This Report summarizes opinions issued on June 26, 27, and 28, 2018 (Part I).

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1 VOLUME 25, ISSUE 17 JULY 10, 2018 This Report summarizes opinions issued on June 26, 27, and 28, 2018 (Part I). I. Opinions Trump v. Hawaii, By a 5-4 vote, the Court upheld the third iteration of the President s order suspending entry of foreign nationals from eight countries (Chad, Iran, Libya, North Korea, Somalia, Syria, Venezuela, and Yemen). The first version of the travel order, among many other things, directed the Secretary of Homeland Security to assess whether foreign governments were providing sufficient information about their nationals seeking to enter the United States. The second version noted that the countries covered by the ban had been selected because each is a state sponsor of terrorism, has been significantly compromised by terrorist organizations, or contains active conflict zones. On September 24, 2017, with the worldwide review completed, the President issued the third version of the ban, Proclamation No The Proclamation sought to improve vetting procedures by identifying ongoing deficiencies in the information needed to assess whether nationals of particular countries present public safety threats. To further that purpose, the Proclamation placed entry restrictions on the nationals of eight foreign states whose systems for managing and sharing information about their nationals the President deemed inadequate. For three of the countries (Iran, North Korea, and Syria), the Proclamation suspends entry of all nationals (except for certain Iranians); for three other countries (Chad, Libya, and Yemen) it restricts immigrant visas and nonimmigrant business or tourist visas; it imposes slightly different restrictions on Somalia; and for Venezuela it limits entry of certain government officials and family members. The Proclamation exempts lawful permanent residents and foreign nationals who have been granted asylum, and provides for case-by-case waivers when a foreign national demonstrates undue hardship, and that his entry is in the national interest and would not pose a threat to public safety. Plaintiffs are the State of Hawaii, three individuals, and the Muslim Association of Hawaii. All challenged the Proclamation (except as applied to North Korea and Venezuela) as contravening the Immigration and Nationality Act (INA) and the Establishment Clause. The district court granted a nationwide preliminary injunction after concluding that the Proclamation violates the INA. The Ninth Circuit affirmed. In an opinion by Chief Justice Roberts, the Court reversed and remanded. The Court assumed without deciding that the case was justiciable notwithstanding the doctrine of consular nonreviewability. The Court then turned to plaintiffs statutory argument. The Court focused on 8 U.S.C. 1182(f), which provides that, Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate. The Court found that the provision exudes deference to the President in every clause. And it concluded that [t]he Proclamation falls well within this comprehensive delegation. The Court then rebutted plaintiffs arguments. First, plaintiffs argued that the Proclamation s findings are insufficient. To the contrary, found the Court, the 12-page Proclamation is more detailed than any prior order a President has issued under 1182(f). Second, plaintiffs argued that the Proclamation conflicts with the immigration scheme reflected in the INA. The Court, however, ruled that plaintiffs have not identified any 2018, NAAG, 1850 M Street, NW 12 th Floor Washington, DC (202)

2 conflict between the statute and the Proclamation that would implicitly bar the President from addressing deficiencies in the Nation s vetting system. Nor did it agree with plaintiffs that the legislative history showed that Congress wanted the President s suspension power limited to exigencies where it would be difficult for Congress to react promptly. As to past practice, the Court noted that Presidents have invoked 1182(f) to retaliate for conduct by [ ] governments that conflicted with U.S. foreign policy interests. Finally, the Court rejected plaintiffs contention that the Proclamation violates 1152(a)(1)(A), which prohibits nationality-based discrimination in the issuance of immigration visas. Plaintiffs argued that allowing the President to limit admittance based on nationality would circumvent 1152(a)(1)(A). The Court held, however, that plaintiffs argument ignores the basic distinction between admissibility determinations and visa issuance that runs throughout the INA. Section 1182 defines the universe of aliens who are admissible into the United States (and therefore eligible to receive a visa). Once 1182 sets the boundaries of admissibility into the United States, 1152(a)(1)(A) prohibits discrimination in the allocation of immigrant visas based on nationality and other traits. The Court observed that [ ]1152(a)(1)(A) has never been treated as a constraint on the criteria for admissibility in Presidents have repeatedly exercised their authority to suspend entry on the basis of nationality, such as when President Reagan suspended entry of Cuban nationals and President Carter denied and revoked visas of Iranian nationals. The Court next addressed plaintiffs constitutional challenge. The individual plaintiffs asserted that the Proclamation singl[ed] out Muslims for disfavored treatment, and thus operated as a religious gerrymander. They pointed to a series of statements by the President and his advisers casting doubt on the official objective of the Proclamation. For example, while a candidate on the campaign trail, the President published a Statement on Preventing Muslim Immigration that called for a total and complete shutdown of Muslims entering the United States until our country s representatives can figure out what is going on. They also pointed to a series of other statements and actions by the President and his advisers. The Court noted that not all Presidents have liv[ed] up to the principles of religious freedom and tolerance on which this Nation was founded, and that Plaintiffs argue that this President s words strike at fundamental standards of respect and tolerance, in violation of our constitutional tradition. But, stated the Court, the issue before us is not whether to denounce the statements. It is instead the significance of those statements in reviewing a Presidential directive, neutral on its face, addressing a matter within the core of executive responsibility. In doing so, we must consider not only the statements of a particular President, but also the authority of the Presidency itself. The Court emphasized that the case concerns a national security directive regulating the entry of aliens abroad, and that the Proclamation is facially neutral toward religion. The issue, then, is the sincerity of the stated justifications for the policy. With that in mind, and based on its holding in Kleindienst v. Mandel, 408 U.S. 753 (1972), the Court stated that it would look behind the face of the Proclamation to the extent of applying rational basis review. That standard of review considers whether the entry policy is plausibly related to the Government s stated objective to protect the country and improve vetting processes. As a result, we may consider plaintiffs extrinsic evidence, but will uphold the policy so long as it can reasonably be understood to result from a justification independent of unconstitutional grounds. (Citation omitted.) The Court observed that statutes that fail rational basis scrutiny typically lack any purpose other than a bare... desire to harm a politically unpopular group. Pointing to the Proclamation s stated, legitimate purpose, that it covers just 8% of the world s Muslim population, and that it s the 2

3 product of a worldwide review process undertaken by multiple Cabinet officials and their agencies, the Court held that the Proclamation is not inexplicable by anything but animus. The Court noted the dissent s contention that the policy is overbroad and does little to serve national security interests, but said we cannot substitute our own assessment for the Executive s predictive judgments on such matters. It found support in three additional features of the Proclamation: three Muslimmajority countries have been removed from the ban since its first iteration; the Proclamation includes significant exceptions for various categories of foreign nationals ; and the Proclamation creates a waiver program open to all covered foreign nationals seeking entry as immigrants or nonimmigrants. The Court closed by responding to the dissent s invocation of Korematsu v. United States, 323 U. S. 214 (1944). After finding that case wholly inapt, it took the opportunity to make express what is already obvious: Korematsu was gravely wrong the day it was decided, has been overruled in the court of history, and to be clear has no place in law under the Constitution. Justice Kennedy filed a concurring opinion to observe that [t]here are numerous instances in which the statements and actions of Government officials are not subject to judicial scrutiny or intervention. That does not mean those officials are free to disregard the Constitution and the rights it proclaims and protects. The oath that all officials take to adhere to the Constitution is not confined to those spheres in which the Judiciary can correct or even comment upon what those officials say or do. Indeed, the very fact that an official may have broad discretion, discretion free from judicial scrutiny, makes it all the more imperative for him or her to adhere to the Constitution and to its meaning and its promise... An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts. Justice Thomas filed a concurring opinion to explain why, in his view, district courts lack the authority to enter nationwide injunctions. These injunctions did not emerge until a century and a half after the founding. And they appear to be inconsistent with longstanding limits on equitable relief and the power of Article III courts. Justice Breyer issued a dissenting opinion, which Justice Kagan joined. He posed the core issue before the Court as whether or the extent to which religious animus played a significant role in the Proclamation s promulgation or content. He maintained that the Proclamation s elaborate system of exemptions and waivers can and should help us answer this question. The President s position is strengthened, according to Justice Breyer, if the Government is applying the exemption and waiver provisions as written, for that would help make clear that the Proclamation does not deny visas to numerous Muslim individuals (from those countries) who do not pose a security threat. And that fact would help to rebut the First Amendment claim that the Proclamation rests upon anti- Muslim bias rather than security need. On the other hand, if the Government is not applying the system of exemptions and waivers that the Proclamation contains, then its argument for the Proclamation s lawfulness becomes significantly weaker. For [h]ow could the Government successfully claim that the Proclamation rests on security needs if it is excluding Muslims who satisfy the Proclamation s own terms? Justice Breyer found some publicly available evidence as cause for concern on this score, and concluded that the district court should explore these issues on remand. Justice Sotomayor filed a separate dissenting opinion, which Justice Ginsburg joined. Bypassing the statutory issue for the simpler constitutional one, she stated that the Proclamation runs afoul of the Establishment Clause s guarantee of religious neutrality. Justice Sotomayor cited cases 3

4 holding that government actions designed to disfavor a particular religion are unconstitutional. She then walked through the history of the President s statements on this issue, finding that [t]he full record paints a far more harrowing picture [than the majority s portrayal], from which a reasonable observer would readily conclude that the Proclamation was motivated by hostility and animus toward the Muslim faith. Justice Sotomayor disagreed that rational basis scrutiny applies, insisting that the Court has applied a more stringent standard of review in Establishment Clause cases. But even under rational basis review, [g]iven the overwhelming record evidence of anti-muslim animus, it simply cannot be said that the Proclamation has a legitimate basis. She discounted the Proclamation s inclusion of two non-muslim countries as window dressing; noted that the person heading up the worldwide review has purportedly made several suspect public statements about Islam ; and criticized allowing the President to hide behind an administrative review process that the Government refuses to disclose to the public. Justice Sotomayor added that Congress has already erected a statutory scheme that fulfills the putative national-security interests the Government now puts forth to justify the Proclamation. Tellingly, the Government remains wholly unable to articulate any credible national-security interest that would go unaddressed by the current statutory scheme absent the Proclamation. The final section of the dissent made two additional points. First, it contrasted the Court s finding in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Comm n, 584 U.S. (2018), that the state commission failed to act with the neutrality and tolerance the Free Exercise Clause mandates, with its decision here to completely set[] aside the President s charged statements about Muslims as irrelevant. Second, it asserted stark parallels between the reasoning of this case and that of Korematsu. By blindly accepting the Government s misguided invitation to sanction a discriminatory policy motivated by animosity toward a disfavored group, all in the name of a superficial claim of national security, the Court redeploys the same dangerous logic underlying Korematsu and merely replaces one gravely wrong decision with another. Janus v. AFSCME, Council 31, By a 5-4 vote, the Court overruled Abood v. Detroit Board of Education, 431 U.S. 209 (1977), and held that the Free Speech Clause bars the government from compelling non-union members to pay agency fees that reimburse public-sector unions for their collective bargaining and related activities. Under Illinois law, public employees are permitted to unionize. A public-sector union is designated as the exclusive representative of all the employees in the bargaining unit. Although employees in the unit are not required to join the union, the union must represent all employees. Employees who do not join the union must pay an agency fee, which is a percentage of union dues attributable to activities germane to the union s collective-bargaining duties. Nonmembers cannot be required to fund the union s political and ideological efforts. The Illinois Governor filed suit in federal court asking for a declaration that the statute authorizing the imposition of agency fees is unconstitutional. Petitioner Mark Janus, who is employed by the Illinois Department of Healthcare and Family Services, moved to intervene as a plaintiff. The district court dismissed the Governor s challenge for lack of standing, but held that petitioner had standing. The court then dismissed the complaint as foreclosed by Abood. The Seventh Circuit affirmed. In an opinion by Justice Alito, the Court reversed. The Court concluded that Abood cannot be reconciled with the Court s First Amendment jurisprudence. As an initial matter, the Free Speech Clause generally bars the government from compelling people to mouth support for views they find objectionable. And [c]ompelling a person to subsidize the speech of other private speakers raises similar First Amendment concerns. Citing recent 4

5 precedents, the Court stated that compelled subsidization of speech is subject, at the least, to exacting scrutiny, under which a compelled subsidy must serve a compelling state interest that cannot be achieved through means significantly less restrictive of associational freedoms. The Court concluded that compelled agency fees cannot survive that standard. Abood justified compelled agency fees as necessary to preserve labor peace, but Abood cited no evidence that the pandemonium it imagined would result if agency fees were not allowed, and it is now clear based on the experience of federal unions and unions in 28 states that prohibit agency fees that Abood s fears were unfounded. Abood also cited the problem of free riders, i.e., that nonmembers will enjoy[] the benefits of union representation without shouldering the costs. The Court stated, however, that free-rider arguments... are generally insufficient to overcome First Amendment objections. Surely, said the Court, the government cannot compel people to subsidize any group whose speech benefits them. Nor does it matter that the unions are required to represent all employees, even nonmembers. The benefits of being designated the exclusive representative greatly outweigh any extra burden imposed by the duty of providing fair representation for nonmembers. The Court next rejected the union s originalist defense of Abood, which claimed that the First Amendment was not originally understood to provide any protection for the free speech rights of public employees. The Court noted that decades of landmark precedent establish that public employees enjoy free speech protection. Further, the Union offers no persuasive foundingera evidence that public employees were understood to lack free speech protections. Plus, the Union cannot point to any accepted founding-era practice that even remotely resembles the compulsory assessment of agency fees from public-sector employees. The Court next turned to the state and the union s contention that Abood embodies a reasonable application of Pickering v. Board of Ed. of Township High School Dist. 205, Will Cty., 391 U.S. 563 (1968). Under Pickering and its progeny, employee speech is generally not protected if it is part of what the employee is paid to do or involved a matter of only private concern, but is protected if the speech involves a matter of public concern unless the public employer s interest as employer outweighs the employee s interests. First, said the Court, Abood did not purport to rely on Pickering. Second, the Pickering framework was developed for use in a very different context in cases that involve one employee s speech and its impact on that employee s public responsibilities not a case involv[ing] a blanket requirement that all employees subsidize speech with which they may not agree. (Internal quotation marks omitted.) Although an individual employee s complaint about receiving a small raise would constitute a matter of private concern, a public-sector union s demand for a 5% raise for the many thousands of employees it represents would be another matter entirely. Also, [w]hen a public employer does not simply restrict potentially disruptive speech but commands that its employees mouth a message on its own behalf, the calculus is very different. Third, the Court found that Illinois agency-fee system would fail Pickering in any event. Unions speech during collective bargaining is a matter of great public concern, implicating the state s budget, how to respond to state debt, education policy, health policy, and so on. And for the reasons already discussed, the states interest in labor peace and avoiding free riders do not justify the heavy burden that agency fees inflict on nonmembers First Amendment rights. 5

6 The Court concluded that stare decisis does not justify retaining Abood. First, the doctrine applies with perhaps least force of all to decisions that wrongly denied First Amendment rights. Second, Abood was poorly reasoned, wrongly relying on two prior decisions that were far off-topic and wrongly applying too deferential a standard of scrutiny. Third, Abood has not proven workable, for its line between chargeable and nonchargeable union expenditures has proved to be impossible to draw with precision. Fourth, [b]y overruling Abood, we end the oddity of privileging compelled union support over compelled party support and bring a measure of greater coherence to our First Amendment law. Finally, held the Court, overruling Abood will not impair significant reliance interests. That is because current collective-bargaining agreements entered based on Abood will expire in just a few years and public-sector unions have been on notice for years regarding th[e] Court s misgivings about Abood. Justice Kagan filed a dissenting opinion, which Justices Ginsburg, Breyer, and Sotomayor joined. She stated that [f]or over 40 years, [Abood] struck a stable balance between public employees First Amendment rights and government entities interests in running their workforces as they thought proper.... That holding fit comfortably with this Court s general framework for evaluating claims that a condition of public employment violates the First Amendment. She faulted the majority for dismissing the need for agency fees. [B]asic economic theory shows why a government would think that agency fees are necessary for exclusive representation to work.... [T]he union cannot give special advantages to its own members. And that in turn creates a collective action problem of nightmarish proportions. Why, she asked, would employees even those who support the union pay union dues if the union had to represent them anyway? Abood ensured that a union would receive sufficient funds, despite its legally imposed disability, to effectively carry out its duties as exclusive representative of the government s employees. Justice Kagan then explained how Abood fit neatly with the Court s caselaw on when the government as employer may limit its workers speech. Abood, by drawing a line between a union s political and ideological speech (on the one hand) and its speech involving workplace and employment conditions (on the other), dovetailed with the Court s usual attitude in First Amendment cases toward the regulation of public employees speech. She then rebutted the majority s Pickering analysis, noting that the Court has applied Pickering to general policies; that the Court s cases have not distinguished between compelling speech and restricting speech; and that speech about the terms and conditions of employment... has never survived Pickering s first step. Finally, the dissent faulted the majority for failing to apply stare decisis. Justice Kagan noted that [o]ver four decades, this Court has cited Abood favorably many times, and has affirmed and applied its central distinction between the costs of collective bargaining (which the government can charge to all employees) and those of political activities (which it cannot). She found no workability problems: There may be some gray areas (there always are), but in the mine run of cases, everyone knows the difference between politicking and collective bargaining. Most importantly, said Justice Kagan, one stare decisis factor reliance dominates all others here and demands keeping Abood. She noted that 22 states, the District of Columbia, and Puerto Rico have statutes authorizing agency fees; and thousands of current contracts covering millions of workers provide for agency fees. Justice Kagan closed by stating that the majority has chosen the winners by turning the First Amendment into a sword, and using it against workaday economic and regulatory policy. 6

7 National Institute of Family and Life Advocates v. Becerra, By a 5-4 vote, the Court held that disclosures the California Reproductive FACT Act requires pregnancy-related clinics to provide likely violates the Free Speech Clause. The FACT Act regulates crisis pregnancy centers, which are pro-life (largely Christian belief-based) organizations that offer a limited range of free pregnancy options, counseling, and other services to individuals that visit a center. The first notice requirement applies to primary care or specialty clinics licensed under California law whose primary purpose is to provid[e] family planning or pregnancy-related services. The Act exempts federally operated clinics and clinics that are enrolled as a Medi-Cal provider and participate in a state family planning program (Family PACT) that provides (among other things) emergency contraceptive pills. Under the Act, nonexempt licensed facilities must disseminate a notice stating that California has public programs that provide immediate free or low-cost access to comprehensive family planning services (including all FDA-approved methods of contraception), prenatal care, and abortion for eligible women. To determine whether you qualify, contact the county social services office at [insert the telephone number]. The FACT Act s second notice requirement applies to unlicensed facilities, defined as facilities that are not licensed by the state and do not have a licensed medical provider on staff or under contract. Once again, the requirement applies only to facilities whose primary purpose is to provid[e] family planning or pregnancy-related services ; and clinics enrolled in Medic- Cal and Family PACT are exempt. Nonexempt unlicensed facilities must provide a notice stating that [t]his facility is not licensed as a medical facility by the State of California and has no licensed medical provider who provides or directly supervises the provision of services. The notice must be provided in all advertising materials; must be posted conspicuously at the entrance of the facility and in at least one waiting area; must be at least 8.5 inches by 11 inches and written in no less than 48- point type ; in advertisements, must be in the same size or larger font than the surrounding text, or otherwise set off in a way that draws attention to it; and must be in English and any additional languages specified by state law (which can be up to 13 different languages). Petitioners a licensed pregnancy center, an unlicensed pregnancy center, and an organization composed of crisis pregnancy centers filed suit alleging that the two notice requirements violate their free speech rights. The district court denied their motion for a preliminary injunction, and the Ninth Circuit affirmed after applying the lower level of scrutiny applicable to regulations of professional speech. In an opinion by Justice Thomas, the Court reversed and remanded. The Court ruled that, by compelling individuals to speak a particular message, the licensed notice is a content-based speech regulation. It then rejected the Ninth Circuit s holding that strict scrutiny does not apply to it because it regulates professional speech. The Court noted that it has not recognized professional speech as a separate category of speech, and that it has been reluctant to mark off new categories of speech for diminished constitutional protection. The Court acknowledged that it has applied a lower level of scrutiny to laws that compel disclosures in certain contexts, citing Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S. 626 (1985). But Zauderer applies only to disclosures of purely factual and uncontroversial information about the terms under which... services will be available. Here, though, the required notice does not relate to service the licensed clinics are providing; and abortion is anything but an uncontroversial topic. The Court acknowledged that it has also upheld regulations of professional conduct that incidentally burden speech. One example was in Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992), which upheld a law requiring physicians to obtain informed consent before they could perform an abortion. The law required doctors to inform patients of the availability of 7

8 printed materials from the State, which provided information about the child and various forms of assistance. The Court found Casey inapposite, however, because the licensed notice... is not an informed-consent requirement or any other regulation of professional conduct. The notice does not facilitate informed consent to a medical procedure. In fact, it is not tied to a procedure at all. The Court concluded that, apart from those the two contexts disclosures under Zauderer and professional conduct [its] precedents have long protected the First Amendment rights of professionals. Indeed, it said, [a]s with other kinds of speech, regulating the content of professionals speech pose[s] the inherent risk that the Government seeks not to advance a legitimate regulatory goal, but to suppress unpopular ideas or information. Regulation of professionals speech can also undermine an uninhibited marketplace of ideas in which truth will ultimately prevail. In sum, concluded the Court, neither California nor the Ninth Circuit has identified a persuasive reason for treating professional speech as a unique category that is exempt from ordinary First Amendment principles. The Court declined to foreclose the possibility that some such reason exists, for it held that the licensed notice cannot survive even intermediate scrutiny. The Court found the notice wildly underinclusive if the law s goal is to educate low-income woman about the state-sponsored services available to them. That is because the requirement does not apply to clinics that don t have a primary purpose of providing family planning or pregnancy-related services ; and does not apply to federal clinics and Family PACT providers. The Court further noted that the state could inform lowincome workers about its services without forcing its speech upon the crisis centers by, for example, a public-information campaign or posting information on public property near crisis centers. The Court therefore concluded that petitioners are likely to succeed on the merits of their challenge to the licensed notice. The Court then held that the notice the FACT Act requires unlicensed facilities to provide fails even the deferential Zauderer standard. The Court explained that Zauderer forbids government-mandated disclosures from being unjustified or unduly burdensome, meaning they cannot addresses purely hypothetical harms and cannot extend broader than reasonably necessary. But, held the Court, California has not demonstrated any justification for the unlicensed notice that is more than purely hypothetical. It said that California points to nothing suggesting that pregnant women do not already know that the covered facilities are staffed by unlicensed medical professionals. The Court also concluded that the disclosure unduly burdens protected speech. It does so first by distinguishing among speakers a facility that advertises and provides pregnancy tests is covered by the unlicensed notice, but a facility across the street that advertises and provides nonprescription contraceptives is excluded. It is also unduly burdensome because it requires facilities advertisements to call attention to the notice, instead of its own message, by some method such as larger text or contrasting type or color, and requires the notice to be posted in up to 13 different languages. Justice Kennedy filed a concurring opinion, which Chief Justice Roberts and Justices Alito and Gorsuch joined. Justice Kennedy wrote to underscore that the apparent viewpoint discrimination here is a matter of serious constitutional concern. He urged that the State requires primarily prolife pregnancy centers to promote the State s own preferred message advertising abortions. This compels individuals to contradict their most deeply held beliefs, beliefs grounded in basic philosophical, ethical, or religious precepts, or all of these. And he pointed to the history of authoritarian 8

9 government as the Founders then knew it and how history since then shows how relentless authoritarian regimes are in their attempts to stifle free speech. Governments must not be allowed to force persons to express a message contrary to their deepest convictions. Freedom of speech secures freedom of thought and belief. This law imperils those liberties. Justice Breyer filed a dissenting opinion, which Justices Ginsburg, Sotomayor, and Kagan joined. The dissent criticized the majority s approach to professional speech: Because much, perhaps most, human behavior takes place through speech and because much, perhaps most, law regulates that speech in terms of its content, the majority s approach at the least threatens considerable litigation over the constitutional validity of much, perhaps most, government regulation. Justice Breyer expressed concern that the majority s approach calls into question much securities law or consumer protection law as well as [m]any ordinary disclosure laws (such as a law requiring hospitals to tell parents about child seat belts). Turning to the licensed notice, Justice Breyer relied on Casey: If a State can lawfully require a doctor to tell a woman seeking an abortion about adoption services, why should it not be able, as here, to require a medical counselor to tell a woman seeking prenatal care or other reproductive healthcare about childbirth and abortion services? Justice Breyer rejected the majority s effort to distinguish Casey, noting that [t]he individuals at issue here are all medical personnel engaging in activities that directly affect a woman s health, that carrying a child to term and giving birth (like abortion) involves medical procedures and health risks, and that informed consent principles apply more broadly than only to discrete medical procedures. Justice Breyer also found the licensed notice constitutional under Zauderer: information about state resources for family planning, prenatal care, and abortion is related to the services that licensed clinics provide because it provides information about state resources for the very same services. As to the unlicensed facilities, the dissent disagreed that the state s interest is hypothetical. Justice Breyer found it self-evident that patients might think they are receiving qualified medical care when they enter facilities that collect health information, perform obstetric ultrasounds or sonograms, diagnose pregnancy, and provide counseling about pregnancy options or other prenatal care. And any claims that the statute is unduly burdensome should be asserted, he said, in an as-applied challenge, not this facial challenge. Florida v. Georgia, 142 Original. By a 5-4 vote, the Court sustained Florida s exceptions to the Special Master s Report, which recommended that the Court deny Florida relief in this equitable apportionment action because, even assuming Georgia unreasonably uses upstream water and thereby harms Florida, Florida did not prove by clear and convincing evidence that its injury can be remedied by a decree limiting Georgia s consumption of water. Florida alleges that Georgia is consuming too much water from the Apalachicola-Chattahoochee-Flint River Basin. The Chattahoochee and Flint Rivers begin in Georgia, run into Florida, meet at Lake Seminole, and then continue (as the Apalachicola River) through the Florida Panhandle. The U.S. Army Corps of Engineers operates several dams and reservoirs along the Chattahoochee. Florida s complaint alleges that Georgia is consuming more than its equitable share, which threatens the existence of oysters and other key species in Florida. After some preliminary battles (mostly relating to the United States refusal to waive its sovereign immunity from suit), the Master held lengthy discovery and evidentiary proceedings, and then produced a 70-page Report. He concluded that there is a single, discrete issue that resolves this case: even assuming that Florida has sustained injury as a result of unreasonable upstream water use by Georgia,... Florida has not proven that its injury can be remedied without a decree binding 9

10 the Corps. The evidence does not provide sufficient certainty that an effective remedy is available without the presence of the Corps as a party in this case. In other words, a decree requiring Georgia to consume less water might not benefit Florida because the Corps might store the additional water in upstream reservoirs before the water reaches Florida. And because the United States is not a party in the case, the Court cannot order the Corps to allow the additional water to flow into Florida. Florida filed exceptions to the Special Master s Report, disputing the legal standard the Master applied in resolving what the Master called the threshold question and arguing that its showing in respect to redressability was sufficient. Through an opinion by Justice Breyer, the Court sustained the two exceptions and remanded the case back to the Special Master. The Court explained that a plaintiff state in an equitable apportionment action against another state bears an initial burden of showing real and substantial injury. If it makes that showing, the Court will seek to arrive at a just and equitable apportionment of an interstate stream by consider[ing] all relevant factors. (Internal quotation marks omitted.) With that background, the Court concluded that the Special Master applied too strict a standard when he determined that the Court would not be able to fashion an appropriate equitable decree. The Master did so, found the Court, by requiring Florida to make its remedial showing with sufficient certainty ; by saying that Florida failed to show that the Corps will permit all additional flows to reach Florida; by stating that there is no guarantee that the Corps will exercise its discretion to aid Florida; and by saying that Florida must show there is a workable remedy by clear and convincing evidence. To the contrary, held the Court, Florida should merely have to show that, applying the principles of flexibility and approximation..., it is likely to prove possible to fashion such a decree. And [t]o require clear and convincing evidence about the workability of a decree before the Court or a Special Master has a view about likely harms and likely amelioration is, at least in this case, to put the cart before the horse. Further, although the Court has required plaintiff states to show their initial injury through clear and convincing evidence, it has never required them to show redressability under that standard. The Court next address[ed] Florida s exceptions to the Master s evidentiary determinations. The Court focused on two questions: (1) [W]ould an equity-based cap on Georgia s use of the Flint River lead to a significant increase in streamflow from the Flint River into Florida s Apalachicola River[?] (2) [I]f so, would the amount of extra water that reaches the Apalachicola River significantly redress the economic and ecological harm that Florida has suffered? On the former question, [t]he Special Master and Georgia believe that at any relevant time the Corps might offset any extra Flint River water that flows into Lake Seminole by simultaneously reducing the amount of water that flows into that lake from the Chattahoochee River. The Court s reading of the record convinced it, however, that, acting in accordance with the its own revised Master Manual, the Corps is likely to permit, and in some cases may be required to ensure that, material amounts of additional Flint water to flow through the Woodruff Dam and into the Apalachicola River. At the very least, we believe that more proceedings are necessary to reach a definitive determination. On the second question, the Court concluded that there is evidence indicating that the extra water would significantly redress the harm to Florida though the Master needs to explore this issue further on remand. The Court added, as further support for its ruling, that the United States has made clear that the Corps will work to accommodate any determinations or obligations the Court sets forth if a final decree equitably apportioning the Basin s waters proves justified in this case. Finally, the Court cautioned that 10

11 Florida will be entitled to a decree only if it is shown that the benefits of the [apportionment] substantially outweigh the harm that might result a determination that may require additional factfindings. Justice Thomas filed a dissenting opinion, which Justices Alito, Kagan, and Gorsuch joined. The dissent maintained that the Special Master applied the ordinary balance-of-harms test dictated by this Court s precedents. He did not, as the Court implies, deny Florida relief because calculating an appropriate apportionment was too difficult or because Florida failed to satisfy the threshold redressability requirement for Article III standing. Justice Thomas noted that [t]he Court does not disagree that Florida failed to prove an appreciable benefit. Instead, it simply asserts that a decision on that question is premature. It is incredibly odd to conclude that a Special Master s merits determination is premature after a full trial. (Citation omitted.) Justice Thomas then stated that, [e]ven if the Court is correct that the Special Master denied Florida relief for some reason other than the merits, there is no reason to send this case back for a do-over.... We must bring our independent judgment to bear based upon our own independent examination of the record. An independent examination of the record confirms that the Special Master was correct to find that the Corps would not change its operations during droughts if this Court capped Georgia s water use and thus Florida would not benefit from a cap during droughts. (Citations omitted.) In the dissent s view, [b]ecause Florida cannot ask this Court to require the Corps to change its existing operations, it must prove by clear and convincing evidence that the Corps will voluntarily make the necessary changes. Florida cannot do so. The United States representations in this litigation and the Corps history and practice in the Basin all reveal that the Corps will not change its existing practices, even if this Court caps Georgia s water use. North Carolina v. Covington, By an 8-1 vote, the Court affirmed in part and reversed in part a three-judge district court s rulings in this action alleging that North Carolina engaged in pervasive racial gerrymandering when it redistricted the state legislature. The Court previously affirmed the district court s merits ruling in favor of the plaintiffs, but vacated the district court s remedial order. On remand, the district court ordered the General Assembly to draw remedial maps. The General Assembly complied, but the plaintiffs objected that four legislative districts still segregated voters on the basis of race and that the plan s redrawing of five districts in Wake and Mecklenburg Counties violated the state s constitution s bar on mid-decade redistricting. The district court appointed a Special Master to redraw those districts lines, along with the lines of other districts as necessary. The district court adopted the Special Master s recommended maps after agreeing with plaintiffs objections to the General Assembly s proposed maps. Through a unanimous per curiam opinion, the Court affirmed in part and reversed in part. The Court first rejected the state s contention that the case became moot when the General Assembly drew new maps. The Court explained that it is the segregation of the plaintiffs not the legislature s line-drawing as such that gives rise to their claims. Because the plaintiffs asserted that they remained segregated on the basis of race, their claims remained the subject of a live dispute, and the District Court properly retained jurisdiction. The Court next rejected the state s argument that the General Assembly did not consider race at all when designing the 2017 [remedial] plans, which should have been the end of the plaintiffs racial gerrymandering claims. The Court 11

12 found that the state failed to rebut the District Court s detailed, district-by-district factfinding respecting the legislature s remedial districts. That factfinding... turned up sufficient circumstantial evidence that race was the predominant factor governing the shape of those four districts. Nor, held the Court, did the district court abuse its discretion in appointing a Special Master and adopting the Master s recommend remedy for the four gerrymandered districts. The district court reasonably concluded that there wasn t sufficient time before an upcoming election to give the General Assembly a second bit at the apple ; and the Master properly took race into account as needed to cure the racial gerrymandering. Finally, however, the Court reversed the district court s actions with respect to the five legislative districts allegedly drawn in violation of the state constitution. The Court held that the district court had no basis in federal law to intervene in that redistricting decision. Justice Thomas filed a short dissent stating that he would have set the case for full briefing and oral argument. Sexton v. Beaudreaux, By an 8-1 vote, the Court summarily reversed a Ninth Circuit decision that had granted habeas relief to a prisoner on the ground that his counsel was ineffective for failing to file a motion to suppress a witness s identification testimony. Respondent Nicholas Beaudreaux was convicted of murdering Wayne Drummond during a late-night argument in At trial, two eyewitnesses testified. One of them, Dayo Esho, initially described the shooter but did not know his name; 17 months later tentatively identified Beaudreaux as the shooter in a photo lineup that included a recent picture of him; later that day again tentatively identified Beaudreaux as the shooter in a photo lineup that included an older picture of him; identified Beaudreaux as the shooter at a preliminary hearing; and then explained at trial that he was sure Beaudreaux was the shooter after finally seeing him in person. Neither the police nor the prosecutors are alleged to have suggested to Esho that Beaudreaux was the one who shot Drummond. Beaudreaux s conviction was affirmed on direct appeal; the California courts also rejected his two state habeas petitions, the second of which asserted that his trial counsel was ineffective for failing to move to suppress Esho s identification testimony. Beaudreaux then filed a federal habeas petition. Although the district court denied it, a divided Ninth Circuit panel reversed. The panel spent most of its opinion conducting a de novo analysis of the merits of the would-be suppression motion relying in part on arguments and theories that Beaudreaux had not presented to the state court in his second state habeas petition. The court concluded that the circumstances surrounding the pretrial identification and preliminary hearing were unduly suggestive, and that Esho s identification was not reliable enough to overcome the suggestiveness. It therefore held that trial counsel s failure to file a motion to suppress constituted deficient performance. And it concluded that it prejudiced Beaudreaux. Having so concluded, the panel majority then held that the state court s denial of the claim was objective unreasonable under 28 U.S.C. 2254(d). Through a per curiam opinion, the Court reversed and remanded. The Court reiterated the strict limitations AEDPA places on habeas relief. When, as here, there is no reasoned state-court decision on the merits, the federal court must determine what arguments or theories... could have supported the state court s decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of this Court. Harrington v. Richter, 562 U.S. 86, 102 (2011). The Court held that [a] fairminded jurist could conclude that counsel s performance was not deficient because counsel reasonably could have determined that the motion to suppress would have failed. The Court explained that its precedents hold that due process concerns arise only when law enforcement officers use[d] an identification procedure that is both suggestive and unnecessary. Even 12

13 then, suppression is only required if the court concluded, based on the totality of the circumstances, that the identification was not reliable. Here, [t]he state court could have reasonably concluded that Beaudreaux failed to prove that, under the totality of the circumstances, the identification was not reliable. The Court added that [t]he Ninth Circuit s opinion was not just wrong. It also committed fundamental errors that this Court has repeatedly admonished courts to avoid. First, the court wrongly considered arguments Beaudreaux had not made in his state habeas petition. Second, the Ninth Circuit failed to assess Beaudreaux s ineffectiveness claim with the appropriate amount of deference. It did this by essentially evaluat[ing] the merits de novo, only tacking on a perfunctory statement at the end of its analysis asserting that the state court s decision was unreasonable. And it did this by failing to heed the Court s repeated holding that federal habeas courts must give state court more leeway when addressing general standards, such as the Strickland standard. Justice Breyer stated that he dissents. Sause v. Bauer, Through a unanimous per curiam opinion, the Court summarily reversed a Tenth Circuit decision that had granted qualified immunity to two police officers who, responding to a noise complaint, allegedly acted abusively to a woman (Mary Anne Sause) in her apartment, including by ordering her to stop praying. Sause filed a 1983 action against the officers (and others) asserting a violation of her First Amendment free exercise right and her Fourth Amendment rights. The district court dismissed her complaint. On appeal, Sause argued only that her free exercise rights were violated by the two officers. The Tenth Circuit affirmed, holding the officers were entitled to qualified immunity. The Court reversed. The Court agreed that [t]here can be no doubt that the First Amendment protects the right to pray. At the same time, however, there are clearly circumstances in which a police officer may lawfully prevent a person from praying at a particular time and place. Critically here, [w]hen an officer s order to stop praying is alleged to have occurred during the course of investigative conduct that implicates Fourth Amendment rights, the First and Fourth Amendment issues may be inextricable. Yet, the Court found, the pro se complaint does not contain express allegations on several matters relevant to the Fourth Amendment inquiry. While recognizing that Sause elected not to raise an independent Fourth Amendment claim on appeal, the Court concluded that under the circumstances, the First Amendment claim demanded consideration of the ground on which the officers were present in the apartment and the nature of any legitimate law enforcement interests that might have justified an order to stop praying at the specific time in question. The Court therefore reversed the Tenth Circuit judgment and remanded. 13