U.S. Supreme Court

Chemerinsky: Another blockbuster Supreme Court term is ahead

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Erwin Chemerinsky

Erwin Chemerinsky

The U.S. Supreme Court’s term ended June 27 with the drama of major rulings and Justice Anthony Kennedy’s unexpected announcement of retirement. The court will begin its new term Monday, Oct. 1, probably with the issue of Kennedy’s successor being unresolved.

As always, before it adjourned in late June, the court granted review in what likely will be about half of the docket for the coming term. The remaining cases for the term will be granted from late September through mid-January.

At this point, review has not been granted in any cases involving the most controversial issues, such as abortion rights, affirmative action, campaign finance law or gay and lesbian rights. It is quite possible that the court still will take cases about these issues for this term. But there are potentially important rulings about many different areas of law.


In reviewing the docket, I noted that the court has three cases where the sole issue is whether a long-standing precedent should be overruled. Deservedly, there is great attention as to the Roberts court’s attitude towards stare decisis. These three cases all interestingly involve aspects of federalism.

In Gamble v. United States, the court will consider whether to overrule the “separate sovereigns doctrine,” which provides that the federal government and state governments are separate sovereigns, and double jeopardy does not bar prosecutions against the same person for the same crime in both federal and state courts. This was the holding in Abbate v. United States (1959) and Bartkus v. Illinois (1959), though the doctrine can be traced to Supreme Court decisions going back to the middle of the 19th century.

Most recently, in Puerto Rico v. Sanchez Valle (2016), the court held that the United States and Puerto Rico are not separate sovereigns for purposes of double jeopardy. But Justice Ruth Bader Ginsburg, in a concurring opinion joined by Justice Clarence Thomas, urged the court to reconsider the separate sovereigns doctrine.

The court granted review in Gamble to do just that. Terance Gamble was convicted in Alabama in 2008 of of second-degree robbery. In 2015, as a result of a traffic stop, he was found to have a gun, which violated both state and federal laws preventing a felon from being in possession of a firearm. He was convicted in state court and sentenced to a year in prison. Gamble also was indicted in federal court and entered a conditional guilty plea after the district court rejected his argument that this was impermissible double jeopardy. His federal sentence is 46 months, or almost three years longer than the state court sentence. The issue before the court is simply “whether the court should overrule the ‘separate sovereigns’ exception to the double jeopardy clause.”

See also: Supreme Court considers whether prisoner with dementia and no memory of his crime should be executed

Another pending case about overruling precedent is Knick v. Township of Scott, Pennsylvania. In Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City (1986), the court held that a claim that private property has been taken by a state or local government is not ripe for review until there has been the exhaustion of state remedies. The court reasoned that it cannot be said that government has taken property without just compensation so long as it has mechanisms available that can provide such relief. This is different from virtually all other constitutional claims where no exhaustion is required before bringing a suit under 42 U.S.C. §1983.

Knick v. Township of Scott, Pennsylvania involves a township ordinance that allows the public to access any private land containing a burial ground of any size. The township decided that this law applies to 90 acres of farmland owned by Rose Mary Knick, where officials allege graves are located. The question presented is “Whether the court should reconsider the portion of Williamson County Regional Planning Commission v. Hamilton Bank (1985), requiring property owners to exhaust state court remedies to ripen federal takings claims.”

Yet another case about whether precedent should be overruled is Franchise Tax Board of California v. Hyatt, which is before the Supreme Court for the third time. (I should disclose that I am representing the respondent, Gil Hyatt, in this case). In Nevada v. Hall (1979), the Supreme Court held that a state may be sued in another state’s courts. Pursuant to this, Hyatt, a Nevada resident, sued the Franchise Tax Board of California in Nevada state court for torts that it committed against him in trying to prove that he had not actually moved to Nevada. The jury ruled in his favor and awarded him $389 million in damages. The Nevada Supreme Court largely affirmed, though it reduced the damage award.

In 2016, the case came before the Supreme Court and it split 4-4 on the question of whether Nevada v. Hall should be overruled. The court, though, said that California could not be held liable for more than Nevada would face in liability if sued in Nevada court. The case was remanded to the Nevada Supreme Court, which again upheld liability and further reduced the damages award. The Supreme Court granted review on the question of “Whether Nevada v. Hall, which permits a sovereign state to be haled into another state’s courts without its consent, should be overruled.”


There are two important cases about the administration of the death penalty. In Madison v. Alabama, the court will consider whether it is cruel and unusual punishment for a state to execute a person who has developed severe dementia and is unable to remember his offense. The court previously ruled that it violates the Eighth Amendment for a state to execute the mentally insane—Ford v. Wainwright (1986); Panetti v. Quarterman (2007)—or the mentally disabled— Atkins v. Virginia (2002). The question is how this applies to a prisoner who has developed dementia, something courts will increasingly face with an aging population on death row across the country.

In Bucklew v. Precythe, the court will consider whether it is cruel and unusual punishment to use a method of execution, lethal injection, that risks great pain and suffering because of a rare medical condition. In Baze v. Rees (2008) and Glossip v. Gross (2015), the court rejected facial challenges to laws that provided for execution by lethal injection. Bucklew v. Precythe is an as applied challenge based on Bucklew’s rare and severe medical condition.


Many have noted that the conservative justices on the court have indicated a desire for more judicial oversight of administrative agencies. In Gundy v. United States, the court will consider whether the Sex Offender Registration and Notification Act is an unconstitutional excessive delegation of legislative power to the attorney general. SORNA makes it a federal crime for a sex offender to travel across state lines if he or she has not registered as a sex offender as required by a state’s law. Congress left many matters to the attorney general, including deciding how this should apply to offenders who were convicted before SORNA was enacted.

The Supreme Court last declared a federal law unconstitutional as an excessive delegation of powers in 1935. If the court were to invalidate SORNA on this basis, it would open the door to challenges to countless federal laws with broad delegations of power to executive officials and agencies.


In Timbs v. Indiana, the court will consider whether the Eighth Amendment’s prohibition of excessive fines applies to state and local governments. Tyson Timbs was convicted of selling 4 grams of heroin. Although the maximum fine for this under Indiana law was $10,000, the state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The Indiana Supreme Court rejected the argument that this disproportionate penalty violated the excessive fines clause, concluding that the U.S. Supreme Court never had found the excessive fines clause to be incorporated into the due process clause and to apply to state and local governments. That issue is now squarely before the Supreme Court.


Often when there is a class action suit, it is not possible to disperse all of the funds resulting from a judgment or settlement. Courts then make a cy pres award—usually an award to a nonprofit institution—that furthers the purpose of the lawsuit. For example, a consumer class action suit might lead to cy pres awards to consumer protection organizations or to law school consumer clinics.

Frank v. Gaos arises from the settlement of a class action suit against Google for sharing information with businesses about the search terms people used in their Google browser. The funds from the settlement were to go entirely into cy pres awards to further the purposes of the lawsuit: informational privacy. The San Francisco-based 9th U.S. Circuit Court of Appeals upheld the settlement and the cy pres award.

The court will consider whether such “cy pres only” settlements are permissible under Federal Rule of Civil Procedure 23, which governs class action suits, and whether they violate the First Amendment. Of course, the court also could deal with the larger issue of cy pres awards in class action litigation. Eliminating or reducing cy pres awards could have a significant effect on many law schools, including mine, and on nonprofit organizations.

Even with only about half the docket set, it is clear there is going to be another blockbuster term in the Supreme Court.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).

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