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– Thanks to Indochino for keeping LegalEagle in the air and helping me look fly. (eagle squawking) Justice Brett Kavanaugh’s first term as Supreme Court justice has come to a close and it was a big one for the Supreme Court. To recap, Justice Anthony Kennedy retired in 2018, leaving a very important vacancy with the court. Kennedy had been the court’s swing vote. Lawyers often tailored their arguments specifically to Kennedy since he was capable of siding with the court’s Liberal wing or the court’s Conservatives depending on the specific issue.
There was wild speculation as to whether the court would start making a dramatic shift now that it has a solid, quote, Conservative majority, and I’ll note parenthetically that the political alignments of Conservative and Liberal don’t really hold up when you’re talking about Supreme Court justices but that’s probably a topic for another video. On first blush, it looks like Chief Justice Roberts may be taking up the mantle of the High Court’s centrist and deciding vote. This term, the Supreme Court has handed down some big decisions on partisan gerrymandering, the census, profane trademarks, and more.
Now that the Supreme Court’s 2019 term has ended, let’s take a look at the most consequential decisions. (bright music) Hey, LegalEagles!
Welcome back to Real Law Review where today we’re going to do a roundup of what I consider the Supreme Court’s most consequential 2019 decisions. So let’s dig right in. The first is the FUCT trademark, which I am allowed to say on this channel because it’s spelled F-U-C-T, not spelled any other way so it’s not a swear word. So starting with the FUCT trademark case which invalidated a federal law that prohibited, quote, immoral or scandalous trademarks, whatever that means, which, of course, is kind of the point of this particular Supreme Court case. For years, the US Patent and Trademark Office or USPTO has limited trademark protections for things it deemed vulgar, offensive, or scandalous but in a victory for free speech, the Supreme Court held that the street clothing called FUCT, F-U-C-T, was entitled to federal trademark protection.
That issue was the Trademark Act of 1905 which prohibits the registration of immoral and scandalous trademarks. However, under the First Amendment, you can see where this is probably going, the government can’t penalize a person’s speech because it disagrees with the viewpoint being expressed.
Here, the viewpoint being swear words. The Supreme Court held that it’s impossible for the USPTO to decide what it considered scandalous or immoral without resorting to viewpoint discrimination. There is no coherent sense of these terms, therefore the USPTO simply applies its own sense of what is right and wrong and scandalous and what’s not scandalous which has some real First Amendment problems.
The 1905 law has led to some bizarre decisions by the USPTO. For example, the government granted a trademark for the company that using the word FCUK, F-C-U-K, but denied it for FUCT, F-U-C-T, even though both simply play on the word (bleeps) which we have to bleep because that one is spelled F-U-C-K because YouTube is more arbitrary and capricious than the USPTO at this point.
(grunts) Anyway, as a result, a six-to-three majority led by Justice Kagan concluded that the prohibition against the registration of immoral or scandalous trademarks violates the First Amendment. The majority ruled that The Lanham Act’s bars were substantially over broad. As Justice Kagan noted, “There are a great many immoral “and scandalous ideas in the world, “even more than there are swear words “and the Lanham Act should cover them all.
“It therefore violates the First Amendment “to deny trademark protection to those kind of marks.” The court made a similar ruling in 2017 when it ruled that a band named The Slants had a right to trademark its name. The band used the term as a way to reclaim a word that is often used as a slur against Asians. That case wound up protecting the Washington Redskins after the USPTO canceled the team’s trademarks after complaints that the word Redskins was a racial slur against Native Americans. And while reasonable people can disagree as to whether the term Redskins is offensive or not, we can all agree that we should fire Dan Snyder, #FireDanSnyder, #HireDavidChang.
But back to the case at hand, Justices Roberts, Breyer, and Sotomayor dissented although they agreed that the word immoral is over broad, they thought the ban on scandalous trademarks is constitutional but just needs to be more narrowly tailored.
The upshot of this decision is that it’s going to open the door to all sorts of new and interesting and profane trademarks including many that probably involve profanity in the future, so (beeps) yeah. America (bleeps) yeah – Racist jury selection. The court handed a big win to advocates of unbiased jury trial by ordering a new trial for the death row inmate Curtis Flowers who has been tried six times over the past two decades. In the American justice system of jury trials, both sides get an opportunity to strike a limited number of jurors for cause such as conflicts of interest.
The parties also get to strike a certain number of jurors for any reason whatsoever. These are what are known as peremptory challenges.
There is one huge caveat, though. The attorneys cannot use their peremptory strikes for racial reasons to prevent potential jurors from being selected because of their race. This is called a Batson Challenge which we’ve talked about on this channel before.
It goes back to the Supreme Court case of Batson versus Mississippi. In the Flowers case, district attorney Doug Evans allegedly used peremptory strikes to dismiss black jurors from a jury pool in all six of Flowers’ trials. Evans eliminated 41 out of 42 black jurors.
The 72 majority opinion written by Justice Kavanaugh included that the state’s pattern of striking prospective black jurors persisted from Flowers’ first trial through his sixth and this was a relentless effort to stop the jury from having any black jurors which strongly indicated that Evans was trying to try Flowers before the whitest jury he could possibly find and create. The majority noted that the prosecutors questioned the black and white prospective jurors differently.
For example, they gave 145 questions to just five perspective black jurors. They asked only 12 questions to the 11 white jurors seated for Flowers’ most recent trial. The prosecutor and his team struck at least one black prospective juror who was similarly situated to white prospective jurors who were not struck by the state. So the Flowers case extends the doctrine that was created in Batson versus Mississippi that you cannot use your peremptory strikes to strike all or most of the black jurors from a prospective jury pool which is exactly what happened in the John Grisham book and movie, A Time to Kill. I’ll put a link down to my review in the description.
The hotly-debated census citizenship case. The US Constitution requires The US to conduct a census every 10 years. This is incredibly important for political districting purposes. The census counts every person in the county and is used to appropriate federal funds, draw electoral districts, and apportion representatives to the various states.
In March of 2018, Secretary of Commerce Wilbur Ross added a question to the 2020 census which required each person to state whether they are a US citizen or not.
Ross claimed that the Trump administration added the question because it was keen to enforce Federal voting rights laws to better protect minority and voting rights. This rationale seemed pretty suspect from the start since the Trump administration has never filed a lawsuit to enforce the Voting Rights Act and that rationale ran contrary to a lot of the actual language coming out of the Trump administration and from President Trump himself. The outcome of this case turned on whether the Voting Rights Act was really the government’s motive for asking the citizenship question or not, because generally, the courts don’t dispute the rationale that the government puts forward. But under the Administrative Procedure Act, any agency action that is, quote, arbitrary or capricious violates the law.
Moreover at a minimum, an agency must disclose the basis of its action so courts can review its legality.
Several states sued the Commerce Department and argued that the question was arbitrary and capricious and it was a move designed solely to isolate and marginalize people of color, particularly Latinos who may be undocumented which would under count the population in many US states, particularly in the Southwest. The plaintiffs feared that the question would deter many Latinos from answering the census question because they would fear deportation.
The government argued it was simply a return to form because from 1820 to 1950, the census included a citizenship question. The government also questioned whether anyone had actual standing to sue over the question and said that the notion that people would not answer the question truthfully was based on sheer speculation because the question hadn’t been issued yet. The plaintiffs contended that according to the government’s own records, the citizenship question would lead to an under count of at least five million people.
This was the government’s conclusion after the 1950 census which is why the government dropped the question in the first place. The plaintiffs prevailed in the lower courts which ruled that Ross’s actions were arbitrary and capricious based on pretext and violated parts of the Census Act. The district court concluded that Ross had exceeded his authority in crafting the question because of its illegality. The Commerce Department appealed to the Supreme Court.
Now, the Supreme Court narrowly sided with the plaintiffs in a five-to-four decision with chief justice casting the swing vote.
The court first overruled portions of the lower court decision. The majority of justices found that Secretary Ross had the authority to draft the census question and was within his right as agency head to seek records and data. However, Roberts concluded that the rationale Ross gave for the question, wanting to help minorities exercise their voting rights, was quote contrived. Although agencies have broad authority to regulate, they must offer genuine reasons for the decisions that they make. Secretary Ross’s reason for seeking the data that he wanted to improve voting rights access appeared to play no actual role in his decision.
In fact, Ross first inquired about reinstating the citizenship question just one week after his appointment. According to Justice Roberts, altogether the evidence tells a story that does not match the secretary’s explanation for his decision. In other words, Ross’s reason for asking the question was pre-textual. The court ruled that for now, the question could not go forward.
However, the opinion leaves the door open for the government to bring back the question if they can come up with another justification for seeking that information in the census, which takes us to a similar case with a different outcome, that on partisan gerrymandering.
Partisan gerrymandering is when one political party draws the district maps at the other party’s expense, making it easier for the party in power to stay in power. The States use census data to draw up new maps portioning representatives to state legislators in federal districts. For many years, the political party with the most power in the states have drawn districts into strange shapes that make it easier for incumbents to hold on to power. So can state officials ever go so far in drawing partisan districts that it violates the US Constitution? That was the question before the Supreme Court in this most recent case.
Justice Kennedy was the swing vote back in 2004 when the Supreme Court’s Conservative justices plus Kennedy, whether you consider him Conservative or not, ruled that the Supreme Court should stay out of a contentious gerrymandering case from Pennsylvania.
However, Kennedy left the door ajar, stating that in a future case, it could be possible for one party to skew maps so much that it was unconstitutional. The problem that Kennedy identified was that there seemed to be no workable standard for determining when gerrymandering was unconstitutional. However, with Kennedy’s swing vote gone, the court’s Conservatives easily prevailed in the two cases involving partisan gerrymandering in North Carolina and Maryland during this term. In a five-to-four decision written by Chief Justice Roberts, the Supreme court said that the Federal Courts now lacked jurisdiction to even hear partisan gerrymandering cases.
Roberts declared partisan gerrymandering as, quote, “Nothing new and a traditional part of partisan politics.” Roberts and the other four Conservative justices ruled that the case was not justiciable and that it runs afoul of the Political Question Doctrine.
By the way, background, when a case presents a, quote, political question, Federal Courts will refuse to hear the case. The legal doctrine was developed to prevent Federal Courts from intervening in disputes that are so politically charged that the courts feel that they should just stay out of them and let the legislatures deal with those particular questions. Here, the majority held that partisan gerrymandering claims present political questions beyond the reach of the Federal Courts which brings us to the court’s opinion in Gamble versus The United States, dealing with the Dual Sovereignty Doctrine.
The Dual Sovereignty Doctrine is a pretty arcane piece of jurisprudence but it generated lots of attention because the media covered it as if it posed the following question. Could a person connected to Donald Trump, like convicted felon Paul Manafort receive a pardon for federal charges but still be prosecuted in the state court for the same things? However, the case pending before the court did not involve Manafort or any Trump-related official but it might have implications into those individuals. There’s a legal doctrine which holds that because the federal and state governments are, quote, separate sovereigns, the Double Jeopardy Clause does not apply to prosecution of the same crime under both federal and state laws. This is known as the Separate Sovereigns Doctrine.
So the question is can a person wind up facing state and federal prosecutions for the same conduct or does that violate the Double Jeopardy Clause of the Fifth Amendment? In the case at hand, Terence Gamble was convicted under Alabama state criminal law for being a felon in possession of a gun. He was also prosecuted under a federal criminal law for being a felon in possession of a gun as well. He appealed his federal conviction citing the Double Jeopardy Clause. Gamble lost his appeal in the lower courts and the Supreme Court considered the case.
The Supreme Court’s seven-to-two majority decision affirmed that Double Jeopardy did not bar Gamble’s conviction. Justice Alito wrote the majority opinion that there was no reason to overturn the Dual Sovereignty Doctrine. The Double Jeopardy Clause bars successive prosecutions for the same offense, not for the same conduct.
That means that Gamble could not be tried twice for the same violation of the Alabama Criminal Codes but he could be tried again for arguably the same underlying conduct in both federal and state courts. So while the majority of opinion certainly will do nothing to advance the cause of criminal justice reform and most defendants to be tried by the Federal Government and the state government will probably just be regular Joes like Terrence Gamble, it does mean that any person Trump pardons for a federal offense can still be tried in state court.
Unconscious and emergency searches and seizures. Another criminal justice case from this term placed some additional limits on your rights under the Fourth Amendment. Six years ago, police found Gerald Mitchell soaking wet and sloppy drunk in a sandy beach in Wisconsin. He was shirtless and slurring his words. He took a preliminary breath test which indicated his blood alcohol level was three times the legal limit.
Since this test was ineligible to be used in court, police had to decide how to get admissible evidence of Mitchell’s condition. They took him to a hospital for a blood test. There was just one hitch. Mitchell passed out in the backseat of the squad car on the way to the hospital but the hospital staff drew his blood while he was knocked out which indicated a blood alcohol level of 0.222.
The police never obtained a warrant. Mitchell tried to get the results of the blood test thrown out arguing that the cops needed a warrant but Wisconsin state law says the drivers on his road presumably consent to a blood test. The Supreme Court justices ruled five to four that the Fourth Amendment generally does not stop states from taking a blood sample without a warrant if the suspect is unconscious. The Fourth Amendment to the Constitution protects your right to unreasonable searches and seizures and it states that both the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated and no warrants shall issue but upon probable cause.
While the general rule is that police need a warrant, there are many exceptions to this rule.
One of the exceptions is called the Exigent Circumstances Exception which lets police search without a warrant to prevent the imminent destruction of evidence. Evidence of a person’s blood alcohol level disappears over time as it is absorbed through the bloodstream. The Supreme Court said that if police waited until an unconscious person is awake, then the evidence that they were intoxicated could be destroyed which allows police to now draw blood from you if you are unconscious, without a warrant. The Bladensburg Peace Cross. The Bladensburg Peace Cross is a nearly century-old monument in Maryland to those who died in World War I.
The cross sits on a traffic island that is public land in Bladensburg, Maryland. The cross is associated with Christianity, obviously, so the American Humanist Association filed a lawsuit alleging that the cross’s presence on public land violated the First Amendment’s Establishment Clause.
The court’s religion cases have recently given the government wide latitude to include religious references on state property and material as long as they can be branded as, quote, ceremonial or celebratory or commemorative. For example, the court has ruled that the words In God We Trust should remain on the US currency over the objection of non-theists. The court reasoned that the message is of historical importance and is now merely ceremonial rather than religious.
The same is true of the statement One Nation Under God, another Christian reference, that the court says does not run afoul of the Establishment Clause. Alito wrote, “A government that roams the land, “tearing down monuments with religious symbolism “and scrubbing away any reference to the divine “will strike many as aggressively hostile to religion.” Justices Ginsburg and Sotomayor dissented.
Ginsberg wrote, “Just as the Star of David “is not suitable to honor Christians “who died serving their country, “so a cross is not suitable to honor those of other faiths “who died defending their nation.” The court appears to be drawing a line between symbols and monuments which have been in place for many years and those which may be erected in the future.
Alito’s argument probably gave a little bit of life to people who are angry about the removal of old monuments. However, commentators are split on what that means for new monuments. Now, if you’re ever going to try a case before the Supreme Court, you’ll need to get a great-looking suit. As evidenced by this footage from inside the Supreme Court, all the lawyers are dressed to the nines. I’m just kidding, the Supreme Court does not allow video recording and the lawyers generally dress in suits that are four sizes too big for them.
Still, I would recommend getting a slim cut, fully-custom suit from Indochino.
Indochino. All of my suits are now custom-made by Indochino, including this three-piece suit that I’m wearing right now with a custom double-breasted vest which I think is awesome. Indochino will make you a fully-custom suit tailored specifically to you for less than $400. And the best part is they still use the best materials like Super 140 wool and cashmere.
In fact, I reached out to Indochino to ask them to guarantee that LegalEagles would get the best price and they were happy to oblige.
And I am happy to report that LegalEagles get the exclusive ability to buy any premium Indochino suit which is their most popular suit for 359. That is the best deal you will find anywhere on the internet. Personally, I will never buy an off-the-rack suit again. You have tons of choices too because the secret to a great suit is all about the fit.
I’m a reasonably athletic guy and I can never buy suits off the rack because they just simply never fit right. But with Indochino, you can either send your measurements in online or you can go to a physical store and have a stylist at Indochino take your own measurements which is what I did when I had a stylist work with me for over 90 minutes to take every measurement possible.