SCOTUS Today: In Spite of a Pandemic, the Supreme Court Issues Six New (and Noncontentious) Opinions

While the Justices are safe and sound in retreat from the pandemic, and are not hearing new cases, they still are working. This morning, the Justices have turned out no fewer than six relatively noncontentious opinions. The first of these is directly relevant to labor and employment law hot-button issues.

In Davis v. United States, the Court, in a per curiam opinion, held that Fed. R. Crim. P. 52(b), which states in full that “[a] plain error that affects substantial rights may be considered even though it was not brought to the court’s attention,” does not immunize factual errors from plain-error review. Indeed, prior case law likewise does not purport to shield any category of errors from plain-error review. See generally Rosales Mireles v. United States, 585 U. S. ___ (2018); United States v. Olano, 507 U. S. 725 (1993). Thus, there is no legal basis for the U.S. Court of Appeals for the Fifth Circuit’s practice of declining to review certain unpreserved factual arguments for plain error, and Davis’s case is remanded for further proceedings.

Kahler v. Kansas interestingly was decided by a majority opinion in which Justice Kagan, writing for the Court, was joined by the nominally conservative Justices (the three remaining liberals in dissent), in its holding that the U.S. Constitution doesn’t require a State to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally. In opposing the liberals’ view that emergent psychiatric thinking should be accepted as a matter of due process, the majority reiterated what the Court explained in Powell v. Texas, 392 U. S. 514, that the scope of criminal responsibility is animated by complex and ever-changing ideas that are best left to the States to evaluate and reevaluate over time. The case is noteworthy in its comprehensive recitation of the history of the insanity defense in the United States and also in the continuing evidence of affinity between Justice Kagan and the Chief Justice. Look for that again in the context of the continuing viability of the Affordable Care Act.

In Allen v. Cooper a marine salvage company’s retained photographer registered copyrights in photos and videos he had taken of a shipwreck off the North Carolina coast. The State published some of this work online and the photographer sued for copyright infringement. North Carolina claimed sovereign immunity and the photographer argued that the Copyright Remedy Clarification Act of 1990 (CRCA) removed the States’ sovereign immunity in copyright infringement cases. Whether with respect to Article I or the Fourteenth Amendment, the Court held that Congress lacked authority to abrogate the States’ immunity from copyright infringement suits in the CRCA. This is a good enumerated powers exercise by an essentially unanimous court.

Guerrero-Lasprilla v. Barr is the latest example of the Trump administration losing an immigration case before Justices whom it nominated. In an opinion written by Justice Breyer, but which all the other Justices joined, except for Justices Thomas and Alito, the Court held that because the Immigration and Nationality Act’s Limited Review Provision’s phrase “questions of law” includes the application of a legal standard to undisputed or established facts, the Fifth Circuit erred in holding that it had no jurisdiction to consider petitioners’ claims of due diligence for equitable tolling purposes.

Kansas v. Garcia is an immigration case of potential interest to some employers. The Immigration Reform and Control Act of 1986 (IRCA) makes it unlawful to hire an alien knowing that he or she is unauthorized to work in the United States. The law requires that, on the first day of employment, the employer, using authorization Form I–9, “must attest” that it has “verified” that any new employee, regardless of citizenship or nationality, “is not an unauthorized alien,” by examining approved documents, such as a U.S. passport or an alien registration card.

Kansas makes it a crime to commit “identity theft” or engage in fraud to obtain a benefit. The respondents were unauthorized aliens who were convicted of using the same Social Security numbers of other persons on various other work-related forms as they had used on their Forms I–9. A divided Kansas Supreme Court had reversed, concluding that IRCA expressly prohibits a State from using any information contained within an I–9 as the basis for a state law identity theft prosecution of an alien who uses another’s Social Security information in an I–9. The court deemed irrelevant the fact that this information was also included in other forms. However, a conservative/liberal split U.S. Supreme Court held that the Kansas statutes under which respondents were convicted are not expressly or impliedly preempted. IRCA’s express preemption provision applies only to employers and those who recruit or refer prospective employees and is inapplicable in this situation. On a personal note, I was involved in mooting the Kansas SG who argued the case and all of us viewed it as a close one. The result here is unsurprising.

By attorney Stuart Gerson of Epstein Becker Green, former Acting Attorney General of the United States and Assistant Attorney General for the Civil Division of the Department of Justice: https://www.ebglaw.com/stuart-m-gerson/

This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company.