Overview of Four New SCOTUS Opinions Today

The Supreme Court decided four cases today (three of them unanimous). Unfortunately, we still do not have an opinion from Brown v. EMA and Flores-Villar v. United States, the only remaining cases argued in the November sitting that have not yet been decided. I have a column in the National Law Journal’s Supreme Court Insider that explores the possible hold-up in EMA.

First, in Fox v. Vice, a unanimous opinion from Justice Kagan, held that “When a plaintiff’s suit involves both frivolous and non-frivolousclaims, a court may grant reasonable fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims under 42 USC 1983.”  I have an instant analysis of the case here. Justice Kagan’s best line was, “These standards would be easy to apply if life were like the movies, but that is usually not the case.” Also, is it “attorneys’ fees” or “attorney’s fees”? The Supreme Court tends to use the former, but Chief Judge Easterbrook uses the latter.

Second, in McNeill v. United States, a unanimous opinion from Justice Thomas, held “a federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s prior state drug offense at the time of the defendant’s conviction for that offense.” I wrote a brief discussion of how Justice Thomas viewed changing criminal laws, and the permanency of a person’s conviction.

Third, in Eric P. John Fund v. Halliburton, a unanimous opinion from Chief Justice Roberts, held that “Securities fraud plaintiffs need not prove loss causation in order to obtain class certification.

The only non-unanimous opinion was Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., a 7-2 opinion authored by Chief Justice Roberts, with Justice Breyer joined by Justice  Ginsbug in dissent. The Court held “the Bayh-Dole Act does not automatically vest title to federallyfunded inventions in federal contractors or authorize contractors to unilaterally take title to such inventions.” Justice Breyer provides an interesting perspective on patent law, citing the views of Thomas Jefferson (who was no fan of intellectual property) and James Madison.

Update: For a contrary view about Jefferson’s understanding of patent policy, see Professor Adam Mossoff’s 2007 Cornell Law Review article, titled Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ‘Privilege’ in Historical Context.

For what it’s worth, FantasySCOTUS.net went 4/4 on these cases, though it tends to do well on unanimous, or near-unanimous cases.

We should have more opinions on Thursday.

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12 Responses

  1. dave hoffman says:

    On the attorney’s fees question, see a long footnote in Haymond v. Lundy, 205 F.Supp.2d 403 (E.D. Penn. 2002).

  2. A.J. Sutter says:

    You might want to coordinate this to your earlier post, where you made affirm/reverse predictions. For each of the cases you describe in the current post, was it affirmed, or reversed? Not all of your readers can recognize these outcomes unaided.

  3. Josh Blackman says:

    All of the predictions, and the ultimate outcome are available here: http://www.fantasyscotus.net/prediction-tracker.php

    FantasySCOTUS accurately predicted all four of the cases decided yesterday.

  4. Justin Graham says:

    I can’t get to your article on the National Law Journal about EMA (need a subscription). Can you briefly summarize it here for us?

  5. Josh Blackman says:

    Yes, the article is behind a (rather expensive) paywall. FantasySCOTUS allows us to track predictions based on the date they are made. Over the last month or so, predictions for EMA have changed. There is likely likely to be a unanimous (or near-unanimous) opinion. Additionally, a number of the liberal Justices seem to be less likely to join the conservative majority opinion. A lot of shifting around with the coalitions.

  6. Justin Graham says:

    But ultimately do you think the law will still be struck down, or is it now likely it will be upheld?

  7. Josh Blackman says:

    No, the law will be struck down. Virtually certain about that. The question is how many votes will be for that position, and how fragmented the case will be.

  8. Justin Graham says:

    So the split is between whether it’s vague or an outright First Amendment violation? That’s what the authors of SCOTUSBlog seem to think. Also speculation that someone, possibly Alito, is taking his time writing a very lengthy dissent. If it’s the former, the struggle looks like it’s mainly between Scalia (First Amendment violation) and Sotomayor (vagueness). Do you see anyone else taking over? As for dissents, I don’t see Breyer or Alito voting to strike it down. I had Roberts in there too, but now I’m not so sure.

  9. Josh Blackman says:


    If you asked me a few months ago, I would have been fairly certain that Alito is in dissent. Now, I’m not so sure. It seems, at least with the new data, that Alito may have shifted to the majority bloc, and the liberal Justices have gravitated away, led by Sotomayor. They may invariably uphold it 9-0, but it will likely be on different grounds. I do think you are right that Sotomayor is creating a divide.

  10. Justin Graham says:

    I don’t know if you can answer this, since it might be where the divide is, but if the lower court is upheld and the law is struck down, how broad of a decision will it be? Will we get a legal rule that violence cannot be regulated like obscenity, or will they leave the door open for a more narrowly-tailored law to pass constitutional muster?

  11. Josh Blackman says:

    If the opinion is narrow enough, where violence can be regulated but not in this case (for pick your reason), that could explain Alito’s movement from a dissent to a majority position. This could also explain Sotomayor’s departure from the majority bloc to write a broader opinion concurring in judgment. Of course, all speculation.

  12. Nate W. says:

    My jurisdiction has taken to calling them attorney fees, a simplification for which I am eternally grateful…