute that they fired the plaintiffs for being homosexual or transgender.”[71]  Thus, it follows inevitably that all three components of the Model are present: The employers have fired the plaintiffs (γ) because of (ß) their sexual orientation or sexual identity (H), therefore triggering a Title VII violation (V).  (Recall that if γ & ß & H—then V.)  The inquiry, then, seems to have come to a sudden end. 

What, then, was left for employers to argue?

First, the employers tried to attack the minor premise of the theorem (equating “γ & ß & α” with “γ & ß & H”).  But since their arguments were not rooted in logic, but rather in conversational norms, these arguments were quickly dismissed.[72]

Second, the employers tried to suggest that component (ß)—the “because of” causal connection—was not satisfied in these cases because the discriminatory actions were not “intentional.”[73]  Justice Gorsuch’s answer, based on (ß)’s definition, was swift:

[A]s we’ve seen, an employer who discriminates against homosexual or transgender employees necessarily and intentionally applies sex-based rules.  An employer that announces it will not employ anyone who is homosexual, for example, intends to penalize male employees for being attracted to men, and female employees for being attracted to women.[74]

The third argument made by the employers was that unlike “sex,” the terms “homosexuality” or “transgender status” were not included in the text of Title VII: The employers argued that because Congress never included those terms in the Act, they were “implicitly excluded from Title VII’s reach.”[75]  This argument was not only adopted by, but also served as, the main impetus to the two dissenting opinions by Justices Alito[76] and Kavanaugh.[77]  Justice Gorsuch’s response at this point is as predictable as it is sound.  Referring to his Model’s minor premise, he quips: “As we’ve seen, discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex; the first cannot happen without the second.”[78] 

Finally, the employers tried to attack the causal connection component—“because of.”[79]  As Justice Gorsuch summarized the issue: “At bottom, the employers’ argument unavoidably comes down to the suggestion that sex must be the sole or primary cause of an adverse employment action for Title VII liability to follow.  And, as we’ve seen, that suggestion is at odds with everything we know about the statute.”[80]  In other words, the employers tried to use (~ ß) to establish that there was no liability; but the very definition of (ß) rejected that assumption, and therefore a violation (V) occurred.

VI.   Conclusion

Justice Gorsuch’s opinion in Bostock is close to a logical masterpiece. To be sure, this was not always the case with Justice Gorsuch’s other opinions.[81]  But there is value—well beyond this specific case—in writing opinions in a similar, formal-logic, fashion.  For one, logic is universal.  It transcends ideological camps and may create interesting coalitions (such as in this case).  Second, a logic-based opinion—as opposed to, say, a “textualist” or “purposive” opinion—serves an important function in directing courts below, as well as future litigants.  The more logic-based opinions, the less confusion and uncertainty below.  Finally, Bostock was a seminal decision, granting rights previously denied to LGBTQ members.  Title VII LGBTQ cases—which are prone to invite criticism from those who oppose such grant—would likely be more widely received if properly rested on the neutral basis of logic, rather than on a theory more closely identified with one ideological camp or another.

* Cleveland-Marshall College of Law, Cleveland-State University.  This Article owes a great debt to a series of conversations with Professor Avidan Cover.  I would also like to thank Michael Borden, Chris Sagers, and Jonathan Witmer-Rich for their careful reading of and wise comments on an earlier version of this Article.  

      [1].   140 S. Ct. 1731 (2020).

      [2].   Id. at 1741.

      [3].   Id. at 1754 (“An employer who fires an individual merely for being gay or transgender defies the law.”). See also 42 U.S.C. § 2000e-2(a)(1).

      [4].   See, e.g., Drew Anderson, What a Justice Neil Gorsuch Would Mean for LGBTQ Americans, GLAAD (Jan. 31, 2017), https://www.glaad.org/blog/what-justice-neil-gorsuch-would-mean-lgbtq-americans (Justice Gorsuch’s profile on GLAAD’s (Gay & Lesbian Alliance Against Defamation) website cataloging several statements and judgments made against LGBTQ interests prior to Bostock).  

      [5].   See, e.g., Obergefell v. Hodges, 576 U.S. 644, 686 (2015) (Roberts, C.J., dissenting); United States v. Windsor, 570 U.S. 744, 775 (2013) (Roberts, C.J., dissenting).

      [6].   Arguably, Bostock is even more unusual in its textualist controversy than District of Columbia v. Heller, 554 U.S. 570 (2008) was in its originalist controversy, as Justice Stevens (who wrote the dissent in Heller) was never an avowed originalist, while all three authors in Bostock are self-proclaimed textualists.  Was that action hould be the longest portion)ases, ying the issue, moving the rule, applying what you have studied, and then – a

      [7].   Bostock, 140 S. Ct. at 1755–56 (Alito, J., dissenting).

      [8].   Id. at 1827–28 (Kavanaugh, J., dissenting).

      [9].   Id. at 1827.

     [10].   Id.

     [11].   For a recent critical examination of the term, see Edward A. Purcell, Jr., Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon, xvi–xviii (2020).

     [12].   That the Justice is well versed in such form of writing should come as no surprise, as both his Ph.D dissertation advisors at Oxford—John Finnis and Timothy Endicott—are trained philosophers.  See Neil M. Gorsuch, The Right to Receive Assistance in Suicide and Euthanasia, with Particular Reference to the Law of the United States (2004) (Ph.D. thesis, University of Oxford) (on file with Oxford University Research Archives, University of Oxford), https://ora.ox.ac.uk/objects/uuid:688e5b8c-bb06-4d86-abe0-440a7666ffc1.  See also Neil M. Gorsuch, The Future of Assisted Suicide and Euthanasia 229 (2006) (“Appendix B: Statistical Calculations”).

     [13].   Elena Kagan, Foreword to Antonin Scalia, The Essential Scalia, xvi (Jeffrey S. Sutton & Edward Whelan eds., 2020).  To be sure, Justice Scalia himself was a great proponent of using logic in legal argument.  See, e.g., Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 41–43, 46–48 (2008) (explaining how to “[t]hink syllogistically”).

     [14].   42 U.S.C. § 2000e-2(a)(1) (emphasis added).

     [15].   Bostock, 140 S. Ct. at 1737.

     [16].   Id.

     [17].   Id. at 1739.

  1. The sign “~” (“not”) is used here, as in most propositional connective language, in a “weak” sense—“to  deny the claim made by the negated part.”  John T. Kearns, The Principles of Deductive Logic 142 (1988).  It is not used to claim the opposite of the negated part.

     [19].   Bostock, 140 S. Ct. at 1739.

     [20].   Id.

     [21].   Id.

     [22].   Id. at 1745; see also id. at 1748 (“Imagine that it’s a nice day outside and your house is too warm, so you decide to open the window.  Both the cool temperature outside and the heat inside are but-for causes of your choice to open the window.  That doesn’t change just because you also would have opened the window had it been warm outside and cold inside.  In either case, no one would deny that the window is open ‘because of’ the outside temperature.”).

     [23].   Id. at 1739–40.

     [24].   Id. at 1740.

     [25].   Id. at 1743–44.

     [26].   Id. at 1740.

     [27].   Id. (quoting Webster’s New International Dictionary 1267).

     [28].   Id. at 1741 (emphasis added).

     [29].   Id.

     [30].   See id. (“An individual’s homosexuality or transgender status is not relevant to employment decisions.”).

     [31].   As the Court later noted, in the cases at bar the employers never disputed “that they fired the plaintiffs for being homosexual or transgender.”  Id. at 1744.  In this manner, the cases were distinct from others where “[s]orting out the true reasons for adverse employment decision is often hard business.”  Id.  

     [32].   Id. at 1741.

     [33].   Id. at 1742.

     [34].   Id.

     [35].   Id.

     [36].   Id. at 1744.

     [37].   Or, in other words: “[T]o discriminate [against an employee] on [the grounds of homosexuality or transgender status] requires an employer to intentionally treat individual employees differently [(γ)] because of [(ß)] their sex [(α)].”  Id. at 1742; see also id. at 1743 (“For an employer to discriminate against employees for being homosexual or transgender, the employer must intentionally discriminate against individual men and women [(γ)] in part because of [(ß)] sex [(α)].  That has always been prohibited by Title VII’s plain terms—and that ‘should be the end of the analysis.’” Id. at 1743 (quoting Zarda v. Altitude Express, Inc., 883 F.3d 100, 135 (2d Cir. 2018) (Cabranes, J., concurring), aff’d sub nom., Bostock, 140 S. Ct. 1731)).

     [38].   Id. at 1741.

     [39].   Id.

     [40].   Id.

     [41].   Id.

     [42].   42 U.S.C. § 2000e-2(a)(1).

     [43].   Bostock, 140 S. Ct. at 1741 (second and third emphasis added).  Indeed, in such cases not only do two wrongs do not make a right—they actually multiply the wrong.

     [44].   Id. (emphasis added).

     [45].   Id. (emphasis added).

     [46].   Id.

     [47].   Id.

     [48].   Id. at 1742.

     [49].   Id.

     [50].   Id.  

     [51].   Id.

     [52].   Id.

     [53].   Id.

     [54].   Id. at 1742–43.

     [55].   Id. at 1746.

     [56].   Id.  See also 42 U.S.C § 2000e-2(a)(1).

     [57].   42 U.S.C. § 2000e-2(a)(1).

     [58].   Bostock, 140 S. Ct. at 1746,

     [59].   Id.

     [60].   42 U.S.C. § 2000e-2(a)(1).

     [61].   400 U.S. 542 (1971).

     [62].   Bostock, 140 S. Ct. at 1743.

     [63].   Id.

     [64].   435 U.S. 702 (1978).

     [65].   Bostock, 140 S. Ct. at 1743.

     [66].   Id.

     [67].   523 U.S. 75 (1998).

     [68].   Bostock, 140 S. Ct. at 1743.

     [69].   Id. at 1743–44.

     [70].   42 U.S.C § 2000e-2(a)(1).

     [71].   Bostock, 140 S. Ct. at 1744 (emphasis added).

     [72].   Id. at 1739–40. 

     [73].   Id. at 1740.

     [74].   Id. at 1745 (emphasis added). 

     [75].   Id. at 1746. 

     [76].   Id. at 1754–84 (Alito, J., dissenting).  E.g., id. at 1761 (“The Court proclaims that ‘an individual’s homosexuality or transgender status is not relevant to employment decisions.’  That is the policy view of many people in 2020, and perhaps Congress would have amended Title VII to implement it if this Court had not intervened.”).

     [77].   Id. at 1822–37 (Kavanaugh, J., dissenting). E.g., id. at 1830 (“As demonstrated by all of the statutes covering sexual orientation discrimination, Congress knows how to prohibit sexual orientation discrimination.”).

     [78].   Id. at 1747 (Gorsuch, J., for the Court).

     [79].   Id. at 1747–48.

     [80].   Id. at 1748.

     [81].   See, e.g., Doron M. Kalir, Artis v. District of Columbia—What Did the Court Actually Say?, 94 Notre Dame L. Rev. Online 81 (2018), http://ndlawreview.org/wp-content/uploads/2018/11/3-Kalir.pdf (criticizing Justice Gorsuch’s opinion in another case).

By Sutton Travis 

In a decision that expanded religious liberties for prisoners on the verge of execution, the Supreme Court held in the late evening hours of Feb. 11 that Alabama prisoner Willie Smith could not be executed unless Alabama permitted Smith’s chaplain to accompany him into the execution chamber.[1]

Smith filed a complaint in the Middle District of Alabama on Dec. 14, 2020, alleging that the Alabama Department of Corrections’ policy of restricting all except the prison’s execution team from the execution chamber violated his rights under the Religious Land Use and Institutionalized Persons Act of 2000[2] (“RLUIPA”).[3]  Smith sought an injunction against his execution scheduled for Feb.11, 2021, claiming that the policy violated RLUIPA by excluding his Christian minister from the execution chamber.[4]  Smith’s complaint explained that it was “integral to [his] faith” that his pastor “be physically present with him at the time of his execution.”[5]  The district court denied Smith’s request for an injunction,[6] relying on Alabama’s argument that allowing a chaplain into the execution chamber would undermine security measures.[7]  However, the Eleventh Circuit reversed and granted the injunction,[8] which the Supreme Court declined to vacate in Dunn v. Smith.[9]  

In her concurring opinion that elaborated on the Court’s one-sentence decision to uphold the injunction, Justice Kagan declared that “[t]he law guarantees Smith the right to practice his faith free from unnecessary interference, including at the moment the state puts him to death.”[10]  Alleged violations of RLUIPA are analyzed under an “exceptionally demanding” strict scrutiny standard,[11] which mandates that a prison must employ “the least restrictive means of furthering [its] compelling governmental interest.”[12]  Although Kagan acknowledged that Alabama does have a “compelling state interest” in maintaining “prison security,”[13] Alabama’s policy failed to implement the least restrictive means available because “a prison may ensure security without barring all clergy members from the execution chamber.”[14]  Kagan admonished that she could find no example where “the presence of a clergy member . . . disturbed an execution.”[15]  As she recommended, the prison could perform background checks and interview the minister to ensure that the minister is fit to attend the execution.[16] 

Prior Case Law Development on Execution Litigation

Smith is the latest installment in a recent line of cases evaluating prisoners’ religious liberties in the context of executions.  In Dunn v. Ray,[17] the Supreme Court vacated the Eleventh Circuit’s stay of execution for Domineque Ray in an unsigned order on Feb. 7, 2019.[18]  Ray, a practicing Muslim and Alabama prisoner, had petitioned for a stay of execution because the prison refused to allow his imam to enter the execution chamber, even though Christian ministers were permitted in the chamber.[19]  The Court’s unsigned order did not elaborate on its decision to vacate the stay of execution, only citing Gomez v. United States District Court for the Northern District of California[20] for the proposition that a reviewing court can take into account the “last-minute nature of an application to stay execution.”[21]  Kagan vehemently dissented, stating that the Court’s decision was “profoundly wrong.”[22]  According to Kagan, the Court’s decision failed to recognize Ray’s “powerful claim that his religious rights will be violated.”[23]  Kagan further argued that Ray’s request was timely, as he filed his complaint only five days after Alabama denied his request to have his imam accompany him into the execution chamber.[24] 

Another execution-related religious liberty case came just a month later in Murphy v. Collier.[25] The Supreme Court blocked Patrick Murphy’s execution in March 2019 because Texas’s policy did not permit a Buddhist spiritual advisor to accompany Murphy into the execution chamber.[26]  At the time, Texas only allowed Christian or Muslim ministers to enter the execution chamber.[27]  In a brief paragraph, the Supreme Court explained that Murphy’s execution could not proceed until Texas permitted a Buddhist spiritual advisor to “accompany Murphy in the execution chamber.”[28]  Justice Kavanaugh, who concurred in the decision to grant the stay of execution, attempted to distinguish Murphy from the Court’s decision in Ray, emphasizing that Murphy submitted his request for a Buddhist minister an entire month before the date of his scheduled execution.[29]  Despite Kavanaugh’s explanation, the “disparate outcomes” of Ray and Murphy have been characterized as arbitrary.[30]

Five days after the Supreme Court granted the stay of execution in Murphy, Texas revised its policy to bar all religious ministers from the execution chamber.[31]  Although Kavanaugh wrote a concurring opinion in the Murphy case, he also released an additional statement, opining that Texas’s revised policy “solve[d] the equal-treatment constitutional issue” and “likely passe[d] muster under [RLUIPA].”[32]  In essence, Kavanaugh advised death penalty states to remedy religious discrimination concerns by simply barring all religious ministers from the execution chamber.[33]  Relying on Kavanaugh’s statement, Alabama amended its policy in April 2019 and joined Texas in excluding all religious officials from its execution chamber.[34]  

Shortly after Texas’s policy revision, prisoner Ruben Gutierrez challenged the new policy, arguing that it violated his religious liberties under RLUIPA by prohibiting his chaplain from accompanying him in the execution chamber.[35]  However, the Supreme Court did not weigh in on the merits of Gutierrez v. Saenz.[36]  Instead, the Court merely issued a one-paragraph remand, instructing the district court to consider “the merits” of Gutierrez’s claims based on the district court’s earlier findings that allowing a spiritual advisor into the execution chamber would not result in serious security problems.[37]  Thus, Smith was the first case where the Supreme Court’s decision actually indicated that barring religious ministers from the execution chamber could violate RLUIPA.  

Concerns About the Supreme Court’s Surreptitious Shadow Docket

Smith also marks one of the most recent decisions from the Supreme Court’s “shadow docket,” a term used to refer to emergency orders that are granted separately from the Court’s “normal merits docket.”[38]  Shadow docket decisions are viewed with some skepticism because they are decided without oral argument and are typically short, supported by minimal legal reasoning or explanations, and can be unsigned by individual justices.[39]  The shadow docket has recently received national attention because of the Trump administration’s high volume of requests for emergency relief in the form of shadow docket decisions,[40] as well as the heightened divisiveness on display in recent shadow docket rulings.[41]  In fact, these concerns led the House Judiciary Committee’s Subcommittee on Courts, Intellectual Property, and the Internet to hold a hearing Feb. 18 to discuss the shadow docket.[42]  In his testimony before the subcommittee, University of Texas law professor Stephen Vladeck referenced the uncertainty about whether Justice Alito or Justice Gorsuch (or both) joined Kagan’s opinion in Smith to provide the fifth (or sixth) vote to block Smith’s execution.[43]  According to Vladeck, this anonymity in shadow docket decisions can “complicate[] efforts to decipher the potential impact of the Court’s ruling beyond the instant case.”[44]  

In his own testimony, Amir H. Ali, Deputy Director of the Supreme Court and Appellate Program of the MacArthur Justice Center, criticized the “arbitrariness” and “disparate outcomes” of the Supreme Court’s recent shadow docket execution decisions.[45]  In order to combat the trend of unexplained, arbitrary decisions, Ali advised Congress to codify a standard of review for the Supreme Court to implement when reviewing shadow docket cases[46] and to also require the Court to supply reasonings for these decisions.[47] 

The Potential Impact of Smith

Despite the uncertainty surrounding shadow docket decisions, the Supreme Court’s stance in Smith will likely affect several of the other twenty-seven states that continue to recognize the death penalty.[48]  As Kavanaugh noted in his statement following Murphy,[49] Texas has explicitly barred religious ministers from the execution chamber since April 2019.[50]  Additionally, Idaho’s current execution protocol implies that religious ministers may not enter the execution chamber with the prisoner, as “a spiritual advisor of the offender’s choosing” is expected to witness the execution from the “condemned offender’s witness area.”[51] Similarly, North Carolina’s execution protocol also indicates that religious ministers cannot accompany the prisoner into the execution chamber, stating that religious ministers “will be seated in the first row of chairs” during the execution.[52] 

As of Feb. 24, none of these states appear to have publicly acknowledged Smith or addressed how it will impact their current policies.  Nevertheless, policy adjustments will likely be necessary to avoid an onslaught of litigation and, more importantly, to respect prisoners’ religious liberties.  As Ali testified to the House subcommittee, “[w]hen it comes to the death penalty, the importance of getting things right is at its zenith: there is no do-over.”[53]


[1] Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021); see also Amy Howe, Court Won’t Allow Alabama Execution Without a Pastor, SCOTUSblog (Feb. 12, 2021, 2:35 AM), https://www.scotusblog.com/2021/02/court-wont-allow-alabama-execution-without-a-pastor/ (explaining that the Court released its decision “around midnight eastern time”).

[2] 42 U.S.C. § 2000cc­­–1.

[3] Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *1 (M.D. Ala. Feb. 2, 2021), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Smith, 2021 WL 517473, at *1.

[4] Id.

[5] Id. at *6.

[6] Id. at *22.

[7] See id. at *9–10.

[8] Smith, 2021 WL 490283, at *1, aff’d Smith, 2021 WL 517473, at *1.

[9] 2021 WL 517473, at *1.

[10] Id. at *2 (Kagan, J., concurring).

[11] Id. at *1 (quoting Holt v. Hobbs, 574 U.S. 352, 364 (2015)).

[12] 42 U.S.C. § 2000cc–1(a)(2).

[13] Smith, 2021 WL 517473, at *1 (Kagan, J., concurring).

[14] Id.

[15] Id.

[16] Id. at *2.

[17] 139 S. Ct. 661 (2019) (mem.).

[18] Id. at 661.

[19] See id. at 661–62 (Kagan, J., dissenting).

[20] 503 U.S. 653, 654 (1992).

[21] Ray, 139 S. Ct. at 661 (quoting Gomez, 503 U.S. at 654).

[22] Id. at 661 (Kagan, J., dissenting).

[23] Id. at 662.

[24] Id.

[25] 139 S. Ct. 1475 (2019) (mem.).

[26] See id. at 1475.

[27] Id. (Kavanaugh, J., concurring) (“[T]he relevant Texas policy allows a Christian or Muslim inmate to have a state-employed Christian or Muslim religious adviser present either in the execution room or in the adjacent viewing room.”).

[28] Id. (majority opinion).  

[29] Id. at 1477 (Kavanaugh, J., supplementary statement).

[30] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4 (2021) (statement of Amir H. Ali, Deputy Director, Supreme Court & Appellate Program of the MacArthur Justice Center) [hereinafter Ali Hearing Statement] (“The disparate outcomes of these cases demonstrate the arbitrariness of present Shadow Docket practice in terms of who dies without this basic dignity.”).

[31] Murphy, 139 S. Ct. at 1476 (Kavanaugh, J., supplementary statement) (“Texas now allows all religious ministers only in the viewing room and not in the execution room.”).

[32] Id.

[33] See Howe, supra note 1 (describing Kavanaugh’s supplementary statement in Murphy as “suggesting” the “solution” of excluding all religious ministers from the execution chamber).

[34] See Smith v. Dunn, No. 2:20-CV-1026, 2021 WL 358374, at *2 (M.D. Ala. Feb. 2, 2021) (explaining that following “litigation in both Alabama in Texas,” Alabama revised its execution policy in April 2019 to restrict all religious ministers from the execution chamber), rev’d sub nom. Smith v. Comm’r, No. 21-10348, 2021 WL 490283, at *1 (11th Cir. Feb. 10, 2021), aff’d sub nom. Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).

[35] See Juan A. Lozano, U.S. Supreme Court Halts Texas Execution Over Clergy Question, AP News (June 16, 2020), https://apnews.com/article/4e9159f5a14395d6aaad24a7d545e738.

[36] No. 19-8695, 2021 WL 231538, at *1 (U.S. Jan. 25, 2021) (mem.).

[37] Id. at *1.  An earlier grant from the Supreme Court to issue a stay for the execution (while Gutierrez’s petition for certiorari was still pending) had instructed the District Court to evaluate “whether serious security problems would result if a prisoner facing execution is permitted to choose the spiritual adviser the prisoner wishes to have in his immediate presence during the execution.”  Gutierrez v. Saenz, 141 S. Ct. 127, 128 (2020) (mem.); see also Smith, 2021 WL 358374, at *3 (noting that the district court in Gutierrez had found that “no serious security problems would result” from the presence of spiritual advisors in the execution chamber (citing Gutierrez v. Saenz, No. 19-cv-185 (S.D. Tex. 2019), Doc. 124, p.2))).

[38] Debra Cassens Weiss, House Panel Considers Reforms to Deal with Supreme Court’s Shadow Docket, ABA J. (Feb. 19, 2021, 9:38 AM), https://www.abajournal.com/news/article/house-panel-considers-reforms-to-deal-with-supreme-courts-shadow-docket-more-transparent.

[39] See id.; see also Hon. Trevor McFadden & Vetan Kapoor, Symposium: The Precedential Effects of Shadow Docket Stays, SCOTUSblog (Oct. 28, 2020, 9:18 AM), https://www.scotusblog.com/2020/10/symposium-the-precedential-effects-of-shadow-docket-stays/; Steve Vladeck, The Supreme Court’s Most Partisan Decisions Are Flying Under the Radar, Slate (Aug. 11, 2020, 12:12 PM), https://slate.com/news-and-politics/2020/08/supreme-court-shadow-docket.html.

[40] The Supreme Court’s Shadow Docket: Hearing Before the Subcomm. on Cts., Intell. Prop., & the Internet of the H. Comm. on the Judiciary, 117th Cong. 4–5 (2021) (statement of Stephen Vladeck, Charles Alan Wright Chair in Federal Courts, University of Texas School of Law) [hereinafter Vladeck Hearing Statement] (explaining that over four years, the Trump administration filed forty-one applications with the Supreme Court for emergency relief, which was “more than twenty times” the number of applications prior administrations submitted between January 2001 and January 2017).  The Supreme Court granted twenty-four of these applications “in full and four in part.” Id. at 5.

[41] Id. at 5 (“[D]uring the October 2019 Term, there were almost as many public 5-4 rulings on the shadow docket (11) as there were on the merits docket (12).”).

[42] The Supreme Court’ Shadow Docket, House Comm. on Judiciary, https://judiciary.house.gov/calendar/eventsingle.aspx?EventID=4371 (last visited Feb. 24, 2021).  This link contains a recording of the virtual hearing.

[43] Vladeck Hearing Statement, supra note 40, at 6.  Justices Breyer, Sotomayor, and Barrett joined Justice Kagan’s opinion in Smith, Justice Kavanaugh’s dissent was joined by Chief Justice Roberts, and the opening sentences of the decision note that Justice Thomas would have vacated the injunction.  Dunn v. Smith, No. 20A128, 2021 WL 517473, at *1 (U.S. Feb. 11, 2021).  The decisions of Justices Gorsuch and Alito remain unknown, leading to speculation about which of the two joined the majority decision.  See, e.g., Jonathan H. Adler, SCOTUS Refuses to Let Alabama Execute Willie Smith Without His Pastor Present (Without Noting Who Cast the Fifth Vote), Reason: Volokh Conspiracy (Feb. 18, 2021, 1:46 PM), https://reason.com/volokh/2021/02/13/scotus-refuses-to-let-alabama-execute-willie-smith-without-his-pastor-present-without-noting-who-cast-the-fifth-vote/ (“If I had to guess, I would think Justice Gorsuch provided the fifth vote to deny the application, though it is also possible both opted to leave the lower court’s injunction in place.”).

[44] Vladeck Hearing Statement, supra note 40, at 6. 

[45] Ali Hearing Statement, supra note 30, at 4. 

[46] See id. at 5.  In particular, Ali recommended adopting the standard currently used for overturning certain state court decisions concerning prisoners, which requires that the Supreme Court should disturb “a lower court’s request for additional time to consider the lawfulness of an execution” only when “it is apparent to the Supreme Court that the lower court’s decision was ‘contrary to, or involved an unreasonable application of, clearly established Federal law’ or rested on ‘an unreasonable determination of the facts in light of the evidence presented.’”  Id. at 6 (quoting 28 U.S.C. § 2254(d)).

[47] See id. at 6.

[48] State by State, Death Penalty Info. Ctr., https://deathpenaltyinfo.org/state-and-federal-info/state-by-state (last visited Feb. 18, 2021) (listing twenty-eight states that still recognize the death penalty).  However, three of these states (California, Oregon, and Pennsylvania) currently have a governor-imposed moratorium on executions.  Id.  An additional nine death penalty states have not carried out executions in at least ten years.  Executions Overview: States with No Recent Executions, Death Penalty Info. Ctr. (July 14, 2020), https://deathpenaltyinfo.org/executions/executions-overview/states-with-no-recent-executions. Virginia also appears to be on the brink of abolishing its death penalty. See Dean Mirshahi, With Northam’s Signature, Virginia Will Become First Southern State to Abolish the Death Penalty, ABC News (Feb. 23, 2021 12:48 PM), https://www.wric.com/news/politics/capitol-connection/with-northams-signature-virginia-will-become-first-southern-state-to-abolish-the-death-penalty/ (noting that both the Virginia House and Senate have approved a bill abolishing the death penalty, and Governor Northam “seems poised to sign the legislation”).

[49] See Murphy v. Collier, 139 S. Ct. 1475, 1476 (2019) (Kavanaugh, J., supplementary statement).

[50] See Execution Procedure, Tex. Dep’t Crim. Just. Corr. Insts. Div. 8 (Apr. 2, 2019), https://files.deathpenaltyinfo.org/legacy/files/pdf/TX%20Execution%20Procedure%2004.02.2019.pdf (“[Texas Department of Criminal Justice] Chaplains and Ministers/Spiritual Advisors designated by the offender may observe the execution only from the witness room.”).

[51] Execution Procedures, Idaho Dep’t Corr. 16 (Jan. 6, 2012), https://files.deathpenaltyinfo.org/legacy/files/pdf/ExecutionProtocols/IdahoProtocol01.06.2012.pdf.

[52] Execution Procedure Manual for Single Drug Protocol (Pentobarbital), N.C. Dep’t Pub. Safety 7 (Oct. 24, 2013), https://www.ncdps.gov/document/execution-procedure-manual-single-drug-protocol-pentobarbital.  The protocols also provide that the religious minister should remain with the prisoner in the Preparation Room “until orders are given to move the condemned prisoner into the Death Chamber.”  Id. at 16.

[53] Ali Hearing Statement, supra note 30, at 5. 


Post Image by Nathan Dumalo on Unsplash.

By Sarah E. Page

Pop culture is filled with references to hidden Nazi treasure. Monuments Men tells the story of the real hunt for stolen Nazi art[1] Television channels are rife with shows focusing on the search for hidden Nazi gold around the world.[2] However, one hoard is hidden in plain sight, and is now the subject of a dispute that made it all the way to the Supreme Court of the United States, which, in a decision released Feb. 3, sided with the treasure’s current owners regarding whether the dispute should be decided by U.S. courts.[3]

The collection, currently housed in Berlin’s Kunstgewerbemuseum,[4] is filled with artifacts of immense cultural and monetary value, and includes beautiful, gilded ecclesiastical artifacts such as the Cupola Reliquary, the Guelph Cross, and the Portable Altar of Eilbertus.[5] The beauty of the artifacts hides a long and rich history. Although that history originates in the beginnings of the German church, the conflict that brought the treasure before the Supreme Court is rooted in the beginnings of the Nazi Party’s control over Europe. In 1929, a consortium of Jewish art dealers based in Germany purchased the Guelph Treasure and displayed it around the world.[6] After their rise to power in 1933, the Nazi government began pressuring the group to sell their collection to Prussia, which promptly gifted the treasure to Hitler.[7] However, this transaction was for only a third of the collection’s appraised market value.[8]

The unjustly low price paid over 80 years ago is the cause of the current legal battle. A group of the original Jewish art dealers’ descendants composed of Alan Philipp, a resident of the United Kingdom, and United States residents Gerald Stiebel and Jed Leiber, [9] seek legal recourse for what they allege was an unjust transaction. Before availing themselves of the United States court system, the group first tried to use the Limbach Commission in Germany, which was established in 2003 to consider the fate of Nazi-acquired artifacts with questionable provenance that are currently in government possession.[10]

In that commission hearing, the museum foundation currently holding the collection argued that because the collection was in Amsterdam, and not under German control at the time of the sale, it cannot automatically be presumed that the Jewish art dealers faced pressure and threats from the Nazi Party to sell.[11] Arguably, this assertion failed to consider that one member of the group lived in Germany at the time of the deal, and while the treasure might not have been subject to Nazi control, the man may have felt that his life was in danger.[12] Furthermore, the museum claimed that because the market declined due to the Great Depression, the collection was worth much less at the time it was sold, and therefore the sale price was fair,[13] despite evidence of a letter from a Nazi official to Hitler outlining his intent to purchase the collection for a mere third of its value.[14]

The commission agreed with the museum, and determined that the Guelph Treasure was sold for a reasonable price that was not a result of duress.[15] Thus, the museum, whose deputy director has described the Guelph Treasure as “the highlight, the center, the heart of [their] medieval collection,” was not required to return the artifacts to the descendants of the original dealers.[16]

Understandably displeased, the heirs decided to bring their fight to the United States.[17] Most of their causes of action are straightforward, like replevin, conversion, and unjust enrichment;[18] but the question of whether an American court could actually decide these issues is a jurisdictional quagmire that halted the case’s progress in the U.S.

Both the district court[19] and the D.C. Circuit Court of Appeals[20] determined that the claims surrounding the sale of the Guelph Treasure were connected to the genocide of German Jews during the Holocaust, and therefore the Foreign Sovereign Immunities Act (“FSIA”) would not prevent the United States courts from gaining jurisdiction. But the museum appealed this decision to the Supreme Court, arguing that the FSIA’s expropriation exception should not apply, both because the claims are of a domestic taking, from a German citizen to the German government, and because the principle of international comity would require that American courts refrain from making a decision on a matter with only a tenuous connection to the United States.

Normally, foreign governments are granted sovereign immunity from suits in the United States under the FSIA, but there are a few exceptions.[21] Under the FSIA’s expropriation exception, when a foreign state takes property “in violation of international law,” and “that property or any property exchanged for such property is owned or operated by an agency or instrumentality of the foreign state and that agency or instrumentality is engaged in a commercial activity in the United States,” then the foreign government is susceptible to suits in the United States regarding the taken property.[22] The museum, of course, does not believe this exception applies.

The museum’s first contention seems to rest on the fact that the actual transaction only involved German parties, that the sale itself did not violate international law, and that the transaction’s connection with the horrors of the Holocaust cannot bring claims surrounding the transaction under the purview of the expropriation exception.[23] The taking itself must violate international law, and historically, that can only happen when the government takes from a foreign national.[24] The heirs of the art dealers argue that the court should consider only the plain text of the law, and as “taken in violation of international law” is not defined within the FSIA statute and not an obvious term of art, it should be interpreted according to its plain meaning.[25] Because genocide is an obvious violation of international law, and the potentially unjust sale of the Guelph Treasure was directly related to the Holocaust genocide, then the sale should render the treasure “taken in violation of international law.”[26]

Although the museum is correct and the sale of the Guelph collection was not genocide, Justice Thomas suggested in oral argument that it is impossible to separate actions taken by the Nazi party against the German Jewish population from the Holocaust.[27] However, despite this incisive comment during argument, Justice Thomas joined in a unanimous decision to vacate the lower courts’ interpretation of the expropriation exception.[28] Writing for the court, Chief Justice Roberts adopted the German museum’s perspective on the FSIA.[29]

Because the rest of the FSIA mentions only property related offenses, the Supreme Court stated that the expropriation exception should not be extrapolated to apply to events surrounding human rights violations.[30] This is because international law governing property tends to abide by the “domestic takings rule,” which holds that a government’s seizure of the property of its own citizen is not a matter governed by international law.[31] The Court articulated that Congress’s intention to allow American courts to intervene only when there is state action against property held by a citizen of another state is obvious because the verbiage used in the FSIA expropriation exception is identical to that of the Second Hickenlooper Amendment to the Foreign Assistance Act of 1964.[32] This amendment dictated that federal courts could intervene in situations in which foreign nations had taken adverse action against the property of a non-citizen, and was passed as a reaction to the former Supreme Court’s reluctance to exercise jurisdiction over the actions of a foreign nation on foreign soil involving an American company’s property.[33] However, Congress did not alter the traditional “domestic takings rule” when it passed the Second Hickenlooper Amendment, and instead left state actions against the property of their own citizens out of the purview of international law.[34] Because the sale of the Guelph Treasure was a transaction between German citizens, there is no invocation of international law, and therefore, there is no possibility that the transactions could have violated international law for the purposes of jurisdiction under the FSIA exception.[35]

However, the Supreme Court did leave one small door open to allow the dealers’ descendants another chance at U.S. jurisdiction. If the dealers were no longer considered German citizens at the time of the transaction due to Germany stripping Jewish Germans of citizenship status, the “domestic takings rule” may not apply.[36] However, the Court declined to address this important factor and sent the issue back to the district court to ascertain whether that issue was properly preserved for appeal.[37]

The museum’s next argument is that the principle of comity should prevent American courts from presiding over these claims because Germany has a system that would adjudicate the claims and because the claims hold significant historical and political implications for Germany.[38] At a basic level, comity is the principle that governments should respect the governmental decisions of foreign states.[39] After asserting comity, the nation of Germany was dismissed as a party to the case, but the museum foundation asserts that this principle should cover them as well.[40] The descendants contend that not only is the museum’s comity argument just a restatement of the forum non conveniens argument that was dismissed earlier and not appealed,[41] but also that discretionary comity would be inappropriate here because the descendants would not be able to recover for their claims in Germany.[42] The Supreme Court artfully avoided stepping on international toes by declining to address this issue and basing the outcome of the case solely on the dispute under the FSIA.[43] Therefore, the issue of comity in similar cases is left for another day.

On one hand, the Supreme Court had a sympathetic set of plaintiffs and extreme, visceral disgust for the atrocities committed by the Nazis during the Holocaust. On the other hand, the Court faced the possibility of overly encroaching on international affairs.[44] Although faced with two very compelling arguments and the competing goals of both preserving international relations and recognizing the injustices inflicted on the German Jews by the Nazis, the Court effectively struck a balance between preserving traditional tenants of international law and recognizing the injustices that faced the art dealers at the time of the sale.[45]


[1] See Monuments Men Found., https://www.monumentsmenfoundation.org (last visited Feb. 4, 2021).

[2] See Hunting Nazi Treasure, Nat’l Geographic Channel, https://www.natgeotv.com/ca/hunting-nazi-treasure/about (last visited Feb. 4, 2021); Lost Gold of World War II, History, https://www.history.com/shows/lost-gold-of-world-war-ii (last visited Feb. 4, 2021); Nazi Gold Train, Travel Channel, https://www.travelchannel.com/shows/expedition-unknown/episodes/nazi-gold-part-1 (last visited Feb. 4, 2021).

[3] Federal Republic of Germany v. Philipp, No. 19-351, slip op. at 1, 16 (U.S. Feb. 3, 2021), https://www.supremecourt.gov/opinions/20pdf/19-351_o7jp.pdf.

[4] Hilary McDonnell, An Uncertain Fate for the Guelph Treasure, Hughes Hubbard & Reed (Nov. 11, 2020), https://www.hhrartlaw.com/2020/11/an-uncertain-fate-for-the-guelph-treasure/.

[5] What is the Guelph Treasure?, Stiftung Preußischer Kulturbesitz,

http://www.preussischer-kulturbesitz.de/newsroom/dossiers-and-news/all-dossiers/dossier-the-guelph-treasure/what-is-the-guelph-treasure.html?no_cache=1&L=1 (last visited Feb. 4, 2021).

[6] McDonnell, supra note 4.

[7] Id.

[8] Brief for Respondents at 5, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Oct. 22, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/158522/20201022151404770_Respondents%20Brief.pdf.

[9] Brief for Petitioners at ii, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153210/20200904172357322_2020-09-04%20Brief%20of%20Petitioners.pdf.

[10] Nicholas O’Donnell, Limbach Advisory Commission Recommends Against German Restitution of “Guelph Treasure,” Focuses on Terms of 1929 Agreement for Intended Sale, Sullivan &Worcester: Art L. Rep. (Mar. 26, 2014, 11:54 AM), https://blog.sullivanlaw.com/artlawreport/2014/03/26/limbach-advisory-commission-recommends-against-german-restitution-of-guelph-treasure-focuses-on-terms-of-1929-agreement-for-intended-sale/.

[11] Christopher F. Schuetze, U.S. Supreme Court to Rule on Medieval Treasure Bought by Nazis, N.Y. Times (July 10, 2020), https://www.nytimes.com/2020/07/10/world/europe/guelph-treasure-germany-us.html.

[12] Schuetze, supra note 11.

[13] O’Donnell, supra note 10.

[14] Brief for Respondents, supra note 8, at 4.

[15] Brief for Petitioners, supra note 9, at 6.

[16] Schuetze, supra note 11 (quoting Lothar Lambacher).

[17] Nicholas O’Donnell, Civil Action Filed Against Germany for Restitution of Guelph Treasure, Sullivan &Worcester: Art L. Rep. (Feb. 24, 2015, 12:27 AM), https://blog.sullivanlaw.com/artlawreport/topic/philipp-v-federal-republic-of-germany-et-al-15-cv-.

[18] Joint Appendix at 125–26, Federal Republic of Germany v. Philipp, No. 19-351 (U.S. Sept. 4, 2020), https://www.supremecourt.gov/DocketPDF/19/19-351/153235/20200904173042682_2020-09-04%20Joint%20Appendix.pdf.

[19] Philipp v. Federal Republic of Germany, 248 F. Supp. 3d 59, 70–72 (D.D.C. 2017), aff’d, 894 F.3d 406 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-ger.

[20] Philipp v. Federal Republic of Germany, 894 F.3d 406, 410–413 (D.C. Cir. 2018), vacated, No. 19-35,1 slip op. (U.S. Feb. 3, 2021), https://casetext.com/case/philipp-v-fed-republic-of-germany-2.  

[21] Amy Howe, Argument Preview: Pleading Standards and the “Expropriation” Exception to the FSIA, SCOTUSblog (Oct. 27, 2016, 2:10 PM), https://www.scotusblog.com/2016/10/argument-preview-pleading-standards-and-the-expropriation-exception-to-the-fsia/.

[22] 28 U.S.C. §1605(a)(3), https://www.govinfo.gov/content/pkg/USCODE-2011-title28/html/USCODE-2011-title28-partIV-chap97.htm.

[23] Brief for Petitioners, supra note 9, at 16–18.

[24] Id. at 22–26.

[25] Brief for Respondents, supra note 8, at 11–12.

[26] Id. at 12–13.

[27] Coleman Sanders, Summary: Supreme Court Oral Argument in Federal Republic of Germany v. Philipp, Lawfare (Jan. 12, 2021, 1:19 PM), https://www.lawfareblog.com/summary-supreme-court-oral-argument-federal-republic-germany-v-philipp.

[28] Philipp, slip op. at 15–16.

[29] Id. at 1, 7.

[30] Id. at 4–5.

[31] Id. at 4–6.

[32] Id. at 7–8; see also 22 U.S.C. § 2370(e)(2).

[33] Philipp, slip op. at 7–8; § 2370(e)(2).

[34] Philipp, slip op. at 7.

[35] Id. at 8.

[36] Brief for Respondents, supra note 8, at 27.

[37] Philipp, slip op. at 16.

[38] McDonnell, supra note 4.

[39] Brief for Respondents, supra note 8, at 9–10.

[40] Id. at 10.

[41] Id. at 43.

[42] Id. at 54–55.

[43] Philipp, slip op. at 15–16.

[44] Brief for Petitioners, supra note 9, at 49–50.

[45] Philipp, slip op. at 13 (hinting at potential retaliation if an American court claimed jurisdiction over these claims).

Post image of the Cupola Reliquary, courtesy Kunstgewerbemuseum. Photo by Fabian Frohlich.

The four freedoms. Equal justice under the law is just one of the planks on  which
Lauren Funk

On November 25, the United States Supreme Court issued a five to four opinion enjoining New York Governor, Andrew Cuomo, from implementing a COVID-19 restriction which would limit religious services to gatherings of no more than ten people.[1]  The deciding vote?  Newly appointed Justice Amy Coney Barrett.[2]  Joining Justice Barrett in the unsigned opinion were Justices Neil Gorsuch and Brett Kavanaugh,[3] who were also both recently appointed to the Supreme Court.[4]  The three President Trump-appointed justices make up just half of the conservative bloc on the Court, effectively outnumbering the liberal justices by six to three.[5]  The Democratic Party has vehemently expressed concern over the growing conservative majority and what it could mean for issues like abortion, healthcare, and LGBTQ+ rights.[6]  Many notable figures on the left have responded to this shift by calling for judicial reform, namely court expansion, which is most commonly referred to as “court-packing.”[7]

The concept of packing the court (or decreasing its size) is not necessarily new.[8]  This is in part because the U.S. Constitution did not set out a specific number of Supreme Court justices in Article III, leaving the makeup of the Court for Congress to decide.[9]  Consequently, since 1789, the number of justices on the Court has changed seven times, the last of those changes in 1869, with an increase from seven to nine.[10]  Although the number has not changed in 151 years, one key challenge arose in 1937: President Franklin D. Roosevelt’s “court-packing” plan.[11]  After two years of facing a consistent blocking of New Deal legislation by a conservative Supreme Court, President Roosevelt proposed a plan to change the makeup of the court.[12]  The plan would, in effect, increase the number of justices from nine to fifteen and tip the Court in President Roosevelt’s favor.[13]  This was met with strong opposition in Congress and across the legal community, including members of President Roosevelt’s own administration.[14]  Moreover, after the plan was introduced, the Court began to shift its position in favor of key pieces of New Deal legislation, and thus, the court-packing plan became futile.[15]  The Senate subsequently voted against it by an overwhelming 70 to 22.[16]

Unlike President Roosevelt’s infamous plan, the recent talks of expanding the Court have been met with a fairly equal amount of support and opposition.[17]  Proponents in favor of court-packing have largely based their reasoning on three grounds.  First, and perhaps what ignited support for this issue in the first place, is the fact that the last three Justices appointed to the Supreme Court were appointed by a president that lost the popular vote in his election.[18]  As such, President Trump’s appointees may be seen to some as less legitimate,[19] and thus their decisions less reflective of the national preferences.[20]  Second, proponents contend that expanding the court would allow for greater judicial bipartisanship, especially if expanded using the five-five-five approach.[21]  This method would restructure the court by mandating that there be exactly five justices affiliated with the Democratic Party and five justices affiliated with the Republican party (the confirmation process remaining much the same).[22]  Together, those ten justices would have to unanimously agree on five additional justices and if they could not come to an agreement, they would lack the quorum needed to officially hear cases.[23]  This would ensure that neither political party maintains a stronghold majority in the Court.  Finally, many support court-packing because they believe that other alternatives would take longer to implement, thus increasing the likelihood that many liberal policies could be overturned or narrowed in the interim.[24]  Proponents argue the consequences of such reversals could be far-reaching, from immediate impacts on the environment[25] to interfering with a woman’s access to abortion.[26]

In contrast, opposing arguments are focused less on policy implications and more on the  threat that court-packing posits to democracy and judicial legitimacy.[27]  First, opponents contend that court-packing would, in effect, decrease tolerance for opposing viewpoints in an already deeply polarized America.[28]  One of the foundations of democracy is the people’s faith in the system, essentially “liv[ing] with ‘bad’ policies until [one has] the chance to reverse them through the voting process.”[29]  Specifically, opponents worry that restructuring the court to best fit a party agenda—either  by the Democrats now or the Republicans later—could signal a breakdown of the democratic system.[30]  Second, opponents have expressed concern over how court-packing could delegitimize the Court.[31]  Packing the Court with liberal justices to balance out (or perhaps outnumber) the amount of conservative justices could be seen as political interference in what is supposed to be a “no politics” zone.[32]  Opponents argue this could jeopardize judicial independence, which has been a distinguishing tenet of the Court since its inception.[33]  Lastly, opponents predict that this kind of political restructuring would set the precedent for a future back and forth cycle, leading to great instability in the Court over time.[34]  If the Democrats were successful in packing the Court in 2021, the Republicans could reverse this expansion or further pack the court as soon as they regain control of Congress, and the Democrats could reverse the Republican’s reversal the next time they were in control, and so on and so forth.  Opponents have argued this would “yield short-term political victories at the cost of the long-term health of [the] Republic.”[35]

While it is clear where some stand on the issue, President-elect Joe Biden, who openly opposed court-packing before the passing of Justice Ruth Bader Ginsburg, remained relatively tight-lipped on the topic in the last weeks of his campaign,[36] and has yet to address his stance on the issue since winning the election last month.  However, even if the Biden administration were to put a court-packing plan at the top of its agenda, it would still need a Democratic majority in Congress, and further, a Democratic majority that collectively supports the idea.[37]  Although these requirements seem daunting, it is not entirely far off, even if Biden has to wait until 2022 for a Democratic-controlled Congress.  If that were the case and Biden wanted to act sooner, or if he wanted to avoid court-packing altogether, he could rely on alternatives for Court reform that may garner more bipartisan support.[38]  Scholars have suggested proposals ranging from term limits[39] to a “binding set of nonpartisan rules.”[40]  These rules could set a firm deadline for nominations to the Court during presidential election years, make confirmation hearings private, and address the issue of nominating young justices to get long-term control.[41]

While these reforms sound promising, they could take time to pass through Congress, which means that the outrage felt by the Democratic Party over the current makeup of the Court is not going away anytime soon.  This is especially true in light of the fact that there are several significant cases that come before the Court every year, and the Cuomo case will likely not be the last time Justice Barrett is the deciding vote.  However, it is conceivable that history could repeat itself and the Court could respond to the threat of expansion like it did in 1937 by adjusting its position on key cases.  Whatever the outcome, change on the Supreme Court in the coming months and years is inevitable.


[1] Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354, at *1, *3 (U.S. Nov. 25, 2020).

[2] Justice Ruth Bader Ginsburg had voted against similar religious challenges in the months preceding her death, after which Justice Barrett took over her seat on the Court. Adam Liptak, Splitting 5 to 4, Supreme Court Backs Religious Challenge to Cuomo’s Virus Shutdown Order, N.Y. Times (Nov. 26, 2020), https://www.nytimes.com/2020/11/26/us/supreme-court-coronavirus-religion-new-york.html.

[3] Amy Howe, Justices lift New York’s COVID-related attendance limits on worship services, SCOTUSblog (Nov. 26, 2020), https://www.scotusblog.com/2020/11/justices-lift-new-yorks-covid-related-attendance-limits-on-worship-services/.

[4] See Ed O’Keefe & Robert Barnes, Senate confirms Neil Gorsuch to Supreme Court, Wash. Post (Apr. 7, 2017), https://www.washingtonpost.com/powerpost/senate-set-to-confirm-neil-gorsuch-to-supreme-court/2017/04/07/da3cd738-1b89-11e7-9887-1a5314b56a08_story.html;  Kevin Breuninger & Mike Calia, Brett Kavanaugh confirmed by Senate in 50-48 vote, ascends to Supreme Court, CNBC (Oct. 6, 2018), https://www.cnbc.com/2018/10/06/brett-kavanaugh-confirmed-by-senate-in-50-48-vote.html.

[5] Joan Biskupic, Supreme Court’s liberals face a new era of conservative dominance, CNN (Dec. 3, 2020), https://www.cnn.com/2020/12/03/politics/supreme-court-breyer-sotomayor-kagan/index.html.

[6] See Amy McKeever, Why the Supreme Court ended up with nine justices–and how that could change, Nat’l Geographic (Sept. 20, 2020), https://www.nationalgeographic.com/history/2020/09/why-us-supreme-court-nine-justices/#close.

[7] Astead W. Herndon & Maggie Astor, Ruth Bader Ginsburg’s Death Revives Talk of Court Packing, N.Y. Times (Oct. 22, 2020), https://www.nytimes.com/2020/09/19/us/politics/what-is-court-packing.html.

[8] See McKeever, supra note 6.

[9] See U.S. Const. art. III, § 1 (“The judicial Power of the United States, shall be vested in one supreme Court . . . .”).

[10] McKeever, supra note 6.

[11] History.com Editors, FDR announces “court-packing” plan, HISTORY (Feb. 4, 2020), https://www.history.com/this-day-in-history/roosevelt-announces-court-packing-plan.

[12] Id.

[13] Gillian Brockell, FDR tried to pack the Supreme Court during the Depression. It was a disaster for him., Wash. Post (Sept. 24, 2020), https://www.washingtonpost.com/history/2020/09/24/fdr-supreme-court-packing-rbg-trump/.

[14] Id.

[15] Id.

[16] History.com Editors, supra note 11.

[17] See infra notes 18–35, and accompanying text.

[18] Gregory Krieg, It’s official: Clinton swamps Trump in popular vote, CNN (Dec. 22, 2016), https://www.cnn.com/2016/12/21/politics/donald-trump-hillary-clinton-popular-vote-final-count/index.html.

[19] See Richard Mailey, Court-Packing in 2021: Pathways to Democratic Legitimacy, 44 Seattle U. L. Rev. 35, 52 (2020) (suggesting that popular vote-losing President Trump’s “consequential” picks on the Supreme Court illustrates the argument that checks on the judicial appointments process is lacking, which can allow a president to seize the court without the will of the people).

[20] See James D. Zirin, Opinion, Beyond Court Packing: The Supreme Court Has Always Been Political, TIME (Nov. 2, 2020), https://time.com/5906442/court-packing-election-history/

[21] See Quinta Jurecic & Susan Hennessey, The Reckless Race to Confirm Amy Coney Barrett Justifies Court Packing, Atlantic (Oct. 4, 2020), https://www.theatlantic.com/ideas/archive/2020/10/skeptic-case-court-packing/616607/.

[22] Daniel Epps & Ganesh Sitaraman, How to Save the Supreme Court, Vox (Oct. 10, 2018), https://www.vox.com/the-big-idea/2018/9/6/17827786/kavanaugh-vote-supreme-court-packing.

[23] Id.

[24] See, e.g., Elaine Godfrey, The Democrats’ Supreme Court Hail Mary, Atlantic (Sept. 28, 2020), https://www.theatlantic.com/politics/archive/2020/09/democrats-case-court-packing/616446/.

[25] Id.

[26] See McKeever, supra note 6.

[27] See infra notes 28–35, and accompanying text.

[28] Bruce Ledewitz, A Call for America’s Law Professors to Oppose Court-Packing, 2019 Pepp. L. Rev. 1, 6–9 (2020).

[29] Id. at 6.

[30] Id. at 9.

[31] See id. at 14; Thomas Jipping & GianCarlo Canaparo, Why Court Packing Would Be Devastating to Our Republic, Heritage Found. (Oct. 5, 2020), https://www.heritage.org/courts/commentary/why-court-packing-would-be-devastating-our-republic.

[32] See Jipping & Canaparo, supra note 31.

[33] Id.

[34] Walter Olson, Opinion, Packing the Supreme Court would lead to a slippery slope, CNN (Oct. 15, 2020), https://www.cnn.com/2020/10/15/opinions/supreme-court-packing-slippery-slope-olson/index.html.

[35] See Jipping & Canaparo, supra note 31.

[36] See Herndon & Astor, supra note 7.

[37] See Jeff Greenfield, How Democrats Could Pack the Supreme Court in 2021, POLITICO (Sept. 19, 2020), https://www.politico.com/news/magazine/2020/09/19/how-democrats-could-pack-the-supreme-court-in-2021-418453.

[38] Jim Walden & Jo Wu, A better Prescription than Packing the Courts, Nat’l L.J. (Oct. 19, 2020), https://wmhlaw.com/wp-content/uploads/2020/10/A-Better-Prescription-Than-Packing-the-Courts-1.pdf.

[39] See Kalvis Golde, House Democrats to introduce new bill for Supreme Court term limits, SCOTUSblog (Sept. 25, 2020), https://www.scotusblog.com/2020/09/house-democrats-to-introduce-new-bill-for-supreme-court-term-limits/.

[40] Walden & Wu, supra note 38.

[41] Id.

By Gabriel L. Marx

Donald Trump is once again at the center of a legal dispute. The Forty-Fifth President of the United States has been no stranger to legal controversies during and before his presidency,[1] but the latest update in Knight First Amendment Institute at Columbia University v. Trump[2] has President Trump petitioning for a writ of certiorari to the Supreme Court after more than three years of litigation.[3]  

The case began in July 2017 when the Knight First Amendment Institute at Columbia University (“Knight Institute”) filed a lawsuit against President Trump in federal court alleging that he violated the First Amendment by blocking Twitter users from his @realDonaldTrump account after they criticized his policies and presidency.[4] The U.S. District Court for the Southern District of New York found that Donald Trump, as President, exercised sufficient control over the Twitter account such that the @realDonald Trump account was “susceptible to analysis under the Supreme Court’s [First Amendment] forum doctrines, and is properly characterized as a designated public forum.”[5] The District Court then held that President Trump’s blocking of these Twitter users was discrimination based on the users’ viewpoints and impermissible under the First Amendment.[6] In July 2019, a three-judge panel for the U.S. Court of Appeals for the Second Circuit unanimously affirmed the district court’s decision[7] and subsequently denied rehearing, sitting en banc, in March of this year.[8] Despite his lack of success so far, the administration has continued his fight against the Knight Institute as Acting Solicitor General Jefferey Wall submitted a petition for a writ of certiorari to the Supreme Court at the end of August.[9]

The petition includes both legal and policy-based arguments about the importance of the case.[10] In terms of legal arguments, Solicitor General Wall argues that the Second Circuit wrongly concluded that (1) President Trump’s blocking of the Twitter users was a state action susceptible to the First Amendment rather than an act of a private citizen; (2) the @realDonaldTrump account was a designated public forum; and (3) the governmental-speech doctrine, which would exempt President Trump’s account from a First Amendment challenge, did not apply to President Trump’s actions.[11] Putting the legal arguments aside, Solicitor General Wall also argues, “the court of appeals’ decision . . . has important legal and practical implications that reach beyond the circumstances of this case.”[12] That is, public officials are “increasingly likely to maintain social media accounts to communicate their views, both personal and official,”[13] so if the Second Circuit’s decision were allowed to stand, it would significantly hinder the ability of these public officials to choose who they want to interact with on their own accounts: a choice afforded to every other social media user.[14] According to the petition, this choice—or lack thereof—takes on an even greater significance when the public official in question in the President of the United States.[15]

In response, the Knight Institute filed its brief in opposition on Sept. 21.[16] The Knight Institute first argues that there is no reason for the Court to hear the case because amongst the various lower courts that have dealt with this issue, all agree that public officials blocking critics from their social media accounts violates the First Amendment.[17] It additionally argues that the second circuit properly concluded that blocking users from the @realDonaldTrump account was state action, was not government speech, and that the account itself is a public forum.[18] The Knight Institute also counters Solicitor General Wall’s policy-based arguments, asserting that the impact of the Second Circuit’s decision has not and will not hinder the President’s or other public officials’ use of social media to communicate to the general public.[19] Finally, the Knight Institute maintains that the only cases where the Court has granted certiorari solely due to presidential implications, and absent a circuit split, are those that deal with “fundamental issues of executive power” (such as separation-of-power concerns), unlike the case at hand, which only deals with whether President Trump can block Twitter users from his @realDonaldTrump account.[20]

Given the procedural history, the above arguments, and the fact that the Court usually only hears cases that have “national significance, might harmonize conflicting decisions in the federal circuit courts, and/or could have precedential value,”[21] it seems unlikely that the Court will grant certiorari. Looking at the procedural history, the two lower courts were in agreement that President Trump violated the First Amendment (with one panel holding that unanimously).[22] Therefore, the Court has little incentive to rehear a case that has already been decided so clearly, unless, as Solicitor General Wall argues, the court of appeals erred in its conclusions. The petition for rehearing was denied by the Second Circuit en banc, [23] however, so the decision has already been affirmed in some sense. Along similar lines, there is no conflict among federal circuit or district courts on the issue of public officials blocking users from their social media accounts, as the Knight Institute points out.[24] On the other hand, there has been an influx of cases dealing with this issue as of late,[25] so the Court might want to decide the issue once and for all to deter future litigation. Nevertheless, given, again, that so many lower courts are all in agreement on the issue, the Court probably will not wish to devote time and resources on a well-settled area of the law simply to deter future litigation—particularly as the issue does not reach an issue of traditional significance in executive authority, such as a separation-of-powers issue. As a final matter, neither the Court’s current make-up of Justices nor the projected addition of Amy Coney Barrett should have much effect on the decision-making process in light of the above factors weighing so heavily against granting certiorari.

While it is unlikely that the Court will grant President Trump’s petition, if it does grant certiorari, the case would be interesting to watch unfold at the nation’s highest court. If heard, Knight First Amendment Institute at Columbia University could set the precedent for the ever-prevalent issue of freedom of speech in social media, so it is certainly worth keeping an eye out for the Court’s decision on the petition for writ of certiorari in the coming weeks.


[1] See Peter Baker, Trump Is Fighting So Many Legal Battles, It’s Hard to Keep Track, N.Y. Times (Nov. 6, 2019), https://www.nytimes.com/2019/11/06/us/politics/donald-trump-lawsuits-investigations.html.

[2] 302 F. Supp. 3d 541 (S.D.N.Y. 2018), aff’d, 928 F.3d 226 (2d Cir. 2019).

[3] See Tucker Higgins, White House Asks Supreme Court to Let Trump Block Critics on Twitter, CNBC (Aug. 20, 2020, 12:00 PM), https://www.cnbc.com/2020/08/20/white-house-asks-supreme-court-to-let-trump-block-critics-on-twitter.html.

[4] See Knight Institute v. Trump, Knight First Amendment Inst. at Colum. Univ., https://knightcolumbia.org/cases/knight-institute-v-trump (last visited Oct. 8, 2020).

[5] Knight Inst., 302 F. Supp. 3d at 580.

[6] Id.

[7] See Knight First Amendment Inst. at Colum. Univ. v. Trump, 928 F.3d 226 (2d Cir. 2019);Knight First Amendment Inst. at Colum. Univ., supra note 4.

[8] See Knight First Amendment Inst. at Colum. Univ. v. Trump, 953 F.3d 216 (2d Cir. 2020) (en banc); Knight First Amendment Inst. at Colum. Univ., supra note 4.

[9] See Petition for Writ of Certiorari, Knight First Amendment Inst. at Colum. Univ. v. Trump, No. 20-197 (Aug. 20, 2020), https://www.supremecourt.gov/DocketPDF/20/20-197/150726/20200820102824291_Knight%20First%20Amendment%20Inst.pdf.

[10] See id.

[11] Id. at 11–27.

[12] See id. at 27.

[13] See id. at 27–28.

[14] Id. at 28–29.

[15] See id. at 29.

[16] See Brief in Opposition, Knight Inst., No. 20-197 (Sept. 21, 2020), https://www.supremecourt.gov/DocketPDF/20/20-197/154505/20200921141934655_20-197%20BIO.pdf.

[17] See id. at 11–15.

[18] See id. at 15–28.

[19] See id. at 29.

[20] See id. at 30.

[21] Supreme Court Procedures,U.S. Cts., https://www.uscourts.gov/about-federal-courts/educational-resources/about-educational-outreach/activity-resources/supreme-1 (last visited Oct. 8, 2020).

[22] See supra notes 5–8 and accompanying text.

[23] See supra note 8 and accompanying text.

[24] See supra note 17 and accompanying text.

[25] See Petition for Writ of Certiorari, supra note 9, at 28 n.2 (noting six recent cases from around the country concerning public officials’ blocking social media users on their personal accounts).

Flowers and candles at the steps of the Supreme Court building in remembrance of Justice Ruth Bader Ginsburg. Photo by Gayatri Malhotra.

By Jacqueline K. Winters

On Sept. 26, less than two months before the election, President Donald Trump announced Amy Coney Barrett as his nominee for the Supreme Court.[1]  Considering Senate Majority Leader Mitch McConnell’s plans to swiftly move forward with the confirmation process and begin hearings on Oct. 12, it is likely that the Senate will confirm Barrett, a conservative and former clerk of Antonin Scalia’s,[2] before the November election.[3] Meanwhile, President Trump is employing rhetoric about voter fraud and a rigged election[4]—likely positioning himself to bring an Electoral College battle in front of the Court.[5] If history is precedent, a 6–3 conservative versus liberal Supreme Court composition would undoubtedly lend itself to a more favorable outcome for President Trump. The American public should anticipate that the confluence of these circumstances could result in Bush v. Gore[6]2.0—but this time, the battle may extend well beyond hanging chads.

There are a number of scenarios that could lead to the Supreme Court determining the fate of this election. One example, presented by Edward Foley of Ohio State University’s Moritz College of Law, would take place in the swing state of Pennsylvania.[7] If Trump is in the lead on election night, but Biden-friendly mail-in ballots flood in during the days following the election, a volatile partisan dispute could erupt.[8] In this scenario, Democratic Governor Tom Wolf could sign Pennsylvania’s certificate of ascertainment and list Democratic electors as the official Electoral College slate, while the Republican-led legislature appoints a different set of electors—a scenario that would result in legal challenges, possibly making its way up to the Supreme Court.[9] However, the Electoral Count Act of 1887[10] delegates the power to Congress to consider both sets of electors. Vice President Mike Pence could oversee the count in Congress, determining that Pennsylvania’s votes should be removed because the electoral slates conflict, causing Democrats to seek an injunction to stop this discount of Pennsylvania’s votes.[11] This is merely one illustration of partisan-fueled chaos that could ensue if there is a small margin between President Trump and Vice President Joe Biden on election night—a scenario ominously reminiscent of the 2000 election, but in an even more sharply divided political climate.[12] 

On Dec. 12, 2000, The United States Supreme Court announced in a 5–4 decision that the Supreme Court of Florida had violated the United States Constitution when it ordered a ballot recount in certain Florida districts.[13] In this historic decision, which resulted in George W. Bush assuming the presidency, the Court contended that the ballot recount violated the Equal Protection Clause of the Fourteenth Amendment because Florida counties were shifting vote-counting standards.[14] The Court’s decision reversed the Florida Supreme Court’s decision and stayed the manual recount of 42,000 “undervotes”—ballots on which automatic machine recounts had failed to detect a vote and which had not yet been manually recounted.[15] The decision was premised on the notion that the recount procedures—based on the clear intent standard, which required “‘a clear indication of the intent of the voter’”[16]—“did not satisfy [the] minimum requirement for non-arbitrary treatment of voters necessary, under the Equal Protection Clause, to secure [the] fundamental right to vote for President.”[17]

Since the 2000 decision, a holding the Court explicitly stated was “limited to the present circumstances,”[18] the precedential value of Bush v. Gore has been decidedly weak.[19] In Stewart v. Blackwell,[20] pertaining to Ohio’s use of punch card ballots and central-count optical scan systems, the U.S. District Court for the Northern District of Ohio’s relied upon Justice Souter’s dissent in Bush v. Gore to determine that different counties within the same state using different systems does not amount to a violation of the Equal Protection Clause.[21] The Sixth Circuit disagreed, reversing and remanding the district court’s decision.[22] In 2008’s Lemons v. Bradbury,[23] a plaintiff argued in front of the Ninth Circuit that county election officials lacking uniform statewide rules for verifying referendum signatures violated the rule set forth in Bush v. Gore.[24] The Ninth Circuit disagreed, stating that Oregon’s verification process did not violate voters’ constitutional rights.[25] 

In large part, lower court decisions that have relied on Bush v. Gore have generally been overturned or limited,[26] and until 2013, when Justice Clarence Thomas cited the case in a footnote of a dissenting opinion in an Arizona voter-registration case,[27] the Supreme Court had not cited the case for any proposition. Recently, however, President Trump and his campaign have invoked the case in legal battles in Nevada[28] and New Jersey,[29] undoubtedly in preparation for mounting a Bush v. Gore-inspired argument in front of the Supreme Court in November.

President Trump’s continued efforts to challenge the legitimacy of mail-in voting—despite the FBI’s findings that there is no evidence of any foreign plot to counterfeit or forge mail ballots[30]—are likely representative of his willingness to be fiercely litigious in November.  With a more-likely-than-not conservative Court and murky-at-best precedent, the November election will prove an uphill battle for Democrats. The precedential value of Bush v. Gore will be in the spotlight for the first time since 2000, and the Supreme Court will possibly provide clarity on this debated issue—potentially changing the course of American presidential elections for generations to come.


[1] Peter Baker & Nicholas Fandos, Trump Announces Barrett as Supreme Court Nominee, Describing Her as Heir to Scalia, N.Y. Times (Sept. 26, 2020), https://www.nytimes.com/2020/09/26/us/politics/amy-coney-barrett-supreme-court.html.  

[2] Id.

[3] Deirdre Walsh, What Amy Coney Barrett’s Supreme Court Nomination Means for the 2020 Election, Nat’l Pub. Radio (Sept. 27, 2020, 7:00 AM), https://www.npr.org/2020/09/27/917303199/what-amy-coney-barretts-supreme-court-nomination-means-for-the-2020-election.  

[4] Miles Parks, Ignoring FBI and Fellow Republicans, Trump Continues Assault on Mail-In Voting, Nat’l Pub. Radio  (Aug. 28, 2020, 12:46 PM), https://www.npr.org/2020/08/28/906676695/ignoring-fbi-and-fellow-republicans-trump-continues-assault-on-mail-in-voting.

[5] Jeet Heer, Trump Wants Another ‘Bush v. Gore, The Nation (Sept. 23, 2020), https://www.thenation.com/article/politics/trump-court-election-vacancy/.

[6] 531 U.S. 98 (2000).

[7] Geoffrey Skelley, What If Trump Loses and Won’t Leave?, FiveThirtyEight (Sept. 14, 2020, 9:15 AM), https://fivethirtyeight.com/features/what-if-trump-loses-and-wont-leave/.

[8] Id.

[9] Id.

[10] Id.; see Electoral Count Act, ch. 90, 24 Stat. 373 (1887) (codified as amended at 3 U.S.C. §§ 5–7, 15–18).

[11]  Skelley, supra note 7.

[12] Dean Bonner, Voter Registration Is Up Sharply, as Is Partisanship, Pub. Pol’y Inst. of Cal. (Aug. 27, 2020), https://www.ppic.org/blog/voter-registration-is-up-sharply-as-is-partisanship/

[13] Bush v. Gore, 531 U.S. 98, 103 (2000).

[14] Id. at 106.

[15] Id. at 100.

[16] Id. at 131.

[17] Id. at 98.

[18] Id. at 109.

[19] Chad Flanders, Please Don’t Cite This Case!: The Precedential Value of Bush v. Gore, 116 Yale L.J. Pocket Part 141, 144 (2006), https://www.yalelawjournal.org/forum/please-dona8217t-cite-this-case-the-precedential-value-of-bush-v-gore.

[20] Stewart v. Blackwell, 356 F. Supp. 2d 791 (N.D. Ohio 2004), rev’d in part, vacated in part, 444 F.3d 843 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[21] Id. at 808.

[22] Stewart v. Blackwell, 444 F.3d 843, 880 (6th Cir. 2006), vacated as moot, 473 F.3d 692 (6th Cir. 2007).

[23] 538 F.3d 1098 (2008).

[24] Id. at 1105.

[25] Id. at 1107.

[26] Richard L. Hasen, The 2012 Voting Wars, Judicial Backstops, and the Resurrection of Bush v. Gore, 81 Geo. Wash. L. Rev. 1865, 1867 (2013).

[27] Arizona v. Inter Tribal Council of Ariz., Inc., 570 U.S. 1, 35 n.2 (2013) (Thomas, J., dissenting); see Joan Biskupic, Trump Revives Bush v. Gore in His Crusade Against Mail-In Voting, CNN Pol. (Aug. 24, 2020), https://edition.cnn.com/2020/08/24/politics/supreme-court-bush-gore-trump-lawsuits/index.html.  

[28] United States District Court Judge James Mahan dismissed the Trump campaign’s case in Nevada, stating that a law that calls for mail-in ballots to be sent automatically to all active Nevada voters in light of the coronavirus pandemic did not demonstrate any constitutional harms. See Donald J. Trump for President, Inc. v. Cegavske, No. 20-CV-1445, 2020 WL 5626974, at *7 (D. Nev. Sept. 18, 2020); see also Michelle L. Price, Judge Dismisses Trump Challenge to Nevada Mail Voting Law; Associated Press (Sept. 21, 2020), https://apnews.com/article/nevada-lawsuits-elections-voting-fraud-and-irregularities-campaigns-17adaf09734fd720b1a1477451f2540c; Biskupic, supra note 27.

[29] See Complaint for Declaratory & Injunctive Relief at 155, Donald Trump for President, Inc. v. Murphy, No. 20-CV-10753, (D.N.J. Aug. 18, 2020), ECF No. 1; see also Biskupic, supra note 27.

[30] Parks, supra note 4.

By Zeliang Mike Liu

On June 15, 2020, the Supreme Court issued a landmark 6-3 decision stating that Title VII of the Civil Rights Act of 1964 (“Title VII”) prohibits an employer from firing an individual for being homosexual or transgender.[1] The question came to the court through three different cases: Bostock v. Clayton County, in which a child welfare advocate was fired for participating in a gay recreational softball league after ten years working for a Georgia county; Altitude Express v. Zarda, in which a skydiving assistant was fired after he told a female customer that he was gay, and the customer’s boyfriend complained that he inappropriately touched her; and R.G. & G.R. Harris Funeral Homes v. Equal Employment and Opportunity Commission, in which a funeral home employee was fired when she informed the funeral home that she decided to undergo gender reassignment surgery.[2] Writing for the majority, Justice Neil Gorsuch stated that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex.”[3]

Though the court’s focus in Bostock was the issue of employers discharging employees based on sexual orientation and transgender status, the court arguably provided a broad ruling with impacts to multiple areas of the law. As Justice Samuel Alito stated in his dissent, the Court’s ruling is “virtually certain to have far-reaching consequences” and will inevitably affect other federal laws, such as Title IX of the Education Amendments of 1972 (“Title IX”), the Patient Protection and Affordable Care Act (“ACA”), and the Fair Housing Act (“FHA”).[4] The implication of Bostock is not only protection of LGBTQ+ rights in employment, but an essential tool to address discrimination against LGBTQ+ community members not just in education, healthcare, and housing.

Employment

Workplace discrimination against LGBTQ+ community members is well documented. Between 8–17 percent of LGBTQ+ workers and 13–47 percent of transgender workers have been denied employment opportunities or unfairly discharged because of sexual orientation or transgender status.[5] Nearly 30 percent of LGBTQ+ workers of color reported that they have experienced employment discrimination for sexual orientation.[6]

Title VII prohibits employment discrimination based on an individual’s sex.[7] The statute extends beyond discharging and applies when employers “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges or employment.”[8]Under Title VII, “compensation” includes not only wages but also benefits such as overtime pay, life insurance, vacation and holiday pay, and bonuses.[9]

The Supreme Court’s decision in Bostock directly affects employment practice with regard to an employee’s sexual orientation or transgender status. In its reasoning, the Court stressed that “discrimination based on homosexuality or transgender status necessarily entails discrimination based on sex.”[10]Thus, although the individual cases before the Court focused on the wrongful termination of LGBTQ+ workers, the Court nevertheless determined that under Title VII protects against broader discrimination based on sexual orientation and transgender status.[11]

Although the Court specifically stated that its decision in Bostock does not “address bathrooms, locker rooms, or anything else of the kind” when addressing employers’ concern of whether sex-segregated spaces violate Title VII,[12]the Court’s decision does extend to equal access to existing sex-segregated facilities, meaning that an employer cannot deny an LGBTQ+ worker from access to the existing sex-segregated facilities.[13]

Education

Title IX prohibits discrimination “on the basis of sex” in any education program or activity that receives federal funding.[14]Although the statue does not define the scope of discrimination “on the basis of sex,” courts have often looked at cases that define the scope of sex discrimination under Title VII to interpret the meaning of discrimination “on the basis of sex” under Title IX because of the similarities between Title VII and Title IX’s language.[15]The Fourth, Sixth, and Seventh Circuit Courts of Appeal, have all previously held that Title IX prohibits discrimination based on sexual orientation and gender identity by extending decisions that stated Title VII prohibits discrimination based on sexual orientation and gender identity prior to the Supreme Court’s decision in Bostock.[16]

Therefore, Bostock’s holding that Title VII prohibits discrimination based on sexual orientation and transgender status provides further assistance for courts to extend Title IX’s protections for LGBTQ+ students.

Housing

The FHA prohibits discrimination in the sale, rental, and financing of housing based on race, color, national origin, religion, sex, familial status, and disability.[17]Similar to Title IX, courts often look to Title VII when determining the scope of prohibited sex discrimination under FHA.[18]Thus, courts are also likely to extend Bostock to FHA and offer greater protection on LGBTQ+ rights under the FHA.

The Trump administration issued a proposal in July 2020 to limit the 2016 Equal Access Rule and allow housing programs funded by the U.S. Department of Housing and Urban Development (“HUD”) to deny shelter access based on transgender status.[19]In light of the Bostock decision, Reps. Jennifer Wexton and Maxine Waters submitted a letter to Dr. Ben Carson, Secretary of HUD, to revise the proposal in accordance with Supreme Court’s holding in Bostock.[20]However, Dr. Carson stated in response that “[t]he Supreme Court’s ruling in Bostock has no impact on the Department’s proposed rule.”[21] HUD’s apparent refusal to take Bostock highlights a next step in the path forward for LGBTQ+ rights.

Healthcare

Section 1557 of the ACA prohibits discrimination on the basis of race, color, national origin, sex, age, or disability in certain health programs or activities.[22] The nondiscrimination language in Section 1557 was built on other federal civil rights laws including Title VII, Title IX, the Rehabilitation Act of 1973, and the Age Discrimination Act of 1975.[23] Thus, since the Supreme Court held in Bostock that Title VII forbids discrimination based on sexual orientation and transgender status, such holding likely carries significant weight in application to ACA.

In 2016, the Obama administration promulgated a rule stating that Section 1557 of ACA prohibits discrimination in health activities and activities on the basis of sexual orientation and gender identity.[24] Earlier this year, the Trump administration proposed a rule to exclude ACA’s protection on sexual orientation and gender identity, and four days after the Bostock decision, the Department of Health and Human Services issued its final rule.[25] However, on August 17, 2020, one day before the rule was planned to go into effect, a federal judge issued a preliminary injunction, which barred the rule from going into effect, relying on the Supreme Court’s decision in Bostock.[26]The recognition of the interplay between Title VII and the ACA provided further assurance on Bostock’s positive impact on ACA.

The Supreme Court’s decision in Bostock is a great victory for LGBTQ+ community that’s worth celebrating. Although the fight for LGBTQ+ rights is not over, Bostock nevertheless demonstrates that the LGBTQ+ community has advanced powerful arguments that even the Supreme Court’s most ardent textualist supports. Similar text in other federal statutes provides a path forward for future solidification of LGBTQ+ rights.


[1] See Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1737 (2020).

[2] Id. at 1737–38.

[3] Id. at 1741.

[4] Id. at 1778 (Alito, J., dissenting).

[5] Ctr. Am. Progress et al., A Broken Bargain: Unchecked Discrimination Against LGBT Workers 1 (2014), https://www.lgbtmap.org/file/unchecked-discrimination-against-lgbt-workers.pdf.

[6] Nat’l Pub. Radio Et Al., Discrimination in America: Experiences and Views of LGBTQ Americans 11 (2017), https://cdn1.sph.harvard.edu/wp-content/uploads/sites/94/2017/11/NPR-RWJF-HSPH-Discrimination-LGBTQ-Final-Report.pdf.

[7] 42 U.S.C. § 2000e-2(a).

[8] Id.

[9] U.S. Equal Emp’t Opportunity Comm’n, EEOC-NVTA-0000-12, Facts about Equal Pay and Compensation Discrimination (1997), https://www.eeoc.gov/laws/guidance/facts-about-equal-pay-and-compensation-discrimination.

[10] Bostock v. Clayton Cnty., 140 S. Ct. 1731, 1747 (2020).

[11] See id.

[12] Id. at 1753.

[13] The U.S. Equal Employment Opportunity Commission (“EEOC”) has established that a transgender employee’s right to use woman bathroom is protected by Title VII. Lusardi v. McHugh, E.E.O.C. Doc. No. 0120133395, 2015 WL 1607756, at *7 (Apr. 1, 2015).

[14] 20 U.S.C. § 1681(a).

[15] See, e.g., Whitaker ex rel. Whitaker v. Kenosha Unified Sch. Dist. No. 1 Bd. of Educ., 858 F.3d 1034, 1047 (7th Cir. 2017); Smith v. Metro. Sch. Dist. Perry Twp., 128 F.3d 1014, 1022–23 (7th Cir. 1997).

[16] See Whitaker, 858 F.3d at 1047–49; Dodds v. U.S. Dep’t of Educ., 845 F.3d 217, 221 (6th Cir. 2016) (noting that Title VII’s prohibition on discrimination based on sexual non-confirming behaviors is applicable in the context of Title IX); Grimm v. Gloucester Cnty. Sch. Bd., 400 F. Supp. 3d 444, 451-52 (E.D. Va. 2019), aff’d, No. 19-1952, 2020 WL 5034430 (4th Cir. Aug. 26, 2020), as amended (Aug. 28, 2020).

[17] 42 U.S.C. § 3604(a).

[18] See, e.g., Smith v. Avanti, 249 F. Supp. 3d 1194, 1200 (D. Colo. 2017) (“The Tenth Circuit looks to Title VII discrimination cases for guidance in addressing discrimination issues under the FHA.”).

[19] Making Admission or Placement Determinations Based on Sex in Facilities Under Community Planning and Development Housing Programs, 85 Fed. Reg. 44,811, 44,811 (proposed July 24, 2020) (to be codified at 24 C.F.R. pt. 5, 576), https://www.govinfo.gov/content/pkg/FR-2020-07-24/pdf/2020-14718.pdf.

[20] See Press Release, U.S. House Comm. Fin. Serv., Walters and Wexton Call on HUD to Reconsider Revisions to Equal Access Rule (July 6, 2020), https://financialservices.house.gov/news/documentsingle.aspx?DocumentID=406742.

[21] Letter from Ben Carson, Sec’y, U.S. Dep’t Hous. & Urban Dev., to Maxine Waters, Rep., 43rd Cong. Dist., and Jennifer Wexton, Rep., 10th Cong. Dist. (July 13, 2020), https://wexton.house.gov/uploadedfiles/hud_response_to_waters-wexton_6.29.20_letter.pdf.

[22] See 42 U.S.C.§ 18116.

[23] Id.

[24] See Maya Rhodan, Obamacare Rule Bans Discrimination Against Transgender Patients, Time (May. 13, 2016), https://time.com/4329609/transgender-discrimination-obamacare-healthcare/; see also 45 C.F.R. § 92.207, https://www.govinfo.gov/content/pkg/CFR-2016-title45-vol1/pdf/CFR-2016-title45-vol1-sec92-207.pdf.

[25] See Dan Diamond, Trump Team Moves to Scrap Protections for LGBTQ Patients, Politico (Apr. 24, 2020), https://www.politico.com/news/2020/04/24/trump-team-moves-to-scrap-protections-for-lgbtq-patients-206398; see also Nondiscrimination in Health and Health Education Programs or Activities, Delegation of Authority, 85 Fed. Reg. 37,160 (June. 19, 2020) (to be codified at 42 C.F.R. pt. 438, 440, 406 and 45 C.F.R. pt. 86, 92, 147, 155, 156).

[26] Walker v. Azar, No. 20CV2834FBSMG, 2020 WL 4749859, at *10 (E.D.N.Y. Aug. 17, 2020).

By Jon McLamb

The United States Supreme Court is deciding whether to hear a case with significant ramifications on First Amendment religious freedom.  This time, however, a decision will come in direct conflict with local and state anti-discrimination laws that prevent businesses from discriminating on the basis of an person’s sexual orientation.

The case, Arlene’s Flowers, Inc. v. Washington, involves a private florist in Washington who refused to make a flower arrangement for a same-sex couple’s wedding.[1]  The business owner cited her religious beliefs against same-sex marriage as her reason for the refusal.[2]  The florist argued that she was entitled to refuse because providing services to a same-sex marriage ceremony would offend her religious beliefs so, therefore, she was protected under the First Amendment right to religious freedom.[3]  The couple and the state believed that the florist had violated both local and state anti-discrimination laws by denying the couple’s request.[4]  As a result of this conflict, the state filed a lawsuit on the couples’ behalf seeking injunctive and other relief.[5]

The case first reached the United States Supreme Court in June 2018.[6]  In that instance, the Court remanded the case back to the Washington state courts to address the case in light of its decision in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, which was decided that same month.[7]  In Masterpiece Cakeshop, the Court held that a business owner’s religious freedom was violated when the business owner received penalties for refusing to sell a wedding cake to a same-sex couple.[8]  The Court reasoned that the business owner deserved a neutral decisionmaker under the First Amendment that would give full and fair consideration to his religious beliefs against same-sex marriage.[9]

The Washington State Supreme Court subsequently re-decided the case on remand from the United States Supreme Court.[10]  Applying the United States Supreme Court’s decision in Masterpiece Cakeshop, the Washington Supreme Court unanimously ruled against the florist.[11]  The Washington Supreme Court reasoned that there is no exception to the public accommodation statutory requirement for religious beliefs, and the florist was therefore required to accommodate the same-sex couple’s request for a flower arrangement.[12]  The Court found that the Masterpiece Cakeshop framework required a neutral analysis that involved looking into both the religious freedom of the First Amendment and the anti-discrimination statutes currently enacted in the State of Washington.[13]

Following the decision of the Washington Supreme Court, the florist petitioned the United States Supreme Court for a writ of certiorari.[14]  In the petition, the florist argued that her First Amendment right to freedom of religion would be infringed if Washington penalized her following her beliefs and not serving the couple.[15]  In arguing this point, the florist contended that the holding of the Washington Supreme Court is in direct conflict with the decision in Masterpiece Cakeshop because her refusal to serve the couple is protected expressive freedom protected under that case and other United States Supreme Court precedent.[16]

Both the State of Washington and the couple filed responses to the florist’s petition for writ of certiorari. The State of Washington argued that the florist’s contention that she was “participating in the wedding ceremony” if she served the couple a flower arrangement is highly misleading, because simply providing a service to the couple is not the same as participating in the ceremony.[17]  Additionally, Washington argued that its supreme court’s decision does not violate United States Supreme Court precedent, but actually follows the current law by neutrally addressing both the religious freedom of the florist and the right to be free from discrimination of the couple.[18]  Further, Washington contended that there is not a violation of United States Supreme Court precedent just because the Washington Supreme Court disagreed that the florist had a protected right that outweighs the right of the couple in this instance.[19]

The couple’s brief in response to the florist’s petition for writ of certiorari addressed the same arguments as Washington’s brief in opposition.[20]  Like Washington, the couple opined that the Washington Supreme Court’s decision did not conflict with United States Supreme Court case law and did not force the florist to participate in their wedding ceremony.[21]  The one major difference, however, is that the same-sex couple focused on their right to equal access that protected them against discrimination as opposed to the state’s brief, which focused on the florist’s lack of protected right to religious freedom.[22]

Several different interest groups filed amicus briefs in support of the petition for writ of certiorari.  These groups include mostly conservative, religious, and constitutional scholars.  In essence, their arguments addressed the right of the florist to refuse service to a same-sex couple under the First Amendment’s right to freedom of religion.

Because many interest groups have voiced their concerns about the Washington Supreme Court’s decision, the United States Supreme Court is likely to grant certiorari.  The Supreme Court may also grant certiorari to resolve the direct conflict between two protected interests: the right to religious freedom and the right of same-sex couples to be free from discrimination on account of sexual orientation.  The likelihood of granting certiorari is also higher because the Supreme Court heard this case at an earlier date but did not resolve the dispute. 

This case presents an opportunity for the United States Supreme Court to address issues not reached in the Masterpiece Cakeshop decision. Many in the legal profession believe that the Masterpiece Cakeshop decision rendered a narrow holding that protected only the religious rights of the individual business owner in that circumstance. Therefore, the Court may take this opportunity to expand that holding to protect all business owners with similar religious beliefs.  On the flip side, the Court could use this opportunity to distinguish the cases and limit the Masterpiece Cakeshop’s holding, giving a win to members of the LGBT community who continue to fight for their Constitutional rights, even after the landmark decision of Obergefell v. Hodges.[23]  The Court will likely make a decision whether to grant certiorari in the next few weeks, and the disposition of the case will have significant impact on American citizens, one way or another.


[1] See 187 Wash.2d 804 (2017).

[2] See id. at 816–17.

[3] See id. at 818.

[4] See id. at 818–19.

[5] Id.

[6] 138 S.Ct. 2671 (2018).

[7] 138 S.Ct. 1719 (2018).

[8] Id. at 1724.

[9] Id. at 1732.

[10] State v. Arlene’s Flowers, Inc., 193 Wash.2d 469 (2019).

[11] Id. at 507–08.

[12] Id. at 508.

[13] Id.

[14] Petition for Writ of Certiorari, Arlene’s Flowers (2019).

[15] Id. at i.

[16] Id. at 26.

[17] State’s Brief in Opposition, Arlene’s Flowers, at11–14 (2019).

[18] Id. at 25–35.

[19] Id. at 26–27.

[20] See generally Brief of Respondents, Arlene’s Flowers (2019).

[21] Id.

[22] Compare Brief of Respondents, Arlene’s Flowers (2019) (addressing whether florist can deny same-sex couple’s equal access to flower arrangement services) with State’s Brief in Opposition, Arlene’s Flowers (2019) (addressing whether freedom of religion allowed florist to deny public accommodation to same-sex couple).

[23] 135 S.Ct. 2584 (2015).

By Olivia Rojas

On November 5, 2018, the United States Department of Justice filed a petition for writ of certiorari before judgment from the Supreme Court of the United States asking the court to review three cases from different circuits relating to the Deferred Action for Childhood Arrivals program (“DACA”).[1] These cases, DHS v. Regents of the University of California, Trump v. NAACP, and McAleenan v. Vidal (collectively “Consolidated Cases”), directly addressed the validity of the Trump Administration’s attempt to halt DACA, and in June of 2019, the Court granted certiorari.[2]

On November 12, 2019, the Court heard oral arguments regarding the future of DACA. In reviewing the Consolidated Cases, the Court is asked to analyze two questions (1) whether the “phasing out” of the DACA program is eligible for judicial review in the first place and (2) whether the termination of the DACA program is legal.[3]

In June of 2012, former Secretary of Homeland Security Janet Napolitano submitted plans for an administrative program which would allow a select group of undocumented individuals who were born outside of the United States but immigrated as juveniles, to apply for deferred action.[4]  These individuals have since been referred to as Dreamers.[5] Deferred action refers to the ability of a federal immigration judge or an agent with the United States Citizenship and Immigration Service to postpone the deportation of an individual as an act of discretion.[6] While deferred action does not adjudicate an individual as a “lawful” citizen, it awards that individual the status of “lawfully present” during the deferral period.[7] Under Napolitano’s plan, individuals were able to apply for a deferral with the potential for work authorization and the option to renew if a request was granted.[8] Unable to gain enough support for the program in Congress, then-President Barack Obama adopted the DACA plan by executive memorandum.[9] Since its establishment, nearly 800,000 people have deferred their pending deportations.[10]

Under the initial plan for DACA, people could apply for deferred action if: (1) they came to the United States before their 16th birthday; (2) they were 31 years old or younger; (3) they uninterruptedly resided in the United States since June 15, 2007; and (4) they were currently in school, graduated school, had a certificate of completion from a high school, had a General Educational Development (“GED”) Certificate, or were an honorably discharged veteran of the United States Coast Guard or Armed Forces.[11] Persons convicted of a felony, a “significant misdemeanor,” or three or more other misdemeanors were ineligible.[12] Additionally, if an applicant had “lawful status” on June 15, 2012, they were also ineligible.[13]

Following the inauguration of President Trump, then-Attorney General Jeff Sessions wrote a letter to the Department of Homeland Security, expressing his concern over the broad reach of the program. Essentially, Sessions argued that the program lacked the necessary statutory authority, had no end date, and lacked support from Congress. Sessions argued it was an “unconstitutional exercise of authority.”[14] Subsequently, then-Homeland Security Secretary Kjersten Nielsen issued a memorandum which sought to rescind DACA and set forth a method for “phasing out” the program in its entirety.[15] The Administration planned to stop accepting new applications and began to only process renewals for those DACA recipients whose status expired before March 5, 2018.[16] 

The Arguments

Can the Court even review this matter?

In a brief submitted to the Court, the government contested that its termination of DACA is not judicially reviewable.[17] While lower courts ruled that the termination was “arbitrary and capricious,” the Administration argued that the Court could not review this standard if the termination was a form of permissible discretion under the Administrative Procedure Act.[18] The Administrative Procedure Act identifies the processes in which federal agencies may develop and enforce regulations.[19] As such, the government argued that it possesses the discretion to terminate DACA.  

The challengers in the Consolidated Cases argue, however, that this issue is a perfect example of what the Court can review, and one that has been reviewed in the past.[20] Further, the challengers maintain that even if their first argument failed, the Court has the power to review the matter because the Administration argued its reasoning for termination was the illegality of DACA as a whole.[21]

In oral argument, the Administration again argued that its termination of DACA was not reviewable because it was a discretionary decision, even though it also argued the DACA program was illegal. Justice Ruth Bader Ginsburg questioned this argument: if the Administration reasoned that it terminated DACA because the program was illegal, it would not be a matter of discretion, but a legal one, and therefore clearly within the purview of the Court.[22] Justices Samuel Alito and Neil Gorsuch were less skeptical of this argument: where was the line between reviewable and non-reviewable decisions?[23]

Is the termination of DACA legal?

Relying on the Fifth Circuit’s decision to strike the Deferred Action for Parents of Americans (“DAPA”) and an expanded DACA program, the Administration, in its brief, reasoned that the implementation of DACA in the first place was “highly questionable” [24] and “an ongoing violation of federal immigration law.”[25] The challengers, on the other hand, argued that if terminating DACA was of incredible importance, the Administration would not have waited seven months before attempting to terminate the program.[26] Further, they argued that anticipation of potential litigation is not sufficient enough to justify the termination of DACA and doing so would undermine nearly every agency decision to date.[27] Finally, the challengers highlighted the public policy implications for terminating the program, including the displacement of hundreds of thousands of people who are actively working and studying in the United States.[28]

In oral argument, the parties conceded to the fact that the Administration had the authority to terminate DACA.[29] As a result, the Court was asked to review the method in which the Administration terminated DACA, rather than if it could terminate DACA.[30] The argument appeared to break down along traditional conservative-liberal lines, although commentators noted that many justices appeared “torn” and it was unclear how the case would ultimately be decided.[31]

The holding in these Consolidated Cases is expected to be released in June 2020.[32] While the future of DACA remains unclear until then, various district court injunctions prevent the complete cessation of the DACA program prior to a decision.[33] While the Administration does not foreshadow a mass deportation should DACA be eliminated,[34] the loss of the program would immediately strip recipients and potential applicants of their rights to work, attend school, and even drive.[35]


[1]Amy Howe, Argument Preview: Justices to Review Dispute over Termination of DACA, SCOTUSBlog (Nov. 5, 2019, 5:02 PM), https://www.scotusblog.com/2019/11/argument-preview-justices-to-review-dispute-over-termination-of-daca/.

[2] Id.

[3] Deferred Action Basics, Nat’l Immigr. F. (Apr. 15, 2016), https://immigrationforum.org/article/deferred-action-basics/; Amy Howe, Symposium: Justices to Review Dispute Over Termination of DACA, SCOTUSBlog (Sept. 10, 2019, 3:06 PM), https://www.scotusblog.com/2019/09/symposium-justices-to-review-dispute-over-termination-of-daca/

[4] Deferred Action for Childhood Arrivals (DACA), Homeland Security, https://www.dhs.gov/deferred-action-childhood-arrivals-daca (last updated Sept. 23, 2019).

[5] What is DACA and Who Are the DREAMers, Anti-Defamation League, https://www.adl.org/education/resources/tools-and-strategies/table-talk/what-is-daca-and-who-are-the-dreamers (last updated Oct. 17, 2019).

[6]Deferred Action Basics, supra note 3.

[7] Id.

[8] Id.

[9] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[10] Caitlin Dickerson, What Is DACA? And How Did It End Up in the Supreme Court?, N.Y. Times (Nov. 12, 2019), https://www.nytimes.com/2019/11/12/us/daca-supreme-court.html.

[11] What Are the Eligibility Requirements for DACA?, CitizenPath, https://citizenpath.com/faq/daca-eligibility-requirements/.

[12] Id.

[13] Lori Robertson, The Facts on DACA, FactCheck (Jan. 22, 2018), https://www.factcheck.org/2018/01/the-facts-on-daca/.

[14] Id.

[15] Deferred Action for Childhood Arrivals (DACA), supra note 4.

[16] Dara Lind, March 5 Is Supposed to Be the DACA “deadline.” Here’s What That Means for Immigrants, Vox, https://www.vox.com/policy-and-politics/2018/2/16/17015818/daca-deadline-trump-dreamers-march-5 (last updated Mar. 5, 2018, 10:31 AM).

[17] Lomi Kriel, Trump’s Decision to End DACA Faces Supreme Court Scrutiny, Houston Chron. (Nov. 11, 2019), https://www.houstonchronicle.com/news/houston-texas/houston/article/Trump-s-decision-to-end-DACA-faces-Supreme-14827072.php.

[18] Howe, supra note 3; 5 U.S.C § 551 (2012).

[19] 5 U.S.C. § 551.

[20] Howe, supra note 3.

[21] Id.

[22] Amy Howe, Argument Analysis: Justices Torn, Hard to Read in Challenge to Decision to End DACA, SCOTUSBlog (Nov. 12, 2019, 2:07 PM), https://www.scotusblog.com/2019/11/argument-analysis-justices-torn-hard-to-read-in-challenge-to-decision-to-end-daca/.

[23] Id.

[24] Howe, supra note 3.

[25] Id.

[26] Howe, supra note 1.

[27] Id.

[28] Id.

[29] Howe, supra note 22.

[30] Id.

[31] Id.

[32] Supreme Court Grants Cert in Three DACA Cases, Nat’l Immigr. L. Ctr. (June 28, 2019), https://www.nilc.org/issues/daca/alert-supreme-court-grants-cert-in-three-daca-cases/.

[33] Lind, supra note 16.

[34] Hector Barreto, Here’s Why Trump is Right to End DACA, CNBC (Sept. 6, 2017), https://www.cnbc.com/2017/09/06/on-daca-trump-did-the-right-thing-commentary.html.

[35] Yanet Limon-Amado, Losing DACA Would, on Top of Everything Else, Double My College Tuition, Wash. Post (Nov. 12, 2019), https://www.washingtonpost.com/outlook/2019/11/12/losing-daca-would-top-everything-else-double-my-college-tuition/.