Supreme Court Hands Down First Remote Opinions Since Bush v. Gore

Supreme Court's work goes on despite coronavirus pandemic 

U.S. Supreme Court Cancels All Oral Arguments Through Early April Due To COVID-19
Getty Images
March 23, 2020

The Supreme Court handed down opinions remotely on Monday, marking the first time since Bush v. Gore that the justices issued rulings without reading decisions from the bench during an official public session.

Much of the High Court’s business is continuing as normal despite the coronavirus pandemic. The justices, however, suspended their next round of arguments on March 16, while the Court itself is closed to visitors.

The coronavirus pandemic has subsumed the other branches of government. The Senate on Friday failed to pass a $1.8 trillion stimulus package to bolster workers and business interests facing daunting economic prospects. The White House is similarly scrambling to manage the social fallout of a public health crisis that shows no signs of abating. Yet the official business of the Supreme Court has a sense of normalcy about it. Much of the justices’ day-to-day work can be done remotely, and the Court looks poised to continue digital release of its decisions. A Court spokeswoman said Monday that Chief Justice John Roberts presided over a regular Friday meeting from the Court, while the other justices dialed in by phone.

How long this state of affairs can last is unclear. High-profile matters from the canceled March sitting, including three disputes over subpoenas for President Donald Trump’s financial records, have not yet been rescheduled. The Court has not yet canceled its April argument session, which begins April 20, but the advanced age of many justices dictates extreme caution. Six members of the Court are over the age of 65, and two are at least 80 years old, leaving them at high risk of serious infection.

Monday’s cases included a civil rights dispute between Comcast and black business magnate Byron Allen, as well as a Kansas law that abolished the traditional insanity defense. A third ruling involved Blackbeard’s pirate ship, the Queen Anne’s Revenge, which ran aground in North Carolina in 1718.

Unanimous Court deals setback to black entrepreneur in business discrimination case

In Allen’s case, No. 18-1171 Comcast Corp. v. National Association of African-American Owned Media, the Court unanimously held that plaintiffs need to pass a strict test to proceed with racial bias lawsuits. The case arose when Allen’s Entertainment Studios Networks (ESN) and Comcast failed to come to terms on an agreement to broadcast ESN content. ESN sued under a civil rights law, section 1981, that bans discrimination in contracts. The plaintiffs sought billions in damages, alleging Comcast discriminates against black-owned media companies.

The question was what kind of showing ESN had to make to proceed with its lawsuit. The Ninth Circuit said the lawsuit could go forward, ruling the company need only say race was a factor in Comcast’s decision making. In Monday’s decision, the Supreme Court said the test is more demanding—ESN must claim race was the determinative cause of Comcast’s decision. In legal terms, this is called "but-for causation."

Justice Neil Gorsuch delivered the opinion for a unanimous Court. In a separate opinion, Justice Ruth Bader Ginsburg criticized positions Comcast and the Trump administration advanced in the case. Comcast and the government said section 1981 "covers only the final decision whether to enter a contract" and not earlier stages of the negotiation process. ESN’s case will return to a lower court for further proceedings.

Speaking after Monday’s decision, progressive cause lawyers accused the Court of undermining a premier civil rights statute.

"The Reconstruction Congress recognized that African-American people must be placed on an equal footing with white people in their ability to access economic opportunity," said NAACP Legal Defense Fund president Sherrilyn Ifill. "Today, the Supreme Court undermined that important commitment, ruling that a defendant may escape liability even if racial discrimination played a role in its decision, and places instead an additional burden on plaintiffs at the very outset of their litigation."

States have leeway to define insanity defense, Court rules

Another decision, No 18-6135 Kahler v. Kansas, involved the Constitution and the insanity defense. The issue was whether the Constitution requires the states to adopt a traditional form of the insanity defense, in which a defendant is not culpable for his crimes if he could not tell the difference between right and wrong due to mental illness.

Defendant James Kraig Kahler murdered his wife, their two daughters, and his mother-in-law over the Thanksgiving holiday in 2009. At trial, Kahler wanted to raise the traditional insanity defense and argue he had no moral capacity to judge right from wrong because of clinical depression.

Kansas does not allow that kind of insanity defense. Instead, defendants can argue they didn’t form the intent necessary to commit a crime due to mental illness.

Writing for the majority, Justice Elena Kagan said the Constitution does not require a specific test of insanity. She also noted the state takes mental health into consideration during sentencing, allowing for reduced jail time or commitment to a medical facility. The Court’s five conservatives joined Kagan’s opinion.

"That choice is for Kansas to make—and, if it wishes, to remake and remake again as the future unfolds," Kagan wrote. "No insanity rule in this country’s heritage or history was ever so settled as to tie a state’s hands centuries later."

In dissent, Justice Stephen Breyer laid out two scenarios. In the first, a man kills a person he thought was a dog due to mental illness. In the second, one mentally ill man kills another person believing a dog ordered him to do so. In Kansas, Breyer said, the first man would be acquitted and the second convicted, even though both are mentally ill. Justices Ruth Bader Ginsburg and Sonia Sotomayor joined Breyer’s dissent.

Kansas’s law will result in the conviction of "a broad swath of defendants who are obviously insane and would be adjudged not guilty under any traditional form of the defense," Breyer wrote.

State pirates copyrights of Blackbeard’s shipwreck

Kagan delivered a second majority opinion on Monday in No. 18-877 Allen v. Cooper, which involved copyrights and the pirate Blackbeard. The flagship of Blackbeard’s pirate fleet, the Queen Anne’s Revenge, ran aground on a sandbar off the coast of North Carolina in 1717. An aquatic salvage company called Intersal Inc. located the wreck in 1996. The company hired videographer Frederick Allen to document its salvage activities.

Though Allen holds copyrights for his pictures and videos, officials in North Carolina repeatedly published his works without permission on state websites and in state newsletters. "Call it a modern form of piracy," Kagan quipped.

Allen sued. Though the Constitution shields the states from most lawsuits, Allen relied on a law Congress enacted in 1990 called the Copyright Remedy Clarification Act. That legislation held the states cannot invoke immunity in copyright infringement lawsuits.

The High Court Monday said the CRCA is invalid, citing a precedent from 1999. The Court, however, said Congress can have another run at adopting a law like the CRCA, provided it first identifies many instances of states violating copyright protections without compensating victims.

"That kind of tailored statute can effectively stop states from behaving as copyright pirates," Kagan wrote. "Even while respecting constitutional limits, it can bring digital Blackbeards to justice."

The Court has not yet scheduled its next opinion day.