U.S. Supreme Court

Chemerinsky: What SCOTUS rulings are we still waiting for?

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Erwin Chemerinsky. Photo by Jim Block.

What is most important to look for as the Supreme Court hands down its remaining decisions over the next two months? The court finished hearing oral arguments for this term on April 24. If the past is a predictor, there will be a steady stream of rulings over the next several weeks, and then a flurry of decisions at the end of June. Although the term has fewer likely blockbuster cases than usual, two themes are likely to be particularly important: What will be the court’s approach to the administrative state, and how much does the Roberts Court care about stare decisis?


Many have suggested that the conservative majority on the Supreme Court wants to impose greater judicial oversight of the actions of federal administrative agencies. Both of the two newest justices, Neil M. Gorsuch and Brett Kavanaugh, advocated this in their decisions as federal court of appeals judges. This has led to much discussion of whether the high court might reconsider its ruling in Chevron U.S.A. v. Natural Resources Defense Counsel (1984), which held that courts should defer to federal agencies in their interpretation of the statutes that they are implementing.

Although no case this term is likely to reconsider Chevron deference, in Kisor v. Wilkie, the court will consider a related doctrine: the principle that courts should defer to agencies in interpreting their own regulations. In Auer v. Robbins (1997), the court held that courts should defer to an agency’s reasonable interpretation of its own ambiguous regulation. Termed “Auer deference,” this doctrine has been questioned by some conservative justices, including Antonin Scalia.

Kisor v. Wilkie involves a decision by the Department of Veterans Affairs to refuse to give James Kisor, who served as a Marine during the Vietnam War, benefits for his post-traumatic stress disorder. But the ruling, and whether Auer deference will survive, will have an effect on aspects of all areas of administrative law, from environmental law to immigration to social security.

In Gundy v. United States, the underlying issue is whether the court will revive the long-dormant principle that Congress cannot delegate its legislative power to executive agencies. The court has not struck down a federal law as an excessive delegation of legislative powers since its 1935 rulings in A.L.A. Schechter Poultry Corp. v. United States and Panama Refining Co. v. Ryan. The court has said that delegations must have intelligible standards to guide the exercise of discretion, but the reality has been that all delegations have been upheld.

Gundy involves the federal Sex Offender Registration Act, which makes it a federal crime for a person convicted of a sex crime to cross state lines if he or she has not registered as a sex offender as required by law. The act leaves many important matters, including whether it applies retroactively, to the attorney general of the United States. The issue before the court is whether this is an unconstitutional delegation of legislative power.

And in Department of Commerce v. New York, one of the most high-profile cases of the term, the court will decide whether the federal government on the 2020 census forms can ask people whether they are citizens of the United States. The Constitution requires a regular census every decade to ensure an accurate “enumeration” of the people. Being as accurate as possible in the count is crucial because seats in the House of Representatives are allocated based on the census and many federal programs apportion money based on it as well.

The Department of Commerce, which administers the census, added a question about whether a person is a citizen for the 2020 census. A question on citizenship was included on census forms from 1820 until 1950, while some households received forms that contained the question between 1960 and 2000. But the census form sent to all households has not included it in almost 70 years. There long has been concern that such a question will deter some people from submitting the form.

The state of New York, as well as a number of organizations, challenged the inclusion of the inquiry about citizenship on all of the 2020 census questionnaires. They contend that undocumented individuals and even documented noncitizens would be much less likely to participate in the census.

The federal district courts—to consider the challenges to the question about citizenship—ruled against the Trump administration. They said that decisions of administrative agencies must have a reasonable basis and there were no reasonable justifications for changing the policy to include the question on citizenship. Also, the federal district courts ruled that asking about citizenship will prevent the accurate enumeration of the population required by the Constitution.

The Trump administration initially had no reason for the change, but then said that it was to aid in enforcement of the federal Voting Rights Act of 1965. But as was pointed out at the oral argument, there was no evidence within the Justice Department that asking this question on the census would do anything to help enforce voting rights. At the oral argument, Justice Sonia Sotomayor described the change in the census questions as a “solution in search of a problem.” Will the court defer to the agency or will this be a place where we see more judicial oversight of the administrative process?


A number of cases involve whether long-standing precedents should be overruled. That is true in Kisor v. Wilkie, described above, and implicitly it is what is at stake in Gundy v. United States. In Gamble v. United States, the only issue presented is whether the Supreme Court should overrule the “separate sovereigns doctrine,” which provides that the federal government and the state governments are separate sovereigns for purposes of double jeopardy and a prosecution in one does not bar a subsequent prosecution in the other.

Terance Martez Gamble was prosecuted and convicted in Alabama state court for being a felon in possession of a firearm. He was sentenced to a year in prison. He then was prosecuted in federal court for the same crime and after a conditional guilty plea, was sentenced to an additional three years in prison. He has urged the Supreme Court to overrule the separate sovereigns doctrine and the cases that articulated it, such as Bartkus v. Illinois (1959) and Abbate v. United States (1959).

In Knick v. Township of Scott, Pennsylvania, the question is whether to overrule Williamson County Regional Planning Commission v. Hamilton Bank (1985), which requires property owners to exhaust state court remedies before being able to bring claims in federal court that there has been a taking of private property without just compensation. The usual rule is that no exhaustion of state remedies is required before bringing a constitutional claim to federal court. But Williamson County created an exception to that on the grounds that it cannot be said that there is a taking without just compensation, so long as the state has procedures available to provide redress. Knick was argued twice this term: once, before Justice Brett Kavanaugh was confirmed, and then again after he joined the bench.

Franchise Tax Board v. Hyatt is another case where the sole issue is whether to overrule a long-standing precedent. In Nevada v. Hall (1979), the court held that a state can be sued in another state’s court. Gil Hyatt, a Nevada resident, sued the Franchise Tax Board of California in Nevada state court for many torts it committed against him in trying to prove he had not actually moved to Nevada. A jury in Nevada awarded Hyatt $389 million in damages, though the judgment now, after decades of litigation, has been reduced to $100,000.

The court granted review on a single issue: should Nevada v. Hall be overruled? I argued the case for Hyatt in the Supreme Court on Jan. 9, and I was struck by how many of the questions from the justices were about stare decisis and when the court should overrule its precedents. My sense is that the discussion was less about Nevada v. Hall, and more about how the court is going to treat precedent when issues like abortion, affirmative action, and gay and lesbian rights return to the court.

The October term of 2018 is the first without Anthony Kennedy in over 30 years and the first with a more conservative majority of Roberts, Gorsuch, Kavanaugh, Clarence Thomas and Samuel A. Alito. How it handles the issues concerning the administrative state and precedent could be revealing of what to expect in so many cases in the years ahead.

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