Supreme Court of The United States
Case BriefsForeign Courts

   

Supreme Court of The United States: While deliberating upon the instant matter, wherein the petitioner lost his job as a high school football coach in the Bremerton School District, after he knelt at midfield after games to offer a quiet personal prayer; the Court held that, the Free Exercise and Free Speech Clauses of the First Amendment protects an individual engaging in a personal religious observance from government reprisal. The Constitution neither mandates nor permits the government to suppress such religious expression. The petitioner's observances fall within the perimeters of the First Amendment, and therefore protected.

Background of the case: Joseph Kennedy [petitioner] began working as a football coach at Bremerton High School in 2008 and had established a personal tradition to offer a prayer of thanks at the conclusion of each game. Initially, Kennedy prayed on his own, but later some of the players started to join him. Eventually, Kennedy began incorporating short motivational speeches with religious references.

In 2015, Bremerton School District's superintendent identified “two problematic practices” in which Kennedy had engaged- firstly, Kennedy had provided “inspirational talks” that included “overtly religious references” likely constituting “prayer” with the students “at midfield following the completion of games”; and secondly, he had led “students and coaching staff in a prayer” in the locker-room tradition that “predated his involvement with the program”. Kennedy was directed to keep his practice as “non-demonstrative” as possible, which led to Kennedy ending his locker-room prayer with the players and his practice of incorporating religious references into his post-game motivational talks. Kennedy further felt pressured to abandon his practice of saying his own quiet, on-field post-game prayer; however, feeling upset that he had “broken his commitment to God” by not offering his own prayer, he turned his car around and returned to the field and walked to the 50-yard line and knelt to say a brief prayer of thanks.

It was stated that Kennedy offered his prayers during a period when school employees were free to attend to their personal matters – like checking mail or booking reservations at a restaurant etc. The school authorities disciplined him because it thought that Kennedy's retention could lead a reasonable observer to conclude (mistakenly) that the school endorsed Kennedy's religious beliefs.

Legal Trajectory: Kennedy sued in federal court, alleging that the Bremerton School District's [hereinafter the District] actions violated the First Amendment's Free Speech and Free Exercise Clauses. He also moved for a preliminary injunction requiring Bremerton to reinstate him. The District Court denied that motion, and the Ninth Circuit affirmed.

After the parties engaged in discovery, they filed cross-motions for summary judgment. The District Court found that the sole reason for the District's decision to suspend Kennedy was its perceived “risk of constitutional liability” under the Establishment Clause for his religious conduct after three games in October 2015. The District Court granted summary judgment to the District and the Ninth Circuit affirmed. The Ninth Circuit denied a petition to rehear the case en banc over the dissents of 11 judges.

Contentions: Joseph Kennedy contended that the District's conduct violated both the Free Exercise and Free Speech Clauses of the First Amendment. As per his submissions, The First Amendment Clauses work in tandem- where the Free Exercise Clause protects religious exercises (communicative or not), the Free Speech Clause provides overlapping protection for expressive religious activities.

Per contra, the District argued that Kennedy's suspension was essential to avoid a violation of the Establishment Clause. Kennedy's prayers might have been protected by the Free Exercise and Free Speech Clauses. But his rights were in “direct tension” with the competing demands of the Establishment Clause. To resolve that clash, the District reasoned that Kennedy's rights had to yield.

Observations: The opinion of the Court was delivered by Justice Neil Gorsuch in which John Roberts, CJ., Clarence Thomas, Samuel Alito, Brett Kavanaugh, Amy Coney Barrett, JJ., joined. The majority pointed out that SCOTUS precedents permit a plaintiff to demonstrate a free exercise violation in multiple ways, including by showing that a government entity has burdened his sincere religious practice pursuant to a policy that is not “neutral” or “generally applicable”. Failing either the neutrality or general applicability test is sufficient to trigger strict scrutiny, under which the government must demonstrate its course was justified by a compelling state interest and was narrowly tailored in pursuit of that interest.

  • It was observed that Bremerton disciplined Kennedy only for his decision to persist in praying quietly without his students after three games in October 2015. In forbidding Kennedy's brief prayer, Bremerton's challenged policies were neither neutral nor generally applicable. By its own admission, the Bremerton sought to restrict Kennedy's actions in part because of their religious character. Prohibiting religious practice was thus Bremerton School District's unquestioned “object”. The majority also pointed out that Bremerton School District conceded that its policies were neither neutral nor generally applicable.

  • Noting the complexity associated with the interplay between free speech rights and government employment, the Court observed that when an employee ‘speaks as a citizen addressing a matter of public concern', the First Amendment may be implicated and courts should proceed to a second step. At this step, courts should engage in ‘a delicate balancing of the competing interests surrounding the speech and its consequences'. “Did Mr. Kennedy offer his prayers in his capacity as a private citizen, or did they amount to government speech attributable to the District?”. The Court noted that when Kennedy engaged in his prayers, he was not engaged in speech “ordinarily within the scope” of his duties as a coach. “Mr. Kennedy's prayers did not owe their existence to Mr. Kennedy's responsibilities as a public employee”.

  • The majority pointed out that a natural reading of the First Amendment suggests that the Clauses have “complementary” purposes and not warring ones where one Clause is always sure to prevail over the others. It was also observed that the Establishment Clause in the First Amendment, must be interpreted by ‘reference to historical practices and understandings”.

“A government entity's concerns about phantom constitutional violations do not justify actual violations of an individual's First Amendment rights”. The majority observed that Respect for religious expressions is indispensable to life in a free and diverse Republic. However, in the instant case, the District sought to punish an individual for engaging in a personal religious observance, based on a mistaken view that it has a duty to suppress religious observances even as it allows comparable secular speech. “The Constitution neither mandates nor tolerates that kind of discrimination”.

The Dissent: The dissenting opinion was filed by Justice Sonia Sotomayor and she was joined by Justices Elena Kagan and Stephen Breyer. The dissenting Judges noted that the Constitution does not authorize, let alone require, public schools to embrace conduct like the instance in the present case. “This Court consistently has recognized that school officials leading prayer is constitutionally impermissible. Official-led prayer strikes at the core of our constitutional protections for the religious liberty of students and their parents, as embodied in both the Establishment Clause and the Free Exercise Clause of the First Amendment”.

  • The Judges pointed out that the petitioner had a longstanding practice of conducting demonstrative prayers on the 50-yard line of the football field. The majority also ignored the severe disruption to school events caused by Kennedy's conduct, viewing it as irrelevant because the District stated that it was suspending Kennedy to avoid it being viewed as endorsing religion.

  • “The Court rejects longstanding concerns surrounding government endorsement of religion and replaces the standard for reviewing such questions with a new ‘history and tradition' test”. It was observed that while the majority reaffirms that the Establishment Clause prohibits the government from coercing participation in religious exercise; but they also fail to acknowledge the unique pressures faced by students when participating in school-sponsored activities.

  • The dissenting Judges also noted the District Court's observations regarding Kennedy generating media coverage by publicizing his dispute with the School in his social media posting and in his media appearances. The Judges noted the instances of commotion during Kennedy's post-game prayer circle when members of the public rushed the field to join him, jumping fences to access the field and knocking over student band members. The District received calls from Satanists who ‘intended to conduct ceremonies on the field after football games if others were allowed to.' The Judges also perused the series of directions passed by the District to the petitioner which revealed that they were happy to accommodate Kennedy's desire to pray on the job, but in a way that did not interfere with his duties or risk perceptions of endorsement.

  • The dissenting Judges noted that if the instant matter is properly understood then this case is not about the limits on an individual's ability to engage in private prayer at work. This case is about whether a school district is required to allow one of its employees to incorporate a public, communicative display of the employee's personal religious beliefs into a school event, where that display is recognizable as part of a longstanding practice of the employee ministering religion to students as the public watched.

  • It was pointed out that government neutrality toward religion is particularly important in the public-school context given the role public schools play in our society. “The public school is at once the symbol of our democracy and the most pervasive means for promoting our common destiny”. Accordingly, the Establishment Clause “proscribes public schools from ‘conveying or attempting to convey a message that religion or a particular religious belief is favored or preferred'” or otherwise endorsing religious beliefs.

  • Students look up to their teachers and coaches as role models and seek their approval”- The Judges noted that players recognize that gaining the coach's approval may pay dividends small and large. In addition to these pressures to please their coaches, players face “immense social pressure” from their peers especially when it comes to American high school football. The Judges pointed out the evidence which revealed that some students reportedly joined Kennedy's prayer because they felt social pressure to follow their coach and teammates.

  • It was noted that Kennedy's free exercise claim must be considered in light of the fact that he is a school official and, as such, his participation in religious exercise can create Establishment Clause conflicts. His right to pray at any time and in any manner, he wishes while exercising his professional duties is not absolute.

  • In their final observation, the dissenting Judges stated that Free Exercise Clause and Establishment Clause are equally integral in protecting religious freedom in society. However, the majority's decision elevates one individual's interest in personal religious exercise, in the exact time and place of that individual's choosing, over society's interest in protecting the separation between church and state, eroding the protections for religious liberty for all.

Terming the majority decision to be “misguided”, the Judges stated that the decision creates a perilous path to force the States to entangle themselves with religion, with all the rights hanging in the balance. “As much as the Court protests otherwise, today's decision is no victory for religious liberty

“This decision does a disservice to schools and the young citizens they serve, as well as to our Nation's longstanding commitment to the separation of church and state”.

[Kennedy v. Bremerton School District, No. 21—418, decided on 27-06-2022]


*Sucheta Sarkar, Editorial Assistant has reported this brief

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a crucial decision, the SCOTUS while deliberating upon New York’s “proper cause” requirement to possess a concealed firearm; declared with an overwhelming ratio of 6:3 that, the “proper-cause” requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense.

This decision by the Court assumes a lot of significance, given the current discourse in the country revolving around several mass shootings and the Second Amendment.

The Laws in question

  • The New York Penal Law makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed pistol or revolver if he can prove that proper cause exists for doing so. An applicant satisfies the “proper cause” requirement only if he can “demonstrate a special need for self-protection distinguishable from that of the general community” [N.Y. Penal Law Ann. §400.00(2)(f)]

  • The Second Amendment of the US Constitution states that a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.1

  • The Fourteenth Amendment of the US Constitution deals with multiple aspects of citizenship and the rights of citizens.2

The Dissent: Justice Stephen Breyer along with Sonia Sotomayor and Elena Kagan, JJ., filed a dissenting opinion. The judges cited relevant records and pointed out that in 2020 alone, around 45,222 Americans were killed by firearms and since the start of 2022, there have been 277 reported mass shootings. The Judges quoted a relevant report which had observed that- Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents”.

Other salient observations made by the dissenting Judges are as follows-

  • Noting that ever since the rise in cases of mass shooting, there are many States that are trying to address the dangers of gun violence by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. However, the majority opinion in the instant matter severely burdens States’ efforts to do so. In their opinion, the Judges included not only the recent spate of mass shootings in Philadelphia, Pennsylvania; an elementary school in Uvalde, Texas; a supermarket in Buffalo, New York, But many other instances highlighting the rising number and intensity of the cases.

    The Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in practice”.

  • The Judges also stated that when courts interpret the Second Amendment, it is constitutionally proper, and often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. They also noted that mass shootings are just one dimension of the problem; easy access to firearms can also make many other aspects of American life more dangerous — like cases of road rage and domestic violence to name a few.

  • It was further pointed out that most officers who are killed in the line of duty are killed by firearms; and that the officers in States with high rates of gun ownership are three times as likely to be killed in the line of duty as officers in States with low rates of gun ownership. “The presence of a gun in the hands of a civilian poses a risk to both officers and civilians”.

  • “Question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts”. The Judges opined that the Second Amendment allows States to take account of the serious problems posed by gun violence. Therefore, it is concerning that the majority’s interpretation ignores the significant dangers and leaves the States without the ability to address them.

    Question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes”.

  • Regarding the interpretation of “proper-cause” requisite in the New York penal law, the Judges observed that the words ‘proper-cause’ may appear on their face to be broad, but there is a substantial body of law instructing licensing officials on the application of this standard. New York courts have interpreted proper cause to include instances like “carrying a handgun for target practice, hunting, or self-defense”. When an applicant seeks a license for target practice or hunting, he must show ‘a sincere desire to participate in target shooting and hunting’. The dissenting Judges further noted that counsels for the respondents have presented substantial data justifying the State’s decision to retain a “may issue” licensing regime. The data shows that stricter gun regulations are associated with lower rates of firearm-related death and injury.

  • The dissenting Judges pointed out that the majority Judges had an incomplete picture of number of States with “may issue” licensing regime as it accounts for only the number of such States and not the number of people governed by those regimes. The seven “may issue” jurisdictions are New York, California, Hawaii, Maryland, Massachusetts, New Jersey, and the District of Columbia. Together, these seven jurisdictions comprise about 84.4 million people and account for over a quarter of the country’s population; i.e., to say that these jurisdictions are among the most densely populated in the United States. Densely populated urban areas face different kinds and degrees of dangers from gun violence than rural areas. “It is thus easy to see why the seven “may issue” jurisdictions might choose to regulate firearm carriage more strictly than other States”.

  • The dissenting Judges also questioned as to how the majority struck the impugned law without first considering how it actually works on the ground and what purposes it serves. They stated that the majority had misread District of Columbia v. Heller 2008 SCC OnLine US SC 63, and in an unusual manner, relied only on its history-only approach. The Judges pointed out that beyond this historical inquiry, the majority refused to employ what it calls “means-end scrutiny”. That is, it refused to consider whether New York has a compelling interest in regulating the concealed carriage of handguns or whether New York’s law is narrowly tailored to achieve that interest.

    “The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish.

  • The dissenting opinion stated that the Court is bound by Heller case insofar as it interpreted the Second Amendment to protect an individual right to possess a firearm for self-defense. “But Heller recognized that this right was not without limits and could appropriately be subject to government regulation.

In an impassioned conclusion, the Judges opined that this Court is not comprised of historians; however, the detailed study of history by the majority Judges seems to establish a robust tradition of regulations restricting the public carriage of concealed firearms. “It is appropriate in such circumstances to look beyond history and engage in what the Court calls means-to-end scrutiny. Courts must be permitted to consider the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives”.

“I cannot agree with the Court’s decision to strike New York’s law down without allowing for discovery or the development of any evidentiary record, without considering the State’s compelling interest in preventing gun violence and protecting the safety of its citizens, and without considering the potentially deadly consequences of its decision, I respectfully dissent”.

[New York State Rifle and Pistol Association v. Bruen, 2022 SCC OnLine US SC 8, decided on 23-06-2022]


1. Second Amendement, Constitution Annotated

2. The Fourteenth Amendment, Legal Information Institute [Cornell Law School]

 


*Sucheta Sarkar, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a crucial decision, the SCOTUS while deliberating upon New York’s “proper cause” requirement to possess a concealed firearm; declared with a thumping ratio of 6: 3 that, the “proper-cause” requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs from exercising their Second Amendment right to keep and bear arms in public for self-defense. This decision by the Court assumes a lot of significance given the current discourse in the country surrounding several mass shootings and the Second Amendment.

Facts and Legal Trajectory of the Case:

New York residents and law-abiding citizens, Brandon Koch and Robert Nash, both applied for unrestricted licenses to carry a handgun in public based on their generalized interest in self-defense. The State denied both of their applications for unrestricted licenses, allegedly because Koch and Nash failed to satisfy the “proper cause” requirement.

Petitioners sued state officials who oversee the processing of licensing applications, for declaratory and injunctive relief, alleging that the respondents violated their Second and Fourteenth Amendment rights by denying their unrestricted-license applications for failure to demonstrate a unique need for self-defense. The District Court dismissed petitioners’ complaint and the Court of Appeals affirmed that decision. It was observed that New York’s proper-cause standard was “substantially related to the achievement of an important governmental interest”. Aggrieved with the decision, the petitioners preferred to approach the SCOTUS.

The Laws in question

  • The New York Penal Law makes it a crime to possess a firearm without a license, whether inside or outside the home. An individual who wants to carry a firearm outside his home may obtain an unrestricted license to “have and carry” a concealed pistol or revolver if he can prove that proper cause exists for doing so. An applicant satisfies the “proper cause” requirement only if they can “demonstrate a special need for self-protection distinguishable from that of the general community” [N. Y. Penal Law Ann. §400.00(2)(f)]

  • The Second Amendment of the US Constitution states that a well-regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.1

  • The Fourteenth Amendment of the US Constitution deals with multiple aspects of citizenship and the rights of citizens.2

Observations by the Majority: The majority opinion was delivered by Clarence Thomas, J., and he was joined and concurred by John Roberts, CJ., and Samuel Alito, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barrett, JJ. The majority made the following observations regarding constitutionality of the “proper- cause” requirement-

  • Relying on District of Columbia v. Heller 2008 SCC OnLine US SC 63 and McDonald v. City of Chicago, 2010 SCC OnLine US SC 87, it was noted that the Second Amendment’s plain text covers an individual’s conduct, the Constitution presumptively protects that conduct, and to justify a firearm regulation the government must demonstrate that the regulation is consistent with the Nation’s historical tradition of firearm regulation. To determine whether a firearm regulation is consistent with the Second Amendment, Heller and McDonald point toward at least two relevant metrics: whether modern and historical regulations impose a comparable burden on the right of armed self-defense; and whether that regulatory burden is comparably justified. Since “individual self-defense is the central component’ of the Second Amendment right, therefore, these two metrics are central considerations when engaging in an analogical inquiry. “The respondents’ attempt to characterize New York’s proper-cause requirement as a ‘sensitive-place law’ lacks merit because there is no historical basis for New York to effectively declare the island of Manhattan a sensitive place simply because it is crowded and protected generally by the New York City Police Department”.

  • It was observed that petitioners Koch and Nash are two ordinary, law-abiding, adult citizens and are part of “the people” whom the Second Amendment seeks to protect; and there is no dispute as to the fact that handguns are weapons in common use today for self-defense. “Nothing in the Second Amendment’s text draws a home/public distinction with respect to the right to keep and bear arms, and the definition of “bear” naturally encompasses public carry”.

  • The majority also pointed out that burden falls on respondents to show that New York’s proper-cause requirement is consistent with this Nation’s historical tradition of firearm regulation. Though the respondents have cited documents dating from 1200s to the early 1900s, however, “when it comes to interpreting the Constitution, not all history is created equal”. The Second Amendment and the Fourteenth Amendment were adopted in 1791 and 1868 respectively. Historical evidence that long predates or postdates either time may not illuminate the scope of the right. With these principles in mind, the Court concludes that respondents have failed to meet their burden to identify an American tradition justifying New York’s proper-cause requirement. The historical evidence from antebellum America does demonstrate that the manner of public carry was subject to reasonable regulation, but none of these limitations on the right to bear arms operated to prevent law-abiding citizens with ordinary self-defense needs from carrying arms in public for that purpose”.

The Dissent: Justice Stephen Breyer along with Sonia Sotomayor and Elena Kagan, JJ., filed a dissenting opinion. The dissenting judges cited relevant records and pointed out that in 2020 alone, around 45,222 Americans were killed by firearms and since the start of 2022, there have been 277 reported mass shootings- “Gun violence has now surpassed motor vehicle crashes as the leading cause of death among children and adolescents”. Other salient observations made by the dissenting Judges are as follows-

  • Noting that ever since the rise in cases of mass shooting, there are many States that are trying to address the dangers of gun violence by passing laws that limit, in various ways, who may purchase, carry, or use firearms of different kinds. However, the majority opinion in the instant matter severely burdens States’ efforts to do so. “The Court decides this case on the basis of the pleadings, without the benefit of discovery or an evidentiary record. As a result, it may well rest its decision on a mistaken understanding of how New York’s law operates in practice”.

  • The Judges also stated that when courts interpret the Second Amendment, it is constitutionally proper, and often necessary, for them to consider the serious dangers and consequences of gun violence that lead States to regulate firearms. They also noted that mass shootings are just one dimension of the problem; easy access to firearms can also make many other aspects of American life more dangerous – like cases of road rage and domestic violence to name a few. Furthermore, “The presence of a gun in the hands of a civilian poses a risk to both officers and civilians”. It was pointed out that most officers who are killed in the line of duty are killed by firearms; and that the officers in States with high rates of gun ownership are three times as likely to be killed in the line of duty as officers in States with low rates of gun ownership.

  • “Question of firearm regulation presents a complex problem—one that should be solved by legislatures rather than courts”. The Judges opined that the Second Amendment allows States to take account of the serious problems posed by gun violence. Therefore, it is concerning that the majority’s interpretation ignores the significant dangers and leaves the States without the ability to address them. “Question presented in this case concerns the extent to which the Second Amendment restricts different States (and the Federal Government) from working out solutions to these problems through democratic processes”.

  • Regarding the New York “proper-cause” requisite, the dissenting Judges observed that counsels for the respondents present substantial data justifying the State’s decision to retain a “may issue” licensing regime. The data shows that stricter gun regulations are associated with lower rates of firearm-related death and injury. The Judges also questioned as to how the majority struck the impugned law without first considering how it actually works on the ground and what purposes it serves. It was stated that the majority misread the Heller case and in an unusual manner, relied only on its own history-only approach. “The Court’s near-exclusive reliance on history is not only unnecessary, it is deeply impractical. It imposes a task on the lower courts that judges cannot easily accomplish. The dissenting opinion stated that the Court is bound by Heller case insofar as it interpreted the Second Amendment to protect an individual right to possess a firearm for self-defense. “But Heller recognized that this right was not without limits and could appropriately be subject to government regulation.

  • In an impassioned conclusion, the Judges opined that this Court is not comprised of historians; however, the detailed study of history by the majority Judges seems to establish a robust tradition of regulations restricting the public carriage of concealed firearms. “It is appropriate in such circumstances to look beyond history and engage in what the Court calls means-to-end scrutiny. Courts must be permitted to consider the State’s interest in preventing gun violence, the effectiveness of the contested law in achieving that interest, the degree to which the law burdens the Second Amendment right, and, if appropriate, any less restrictive alternatives”.

Conclusion and Decision: Considering the historical facets of firearm restrictions and other relevant aspects, the Court with a ratio of 6: 3 concluded that the constitutional right to bear arms in public for self-defense is not a second-class right. “The exercise of other constitutional rights does not require individuals to demonstrate to government officers some special need. The Second Amendment right to carry arms in public for self-defense is no different”.

It was thus held that New York’s proper-cause requirement violates the Fourteenth Amendment by preventing law-abiding citizens with ordinary self-defense needs, from exercising their right to keep and bear arms in public.

[New York State Rifle and Pistol Association v. Bruen, No. 20-843, decided on 23-06-2022]


*Sucheta Sarkar, Editorial Assistant has reported this brief.


1. Second Amendement, Constitution Annotated

2. The Fourteenth Amendment, Legal Information Institute [Cornell Law School]

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: On Friday, the SCOTUS decisively overruled not only the landmark ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted the American women a constitutional right to abortion, but also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11, which upheld the Roe ruling. It was held that the Constitution of United States does not confer any right vis-à-vis abortions. With this decision, the authority to regulate abortion was returned to the people and their elected representatives.

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision as catastrophic. In a passionate and scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Lamenting upon the rationale behind the overruling, the Judges stated that “The majority’s refusal even to consider the life-altering consequences of reversing Roe and Casey is a stunning indictment of its decision”

The Judges made some crucial observations highlighting their apprehensions and dismay over the majority decision, which are as follows:

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey understood the difficulty and divisive­ness of the abortion issue and the Bench deciding those cases was aware that Americans have profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded the afore-stated balance. “It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”.

“The Mississippi law at issue here bars abortions after the 15th week of pregnancy. But under the majority’s ruling, another State’s law could do so after ten weeks, or five or three or one—or, again, from the moment of fertilization. States have already passed such laws, in anticipation of today’s ruling. More will follow. Some States have enacted laws extending to all forms of abortion procedure, including taking medication in one’s own home. They have passed laws without any exceptions for when the woman is the victim of rape or incest. Under those laws, a woman will have to bear her rapist’s child or a young girl her father’s—no matter if doing so will destroy her life”.

  • The dissenting Judges noted that the majority decision would sound a death knell for women who are not financially strong. It was also pointed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for the majority decision is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering.

Either the major­ity does not really believe in its own reasoning. Or if it does, then all rights that have no history stretching back to the mid­ 19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other.

  • “As a matter of constitutional method, the majority’s commitment to replicate in 2022 every view about the meaning of liberty held in 1868 has precious little to recommend it”. Questioning the majority’s use of historical approach in the decision, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “When the majority says that we must read our foundational charter as viewed at the time of ratification (except that we may also check it against the Dark Ages), it consigns women to second-class citizenship… The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning.

“The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.

  • The dissenting Judges observed that applications of liberty and equality can evolve while remaining grounded in constitutional principles, constitutional history, and constitutional precedents. It was settled at the time of Roe, settled at the time of Casey, and settled yesterday that the Constitution places limits on a State’s power to assert control over an individual’s body and most personal decision making. A multitude of decisions supporting that principle led to Roe’s recognition and Casey’s reaffirmation of the right to choose; and Roe and Casey in turn supported additional protections for intimate and familial relations. The majority has embarrassingly little to say about those precedents”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”.
  • The Judges questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases, when in the same vein he urged the Court to reconsider decisions like Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6.

“He says, “We should reconsider all of this Court’s substantive due process precedents, including Griswold, Lawrence, and Obergefell.” And when we reconsider them? Then “we have a duty” to “overrule these demonstrably erroneous decisions.”  So at least one Justice is planning to use the ticket of today’s decision again and again and again”.

  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. They noted that by overruling Roe and Casey, and more than 20 cases reaffirming or applying the constitutional right to abortion, the majority has abandoned stare decisis, a principle central to the rule of law because “Stare decisis” means to stand by things decided.”

The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

  • Regarding majority’s view about unworkability of ‘undue burden’ standard set in Casey, the dissenting Judges opined that general standards, like the undue burden standard, are ubiquitous in the law, and particularly in constitutional adjudication. When called on to give effect to the Constitution’s broad principles, this Court often crafts flexible standards that can be applied case-by-case to a myriad of unforeseeable circumstances.
  • In the dissenting Judges highlighted that this decision will invite a host of questions about interstate conflicts like –whether a State can bar a woman from travelling to another State to get an abortion etc.

“The Constitution protects travel and speech and interstate commerce, so today’s ruling will give rise to a host of new constitutional questions. Far from removing the Court from the abortion issue, the majority puts the Court at the center of the coming “inter- jurisdictional abortion wars.”

The dissenting Judges remarked that, Roe and Casey continue to reflect, the broad trends in American society. It is true that many Americans, including many women, opposed those decisions when issued and do so now as well. Yet the fact remains that Roe and Casey were the product of a profound and ongoing change in women’s roles in the latter part of the 20th century. Therefore, the disruption of overturning Roe and Casey will be profound as well. Pointing out that the Mississippi’s Gestational Age Act, does not have any exception for rape or incest, even for underage women, thus the loss of Roe and Casey would be disastrous for women who will have undergo pregnancies resulting from rape or incest.

Finally the dissenting Judges observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. The decision breached a core rule-of-law principle, designed to promote constancy in the law. In doing all of that, it placed in jeopardy other rights, from contraception to same-sex intimacy and marriage; and finally, undermining the Court’s legitimacy.

With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent”.

[Dobbs v. Jackson Women’s Health Organisation, No. 19–1392, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a far-reaching decision concerning an American woman’s right to abortion, the Court held that the Constitution of United States does not confer any right vis-à-vis abortions. This judgment decisively overrules the landmark SCOTUS ruling of Roe v. Wade, 1973 SCC OnLine US SC 20, which granted this constitutional right in the first place and also Planned Parenthood of Southeastern Pennsylvania v. Casey, 1994 SCC OnLine US SC 11 which upheld Roe. Furthermore, by this mandate the authority to regulate abortion is returned to the people and their elected representatives.

Abortion presents a profound moral question. The Constitution does not prohibit the citizens of each State from regulating or prohib­iting abortion. Roe and Casey arrogated that authority”.

In a separate concurring opinion John Roberts, CJ., agreed with the majority on the point that the rule of viability as propounded in Roe and Casey, should be discarded as the SCOTUS seriously erred in adopting via­bility as the earliest point at which a State may legislate to advance its substantial interests in the area of abortion. “I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense”. He however, also stated that, “None of this requires the dramatic step of altogether eliminating the abortion right first recognized in Roe”.

Facts and Legal Trajectory of the Case

The re-consideration of Roe v. Wade came into the picture when Jackson Women’s Health Organisation [respondents] challenged Mississippi’s Gestational Age Act. The legislation provided that “except in a medical emergency or in the case of a severe fetal abnormality, a person shall not intentionally or knowingly perform . . . or induce an abortion of an unborn human being if the probable gestational age of the unborn hu­man being has been determined to be greater than fifteen (15) weeks.”

The respondents contended before the Federal District Court that Mississippi’s law violated SCOTUS’ prec­edents establishing a constitutional right to abortion, particularly Roe and Casey. The District Court granted summary judg­ment in favor of the respondents and permanently enjoined enforcement of the Act, reasoning that Mississippi’s 15-week restriction on abortion violates SCOTUS decisions forbidding States to ban abortion pre-viabil­ity. The Fifth Circuit affirmed the decision.

The petitioners finally came before the Supreme Court defending the Act on the grounds that Roe and Casey were wrongly decided and that the Act is constitutional because it satisfies rational-basis review.

Majority Observations

The majority opinion was delivered by Justice Samuel Alito in which Chief Justice John Roberts, Clarence Thomas, Brett Kavanaugh, (concurring), Neil Gorsuch and Amy Coney Barrett, JJ., also joined. The majority considered Roe and Casey on following points-

  • The majority deliberated whether the Constitution, if properly un­derstood, confers a right to obtain an abortion. It was observed that Fourteenth Amendment’s refer­ence to “liberty” protects a particular right. However, the Constitution makes no express reference to a right to obtain an abortion, but several con­stitutional provisions have been offered as potential homes for an im­plicit constitutional right. The Court pointed out that “The Bench deciding Casey grounded its decision solely on the theory that the right to obtain an abortion is part of the “liberty” protected by the Fourteenth Amend­ment’s Due Process Clause, but that theory is squarely foreclosed by the Court’s precedents, which es­tablish that a State’s regulation of abortion is not a sex-based classifi­cation and is thus not subject to the heightened scrutiny that applies to such classifications”.
  • The majority based its next observations on the History and Traditions of the Nation”. It was pointed out that the right to abortion is not deeply rooted in the Nation’s history and tradi­tion and the Due Process Clause pro­tects two categories of substantive rights – rights guaranteed by the first eight Amendments to the Constitution and rights deemed fundamental but are not mentioned anywhere in the Consti­tution. “Historical inquiries are essential whenever the Court is asked to recognize a new component of the “liberty” interest protected by the Due Process Clause. In interpreting what is meant by “liberty,” the Court must guard against the natural human tendency to confuse what the Fourteenth Amendment protects with the Court’s own ardent views about the liberty that Americans should enjoy”. Citing this reason the majority expressed its reluctance recognize rights that are not men­tioned in the Constitution. “Guided by the history and tradition that map the essential compo­nents of the Nation’s concept of ordered liberty, the Court finds the Fourteenth Amendment clearly does not protect the right to an abor­tion. Until the latter part of the 20th century, there was no support in American law for a constitutional right to obtain an abortion”.
  • Furthermore the Court stated that Roe’s analysis of historical basis of right to abortion was faulty. It was pointed out that American law followed the common law until a flurry of statutory restrictions in the 1800s ex­panded criminal liability for abortions. By the time the Fourteenth Amendment was adopted, three-quarters of the States had made abor­tion a crime at any stage of pregnancy. Thus Roe either ignored or misstated this part of history. The Court observed that instead of seriously pursuing the argument that the abortion right itself has deep roots in history, the supporters of Roe and Casey contend that the abortion right is an integral part of a broader entrenched right- right to privacy. “But the people of the various States may evaluate those inter­ests differently. The Nation’s historical understanding of ordered lib­erty does not prevent the people’s elected representatives from decid­ing how abortion should be regulated”.
  • Finally the majority applied the principles of stare decicis to analyse whether a right to obtain an abor­tion is part of a broader entrenched right that is supported by other precedents. The Court observed that while deciding Roe, none of the decisions cited involved the critical moral question posed by abortion. thus, those cases do not support the right to obtain an abortion, and the Court’s conclusion that the Constitution does not confer such a right does not undermine them in any way. It was pointed out that doctrine of precedents “restrains judicial hubris by respecting the judgment of those who grappled with important questions in the past. But stare decisis is not an inexorable command”.
  • Terming Roe as egregiously wrong and in collision course with the Constitution from the day it was decided, the Court stated that Roe imposed on the entire country a detailed set of rules for pregnancy divided into trimesters much like those that one might expect to find in a statute or regulation. It was further stated that the scheme Roe produced looked like legislation, and the Court provided the sort of explanation that might be expected from a legislative body. Another glaring defi­ciency was Roe’s failure to justify the critical distinction it drew be­tween pre- and post-viability abortions.
  • The argument that overruling Roe and Casey would threaten the protection of other rights under the Due Process Clause was also rejected by the Court stating that. This decision concerns the constitutional right to abortion only. Nothing in this opinion should cast doubt on precedents that do not concern abortion.

Concurring Opinion of John Roberts, CJ.,

Taking a middle ground approach, Roberts, CJ., stated that overruling the subsidiary rule is sufficient to resolve this case in Mississippi’s favour. He also pointed out that SCOTUSabortion precedents describe the right as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further not all the way to viability.  He also stated that. “I am not sure, that a ban on terminat­ing a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fif­teen weeks. I would decide the question we granted review to answer—whether the previously recognized abortion right bars all abortion restrictions prior to viability, such that a ban on abortions after fifteen weeks of pregnancy is necessarily unlawful. The answer to that question is no”.

“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system—regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case”.

Concurring Opinions of Clarence Thomas and Brett Kavanaugh JJ.,

  • Justice Clarence Thomas’ concurring opinion emphasised on more funda­mental reason why there is no abortion guarantee lurking in the Due Process Clause. He stated that “substantive due process” is an oxymoron that “lacks any basis in the Constitution.” He stated that the Court should reconsider all of SCOTUS’ substantive due process precedents, includ­ing Griswold Connecticut 1965 SCC OnLine US SC 124; Lawrence v. Texas, 2003 SCC OnLine US SC 73 and Obergefell v. Hodges, 2015 SCC OnLine US SC 6“Because any sub­stantive due process decision is “demonstrably erroneous, we have a duty to “correct the error” established in those precedents. After overruling these demonstra­bly erroneous decisions, the question would remain whether other constitutional provisions guarantee the myr­iad rights that our substantive due process cases have gen­erated. For example, we could consider whether any of the rights announced in this Court’s substantive due process cases are “privileges or immunities of citizens of the United States” protected by the Fourteenth Amendment”.
  • Justice Brett Kavanugh stated that the Constitution does not take sides on the issue of abortion. The text of the Constitution does not refer to or encompass abortion. The Constitution protects un­enumerated rights that are deeply rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty. But a right to abortion is not deeply rooted in Amer­ican history and tradition.The Constitution is therefore neither pro-life nor pro-choice. The Constitution is neutral and leaves the issue for the people and their elected repre­sentatives to resolve through the democratic process in the States or Congress—like the numerous other difficult ques­tions of American social and economic policy that the Con­stitution does not address”.

The Dissent

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, termed the decision to be catastrophic. In a scathing dissent, the Judges stated that the majority has overruled Roe and Casey out of despise and has substituted a rule by judges for the rule of law. Some of their salient observations are as follows-

  • They observed that for close to 50 years Roe and later Casey protected the liberty and equality of women. “Respecting a woman as an autonomous being, and granting her full equality, meant giving her substantial choice over this most personal and most consequential of all life decisions”. Roe and Casey well understood the difficulty and divisive­ness of the abortion issue and the Court was aware that Americans hold profoundly different views about the morality of terminating a pregnancy, even in its earliest stage. So the Court struck a balance, and held that the State could prohibit abortions after fetal viability, so long as the ban contained exceptions to safeguard a woman’s life or health. It held that even before viability, the State could regulate the abortion procedure in multiple and meaningful ways. But until the viability line was crossed, the Court held, a State could not impose a “substantial obstacle” on a woman’s “right to elect the procedure” as she (not the gov­ernment) thought proper, in light of all the circumstances and complexities of her own life.
  • The dissenting Judges observed that the majority in the deciding the present issue discarded that balance. It says that from the very moment of fertilization, a woman has no rights to speak of. A State can force her to bring a pregnancy to term, even at the steepest personal and familial costs”. The Judges pointed out that after today’s ruling, some States may compel women to carry to term a fetus with severe physical anomalies—for example, one afflicted with Tay-Sachs disease, sure to die. The Judges expressed apprehension that a State can impose criminal penalties on abortion providers, including lengthy prison sentences. “But some States will not stop there. Perhaps, in the wake of today’s decision, a state law will criminalize the woman’s conduct too, incarcerating or fining her for daring to seek or obtain an abortion”. The dissenting Judges pointed out that the majority decision would sound a death knell for women who are not financially strong. It was observed that the majority decision has one clear result i.e. the curtailment of women’s rights and of their status as free and equal citizens.
  • In very strong words, the Judges pointed that the lone rationale for what the majority does today is that the right to elect an abortion is not “deeply rooted in history” however, the same could be said, of most of the rights the majority decision claimed that it is not tampering. “Either the major­ity does not really believe in its own reasoning. Or if it does, all rights that have no history stretching back to the mid­19th century are insecure. Either the mass of the majority’s opinion is hypocrisy, or additional constitutional rights are under threat. It is one or the other”.
  • Questioning the majority’s historical approach, the dissenting Judges pointed out that those responsible for the original Constitution, including the Fourteenth Amendment, did not perceive women as equals, and did not recognize women’s rights. “The majority’s core legal postulate, then, is that we in the 21st century must read the Fourteenth Amendment just as its ratifiers did”. The Judges also pointed that the Framers of the Constitution (both in 1788 and 1868) understood that the world changes, so they did not define rights by refer­ence to the specific practices existing at the time. Instead, the Framers defined rights in general terms, to permit fu­ture evolution in their scope and meaning. “The Constitution does not freeze for all time the original view of what those rights guarantee, or how they apply”.
  • Regarding the “neutrality” of the Constitution, the Judges noted that, “When it comes to rights, the Court does not act “neutrally” when it leaves everything up to the States. Rather, the Court acts neutrally when it protects the right against all comers”. The Judges also questioned Justice Clarence Thomas’s statement that the present decision would not affect precedents in non-abortion cases when in the same vein he urged the Court to reconsider decisions like
  • The Judges also noted that the majority did not successfully express its rationale regarding the issue of stare decisis. “The majority barely mentions any legal or factual changes that have occurred since Roe and Casey. It sug­gests that the two decisions are hard for courts to imple­ment, but cannot prove its case. In the end, the majority says, all it must say to override stare decisis is one thing: that it believes Roe and Casey “egregiously wrong.”

Finally the dissenting Judges simply observed that in overruling Roe and Casey, the SCOTUS betrayed its guiding principles. With sorrow—for this Court, but more, for the many mil­lions of American women who have today lost a fundamen­tal constitutional protection—we dissent.

Decision

With their afore-stated observations the majority concluded that Mississippi’s Gestational Age Act is supported by the Mississippi Legislature’s specific findings, which include the State’s asserted in­terest in “protecting the life of the unborn”. These legitimate interests provide a rational basis for the Gestational Age Act.

[Dobbs v. Jackson Women’s Health Organisation, No. 19–1392, decided on 24-06-2022]


Report by Sucheta Sarkar, Editorial Assistant

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): Elena Kagan, J. has clarified that a party challenging arbitration does not need to prove that it experienced any prejudice in order to establish the other party has waived its right to arbitration by pursuing litigation. The genesis of this deliberation is in the eighth circuit precedent, which had adopted the requirement under which a party waives its right to arbitration to be if it knew of the right; “acted inconsistently with that right”; and “prejudiced the other party by its inconsistent actions.

Factual Background:

The parties, had signed an agreement pursuant to which any employment dispute was to be arbitrated. Subsequently, the petitioner filed a nationwide collective action against the respondent for violating federal laws regarding overtime payment and the same was defended by the respondents. However, later the respondents moved to stay the litigation and compelled arbitration under Sections 3 and 4 of the Federal Arbitration Act (‘FAA’).

It was the petitioner’s argument that the respondent had waived its right to arbitrate by partaking in the litigations. The eighth circuit had rejected the petitioner’s argument on the precedent that there was no harm suffered by the respondent’s delay in compelling the arbitration.

Observations and Decision:

The Bench clarified that the requirement of showing the harm caused/prejudice was not a feature of federal waiver law generally. The eighth circuit along with a handful of others had specifically adopted the prejudice requirement in the arbitration context because of the federal policy that favours arbitration.

Further, it was held that this policy of the FAA does not authorize the federal courts to invent special, arbitration-preferring procedural rules and the courts should refrain from devising novel rules to favour arbitration over litigation.

The Supreme Court reiterated that the intent of the federal policy is not to foster arbitration, but is rather about treating arbitration contracts like any other contract. The courts are not to create arbitrations specific procedural rules.   [Morgan v. Sundance, 2022 SCC OnLine US SC 5, decided on 23-05-2022]


Parties appearing before the Court:

For petitioners: Karla Ann Gilbride

For respondents: Paul D. Clement

Op EdsOP. ED.

Introduction

The Supreme Court of the United States is once more faced with the question involving abortion rights, the Supreme Court will in Dobbs v. Jackson Women’s Health Organisation[1] revisit the precedent set in Roe v. Wade[2] where the Court had upheld the concept that privacy encompasses the right of a woman to terminate her pregnancy. In Roe[3], the Supreme Court had also enunciated the principle that when the foetus is viable, that is, it can survive on its own outside the womb, abortion may be prohibited. This period of viability was considered to be 24 to 28 weeks. The position in India is similar and a woman may terminate her pregnancy with the opinion of a single medical practitioner up to twenty weeks and with the consultation of two medical practitioners up to 24 weeks. This position may be changed by the Supreme Court in June 2022, through its judgment in Dobbs v. Jackson Women’s Health Organisation[4] in light of recent medical and sociological advancements.

All of this has brought to the fore a question that should have been settled since long. The balance between a woman’s right to life and privacy vis-à-vis the right to life of the unborn child. This debate has an additional layer to it which adds to the urgent need to settle this jurisprudence. The question involves legal as well as medical attention, the right to life debate gains further traction based on the unborn child’s feasibility to survive outside the mother’s womb. Should we have a category conclusion on this (from the medical world), would we then be able to say that the right of the life of the unborn child should be paramount? This and more could be answered by the United States Supreme Court sometime in June 2022.

In January 1973, the Supreme Court of the United States of America in a 7:2 majority decision delivered its judgment in Roe v. Wade[5], holding a Texas statute unconstitutional which banned abortions except when necessary to save the life of the mother.

Jane Roe was the fictional name chosen by Norma McCorvey, petitioner, to protect her identity. McCorvey was an unmarried pregnant woman residing in Dallas County, Texas and wished to terminate her pregnancy by an abortion performed by a competent, licensed physician, under safe clinical conditions. She contended that the Texas laws were unconstitutional for being vague and infringed on her right to privacy. Roe wished to sue on behalf of herself and all women similarly situated, thereby making it a class action lawsuit.

Subsequently, Dr James Hubert Hallford, a physician who had previously been arrested in violation of the Texas statute and had two pending prosecutions, along with the Doe’s, a married couple whose wife was advised not to get pregnant due to medical reasons, also filed companion complaints against the constitutionality of the Texas statute. The impugned Texas statutes were Articles 1191-1194 and 1196 of the State’s Penal Code.

The District Court granted declaratory relief though not injunctive, and held that it is a person’s fundamental right to choose whether to have children and such right is protected by the Ninth and Fourteenth Amendment. The District Court held the Texas criminal abortion statutes to be void because they were both unconstitutionally vague and constituted an overbroad infringement of the plaintiffs’ Ninth Amendment rights. As per the Ninth Amendment,

“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

The law, as it then stood, declared that if any person with the consent of the woman deliberately administers or knowingly procures to be administered any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion shall be confined to prison for not less than two up to five years. If such abortion was without her consent, the punishment was doubled.[6]

The term “abortion” was defined as the life of the foetus or embryo destroyed in the woman’s womb or that a premature birth thereof be caused.[7] To furnish the means for abortion and an attempt to abort were also punishable under the Code.[8] The exception to abortion which did not attract criminal liability was when the abortion was procured or attempted by medical advice for the purpose of saving the life of the mother.[9]

The Supreme Court also dealt with the compelling interest of the State in balancing the rights of the potential life and rights of the pregnant woman, the Court then brought to the front the concept of viability. Viability means when the foetus has the capability of meaningful life outside the mother’s womb. The Court held that, the regulation protective of foetal life will be logical and biological.

The Court also resolved certain vital questions in 1973 through this judgment including the standing of “right to privacy”. The Court held that while the right to privacy was not explicitly mentioned in the Constitution, the right finds its place in the Fourteenth Amendment. The scope of right to privacy was further widened to include the abortion decision, although not absolute and subject to limitations.

The Fourteenth Amendment[10] to the US Constitution reads:

  1. … No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law;

The Court concluded by creating distinction based on the term of the pregnancy, trimester wise.  For the stage prior to approximately the end of the first trimester, the abortion decision and its effectuation was to be left to the medical judgment of the pregnant woman’s attending physician. After the end of the first trimester, the State, in promoting its interest in the health of the mother, may, if it chooses, regulate the abortion procedure in ways that are reasonably related to maternal health. For the stage subsequent to viability, the State in promoting its interest in the potentiality of human life may, if it chooses, regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life or health of the mother.

Law in various States

In Texas, the Senate Bill No. 8[11] was signed into law on 19-5-2021. The Texas law is one of the most significant anti-abortion laws in force in the country. As per the law, also sometimes referred to as the “heartbeat law”, abortions after 6 weeks are banned. The law provides no exception to horrendous situations like rape and incest, which cause extreme psychological suffering to the woman. Even though, cases of incest may lead to abnormalities in the child so conceived, however, the law makes all such abortions also unconstitutional and makes no special exceptions in these cases either. This Act goes a step further by implementing a “sue thy neighbour policy”[12], wherein the Act provides that any person, other than an officer or employee of the State or local Government entity in the State may bring a civil suit against another where he is of the opinion that abortion has been undertaken in contravention of the Act.If he succeeds in the suit, he shall be awarded injunctive relief and also statutory damages of not less than $10,000 for each abortion that the defendant performed or induced in violation of the sub-chapter.[13]

Various other States in the United States of America have what are called trigger bills which would go into effect, and substantially regulate or completely prohibit abortions if the Supreme Court overrules Roe v. Wade[14]. One such State is Utah, Senate Bill 174[15] was signed into law by Utah Governor Gary Herbert in 2020. S.B. 174 prohibits all abortions except in cases of certain exceptions. A woman can receive an abortion if the pregnancy poses a life-threatening risk to the woman or has a serious risk of substantial and irreversible impairment of a major bodily function. It also grants exemption if the foetus has a defect that is uniformly diagnosable and uniformly lethal or has a severe brain abnormality that is uniformly diagnosable.

However, rape and incest exceptions are only granted in situations of a reported crime, hence the woman must have necessarily reported the crime to the law enforcement in order to get an abortion arising out of the same. This is extremely burdensome as this would often put the life of the woman at risk or cause her even more mental trauma and agony.

An Idaho trigger law, Senate Bill No. 1385,[16] also criminalises abortions. Criminal abortion attracts a sentence of imprisonment of no less than two (2) years and no more than (5) years in prison. Further the law imposes sanctions on the medical professionals performing, attempting or assisting in performing abortions. As per the statute, if convicted, their professional licence may be suspended by the appropriate licensing board for a minimum of six (6) months upon a first offence and shall be permanently revoked upon a subsequent offence.

There are various States in the United States of America which have abortion laws influenced by religious and conservative opinions, which will be in force if the precedent set by the Supreme Court is overruled. Various pro-choice organisations such as Planned Parenthood[17] are fighting to challenge these laws and are continuing to offer support in States with statutes criminalising abortions.

Present dispute before the Supreme Court

On 19-3-2018 the State of Mississippi enacted a new law named “Gestational Age Act”[18] which provided that in most cases an abortion cannot be performed after 15 weeks. As per the legislature “most abortions performed after 15 weeks’ gestation are dilation and evacuation procedures and that “the intentional commitment of such acts … is a barbaric practice, dangerous for the maternal patient, and demeaning to the medical profession.”[19] While noting that the State has a legitimate interest in protecting the life of the unborn[20] the legislature was of the opinion that at 12 weeks’ gestation, an unborn human being can open and close his or her fingers, starts to make sucking motions, and senses stimulation from the world outside the womb. Importantly, he or she has taken on “the human form” in all relevant aspects[21]. Thus, the reasoning supported for the Gestational Age Act was that after the completion of 15 weeks the abortion procedure is merely ripping apart the child and removing the dead child from the womb, a child who can sense simulations of outside world’s right to life is taken away by the abortion procedure. Additionally, they also noted various risks to the health of the woman carrying the child including physical as well as psychological effects.

The Gestational Age Act was in conflict with the decisions of the Supreme Court of the United States in Roe v. Wade[22]and Planned Parenthood of Southeastern Pennsylvania v. Casey[23], where abortions before the point of viability were held to be allowed and the State could regulate abortions thereafter, however the Gestational Age Act implicitly banned all abortions after 15 weeks.

When the Act was signed into law, Jackson Women’s Health Organisation filed a suit challenging the Act and prayed for a temporary restraining order before the District Court. The Court granted temporary restraining order and in a summary judgment held that the Act was unconstitutional. The Court noted that “viability marks the earliest point at which the State’s interest in fetal life is constitutionally adequate to justify a legislative ban on non-therapeutic abortions[24]”.The States shall not ban abortions prior to viability, which the State of Mississippi through the Gestational Age Act was seeking to do. The decision of the District Court was appealed to the United States Court of Appeals for the Fifth Circuit, which affirmed the decision of the District Court.

The State has appealed to the Supreme Court of the United States of America against the decision of the Court of Appeals, the oral arguments for the same were concluded in December 2021 and the Court is expected to pronounce the judgment in June 2022.

This decision is anxiously awaited since a decision in favour of the appellants would effectively overturn Roe v. Wade[25] and Casey[26], overturning fifty years of precedent in the country. It is estimated that the judgment in Dobbs v. Jackson Women’s health Organisation[27], will be delivered by the Supreme Court in June 2022, the Supreme Court may decide in favour of the rights of the unborn child. Noting the medical advancements in the 21st century, the Court may decide that an unborn child will be able to survive earlier than the “viability condition” of the foetus, as the Court has previously discussed. The chances of the foetus surviving with the help of medical facilities such as new age life support and advancements could possibly help the Court in ruling for a shorter period acceptable for abortion. The point in time where “life” began for a foetus in 1973 may well differ from that in 2022.

Indian perspective

The abortion laws in India are governed by the Medical Termination of Pregnancy Act[28] (hereinafter referred to as “the MTP Act”), and the Penal Code, 1860[29]. The Penal Code criminalises voluntarily causing miscarriage to a woman (or done by the woman herself) except in cases where it is necessary to save the life of the woman.[30]

However, when the termination of pregnancy is carried out by a registered medical practitioner, the liability is saved by MTP Act. The MTP Act provides for termination of certain pregnancies by registered medical practitioners and for matters connected therewith or incidental thereto.[31]

As per the MTP Act, 1971 a pregnancy may be terminated on the opinion of a single registered medical practitioner if the period of pregnancy didnot exceed 12 weeks, and on the opinion of two registered medical practitioners if the period exceeded 12 weeks but didnot exceed 20 weeks. If they were of the opinion that the continuance of the pregnancy would involve a risk to the life of the pregnant woman or of grave injury physical or mental health or there is a substantial risk that if the child were born, it would suffer from such physical or mental abnormalities as to be seriously handicapped.[32] There was an amendment brought about to the abovementioned Section 3 in 2021 vide the Medical Termination of Pregnancy (Amendment) Act.[33] As per the Amendment Act, the gestational period has been increased, in light of medical advancements, from 12 weeks to 20 weeks where the pregnancy may be terminated on the opinion of one registered medical practitioner and from 20 weeks to 24 weeks, in case of such category of woman as may be prescribed by rules made under the Act, if not less than two registered medical practitioners are of the opinion that the termination is advisable in view of the provisions of the MTP Act.

The 2021 Amendment brought the MTP Act, 1971 in sync with the requirements of the present times. The MTP Act provided for situations where any pregnancy occurs as a result of failure of any device or method used by any married woman or her husband for the purpose of limiting the number of children, the anguish caused by such unwanted pregnancy may be presumed to constitute a grave injury to the mental health of the pregnant woman. Understanding the changing times and to bring the law in sync with these times, the 2021 Amendment Act has amended the provision and in place of married woman or her husband the words “any woman or her partner” have been used. This Amendment now makes the provision applicable to an unmarried as well as a married woman, thus substantially helping a woman regain her reproductive autonomy.

Most importantly a new section[34] has been added to the MTP Act by the 2021 Amendment, which puts the right to privacy of the woman undergoing the abortion in the forefront. It mandates that no registered medical practitioner shall reveal the name and other particulars of a woman whose pregnancy has been terminated under this Act except to a person authorised by any law for the time being in force. Whoever contravenes this shall be punishable with imprisonment which may extend to one year, or with fine, or with both.

As per the Statements and Objects of the Bill[35], the legislators understood that with the passage of time and advancement of medical technology for safe abortion there was a possibility of increasing the period of gestation. It was also felt that there was a need to make legal and safe abortion more accessible which would in reduce maternal mortality and morbidity caused by unsafe abortion and its complications. It was also noted that several writ petitions praying for permission for aborting pregnancies at gestational age beyond the permissible limit as per the MTP Act on the grounds of foetal abnormalities or pregnancies due to sexual violence faced by women. A nine-Judge Bench of the Supreme Court in 2017 has held that “the right to privacy is protected as an intrinsic part of the right to life and personal liberty under Article 21”, the right to privacy is now a fundamental right of the people.[36]

Right to life

The main contention that has divided the people, the country and the courts for years is:  What takes precedence, a woman’s right to have an abortion and have the last word over her reproductive autonomy or an unborn child’s right to life.

As per legal precedent, the courts have time and again tried to balance the rights of the two and the legal jurisprudence that has developed is simple, pre viability the State has practically no interference in the decision of the woman to abort a child however post viability regulations are necessary but prohibitions are not favourable. The medical community is as divided in their opinion of abortion as the rest of the world.

The Supreme Court of the United States through  O’Connor,  Kennedy, and  Souter, JJ. delivered the judgment in Planned Parenthood of Southeastern Pennsylvania v. Casey[37], strongly noted that even after 19 years of the Supreme Court pronouncing that the Constitution protects a woman’s right to terminate her pregnancy in its early stages[38] the definition of liberty is still questioned.  The right of liberty flows through the Fourteenth Amendment and the constitutional protection of a woman to terminate her pregnancy is derived from the due process clause of the Fourteenth Amendment.[39]

The main argument for right to life that the Supreme Court in Dobbs v. Jackson Women’s Health Organisation[40] heard is that the viability rule must be rejected. While the Court has previously determined that a foetus is at most the potentiality of life[41], it has since agreed that a foetus is a living organism while within the womb, whether or not it is viable outside the womb[42]. Certainly, the Court has a duty to protect the right to life inside the woman, and they may do so by regulation. However, they cannot do so by completely prohibiting a woman from taking the ultimate decision to terminate the pregnancy before viability. The Court has instead noted that any decision made by the woman should be fully informed of all consequences including consequences she may face physically and emotionally, and the State must help in this regard.

Further, advocates favouring right to life of unborn child argue that the Fourteenth Amendment to the American Constitution uses the language “person” and extends to an unborn person, even though this argument was not accepted in Roe v. Wade[43]. Interestingly, even while rejecting the argument and in cases since, the Supreme Court has not delved into the argument – “When exactly does life begin”, as they stated in Roe v. Wade[44],

  1. … We need not resolve the difficult question of when life begins. When those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, the judiciary, at this point in the development of man’s knowledge, is not in a position to speculate as to the answer.

Conclusion

Till date there is no sufficient jurisprudence to determine when exactly in the process starting from fertilisation and ending in the birth of human child does life really begin. This is the most important question which must be determined in order to finally conclude the debate surrounding abortions, it is undoubtedly the State’s duty to balance the rights of both the potential life and the woman birthing the child. If the Supreme Court of the United States in Dobbs v. Jackson Women’s Health Organisation[45], overrules the nearly five decades old case of Roe v. Wade[46], it would cause immense fetters on the reproductive rights of the woman. Many trigger laws will come into force which will immensely regulate the lives of women wishing to have an abortion. The current position taken by the Supreme Court in 1973, and reiterated ever since is that undue regulations must not be put on a woman’s choice to terminate her pregnancy. In this judgment[47] abortion may be allowed up to 24 weeks, with regulations, if required, this position is also in sync with the Indian position after the 2021 Amendment to the Medical Termination of Pregnancy Act, 1971.

In light of medical advancements over the past five decades, we are now in a better position to determine when the foetus can be considered alive and till what time is it safe for a woman to undergo abortion. This must not be standardised since medical advancements in different countries are at different stages and thus the safety of the woman must be considered priority.


 *Partner, L&L Partners, New Delhi.

**Final year law student at Amity Law School, Guru Gobind Singh Indraprastha University, Delhi. Author can be reached at <shaaivishukla999@gmail.com>.

[1] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[2]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[3]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[4] Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[5]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[6]Texas Penal Code, Art. 1191.

[7]Texas  Penal Code, Art. 1191.

[8]Texas Penal Code, Arts. 1192-1193.

[9]Texas  Penal Code, Art. 1196.

[10]US Constitutional Amendment 14 (adopted 9-7-1868).

[11]https://capitol.texas.gov/tlodocs/87R/billtext/pdf/SB00008F.pdf.

[12] S.B. No. 8, S. 171.208(a).

[13]S.B. No. 8, S. 171.208(b).

[14]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[15]https://le.utah.gov/~2020/bills/static/SB0174.html.

[16] https://legislature.idaho.gov/wp-content/uploads/sessioninfo/2020/legislation/S1385.pdf.

[17]https://www.plannedparenthood.org/planned-parenthood-center-for-choice/texas-abortion-laws.

[18]House Bill No. 1510.

[19]House Bill No. 1510, found at: http://billstatus.ls.state.ms.us/documents/2018/pdf/HB/1500-1599/HB1510SG.pdf.

[20]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).

[21]House Bill No. 1510; Gonzales v. Carhart, 2007 SCC OnLine US SC 25 : 550 US 124, 160 (2007).

[22]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[23]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[24]Jackson Women’s Health Organisation v. Currier, 349 F Supp 3d 536, 539 (S.D. Miss. 2018) [quoting Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 860 (1992) (plurality opinion)].

[25]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[26]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[27] No. 19-1392.

[28]Medical Termination of Pregnancy Act, 1971.

[29]Penal Code, 1860.

[30]Penal Code, 1860, S. 312.

[31]Medical Termination of Pregnancy Act, 1971, Preamble.

[32]Medical Termination of Pregnancy Act 1971, S. 3 (unamended).

[33]Medical Termination of Pregnancy (Amendment) Act, 2021.

[34]Medical Termination of Pregnancy (Amendment) Act, 2021, S. 5-A.

[35]Medical Termination of Pregnancy (Amendment) Bill, 2020.

[36]K.S. Puttaswamyv. Union of India, (2017) 10 SCC 1, 637, para 652.3.

[37]1992 SCC OnLine US SC 102 : 505 US 833 (1992).

[38]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 LEd2d 147 : 410 US 113 (1973)..

[39]Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 : 505 US 833, 873 (1992).

[40]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. No. 19-1392.

[41]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[42]Gonzales v. Carhart,2007 SCC OnLine US SC 25 : 550 US 124 (2007).

[43]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[44]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[45]Thomas E. Dobbs, State Health Officer of the Mississippi Department of Health, et al. v. Jackson Women’s Health Organisation, et al., No. 19-1392.

[46]1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

[47]Roe v. Wade, 1973 SCC OnLine US SC 20 : 35 L Ed 2d 147 : 410 US 113 (1973).

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: While deciding the instant issue related to the First Amendment, the SCOTUS Justices had to decide that whether the City of Boston violated the Free Speech Clause in refusing to allow a local organisation fly their “Christian flag”. In an unanimous decision, the Court held that the flag-raising program did not express government speech; therefore, Boston’s refusal to let petitioners fly their flag, violated the Free Speech Clause of the First Amendment, as third- party flag raisings form private speech and not government speech.

Background and Legal Trajectory: There are three flagpoles outside the entrance to Boston City Hall, on City Hall Plaza. The first and the second flag pole carries the American flag and the flag of the Commonwealth of Massachusetts respectively. The third flag pole usually flies Boston’s own flag, but the City had allowed groups to hold ceremonies on the plaza during which participants may hoist a flag of their choosing on the third pole in place of the city’s flag- like other countries’ flags, or flags associated with groups or causes, like the Pride Flag, a banner honoring emergency medical service workers etc.

In 2017, Harold Shurtleff, the director of an organization called Camp Constitution, asked to hold an event on the plaza to celebrate the civic and social contributions of the Christian community. As part of that event, he wished to raise what he described as the “Christian flag”. Concerned that flying a religious flag at City Hall could violate the Establishment Clause and finding no past instance of the city’s having raised such a flag, the Commissioner of Boston’s Property Management Department told Shurtleff that the group could hold an event on the plaza but could not raise their flag during the celebrations.

Shurtleff and Camp Constitution took the legal route claiming that Boston’s refusal to let them raise their flag violated, among the First Amendment’s Free Speech Clause.

The District Court held that flying private groups’ flags from City Hall’s third flagpole amounted to government speech, so Boston could refuse petitioners’ request without running afoul of the First Amendment. The same was affirmed by the First Circuit.

*The First Amendment provides that Congress makes no law respecting an establishment of religion or prohibiting its free exercise. It protects freedom of speech, the press, assembly, and the right to petition the Government for a redressal of grievances[1].

Observations: The Full Bench of the Court comprising of John Roberts, C.J., Stephen Breyer (who delivered the opinion of the Court), Clarence Thomas, Samuel Alito, Elena Kagan, Sonia Sotomayor, Brett Kavanaugh, Neil Gorsuch and Amy Coney Barret, JJ., upon perusing the facts of the case, framed the issue that whether the flags Boston allows others to fly, express government speech, and whether Boston could deny petitioners’ flag-raising request.

Vis-a-vis government speech, the Court noted that The Free Speech Clause does not prevent the government from declining to express a view.  The government must be able to decide what to say and what not to say when it states an opinion – “The boundary between government speech and private expression can blur when, as here, the government invites the people to participate in a program. In those situations, the Court conducts a holistic inquiry to determine whether the government intends to speak for itself or, rather, to regulate private expression”.

It was observed that at the time of refusal, Boston had no written policy limiting use of the flagpole based on the content of a flag – “The most salient feature of this case is that Boston neither actively controlled these flag raisings nor shaped the messages the flags sent…But the key issue is whether Boston shaped or controlled the flags’ content and meaning; such evidence would tend to show that Boston intended to convey the flags’ messages as its own”.

Referring to the precedents of Walker v. Texas Division, Sons of Confederate Veterans, Inc., et al., 2015 SCC OnLine US SC 67 , Matal, Interim Director, United States Patent and Trademark Office v. Tam, 2017 SCC OnLine US SC 84 and Pleasant Grove City v. Summum, 2009 SCC OnLine US SC 22;  the Justices stated that the city’s practice was to approve flag raisings without exception. Since at the time, Boston had no clear written policies or internal guidance about what flags groups could fly and what those flags would communicate; thus Boston’s control is not comparable to the degree of government involvement like in the selection of park monuments (Summum) or license plate designs (Walker).

Conclusion: With Boston’s lack of meaningful involvement in the selection of flags or the crafting of their messages, the Court went on to classify the third-party flag raisings as private and not government speech

Further noting that Boston denied the petitioner’s request on the sole concern of the religious nature of the flag, the Court held that since the flag-raising program did not express government speech, and Boston’s refusal to let petitioners fly their flag violated the Free Speech Clause of the First Amendment – “When the government does not speak for itself, it may not exclude private speech based on “religious viewpoint”; doing so “constitutes impermissible viewpoint discrimination””.

[Harold Shurtleff v. City of Boston, No. 20–1800, decided on 02-05-2022]


[1] The Constitution, The White House


Sucheta Sarkar, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States: Alito, J., while explaining whether Section 1806(f) of FISA would apply to a case when dealt with charging a specific individual or to challenging methods of surveillance of FBI remarked that,

Section 1806(f) is most likely to come into play when the Government seeks to use FISA evidence in a judicial or administrative proceeding, and the Government will obviously not invoke the state secrets privilege to block disclosure of information that it wishes to use.

In the present matter, Supreme Court considered the relationship between the longstanding “state secrets” privilege and a provision of the Foreign Intelligence Surveillance Act of 1978 (FISA) which provides a procedure under which a trial-level court or other authority may consider the legality of electronic surveillance conducted under FISA and may thereafter order specified forms of relief.

The above-stated case was brought in Federal Court by three Muslim residents of Southern California who alleged that the Federal Bureau of Investigation illegally surveilled them and others under FISA because of their religion.

The government had invoked the state secrets privilege and asked the District Court to dismiss most of the respondents’ claims because the disclosure of counter-intelligence information that was vital to an evaluation of those claims would threaten national-security interests.

This Court repeatedly recognized “a government privilege against court-ordered disclosure of state and military secrets”.

Crux

Whether FISA affects the availability or scope of that long-established privilege?

Background

Respondents were members of Muslim communities in southern California who claimed that the Federal Bureau of Investigation illegally surveilled them because of their religion.

Further, it was alleged that the FBI directed a confidential informant to “gather information on Muslims in an indiscriminate manner”. The said informant had infiltrated a Muslim community and gathered “hundreds of phone numbers and thousands of email addresses of Muslims” “hundreds of hours of video recordings” made inside mosques, homes, and other private locations; and “thousands of hours of audio recording of conversations” and of “public discussion groups, classes, and lectures.”

In addition to the above, respondents alleged that the surveillance operation ended when the informant began asking members of the community about violent jihad, and some of those individuals reported the informant to the FBI and his local police.

In the present matter, much of the argumentation in this Court concerned the correct interpretation of §1806(f).

Respondents did not dispute that §1806(f) applies when the Government seeks to introduce evidence and a private party seeks to prevent such use, but they argued that §1806(f) is also sometimes triggered when “a civil litigant seeks to obtain such secret information.”

Analysis and Conclusion

Court stated that regardless of whether the state secrets privilege is rooted only in the common law (as respondents argue) or also in the Constitution (as the Government argues), the privilege should not be held to have been abrogated or limited unless Congress has at least used clear statutory language.

Bench opined that it seemed clear that the state secrets privilege would not be invoked in the great majority of cases in which §1806(f) is triggered.

Section 1806(f ) is most likely to come into play when the Government seeks to use FISA evidence in a judicial or administrative proceeding, and the Government will obviously not invoke the state secrets privilege to block disclosure of information that it wishes to use.

Under §1806(f ), the central question is the lawfulness of surveillance. Courts are instructed to determine “whether the surveillance of the aggrieved person was lawfully authorized and conducted.”

Supreme Court expressed when the state secrets privilege is asserted, the central question is not whether the evidence in question was lawfully obtained but whether its disclosure would harm national security interests.

“We have never suggested that an assertion of the state secrets privilege can be defeated by showing that the evidence was unlawfully obtained.”

Elaborating more on Section 1806(f), Court explained that, the procedures used to evaluate assertions of the state secrets privilege may also, in some circumstances, be more protective of information than the procedures prescribed by §1806(f). Subsection (f) allows “review in camera and ex parte” of materials that are “necessary to determine” whether the surveillance was lawful. Nothing in that sub-section expressly provides that the Government may shield highly classified information from review by the judge if the information is “necessary” to the determination of the legality of the surveillance.

Therefore, Court concluded that Congress did not eliminate, curtail or modify the state secrets privilege when it enacted Section 1806(f).

Significantly, the Bench addressed whether §1806(f) displaces the state secrets privilege. It was concluded that the said section does not have the effect under either party’s interpretation of the statute, nor does the Court decide whether the Government’s evidence was privileged or whether the District Court was correct to dismiss respondents’ claims o the pleadings.

Lastly, the Bench held that the case has been remanded for further proceedings. [Federal Bureau of Investigation v. Fazaga, 2022 SCC OnLine US SC 1, decided on 4-3-2022]

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: The Full Bench of the SCOTUS on 13th January, 2022 gave its decision on the Vaccine Mandates issued for large employers and healthcare workers. While the Court with a ratio of 6:3, put a stay on the Biden Administration’s vaccine-or-test rule for large private employers; however, at the same time the Bench with a ratio of 5:4, upheld a regulation issued by the Secretary of Health and Human Services that mandated vaccines for employees at hospitals, nursing homes and other healthcare providers.

National Federation of Independent Businesses v. Dept. of Labor, Occupational Safety and Health Administration  

Background: In the backdrop of unprecedented challenges posed by Covid19 pandemic and in view of the rising cases, on September 9, 2021, President Biden announced a new plan to require more Americans to be vaccinated. The Secretary of Labor, acting through the Occupational Safety and Health Administration (hereinafter OSHA), thus enacted a vaccine mandate for USA’s work force. The mandate was applicable to roughly 84 million workers, covering approximately all employers with at least 100 employees. It required that covered workers receive a COVID–19 vaccine, and it pre-empts contrary state laws. The only exception is for workers who obtain a medical test each week at their own expense and on their own time, and also wear a mask each workday.

The Congress enacted the Occupational Safety and Health Act in 1970 in order to – ensure occupational safety—“safe and healthful working conditions.” by enforcing occupational safety and health stand­ards promulgated by the Secretary. Such stand­ards must be “reasonably necessary or appropriate to pro­vide safe or healthful employment.” They must also be developed using a rigorous pro­cess that includes notice, comment, and an opportunity for a public hearing.

The Challenge: OSHA’s ‘never done before’ Vaccine Mandate was challenged by many States, businesses, and nonprofit organizations in Courts of Appeals across USA. The Fifth Circuit initially entered a stay, but when the cases were consolidated before the Sixth Circuit, that court lifted the stay and allowed OSHA’s rule to take effect. The challengers contended that OSHA’s mandate exceeds its statutory authority and is therefore unlawful.

Key Observations by the Majority: The Majority comprising of John Roberts, CJ., Samuel Alito, Clarence Thomas, Brett Kavanaugh, Neil Gorsuch (concurring) and Amy Coney Barret, JJ., focused upon the core issue of institutional competence- whether the 1970 Act plainly authorizes the OSHA’s mandate. It was observed that, “Administrative agencies are creatures of statute. They accordingly possess only the authority that Congress has provided”. Mandating roughly 82 million Americans “to either obtain a COVID–19 vaccine or undergo weekly medical testing at their own expense” is a major encroachment in the life and health of a vast number of employees.

The majority observed that the Act empowers the Secretary to set workplace safety standards, not broad public health measures; furthermore no provision of the Act addresses public health more generally, which falls outside of OSHA’s sphere of expertise. “Although COVID–19 is a risk that occurs in many workplaces, it is not an oc­cupational hazard in most. COVID–19 can and does spread at home, schools, sporting events, and gatherings. That kind of universal risk is no different from the day-to-day dangers that all face from crime, air pollution, or any number of communicable dis­eases”; therefore permitting OSHA to regulate the hazards of daily life, would significantly ex­pand OSHA’s regulatory authority without clear congres­sional authorization.

The majority further noted that OSHA indeed has the authority to regulate occu­pation-specific risks related to COVID–19, however, their indiscrimi­nate approach fails to take account of a crucial distinction between occupational risk and risk more generally and ac­cordingly the vaccine mandate takes on the character of a general public health measure, rather than an occupational safety or health standard.

Lastly, the majority noted that in its half century of existence, OSHA has never adopted a broad public health regulation of this kind—addressing a threat that is untethered, in any causal sense, from the workplace. “This lack of historical precedent, coupled with the breadth of authority that the Secretary now claims, is a “telling indication” that the man­date extends beyond the agency’s legitimate reach”.

With the aforementioned observations, the Court put a stay on OSHA’s Covid–19 Vaccination and Testing; Emergency Temporary Standard, 86 Fed. Reg. 61402.

The Dissent:  Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., dissented with the decision to stay the vaccine mandate for the work force. Expressing their disappointment with the reasoning applied by the majority, the Judges observed that OSHA – an agency charged by Congress with safeguarding employees from workplace dangers has decided that action is needed by thoroughly evaluating the risks that the disease poses to workers across all sectors of the economy. It has considered the extent to which various pol­icies will mitigate those risks and the costs those policies will entail. After detailed considerations it landed on an approach that encourages vaccination, but allows employers to use masking and test­ing instead. In doing all this, it has acted within the four corners of its statutory authorization. OSHA, has responded in the way necessary to alleviate the dan­ger” that workplace exposure to the “new hazard” the COVID–19 poses to employees across the USA,for OSHA is responsible to the President, and the President is responsible to—and can be held to account by—the American public”.

The dissenting Judges also stated that as disease and death are raging due to the pandemic, this Court’s decision to tell off the concerned agency that it cannot respond in the most effective way possible, undercuts the capacity of the responsible federal officials, acting well within the scope of their au­thority, to protect American workers from grave danger. Who decides how much protection, and of what kind, American workers need from COVID–19? An agency with expertise in workplace health and safety, act­ing as Congress and the President authorized? Or a court, lacking any knowledge of how to safeguard workplaces, and insulated from responsibility for any damage it causes?

Joseph R. Biden Jr. v. Missouri

Background: The instant matter dealt with the same issue, but this time the concerned sector was healthcare.  In November 2021, the Secretary of Health and Human Services announced that, in order to receive Medicare and Medicaid funding, participating facilities must ensure that their staff (unless exempt for medical or religious reasons) are vaccinated against Covid–19. A facility’s failure to comply would lead to monetary penalties, denial of payment for new admis­sions, and ultimately termination of participation in the programs.

Submissions: The Secretary submitted before the Court that the interim rule was issued after finding that vaccina­tion of healthcare workers against COVID–19 was neces­sary for the health and safety of individuals to whom care and services are furnished. That deter­mination was based on data showing that COVID–19 can spread rapidly among healthcare workers and from them to patients, and that such spread is more likely when healthcare workers are unvaccinated and any further delay would endanger patient health and safety, given the spread of the Delta variant and the upcoming winter season.

The States of Louisiana and Missouri challenged the mandate terming it as arbitrary and impulsive and that the Secretary examine the relevant data before imposing the vac­cine mandate instead of a testing mandate. They also contended that in issuing the mandate, the Secretary departed from the agency’s prior approach of merely encouraging vaccination.

Key Observations: For this matter, Chief Justice John Roberts and Justice Brett Kavanaugh along with Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., noted the overwhelming support that the vaccine mandate got from the healthcare workers and public health officials.

Deliberating upon the question that whether the Secretary had exceeded his statutory authority in issuing the vaccine mandate in order ensure eligibility for Medicare and Medicaid dollars, the majority stated that Congress has authorized the Secretary to impose conditions on the receipt of Medicaid and Medicare funds that “the Secretary finds necessary in the interest of the health and safety of individuals who are furnished services”. Given the highly dangerous and contagious nature of Covid19, especially for the patients, the Secretary determined that a COVID–19 vaccine man­date will substantially reduce the likelihood that healthcare workers will contract the virus and transmit it to their patients and concluded that a vaccine mandate was “necessary to pro­mote and protect patient health and safety” in the face of the ongoing pandemic.  Ensuring that providers take steps to avoid transmitting a dangerous virus to their patients is con­sistent with the fundamental principle of the medical pro­fession.

The Majority concluded their observations by holding that the Secretary of Health and Human Services did nothing out of his statutory purview in issuing the vaccine mandate fir the healthcare workers. “The challenges posed by a global pandemic do not allow a federal agency to exercise power that Congress has not con­ferred upon it. At the same time, such unprecedented cir­cumstances provide no grounds for limiting the exercise of authorities the agency has long been recognized to have”.

The Dissent: Meanwhile Amy Coney Barret, Samuel Alito, Clarence Thomas and Neil Gorsuch, JJ., dissented on the matter. Commenting upon how the Executive ‘already touches nearly every aspect of Americans’ lives’, the Judges noted that Majority’s decision will “ripple through administrative agen­cies’ future decision making” because if Congress had wanted to grant the concerned authority to impose a nationwide vaccine mandate, and consequently alter the state-federal balance, it would have said so clearly.

In conclud­ing that the Secretary had good cause to avoid notice-and-comment rulemaking while issuing the vaccine mandate, “the Court shifts the presumption against com­pliance with procedural strictures from the unelected agency to the people they regulate. Neither CMS nor the Court articulates a limiting principle for why, after an un­explained and unjustified delay, an agency can regulate first and listen later, and then put more than 10 million healthcare workers to the choice of their jobs or an irre­versible medical treatment”.

[NFIB v. OSHA, Nos. 21A244 and 21A247 and Biden v. Missouri, Nos. 21A240 and 21A241, decided on 13.1.2022]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a significant decision which can have major repercussions on a woman’s choice to abort in the United States, the full bench of SCOTUS, with a ratio of 5:4, declined to block the Texas law which imposes a near complete ban on abortions. The majority consisted of Amy Coney Barrett, Brett Kavanaugh, Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ.

The Texas Law on Abortion: The instant matter revolved around Senate Bill-8[1] which went into effect on 01-09-2021

  • The legislation puts an embargo on the doctors from performing abortions if they can detect a fetal heartbeat, including the cardiac activity that normally occurs at roughly the sixth week of pregnancy[2].
  • The law excludes the patient from being sued.
  • One of the chief highlights of the legislation is that it delegates the responsibility of the enforcement of the prohibition to the private persons and allows them to bring lawsuits against anyone who provides or aids or abets an abortion – the clinics, doctors and even a cab driver taking a patient to the abortion clinic can become a defendant.
  • Anyone who brings a successful suit can collect atleast $10,000 from the person who is found to have infringed the law.

The Legal TrejectoryOn May 19th 2021, the Governor of Texas signed the law and it was immediately challenged in the court. After the District Court’s denial to the defendants’ motion of dismissal on Aug. 25, they went to the U.S. Court of Appeals for the 5th Circuit. The Court of Appeals granted the defendants’ request to put the district-court proceedings, on hold, and denied the challengers’ request to expedite the appeal, thereby setting the stage for the challengers to seek emergency relief in the Supreme Court.[3]

Contentions: The State of Texas argued that neither they nor their executive employees possess the authority to enforce the Texas law either directly or indirectly.  Furthermore, it is not clear whether, under existing precedent, this Court can issue an injunction against state judges asked to decide a lawsuit under Texas’s law

Per contra, the applicants stated that the Texan law infringes the constitutional right of a woman to obtain an abortion during the first stage of pregnancy and the delegated enforcement of the law on the private persons appears to be a safeguard to protect the State from responsibility for implementing and enforcing the regulatory regime.

Abortion Rights in the United StatesIn the landmark decision of this Court in Roe v. Wade, 1973 SCC OnLine US SC 20, it was held that a pregnant woman’s fundamental right to choose to have an abortion without excessive governmental restrictions, is part of her Right to Privacy and therefore protected by the US Constitution.

Decades later, the SCOTUS in Planned Parenthood of Southeastern Pennsylvania v. Casey, 1992 SCC OnLine US SC 102 upheld the former decision but placed the “undue burden standard” on the right.

 Observations: On behalf of the Majority, Justice Samuel Alito observed that an applicant must carry the burden of making a “strong showing” that it is likely to succeed on the merits, that it will be “irreparably injured absent a stay,” that the balance of the equities favors it, and that a stay is con­sistent with the public interest. He noted that the applicants in the instant matter have raised “complex and novel anteced­ent procedural questions”, but they have not carried the aforestated burden. Examining the argument presented by the State of Texas, the Majority refused to issue a stay order on the impugned law. Justice Alito however clarified that this order is not based on any conclusion about the constitutionality of Texas’ law.

Dissenting Opinions: Chief Justice John Roberts along with Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan filed their opinions.

Chief Justice Roberts, considering the contentions raised by the applicants and terming the Texas law to be “unusual, but unprecedented”, observed that he would grant preliminary relief to preserve the status quo before the law went into effect, so that the courts may consider whether a state can avoid responsibility for its laws in such a manner.

Justice Breyer observed that delegation as provided in the impugned law, threatens to invade a constitutional right, and the coming into effect of that delegation will still threaten imminent harm.

Justice Sotomayor noted that, “The Court’s order is stunning”. In a scathing dissent, she stated that the Majority have decided to “bury their heads in the sand” silently consented in a State’s enactment of a law that flouts nearly 50 years of federal precedents. “The Court’s failure to act rewards tactics designed to avoid judicial review and inflicts significant harm on the applicants and on women.”

Justice Kagan noted that the Court’s swift disposal of the matter “greenlights the operation of Texas’s patently unconstitutional law banning most abortions. The Court thus rewards Texas’s scheme to insulate its law from judicial review by deputizing private parties to carry out unconstitutional restrictions on the State’s behalf”.

[Whole Woman’s Health v. Austin Reeve Jackson, No. 21A24, decided on 01-09-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

[1] Senate Bill 8

[2] SCOTUS Blog, Texas Abortion Ban

[3] Refer fn. 3

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: While deciding upon the instant emergency application brought in by the Alabama Association of Realtors challenging the nationwide moratorium on evictions of any tenants during the Covid-19 pandemic; the Court with a ratio of 6:3, decided to end the federal moratorium on residential evictions citing that the Centers for Disease Control and Prevention (hereinafter CDC) clearly exceeded its authority under the Coronavirus Aid, Re­lief, and Economic Security Act, 2020 by taking the matters into its own hands and subsequent extension of the March 2020 moratorium through July 2021.

Background: In March 2020, Congress passed the Coronavirus Aid, Re­lief, and Economic Security Act to ease the burdens caused by the rapidly increasing COVID–19 pandemic. Among other reliefs, the Act im­posed a 120-day eviction moratorium for properties that participated in federal assistance programs or were subject to federally backed loans. When the eviction moratorium expired in July, Congress did not renew it. However, the CDC upon concluding that further action was needed “did what the Congress did not” and renewed the moratorium, covering all residential properties nationwide and imposing criminal penalties on violators.

The CDC’s moratorium was originally slated to expire on December 31, 2020, but Congress extended it for one month as part of the second Covid–19 relief Act. As the new deadline approached, the CDC again took matters into its own hands and extended its moratorium through March, then again through June, and ultimately through July 2021.

Contentions: The CDC contended that S. 361(a) of the Public Health Service Act allows it to ‘make and enforce such regulations (as in his judgment) which are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession’. Thus the provision gives the CDC broad authority to take whatever measures it deems necessary to control the spread of COVID–19, in­cluding issuing the moratorium.

The Realtor associations and rental property managers in Al­abama and Georgia meanwhile argued that the moratorium has put the landlords across the country at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recov­ery. Despite the CDC’s determination that landlords should bear a significant financial cost of the pandemic, many landlords have modest means, and preventing them from evicting tenants who breach their leases intrudes on one of the most fundamental elements of property owner­ship—the right to exclude. It was also contended that the CDC has exceeded it statutory authority in renewing and extending the eviction moratorium.

Observations: The Majority comprising of John Roberts, C.J., Amy Coney Barrett, Brett Kavanaugh (concurring), Samuel Alito, Neil Gorsuch and Clarence Thomas, JJ., noted that it is indisputable that the public has a strong interest in combating the spread of the COVID–19 Delta variant, but “our system does not permit agencies to act unlawfully even in pursuit of desirable ends”. The Judges observed that the moratorium’s constant extension meant that the equities have begun to favour the landlords and their contentions became stronger because vaccine and rental-assistance distribution had improved since the stay was entered, while the harm to landlords had continued to increase. Perusing the aforementioned arguments of the CDC, the Court noted that the downstream connection between eviction and the interstate spread of disease is noticeably different from the direct tar­geting of disease that characterizes the measures identified in the statute. “Reading both sentences together, rather than the first in isolation, it is a stretch to maintain that S. 361(a) gives the CDC the authority to impose this eviction moratorium”.

Coming down heavily upon the CDC and the Government, the Court also observed that the issues at stake are not merely financial. The mor­atorium intrudes into an area that is the particular domain of state law: the landlord-tenant relationship- “This claim of expansive authority under S. 361(a) is un­precedented. Since that provision’s enactment in 1944, no regulation premised on it has even begun to approach the size or scope of the eviction moratorium. And it is further amplified by the CDC’s decision to impose criminal penal­ties of up to a $250,000 fine and one year in jail on those who violate the moratorium. Section 361(a) is a wafer-thin reed on which to rest such sweeping power”.

The Majority concluded by holding that even if the Government believed that its action was necessary to avert a national catastrophe, the same could not over­come a lack of Congressional authorization. It is up to Con­gress, not the CDC, to decide whether the public interest merits further action here. “If a federally imposed eviction moratorium is to continue, Congress must specifically authorize it”.

Dissenting Opinion: Stephen Breyer, Sonia Sotomayor and Elena Kagan, JJ., disagreed with the observations of the majority and observed that the Court should not set aside the CDC’s evic­tion moratorium in this summary proceeding as the criteria for granting the emergency application have not been met in the instant matter. It was further observed that, “Applicants raise contested legal questions about an im­portant federal statute on which the lower courts are split and on which this Court has never actually spoken. These questions call for considered decision making, informed by full briefing and argument”.

[Alabama Association for Realtors v. Dept. of Health and Human Services, 2021 SCC OnLine US SC 14, decided on 26-08-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: While deciding the patent dispute between Minerva Surgicals and Hologic Inc., the Court made certain significant observations with regards to the application of the doctrine of assignor estoppel. The Court held that the doctrine of assignor estoppel, which is grounded in the centuries-old fairness principles, applies only when the assignor’s claim of invalidity contradicts explicit or implicit representations he made in assigning the patent.

Facts and Contentions: In the late 90s, Csaba Truckai invented a device to treat abnormal uterine bleeding known as the NovaSure System. The system used a moisture-permeable applicator head to destroy targeted cells in the uterine lining. Truckai filed a patent application and later assigned the application, along with any future continuation applications, to his company, Novacept, Inc. The PTO issued a patent for the device. Novacept, along with its portfolio of patents and patent applications, was eventually acquired by Hologic, Inc.

In 2008, Truckai founded Minerva Surgical, Inc., where he developed a purportedly an improved device to treat abnormal uterine bleeding, called the Minerva Endometrial Ablation System. The new device used a moisture-impermeable applicator head to remove cells in the uterine lining. The PTO issued a patent, and the FDA approved the device for commercial sale. Meanwhile, Hologic filed a continuation application with the PTO, seeking to add claims to its patent for the NovaSure System. Hologic drafted one of its claims to encompass applicator heads generally, without regard to whether they are moisture permeable. The PTO issued the altered patent in 2015. Subsequently, Hologic sued Minerva Inc. for patent infringement.

It was Minerva’s contention that Hologic’s patent was invalid because the newly added claim did not match the invention’s written description, which addresses applicator heads that are water permeable. Minerva also argued that estoppel should not apply because it was challenging a claim that was materially broader than the ones Truckai had assigned.  Hologic invoked the doctrine of assignor estoppel and contended that because Truckai had assigned the original patent application, he and Minerva could not impeach the patent’s validity.

The District Court, Court of Appeals and the Federal Circuit agreed with Hologic argument that assignor estoppel barred Minerva’s invalidity defense. Minerva thus appealed before the SCOTUS to either abandon or narrow the application of assigner estoppel.

Observations: The Court, with a ratio of 5:4 upheld the doctrine of assignor estoppel and also clarified the limits of the doctrine. The majority comprising of John Roberts, C.J., and Elena Kagan, Stephen Breyer, Sonia Sotomayor and Brett Kavanaugh, JJ., referred to the SCOTUS case of Westinghouse Elec. & Mfg. Co. v. Formica Insulation Co., 266 U. S. 342 (1924), wherein the Court approved the “well settled” patent-law doctrine of assignor estoppel. The Courts have applied the doctrine in order to deal with inconsistent representations about a patent’s validity as the doctrine limits an inventor’s ability to assign a patent to another for value and later contend in litigation that the patent is invalid.

The Majority disagreed with Minerva’s contention to abandon the doctrine. They noted that abandonment of the doctrine is not possible as it would foreclose applying in patent cases a whole host of common-law preclusion doctrines (a broad result that would conflict with this Court’s precedents) and subvert the Congressional intent of including assignor’s estoppel in the US law. The Court further observed that the Supreme Court’s precedents have never decided the fate the doctrine but rather suggested that the doctrine “needed to stay attached to its equitable moorings”.

The Majority further noted that, “Assignor estoppel reflects a demand for consistency in dealing with others. When a person sells his patent rights, he makes an (at least) implicit representation to the buyer that the patent at issue is valid. In later raising an invalidity defense, the assignor disavows that implied warranty. By saying one thing and then saying another, the assignor wants to profit doubly”. Such a course of conduct, as per the Majority, is, unfair dealing, and the need to prevent such unfairness outweighs any loss to the public from leaving an invalidity defense to someone other than the assignor.

Assignor Estoppel- Limitations: Shedding light on the limitations of the doctrine of assignor’s estoppel, the Court observed that-

  • It applies only when its underlying principle of fair dealing comes into play. “The principle demands consistency in representations about a patent’s validity. When an assignor warrants that a patent claim is valid, his later denial of validity breaches norms of equitable dealing. But when the assignor has made neither explicit nor implicit representations in conflict with an invalidity defense, then there is no unfairness in its assertion—and so there is no ground for applying assignor estoppel”.
  • When a later legal development renders irrelevant the warranty given at the time of assignment.
  • A post-assignment change in patent claims can remove the rationale for applying assignor estoppel. As per the majority, this situation arises when most often when an inventor assigns a patent application, rather than an issued patent. The assignee may return to the PTO to enlarge the patent’s claims, assuming that the new claims are materially broader than the old ones, the assignor did not warrant to the new claims’ validity.

Amy Coney Barret, J., (along with Neil Gorsuch and Clarence Thomas, JJ.) and Samuel Alito, J., filed their dissenting opinions.

[Minerva Surgical Inc. v. Hologic Inc., No. 20–440, decided on 29-06-2021]


Sucheta Sarkar, Editorial Assistant ahs reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: The Court by an overwhelming majority of 8:1 held that a student’s suspension from school’s cheerleading squad because of her off-campus Snapchat posts expressing her frustration with the school, violates such student’s Freedom of Speech and Expression as enshrined within the First Amendment. The Court observed that while public schools may have a special interest in regulating some off-campus student speech, the special interests offered by the Mahanoy Area High School are not sufficient to overcome B.L.’s interest in free expression in this case. The majority consisted of John Roberts, CJ., Stephen Breyer, Samuel Alito, Sonia Sotomayor, Elena Kagan, Amy Coney Barret, Brett Kavanaugh, Neil Gorsuch, JJ.

Background and Legal Trajectory: B.L., a student of Pennsylvania’s Mahanoy Area High School, at the end of her freshman year, tried out for a position on a private softball team. She did not make it to the varsity cheerleading team or get her preferred softball position, but she was offered a spot on the cheerleading squad’s junior var­sity team. She did not accept the coach’s decision with good grace, particularly because the squad coaches had placed an entering freshman on the varsity team. While visiting a local convenience store over the weekend, B.L. posted two images on Snapchat, (a social media ap­plication for smart phones that allows users to share temporary images with selected friends) expressing frustration with the school and the school’s cheerleading squad. One of the posts contained vulgar language and gestures.

The first image B. L. posted showed her and a friend with middle fingers raised bearing the caption: “F–k school f–k softball f–k cheer f–k everything.”  The sec­ond image was blank but for a caption, which read: “Love how me and [another student] get told we need a year of jv before we make varsity but that doesn’t matter to anyone else?”  

When school officials learned of the posts, they suspended B.L. from the junior varsity cheerleading squad for the up­coming year.

B.L. contended that the school authorities by suspending her for the Snapchat posts have violated her right of free speech as protected by the First Amendment. B.L.’s parents made unsuccessful attempts to reverse the school’s decision, therefore approaching the courts. The District Court granted an injunction ordering the school to reinstate B.L. to the cheerleading team. The District Court found that B.L.’s punishment violated the First Amendment because her Snapchat posts had not caused substantial disruption at the school. The Third Circuit affirmed the judgment, but reasoned that schools had no special license to reg­ulate student speech occurring off-campus.

Observations: The Judges observed that in Tinker v. Des Moines Inde­pendent Community School Dist., 393 U. S. 503, the Court had stated that schools have a special interest in regulating on-campus student speech that “materially disrupts class­ work or involves substantial disorder or invasion of the rights of oth­ers”, however, the special characteristics that give schools additional license to regulate student speech do not always disappear when that speech takes place off-campus. Circumstances that may implicate a school’s regulatory interests include serious or severe bul­lying or harassment targeting particular individuals; threats aimed at teachers or other students; the failure to follow rules concerning les­sons, the writing of papers, the use of computers, or participation in other online school activities; and breaches of school security devices.

Vis-à-vis off-campus speech, the Court observed that-

  1. A school will rarely stand in loco parentis when a student speaks off cam­pus;
  2. From the student speaker’s perspective, regulations of off-campus speech when coupled with regulations of on-campus speech, include all the speech a student utters during the full 24-hour day, that means courts must be more skeptical of a school’s efforts to regu­late off-campus speech, for doing so may mean the student cannot en­gage in that kind of speech at all.
  3. The school itself has an inter­est in protecting a student’s unpopular expression, especially when the expression takes place off-campus, because America’s public schools are the nurseries of democracy.

If all the aforementioned features are read together then these mean that the leeway the First Amendment grants to schools in light of their special characteristics is diminished.

The Majority concluded that the school violated B.L.’s First Amendment rights when it sus­pended her from the junior varsity cheerleading squad. B.L.’s Snapchat posts are entitled to First Amendment protection- for they reflect criticism of the rules of a community of which B.L. forms a part; B.L.’s message did not involve features that would place it outside the First Amendment’s or­dinary protection.

The circumstances of B.L.’s speech diminish the school’s inter­est in regulation.  B.L.’s posts appeared outside of school hours from a location outside the school. She did not identify the school in her posts or target any member of the school community with vulgar or abusive language. B.L. also transmitted her speech through a per­sonal mobile phone to an audience consisting of her private circle of Snap-chat friends. “The school’s interest in teaching good manners and conse­quently in punishing the use of vulgar language aimed at part of the school community is weakened considerably by the fact that B.L. spoke outside the school on her own time and she spoke under circum­stances where the school did not stand in loco parentis. The vul­garity in the B.L.’s posts encompassed a message of criticism.

Dissenting Opinion- Justice Clarence Thomas was the sole dissenter. He observed that the Majority took a common law approach to decide the matter and criticised the Court’s lack of clarity in identifying the principles in the case. “In effect, it states just one rule: Schools can regulate speech less often when that speech occurs off campus. It then identifies this case as an “example” and “leaves for future cases” the job of developing this new common-law doctrine. But the Court’s foun­dation is untethered from anything stable, and courts (and schools) will almost certainly be at a loss as to what exactly the Court’s opinion today means.

[Mahanoy Area High School v. B.L. (a minor through her father Lawrence Levy), No. 20-255, decided on 23-06-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States (SCOTUS): In 8-1 majority, Thomas, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I and II, in which Roberts, CJ., and Breyer, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Barrett, JJ., joined, and an opinion with respect to Part III, in which Gorsuch and Kavanaugh, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Alito, J., joined as to Part I, and in which Kavanaugh, J., joined as to Part II. Sotomayor, J., filed an opinion concurring in part and concurring in the judgment, in which Breyer and Kagan, JJ., joined. Alito  J. filed a dissenting opinion.

Factual Matrix

Respondents alleged that they were trafficked into Ivory Coast as child slaves to produce cocoa.

It was stated that U. S. based companies Nestlé USA, Inc., and Cargill, Inc., do not own or operate cocoa farms in Ivory Coast, but they do buy cocoa from farms located there and provide those farms with technical and financial resources.

Alien Tort Statute

Respondents sued Nestle, Cargill and others under the Alien Tort Statute (ATS) which provides the Federal Court’s jurisdiction to hear claims brought by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States contending that the said arrangement aids and abets child slavery.

District Court had dismissed the suit after this court held that the ATS does not apply extraterritorially.

Ninth Circuit let this suit proceed as respondents pleaded as a general matter that “every major operational decision by both companies is made in or approved in the U.S. and allegations of general corporate activity, like decision making cannot alone establish domestic application of the ATS.

our precedents are clear that creating a cause of action to enforce international law beyond three historical torts invariably gives rise to foreign-policy concerns.

JUSTICE GORSUCH, with whom JUSTICE ALITO joins as to Part I, and with whom JUSTICE KAVANAUGH joins as to Part II, concurring.

  • Notion that Corporations are immune from suit under the ATS cannot be reconciled with the statutory text and original understanding.
  • The time has come to jettison the misguided notion that courts have discretion to create new causes of action under the ATS

Bench stated that causes of action in tort normally focus on wrongs and injuries, not who is responsible for them.

Further, it was stated that the real problem with the present lawsuit and others like it isn’t whether the defendant happens to be a corporation., it’s this: Just as the ATS nowhere privileges corporations, it nowhere deputizes the Judiciary to create new causes of action. Rather, the statute confers “jurisdiction” on federal courts to adjudicate “tort” claims by aliens for violations “of the law of nations.”

This Court has never—not once in 230 years—invoked the ATS to create a new cause of action.

In Sosa v. Alvarez-Machain, 542 U. S. 692 (2004), Court recognized that federal judges usually may not invoke the ATS to create new causes of action, but it also proceeded to speculate that in some future case this Court might invoke the ATS to create a new cause of action.

JUSTICE SOTOMAYOR, with whom JUSTICE BREYER and JUSTICE KAGAN join, concurring in part and concurring in the judgment.

Bench held that the respondents failed to allege a domestic application of the Alien Tort Statute, hence their complaint must be dismissed.

The trouble with JUSTICE THOMAS’ test is that it is unmoored from both history and precedent. The ATS was a statute born of necessity.

One needs to look no further than the text of the ATS to understand the task that the First Congress assigned to the Federal Judiciary. As originally enacted, the ATS gave federal courts “cognizance . . . of all causes where an alien sues for a tort only in violation of the law of nations or a treaty of the United States.

JUSTICE THOMAS argued that “creating a cause of action to enforce international law beyond three historical torts invariably gives rise to foreign-policy concerns.”. He offered no meaningful support for that sweeping assertion, nor did he explain why an ATS suit for the tort of piracy, for example, would categorically present fewer foreign-policy concerns than a suit for aiding and abetting child slavery.

JUSTICE THOMAS suggests that federal courts lack “the ‘institutional capacity’ to consider all factors relevant” to recognizing actionable torts under the ATS.

His pessimism aside, there was no reason to doubt the federal court’s ability to identify those norms of international law that were sufficiently “specific, universal and obligatory” to give rise to a cause of action under the ATS.

Hence, there is nothing so mysterious about a law’s international origins that would prevent courts— bodies specifically tasked with, and particularly capable of, interpreting and applying laws—from ably adjudicating a suit for damages arising out of a “tort . . . committed in violation of the law of nations.”

Since Justice Sotomayor found no support for Justice Thomas’ proposition in the ATS or in the Court’s precedents, he did not join that portion of his opinion.

JUSTICE ALITO, dissenting.

  • Whether domestic corporation are immune from liability under Alien Tort Statute?

Justice Alito held that if a particular claim may be brought under the ATS against a natural person who is a US Citizen, a similar claim may be brought against a domestic corporation.

Court disposes of the case holding that respondent’s complaint sought extraterritorial application of the ATS, but in Justice Alito’s view Court should not decide that question at this juncture, it is tied to the question of whether the plaintiffs should be allowed to amend their complaint, and in order to reach the question of extraterritoriality, the Court must assume the answers to a host of important questions.

Part III of JUSTICE THOMAS’s opinion and Part II of JUSTICE GORSUCH’s opinion make strong arguments that federal courts should never recognize new claims under the ATS. But this issue was not raised by petitioners’ counsel, and I would not reach it here.

Conclusion

Supreme Court held that Nestle and Cargill will not be sued for aiding and abetting child slavery at farms in Ivory Coast.

[Nestle USA, Inc. v. Doe, 593 U.S __(2021), decided on 17-06-2021]

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States (SCOTUS): On April 1st, the 9 Judge Bench of the Court while looking into the allegations levelled against Facebook for violating the Telephone Consumers Protection Act, 1991 (hereinafter TCPA), held that the Court cannot rewrite the TCPA to update it for modern technology. Congress’ cho­sen definition of an autodialer requires that the equipment in question must use a random or sequential number generator. That definition excludes equipment like Facebook’s login notification system, which does not use such technology. The Court held that in order to qualify as an “automatic telephone dialing system” under the TCPA, a device must have the capacity either to store a telephone number using a random or sequential number generator, or to produce a telephone number using a random or sequential number generator.

The facts as they stood; popular social media platform Facebook, as a security feature, allows users to elect to receive text messages when someone attempts to log in to the user’s account from a new device or browser. Noah Duguid was sent such texts by Facebook which alerted him to a login his Facebook account linked to his mobile number. The twist in the tale came up when Duguid stated that he never created that particular account or for that matter any other account on Facebook.

Duguid tried unsuccessfully to stop the unwanted messages, and eventually brought a putative class action against Facebook. He alleged that Facebook violated the TCPA by maintaining a database that stored phone numbers and programming its equipment to send automated text messages. Facebook contended that the TCPA does not apply because the technology it used to text Duguid did not use a “random or sequential number generator”. The Ninth Circuit’s however did not favour Facebook when it held that S. 227 (a) (1) of the TCPA applies to a notifica­tion system like Facebook’s that has the capacity to dial automatically stored numbers.

The Telephone Consumer Protection Act of 1991 (TCPA) forbids abu­sive telemarketing practices by, among other things, restricting cer­tain communications made with an “automatic telephone dialing sys­tem.” The TCPA defines such “autodialers” as equipment with the capacity both “to store or produce telephone numbers to be called, us­ing a random or sequential number generator,” and to dial those num­bers.

Perusing the facts and the relevant statutes, the Court observed that the issue is that whether the clause “using a random or se­quential number generator” in S. 227(a)(1)(A) modifies both of the two verbs that precede it (“store” and “produce”), or only the closest one (“produce”).  The former interpretation was adopted by Facebook in the matter. The Court noted that the most natural reading of the text and other aspects of S. 227(a)(1)(A) confirms Facebook’s view-

  1. In an ordinary case, the “series-qualifier canon” instructs that a modifier at the end of a series of nouns or verbs applies to the entire series.
  2. The modify­ing phrase immediately follows a concise, integrated clause (“store or produce telephone numbers to be called”), which uses the word “or” to connect two verbs that share a common direct object (“telephone num­bers to be called”).
  • The comma in S. 227(a)(1)(A) separating the modifying phrase from the antecedents suggests that the qualifier applies to all of the antecedents, instead of just the nearest one.

The Court further observed that the text of TCPA confirms that the statute’s definition of “autodialer” excludes equipment that does not use a random or sequential number generator. “Congress found autodialer technology harmful be­cause autodialers can dial emergency lines randomly or tie up all of the sequentially numbered phone lines at a single entity. Facebook’s interpretation of S. 227(a)(1)(A) better matches the scope of the TCPA to these specific concerns”. The Court noted that even though Duguid broadly construed the TCPA vis-à-vis privacy, however, the Congressional intent was clear about intrusive telemarketing practices, which is why the Congress ultimately chose a precise autodialer definition. [Facebook Inc. v. Duguid,  2021 SCC OnLine US SC 2, decided on 01-04-2021]


Sucheta Sarkar, Editorial Assistant has reported this brief.

Case BriefsForeign Courts

United Kingdom Supreme Court: The Bench of Lord Kerr, Lord Wilson, Lord Carnwath, Lady Arden and Lord Kitchin dismissed the appeals and overruled the decision of the Court of Appeal in British Nursing.

Background

The facts of the case are such that Mrs Tomlinson-Blake was a highly qualified care support worker who provided care to two vulnerable adults at their own home. When she worked at night, she was permitted to sleep but had to remain at her place of work. She had no duties to perform except to “keep a listening ear out” while asleep and to attend to emergencies, which were infrequent. For each night shift, she was paid an allowance plus one hour’s pay at the National Minimum Wage i.e. NMW rate. Mrs Tomlinson-Blake’s case was that of time work wherein each of the hours of the sleep-in shift should be included in the calculation of her entitlement to the NMW based on NMW 2015 Regulations, 2015 (hereinafter referred as 2015 Regulations). She brought proceedings to recover arrears of wages on the basis that she was entitled to be paid the NMW for each hour of her sleep-in shift. The employment tribunal (i.e. ET) held that during the sleep-in shift she was performing time work whether she was awake or not. On appeal to the Employment Appeal Tribunal (i.e. EAT) held that Mrs Tomlinson-Blake was working throughout the entire shift as she was constantly on call and on that basis it was not necessary to consider the sleep-in exception.

Mr Shannon was an on-call night care assistant at a residential care home. He was provided with free accommodation at the care home and paid a fixed amount per week. He was required to be present in the accommodation from 10 pm to 7 am. He was permitted to sleep during that period, but had to assist if the night care worker on duty required his assistance during those hours. In practice he was rarely called upon. He relied on NMW Regulations, 1999 (hereinafter referred as 1999 Regulations) and brought proceedings to recover arrears of salary on the basis that he was entitled to be paid the NMW for each hour that he was required to be on-call. Mr Shannon’s work was salaried hours work. The ET held that Mr Shannon was not working throughout his shift and simply provided support to the night care worker if required to do so hence the claim failed as his accommodation constituted his “home”. On appeal to the EAT appeal was dismissed holding that Mr Shannon could not claim the NMW because of the home and sleep-in exceptions.

On a further appeal in both cases, the Court of Appeal allowed the appeal in relation to Mrs Tomlinson-Blake and dismissed it in relation to Mr Shannon.

Relevant Brief Introduction of NMW

 It was introduced by the National Minimum Wage Act 1998 (“the NMWA 1998”). It is a single hourly rate (with a lower rate or rates for certain workers) fixed by a government minister following a report from the LPC. The crucial question for an employer to whom the NMWA 1998 applies is whether the remuneration he is paying to his workers is at least equal to the NMW because, if it is not, he is liable to pay arrears and to financial and criminal penalties. In order to ascertain whether an employer is paying the NMW, there has to be a calculation of the worker’s hourly pay, and so there are detailed rules as to what payments or benefits may be taken into account and what deductions may be made

What is Time Work and Salaried Hours Work

If the employer pays the worker a salary calculated on an annual basis for an ascertainable number of hours, it is salaried hours work as per Regulation 4 of the 1999 regulations and regulation 21 of the 2015 regulations; if he pays the worker by reference to a set number of hours, and not by way of salary, it is time work as per regulation 3 of the 1999 regulations and regulation 30 of the 2015 regulations. In the case of the NMW, there are exceptions to the hours that may be counted. In the case of time work and salaried hours work, there is a “home” exception. A worker, if not actually working but who is available for work, may not count time when he is available if he is at home. For the same two types of work, there is also the “sleep in” provision now contained in, , regulation 32 and regulation 27 of the 2015 regulations respectively.

Analysis and Observations

The Court in terms of statutory interpretation observed that it is that if at a particular time an employee is subject to the employer’s instructions, he is necessarily entitled to a wage. There are many situations when a worker has to act for the benefit of his employer which do not count for time work purposes, for example when he travels between home and work. The objectives of the NMW as a social and economic measure helps to redress the law of supply and demand where there may be market failure, and the worker is not able to obtain basic recompense for his labour, but there are no doubt other policy objectives which it serves.

The Court further observed in terms of calculation of hours that  as per regulation 17, the hours of work in the pay reference period are the hours worked or treated as worked by the worker as determined in that period “… (b) for time work, in accordance with Chapter 3”. The use of the word “treated” in regulation 17 of the 2015 regulations underscores that there will be occasions when hours are not treated as hours worked for the purpose of the regulations even though a different number of hours might have been determined to be worked in the absence of that provision. 

The Court observed that the purpose of regulation 32(2) of 2015 regulations, which like its predecessors is to implement the LPC recommendation about sleep-in shifts ie. sleep-in workers should receive an allowance and not the NMW unless they are awake for the purposes of working, and that recommendation was repeated in later reports of the LPC, the contemplation of the regulations in relation to time work is that a sleep-in worker cannot actually be working for NMW purposes if the arrangement is that he is to be present and sleep on the premises during his hours of work subject only to emergency calls. Accordingly, regulation 32(2) should be treated as applying to all such workers doing time work.

It was also observed that the expression “awake for the purpose of working” is a single phrase. The word “awake” is not to be read on its own. Thus, there are separate regulations which have to be read together so that the rules produce a harmonious whole.

It was observed that the meaning of the sleep-in provisions in the 1999 regulations and the 2015 regulations is that, if the worker is permitted to sleep during the shift and is only required to respond to emergencies, the hours in question are not included in the NMW tcalculation for time work or salaried hours work unless the worker is awake for the purpose of working.

The Court observed that judgments Burrow Down Support Services Ltd v. Rossiter [2008] ICR 1172, British Nursing Association v. Inland Revenue [2002] EWCA Civ 494 (“British Nursing”) and Scottbridge Construction Ltd v. Wright [2003] IRLR 21 were wrongly decided and should be overruled.

The Court observed that when performing a night shift, she i.e Tomlinson Blake slept-in by arrangement at her place of work and was provided with suitable facilities for doing so. She was expected to intervene when necessary but the need to do so was infrequent. The Court of Appeal was right to hold that, as a sleep-in worker, Mrs Tomlinson-Blake was only carrying out time work when she was required to be awake for the purpose of working. So too, Mr Shannon’s appeal must be dismissed. He was a salaried hours worker who was required to be on-call at night to assist a night care worker when necessary. He was provided with accommodation and was very rarely asked to assist. Regulation 16(1) and (1A) of the 1999 Regulations, as amended in 2000, applied to him, and he was only carrying out salaried hours work when he was actually called on.

The Court observed that, in the case of each appeal, the time when by arrangement Mrs Tomlinson-Blake and Mr Shannon were permitted to sleep should only be taken into account for the purpose of calculating whether they were paid the NMW to the extent that they were awake for the purposes of working and the entire shift did not fall to be taken into account for this purpose

Judgment

The Court held that in view of the above,

it is enough to dispose of Mrs Tomlinson-Blake’s appeal to this court. When performing a night shift, she slept-in by arrangement at her place of work and was provided with suitable facilities for doing so. She was expected to intervene when necessary but the need to do so was infrequent. The Court of Appeal was right to hold that, as a sleep-in worker, Mrs Tomlinson-Blake was only carrying out time work when she was required to be awake for the purpose of working. So too, Mr Shannon’s appeal must be dismissed. He was a salaried hours worker who was required to be on-call at night to assist a night care worker when necessary. He was provided with accommodation and was very rarely asked to assist. Regulation 16(1) and (1A) of the 1999 Regulations, as amended in 2000, applied to him, and he was only carrying out salaried hours work when he was actually called on.

Lord Carnwath, Lord Wilson and Lord Kitchin agrees with Lord Arden that the appeals should be dismissed and that British Nursing[supra] should no longer be regarded as authoritative.[Royal Mencap Society v. Tomlinson Blake, on appeal from: [2018] EWCA Civ 1641, decided on 19-03-2021]


Arunima Bose, Editorial Assistant has reported this brief.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of The United States: In a significant decision, the Court by a ratio of 6:3, declined to review petitions challenging Pennsylvania’s “mail-in ballots” policy. The lawsuits that the court turned down concerned Republican Party’s bids to invalidate Pennsylvania’s extended mail ballot due date. It was claimed that Pennsylvania’s policy of ‘accepting timely sent ballots that arrived up to three days after Election Day was illegal’.

Pennsylvania has a long history of lim­iting the use of mail-in ballots. However in October 2019, the Pennsylvania Legislature overhauled its election laws and gave all voters the option of voting by mail, and it extended the deadline for officials to receive mail bal­lots by several days to 8 p.m. on Election Day. Then, in response to COVID–19, the legislature again amended the law but decided not to ex­tend the receipt deadline further. Displeased with that decision, the Pennsylvania Demo­cratic Party sued in state court. It argued that the court could extend the deadline through a vague clause in the State Constitution providing, in relevant part, that “elec­tions shall be free and equal.” [Art. I,§5]. The Pennsylvania Supreme Court agreed and held that the “free and equal” provision enabled the court to extend the deadline three days to accommodate concerns about postal delays.

Although the SCOTUS majority refused to entertain any more petitions, however, Clarence Thomas, Samuel Alito and Neil Gorsuch, JJ., dissented from the majority. Clarence Thomas, J., stated that it is the Federal Constitution, not state con­stitutions, which gives state legislatures the authority to regulate Fed­eral elections; the Republicans had a strong argument that the Pennsylvania Supreme Court’s decision violated the Constitution by overriding “the clearly expressed intent of the legislature”. He further observed that it is fortunate that the Pennsylvania Supreme Court’s decision to change the receipt deadline for mail-in ballots did not appear to have changed the outcome in any federal election, but he also pointed out that, “We may not be so lucky in the future. Indeed, a sep­arate decision by the Pennsylvania Supreme Court may have already altered an election result. A different petition argues that after Election Day the Pennsylvania Supreme Court nullified the legislative requirement that voters write the date on mail-in ballots”. Thomas, J., also pointed out that in 2018 the percentage of mail-in ballots cast was at 4%, but the legislature dramatically expanded the process in 2019, thereby increasing the mail-in ballots cast in 2020 to 38%. According to Thomas, J., this expansion impeded post election judicial review be­cause litigation about mail-in ballots is substantially more complicated. “The Pennsylvania Supreme Court issued its decision about six weeks before the election, leaving little time for review in this Court. And there is a reasonable expectation that these petitioners—the State Republican Party and leg­islators—will again confront non legislative officials alter­ing election rules. … we failed to set­tle this dispute before the election, and thus provide clear rules. Now we again fail to provide clear rules for future elections. The decision to leave election law hidden beneath a shroud of doubt is baffling. By doing nothing, we invite further confusion and erosion of voter confidence”.

Samuel Alito, J., (for himself and Neil Gorsuch, J.,) observed that the Republican petitions present an important and recurring constitutional question, that whether the Elections or Electors Clauses of the United States Constitution Art. I, §4, cl. 1; Art. II, §1, cl. 2, are violated when a state court holds that a state constitutional provision overrides a state statute governing the manner in which a federal election is to be conducted. Noting that since this constitutional issue has baffled the lower courts time and again, therefore a SCOTUS review would have been helpful to provide a clear path for them to follow in case of future disputes of such nature. Moreover, now, that the Presidential Election is over, there is no reason for refus­ing to decide the important question that these cases pose. “The provisions of the Federal Constitution conferring on state legislatures, not state courts, the authority to make rules governing federal elections would be meaningless if a state court could override the rules adopted by the legisla­ture simply by claiming that a state constitutional provi­sion gave the courts the authority to make whatever rules it thought appropriate for the conduct of a fair election.” Bush v. Palm Beach County Canvassing Bd., 2000 SCC OnLine US SC 81.[Republican Party of Pennsylvania v. Veronica Degraffenreid (Nos. 20–542), 592 U. S. (2021), decided on 22-02-2021]


Sucheta Sarkar, Editorial Assistant has put this story together.

Supreme Court of The United States
Case BriefsForeign Courts

Supreme Court of the United States: Roberts, CJ., while addressing a matter with regard to artworks obtained by Nazis from Jewish art dealers with the usage of coercion, held that:

The phrase “rights in property taken in violation of international law,” as used in the Foreign Sovereign Immunities Act expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.

The Foreign Sovereign Immunities Act provides that foreign nations are presumptively immune from the jurisdiction of United States Courts. One of the exceptions under the statute is:

a sovereign does not enjoy immunity in any case “in which rights in property taken in violation of international law are in issue.”

 The question to be considered in view of the above exception is: Whether a country’s alleged taking of property from its own nationals falls in the above exception?

 Factual Matrix

Present matter is in with regard to the dozen medieval relics and devotional objects known as the Welfnschatz. The pieces date back to the early days of the Holy Roman Empire and occupy a unique position in German History and culture.

The collection was assembled within Germany’s Brunswick Cathedral over the course of several centuries, before being moved to a Hanoverian chapel in 1671 and later to Switzerland for safekeeping in the wake of World War I.

During the waning years of the Weimar Republic, a consortium of three art firms owned by Jewish residents of Frankfurt purchased the Welfenschatz from the Duke of Brunswick. By 1931, the consortium had sold about half of the collection’s pieces to museums and individuals in Europe and the United States, including many to the Cleveland Museum of Art, where they reside today.

After ascending to power, Hermann Goering—Adolf Hitler’s deputy and the Prime Minister of Prussia—became interested in the remainder of the Welfenschatz.

Reasons for the Complaint filed and what does it allege?

It has been alleged in the complaint that Hermann Goering employed a combination of political prosecution and physical threats to coerce the consortium into selling the remaining pieces to Prussia in 1935 for approximately one-third of their value.

What happened to the consortium members and how are the respondents related to them?

Two of the consortium members fled the country following the sale, and the third died in Germany shortly thereafter.

Respondents are two United States citizens and a citizen of the United Kingdom who traces their lineages back to the three members of the consortium.

The United States took possession of the Welfenschatz in the course of the occupation of Nazi Germany at the end of the war, eventually turning the collection over to the Federal Republic of Germany.

For nearly 60 years, the treasure has been maintained by Stiftung Preussischer Kulturbesitz (SPK)—the Prussian Cultural Heritage Foundation—and it is now displayed at a museum in Berlin. SPK is an instrumentality of the Federal Republic.

SPK conducted an investigation on heirs approaching them claiming that the sale of the Welfenschatz to Prussian Government was unlawful. In the investigation, it was determined that the transaction occurred at a fair market price without coercion.

German Advisory Commission

Parties agreed to submit the claim to the German Advisory Commission for Return of Cultural Property Seized as a Result of Nazi Persecution, Especially Jewish Property.

Commission concluded after reviewing the witnesses and hearing from expert witnesses the sale had occurred at a fair price without duress.

Federal District Court in Washington, D.C.

Germany argued that it was immune from suit because the heirs’ claims did not fall within the FSIA’s exception to immunity for “property taken in violation of international law.”

Panel while agreeing with the heirs that the exception for property taken in violation of international law was satisfied because “genocide perpetrated by a state even against its own nationals is a violation of international law.”

Whether the sale of the consortium’s property was an act of genocide, because the expropriation exception is best read as referencing the international law of expropriation rather than of human rights. 

Bench recognized that ‘United States law governs domestically but does not rule the world.’ Kiobel v. Royal Dutch Petroleum Co., 569 U. S. 108, 115 (2013).

As a Nation, we would be surprised—and might even initiate reciprocal action—if a court in Germany adjudicated claims by Americans that they were entitled to hundreds of millions of dollars because of human rights violations committed by the United States Government years ago. There is no reason to anticipate that Germany’s reaction would be any different were American courts to exercise the jurisdiction claimed in this case.

Court found that none of the arguments submitted by the heirs could overcome the text, context and history of the expropriation exception.

Heirs could not show that the FSIA allows them to bring their claims against Germany.

Further, while concluding its decision, Supreme Court expressed as follows:

We hold that the phrase “rights in property taken in violation of international law,” as used in the FSIA’s expropriation exception, refers to violations of the international law of expropriation and thereby incorporates the domestic takings rule.

While vacating the decision of the  Court of Appeals for the D.C. Circuit, Bench remanded the case for further proceedings.[Federal Republic of Germany v. Philipp,  2021 SCC OnLine US SC 1, decided on 03-02-2021]

Supreme Court of The United States
Hot Off The PressNews

Supreme Court of The United States: The Court on Friday rejected a bid from Texas’ Attorney General, supported by President Donald Trump, to block the ballots of millions of voters in battleground states that went in favor of President-elect Joe Biden. Texas’ motion for leave to file a bill of complaint was denied due to lack of standing under Article III of the Constitution. The Court further observed that, “Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections”. Although, Samuel Alito and Clarence Thomas, JJ., noted that they would have allowed the case to be filed – “I would therefore grant the motion to file the bill of complaint but would not grant other relief, and I express no view on any other issue”.

In the recently held US Presidential Elections, the “Swing States” of Pennsylvania, Michigan, Georgia and Wisconsin, swung in favour of Joe Biden. The lawsuit was brought by Texas’ Attorney General, Ken Paxton, who sought to sue the abovementioned States and invalidate their election results.

Incumbent President, Mr. Donald Trump and his allies have repeatedly raised allegations of foul play committed during counting of the votes; especially in the “Swing States”.

This is not the first instance of thwarting the Republican Party’s efforts to challenge the legitimacy of the Election results. On 08-12-2020, the SCOTUS in a “one sentence” Order, refused a request from Pennsylvania Republicans to overturn Joe Biden’s victory in the state of Pennsylvania. The Republicans have lost about 50 challenges to the presidential election, as Judges in at least eight states have repeatedly rejected a litany of unproven claims — that mail-in ballots were improperly sent out, that absentee ballots were counted wrongly, that poll observers were not given proper access to the vote count and that foreign powers hacked into and manipulated voting machines.

[Texas v. Pennsylvania, decided on 11-12-2020]


Source: CNN


Sucheta Sarkar, Editorial Assistant has put this story together