Normally, at this time of the term, there is a lot to talk about. But this year’s docket is weird in having a lot of associated cases. As such, the meaning of one case is not clear until you have all of the related cases. Some terms, you will get all of the related cases on the same day. But, in other years, like this year, the release seems to be like that leaky sink faucet . . . drip, drip, drip.
This past week, we had opinions in nine cases out of the twelve/thirteen cases left. But many of them are related to the three/four cases left. We had three big administrative law cases, but there is one administrative law case left for an opinion tomorrow. We had one opinion on Free Speech and social media, but there are the two cases (and one or two opinions) left for tomorrow. And we had cases on the charges against the January 6 defendants (and a bribery case that is also significant) but we have the presidential immunity case that will put a potential gloss on both of those decisions. So that covers six of the nine opinions from this past week. What’s left are the emergency abortion case, the Purdue Pharma bankruptcy case, and a municipal ordinance on homeless individuals sleeping on public property.
The abortion case, Moyle v. United States, involves the conflict between Idaho’s rather draconian abortion law (which apparently only permits abortions to save the life of the mother) and the federal law on Medicaid which requires hospitals that receive Medicare to provide medically appropriate treatment (including to save the health of the patient). Oversimplified the question is whether the Idaho statute in some way controls what is medically appropriate in Idaho or does the federal law mandate that doctors provide abortions when medically necessary even if the abortion would otherwise violate Idaho law. The problem is that Idaho brought this case on an emergency stay request from the lower court order granting a temporary injunction and was one of the rare cases in which the U.S. Supreme Court took an appeal before the appellate court had considered the issues. It became clear during argument that the theories of the parties on how these two statutes relate were still evolving. So the majority of the Supreme Court decided to “dismiss as improvidently granted,” or, in plain English, the majority said that they made a mistake in taking the case as it was not (yet) ready for Supreme Court review. While the judgment of the court is simply a one paragraph order returning the case to the Ninth Circuit for the initial appellate review, there were multiple opinions related to that order. Justice Kagan, in an opinion joined by Justice Sotomayor, finds that it was inappropriate to take the case but suggests that Idaho is unlikely to prevail on its position that its law takes precedence over the federal statute. Justice Barrett, joined by the Chief Justice and Justice Kavanaugh emphasized how the positions of the parties had changed since the Supreme Court took the case with the federal government disavowing the potential interpretation of its position on which Idaho based their claim for relief and Idaho relaxing what needs to be shown to support an emergency abortion. As such, Justice Barrett felt that the need for the Supreme Court to address the novel claims on an expedited basis no longer existed. The bottom line of these five justices is that there is no need to stay the lower court ruling and that the case should return to the lower courts to address the new positions of the parties. Justice Jackson wrote a separate opinion agreeing that the stay should be vacated but arguing that the Supreme Court should resolve the merits now rather than sending the case back to the Ninth Circuit. (While it is possible, and significant as far as who is writing the presidential immunity case, that Justice Jackson’s opinion started out as the majority opinion, I tend to doubt it from the text of the opinions. Justice Jackson’s opinion does not read like an almost majority opinion, and the reasons for dismissing the case are not new. Justice Alito’s dissent (joined by Justice Thomas and Justice Gorsuch) is along the lines of “how dare the Biden Administration use the law to frustrate our desire to allow stringent anti-abortion laws.”
Purdue Pharma is the pharmaceutical company that developed and marketed oxycontin. They pushed oxycontin as a safe to use and effective pain killer. It turned out to be a highly addictive drug that resulted in nationwide devastation to families who saw their loved ones become addicts. Multiple lawsuits were filed against Purdue Pharma. At the same time, the controlling shareholders, the Sackler family, initiated a policy that resulted in Purdue Pharma distributing about 75% of its assets to the Sackler family. This left Purdue Pharma with insufficient assets to pay off the mounting Oxycontin claims, and Purdue Pharma filed for bankruptcy. While, generally, individuals who sue a company can only collect judgment from the company and not its shareholders, there are exceptions. As such, as part of the bankruptcy proceedings, Purdue Pharma and the Sackler family proposed a settlement that would also discharge the potential liability of the Sackler. It is up to the bankruptcy court to approve a bankruptcy plan, and some people with claims against Purdue Pharma objected to this agreement to cap the potential liability of the Sacklers. In a 5-4 decision (with a very weird lineup), the Supreme Court agreed in Harrington vs. Purdue Pharma with the claimants.
The majority opinion, written by Justice Gorsuch who was joined by Justice Thomas, Justice Alito, Justice Barrett, and Justice Jackson, held that a bankruptcy court does not have the power to require a claimant to waive potential claims against other defendants. The dissent, written by Justice Kavanaugh who was joined by the Chief Justice, Justice Sotomayor, and Justice Kagan, finds the majority view cramped on both the law and the facts. The bankruptcy plan calls for the Sacklers to make a significant return of the assets that they took from Purdue Pharma and thus permits significant payment to those seeking compensation related to Oxycontin. As such, the defense finds the proposed settlement of any further claims against the Sacklers to be authorized by the catch-all grant of equitable powers to the bankruptcy court assure that all parties are fairly and equitably treated. Whether or not this case will lead to a revised bankruptcy code to permits this type of three-way settlement remains to be seen.
Lastly, there is the issue of homelessness. Many jurisdictions have grown tired of the problem of homeless individuals sleeping on the street. The proposed solutions range from additional resources to fight homelessness to laws that, in their just majesty, bar both the rich and the poor from sleeping on city streets or in city parks. The city of Grant’s Pass, Oregon, has such a law. However, there are more homeless persons in Grant’s Pass than there are spaces in homeless shelters. As such, advocates for the homeless challenged the ordinance based on their theory that the ordinance made it a crime to have the status of being homeless. Way back in the 1960s, the Supreme Court had found that a law that criminalized being an addict created a status offense which, in the eyes of that group of justices, violated the Eighth Amendment ban on cruel and unusual punishment. Since that time, the Supreme Court had heard several cases raising similar claims, but, had generally found that the challenged law covered acts rather than status. In City of Grant’s Pass vs. Johnson, a 6-3 opinion breaking on the conservative vs. liberal lines, Justice Gorsuch, on behalf, of the majority held that the ordinance penalized conduct (sleeping in public areas) rather than status. To the extent that the lack of homeless shelters creates a necessity to sleep in such areas, whether such a necessity is a defense to those charges is a matter for another day. Writing for the dissent, Justice Sotomayor essentially finds that the majority opinion ignores reality and that the ordinance penalizes the homeless for being homeless. Of note in the opinions is Justice Thomas’s concurrence which repeats a familiar refrain — the evil Warren Court recognized nonexistent constitutional rights and, rather than distinguishing those decisions, we should just overrule them.
Obviously, tomorrow is a very big day. We already know from the end of last week that the Supreme Court has made some revolutionary changes (or to be more accurate reactionary changes) to the law. And tomorrow will tell how significant some of those changes are. My expectation is that there will be three posts over the next week summarizing what this Court has inflicted on the American public.
