Will Ghosts of Past Decisions Come Back to Haunt This Term?


Do Supreme Court Justices abide by the Court’s past precedents in cases where such precedents are not overruled? Political Scientists have long debated this question with differing accounts based on ideological theory, strategic theory, and post-behavioralism.  Without getting lost in the weeds of this debate this post takes a look at the Justices’ votes in previous cases similar to the ones they have yet to rule on this Term.  While strategy would suggest the liberal Justices have the potential to move policy to the left of its current position those who believe in an adherence to the rule of law may argue against such behavior. Surely the Justices are not bound by the Court’s prior decisions but their votes may give insights into their perspectives on the issues in the pending cases (and into which cases may end with an evenly divided Court).

First a few notes: some of the Court’s recent prior cases are much similar to the pending cases than others and the more attenuated the past cases are to the current cases the harder it is to gauge the role a Justice’s prior decision will or should play in a pending case.  The comparative cases are also subjective choices and there is sufficient room to debate whether there are other cases that are more on point when relating to issues in the pending cases. If a Justice is no longer on the Court I put their name in parentheses within the area listing the Justices’ votes below.

To begin I have examples from four already decided cases from this Term (three decided today 5/23/2006):

  • Case: Zubik v. Burwell
    • Question: Whether the HHS Mandate and its “accommodation” violate the Religious Freedom Restoration Act (”RFRA”) by forcing religious nonprofits to act in violation of their sincerely held religious beliefs, when the Government has not proven that this compulsion is the least restrictive means of advancing any compelling interest.
  • Comparative Case: Burwell v. Hobby Lobby Stores(2014)
    • Question: “whether the Religious Freedom Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C. § 2000bb et seq., permits the United States Department of Health and Human Services (HHS) to demand that three closely held corporations provide health-insurance coverage for methods of contraception that violate the sincerely held religious beliefs of the companies’ owners.”
      • Votes for RFRA protection: Alito, Roberts, Kennedy, Thomas, (Scalia)
      • Against: Ginsburg, Sotomayor, Breyer, Kagan
    • Outcome in Zubik: Per-Curiam: Vacated and remanded


Zubik present an apt example of a salient cases where the Justices likely held their previous positions.  Although we don’t have the Justices actual votes in the case, the outcome suggests a four-four split with the absence of Justice Scalia.

In terms of today’s rulings:

  • Case: Foster v. Chatman
    • Question: Did the Georgia courts err in failing to recognize race discrimination under Batson in the extraordinary circumstances of this death penalty case?
  • Comparative Case: Felkner v. Jackson (2011)
    • Holding: “The Batson issue before us turns largely on an “evaluation of credibility.” The trial court’s determination is entitled to “great deference,” and ‘must be sustained unless it is clearly erroneous,’”
      • Vote: Per Curiam (no dissents)
    • Foster outcome
      • Court Error: Roberts, Kennedy, Ginsburg, Breyer, Sotomayor, Kagan, Alito
      • Against: Thomas


  • Case: Green v. Brennan
    • Question: Under federal employment discrimination law, does the filing period for a constructive discharge claim begin to run when an employee resigns, as five circuits have held, or at the time of an employer’s last allegedly discriminatory act giving rise to the resignation, as three other circuits have held?
  • Comparative Case: Ledbetter v. Goodyear Tire (2007)
    • Holding: Because the later effects of past discrimination do not restart the clock for filing an EEOC charge, Ledbetter’s claim is untimely
    • Vote Filing Untimely: Alito, Roberts, Kennedy, Thomas, (Scalia)
    • Against: Ginsburg, Breyer, (Stevens), (Souter)
  • Green outcome: Period begins after employee resigns: Sotomayor, Roberts, Kennedy, Ginsburg, Kagan, Breyer, Alito
    • Against: Thomas


  • Case: Wittman v. Personhuballah
    • Question: Whether the court below erred in failing to make the required finding that race rather than politics predominated in District 3, where there is no dispute that politics explains the Enacted Plan.
  • Comparative Case: Alabama Legislative Black Caucus Alabama (2015)
    • Holding: The District Court’s analysis of the racial gerrymandering claim as referring to the State “as a whole,” rather than district-by-district, was legally erroneous.
    • Vote Majority: Breyer, Kennedy, Ginsburg, Sotomayor, Kagan
    • Against: Roberts, Alito, Thomas, (Scalia)
  • Wittman Holding: Unanimous against redistricting plan


Now for the cases yet to be decided this Term:

  • Case: Dollar General Corporation v. Mississippi Band of Choctaw Indians,
    • Question: Whether Indian tribal courts have jurisdiction to adjudicate civil tort claims against nonmembers, including as a means of regulating the conduct of nonmembers who enter into consensual relationships with a tribe or its members?
  • Comparative Case: Plains Commerce Bank v. Long Family Land and Cattle (2008)
    • Holding: Tribe had authority to regulate the business conduct of persons voluntarily dealing with tribal members, including a nonmember’ssale of fee land.
    • Vote allow tribe to regulate: Roberts, Thomas, Alito, Kennedy, (Scalia)
    • Against: (Stevens), Ginsburg, (Souter), Breyer


  • Case: Fisher v. University of Texas at Austin (the previous Fisher remand did not give us very much to build on)
    • Question: Whether the Fifth Circuit’s re-endorsement of the University of Texas at Austin’s use of racial preferences in undergraduate admissions decisions can be sustained under this Court’s decisions interpreting the Equal Protection Clause of the Fourteenth Amendment, including Fisher v. University of Texas at Austin, 133 S. Ct. 2411 (2013).
  • Comparative Case: Schutte Coalition to Defend Affirmative Action (2013) [the previous Fisher ruling did not give much to build on]
    • Holding: There is no authority in the Constitution of the United States or in this Court’s precedents for the Judiciary to set aside Michigan laws that commit this policy determination to the voters.
    • Uphold policy: Kennedy, Alito, Roberts, (Scalia), Thomas, Breyer
    • Against: Ginsburg, Sotomayor


  • Case: Puerto Rico v. Sanchez Valle
    • Question: Whether the Commonwealth of Puerto Rico and the Federal Government are separate sovereigns for purposes of the Double Jeopardy Clause of the United States Constitution.
  • Comparative Case 1: Boumediene v. Bush (2008)
    • Holding: Petitioners have the constitutional privilege of habeas corpus. They are not barred from seeking the writ or invoking the Suspension Clause’s protections because they have been designated as enemy combatants or because of their presence at Guantanamo.
    • Laws of US apply: Kennedy, Ginsburg, Breyer, (Stevens), (Souter)
    • Against: Roberts, Alito, Thomas, (Scalia)
  • Comparative Case 2: Evans v. Michigan (2013)
    • Holding: Retrial following a court-decreed acquittal is barred, even if the acquittal is “based upon an egregiously erroneous foundation”
    • Double Jeopardy bar: Sotomayor, Kennedy, Ginsburg, Breyer, Kagan, Thomas, (Scalia)
    • Against: Alito


  • Case: Kingdomware Technologies v. U.S.
    • Question: Whether the Federal Circuit erred in construing 38 U.S.C. § 8127(d)’s mandatory set aside restricting competition for Department of Veterans Affairs’ contracts to veteran-owned small businesses as discretionary.
    • Comparative Case: Leegin Creative v. PSKS (2007)
      • Holding: Notwithstanding the risks of unlawful conduct, it cannot be stated with any degree of confidence that retail price maintenance “always or almost always tend[s] to restrict competition and decrease output,”
      • Not a restriction: Kennedy, Roberts, Alito, Thomas, (Scalia)
      • Against: Ginsburg, Breyer, (Stevens), (Souter)


  • Case: Utah v. Strieff
    • Question: Whether evidence seized incident to a lawful arrest on an outstanding warrant should be suppressed because the warrant was discovered during an investigatory stop later found to be unlawful.
  • Comparative Case: Virginia v. Moore (2008)
    • Holding: The police did not violate the Fourth Amendment when they made an arrest that was based on probable cause but prohibited by state law, or when they performed a search incident to the arrest.
    • Vote: Unanimous


  • Case: Stryker Corp. v. Zimmer
    • Whether the Federal Circuit improperly abrogated the plain meaning of 35 U.S.C. § 284 by forbidding any award of enhanced damages unless there is a finding of willfulness under a rigid, two-part test, when this Court recently rejected an analogous framework imposed on 35 U.S.C. § 285, the statute providing for attorneys’ fee awards in exceptional cases.
  • Comparative Case: Octane Fitness v. Icon Health (2013)
    • Holding: Brooks Furniture [ruling] is too restrictive in defining the two categories of cases in which fee awards are allowed.
    • Vote: Unanimous


  • Case: Taylor v. U.S.
    • Question: Whether, in a federal criminal prosecution under the Hobbs Act, 18 U.S.C. § 1951, the government is relieved of proving beyond a reasonable doubt the interstate commerce element by relying exclusively on evidence that the robbery or attempted robbery of a drug dealer is an inherent economic enterprise that satisfies, as a matter of law, the interstate commerce element of the offense.
  • Comparative Case: Smith v. United States (2013)
    • Holding: To convict a defendant of narcotics or Racketeer Influenced and Corrupt Organizations Act conspiracy, the government must prove beyond a reasonable doubt that two or more people agreed to commit a crime covered by the specific conspiracy statute
    • Vote: Unanimous


  • Case: Williams v. Pennsylvania
    • Question: Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor
  • Comparative Case: Caperton v. A.T. Massey Coal (2009)
    • Holding: The Due Process Clause incorporated the common-law rule requiring recusal when a judge has “a direct, personal, substantial, pecuniary interest” in a case,
    • Should recuse: Kennedy, (Stevens), (Souter), Ginsburg, Breyer
    • Against: Roberts, Alito, Thomas, (Scalia)


  • Case: Voisine v. U.S.
    • Question: Whether a misdemeanor crime with the mens reaof recklessness qualifies as a “misdemeanor crime of domestic violence” as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9);
  • Comparative Case: United States v. Castleman (2014)
    • Holding: previous conviction for “intentionally or knowingly caus[ing] bodily injury to” the mother of his child, qualifies as a “misdemeanor crime of domestic violence”
    • Vote: Unanimous


  • Case: Whole Woman’s Health v. Hellerstedt,
    • Question: Whether, when applying the “undue burden” standard of Planned Parenthood v. Casey, a court errs by refusing to consider whether and to what extent laws that restrict abortion for the stated purpose of promoting health actually serve the government’s interest in promoting health
  • Comparative Case: Gonzales v. Carhart (2007)
    • Holding: Respondents have not demonstrated that the Act, as a facial matter, is void for vagueness, or that it imposes an undue burden on a woman’s right to abortion based on its overbreadth or lack of a health exception
    • Majority: Roberts, Kennedy, Thomas, (Scalia), Alito
    • Against: Against: Ginsburg, Breyer, (Stevens), (Souter)


  • Case: RJR Nabisco v. The European Community
    • Question: Whether, or to what extent, the Racketeer Influenced and Corrupt Organizations Act (“RICO”) applies extraterritorially.
  • Comparative Case: Kiobel v. ROYAL DUTCH PETROLEUM CO.
    • Holding: The presumption against extraterritoriality applies to claims under the ATS, and nothing in the statute rebuts that presumption
    • Vote: Unanimous


  • Case: Simmons v. Himmelreich
    • Question: Whether a final judgment in an action brought under Section 1346(b) dismissing the claim on the ground that relief is precluded by one of the Federal Tort Claims Act’s exceptions to liability, 28 U.S.C. § 2680, bars a subsequent action
  • Comparative Case: B&B Hardware v. Hargis Industries (2015)
    • Holding: So long as the other ordinary elements of issue preclusion are met, when the usages adjudicated by the TTAB are materially the same as those before a district court, issue preclusion should apply
    • Preclusion should apply: Alito, Ginsburg, Roberts, Kennedy, Breyer, Sotomayor, Kagan
    • Against: Against: Thomas, (Scalia)


  • Case: Acosta-Febo v. Franklin California Tax-Free Trust
    • Question: Whether Chapter 9 of the federal Bankruptcy Code, which does not apply to Puerto Rico, nonetheless preempts a Puerto Rico statute creating a mechanism for the commonwealth’s public utilities to restructure their debts.
  • Comparative Case: Arizona v. United States (2012)
    • Holding: An Arizona statute known as S. B. 1070 was enacted in 2010 to address pressing issues related to the large number of unlawful aliens in the State. Held that law enjoined as preempted.
    • Preempts: Kennedy, Roberts, Ginsburg, Breyer, Sotomayor
    • Against: (Scalia), Thomas, Alito


  • Case: Ross v. Blake
    • Question: Whether the Fourth Circuit misapplied this Court’s precedents in holding, in conflict with several other federal courts of appeals, that there is a common law “special circumstances” exception to the Prison Litigation Reform Act that relieves an inmate of his mandatory obligation to exhaust administrative remedies when the inmate erroneously believes that he satisfied exhaustion by participating in an internal investigation.
  • Comparative Case: Heimeshoff v. Hartford Life (2013)
    • Holding: The Plan’s limitations provision is enforceable.
    • Vote: Unanimous


  • Case: U.S. Army Corps of Engineers v. Hawkes Co.
    • Question: Whether the United States Army Corps of Engineers’ determination that the property at issue contains “waters of the United States” protected by the Clean Water Act, constitutes “final agency action for which there is no other adequate remedy in a court,” and is therefore subject to judicial review under the Administrative Procedure Act.
  • Comparative Case: Sackett v. EPA (2012)
    • Holding: The Sacketts may bring a civil action under the APA to challenge the issuance of the EPA’s order.
    • Vote: Unanimous


  • Case: U.S. v. Texas
    • Question: Whether a state that voluntarily provides a subsidy to all aliens with deferred action has Article III standing and a justiciable cause of action under the Administrative Procedure Act (APA) to challenge the Secretary of Homeland Security’s guidance seeking to establish a process for considering deferred action for certain aliens because it will lead to more aliens having deferred action
  • Comparative Case: NLRB v. Canning (2014) [Executive power]
    • Holding: Because the Senate was in session during its pro forma sessions, the President made the recess appointments at issue during a 3-day recess. Three days is too short a time to bring a recess within the scope of the Clause, so the President lacked the authority to make those appointments.
    • Vote: Unanimous


  • Case: U.S. v. Bryant
    • Question: Whether reliance on valid uncounseled tribal-court misdemeanor convictions, in order to prove 18 U.S.C. § 117(a)’s predicate-offense element, violates the Constitution.
  • Comparative Case: Plains Commerce Bank v. Long Family Land and Cattle (2008)
    • Holding: The Tribal Court did not have jurisdiction to adjudicate a discrimination claim concerning the non-Indian Bank’s sale of its fee land.
    • Tribal court action insufficient: Roberts, Scalia, Kennedy, Thomas, Alito
    • Against: Ginsburg, Breyer, (Stevens), (Souter)


  • Case: Universal Health Services v. U.S. ex rel. Escobar
    • Question: Whether the “implied certification” theory of legal falsity under the FCA – applied by the First Circuit below but recently rejected by the Seventh Circuit – is viable;
  • Comparative Case: Gross v. FBL Financial Services (2009)
    • Holding: Because the FCA does not define “report,” the Court looks first to the word’s ordinary meaning. Dictionaries define “report” as, for example, something that gives information. This ordinary meaning is consistent with the public disclosure bar’s generally broad scope
    • Follow theory of FCA: Thomas, Roberts, Kennedy, Alito, (Scalia)
    • Against: Ginsburg, Sotomayor, Breyer


  • Case: Encino Motorcars, LLC v. Navarro
    • Question: Whether “service advisors” at car dealerships are exempt under 29 U.S.C. §213(b)(10)(A) from the Fair Labor Standards Act’s overtime-pay requirements.
  • Comparative Case: Christopher v. SmithKline Beecham (2012)
    • Holding: Petitioners (pharmaceutical sales representatives) qualify as outside salesmen under the most reasonable interpretation of the DOL’s regulations
    • Qualifies: Alito, Roberts, Kennedy, Thomas, (Scalia)
    • Against: Breyer, Ginsburg, Sotomayor, Kagan


  • Case: Birchfield v. North Dakota
    • Question: Whether, in the absence of a warrant, a state may make it a crime for a person to refuse to take a chemical test to detect the presence of alcohol in the person’s blood.
  • Comparative Case: Missouri v. McNeely (2013)
    • Holding: “concluding that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant”
    • Not exigent: Sotomayor, Kennedy, Ginsburg, Kagan, (Scalia), Ginsburg
    • Against: Roberts, Breyer, Alito, Thomas


  • Case: Kirtsaeng v. John Wiley & Sons
    • Question: What constitutes the appropriate standard for awarding attorneys’ fees to a prevailing party under section 505 of the Copyright Act.
  • Comparative Case: Highmark v. Allcare Health (2013)
    • Holding: “Petitioner Highmark Inc. moved for fees under the Patent Act’s fee-shifting provision, which authorizes a district court to award attorney’s fees to the prevailing party in “exceptional cases.” 35 U.S.C. §285. The District Court found the case “exceptional” and granted Highmark’s motion. The Federal Circuit, reviewing the District Court’s determination de novo, reversed in part.”
    • Vote Federal Circuit standard too narrow: Unanimous


  • Case: Cuozzo Speed Technologies, LLC v. Lee 
    • Question: Whether the court of appeals erred in holding that, in inter partes review (IPR) proceedings, the Patent Trial and Appeal Board may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning
  • Comparative Case: Teva Pharmaceuticals v. Sandoz (2015)
    • Holding: When reviewing a district court’s resolution of subsidiary factual matters made in the course of its construction of a patent claim, the Federal Circuit must apply a “clear error,” not a de novo,standard of review
    • Deference standard: Breyer, Roberts, (Scalia), Kennedy, Ginsburg, Sotomayor, Kagan
    • Against: Alito, Thomas


  • Case: Mathis v. U.S.
    • Question:  Whether a predicate prior conviction under the Armed Career Criminal Act must qualify as such under the elements of the offense simpliciter, without extending the modified categorical approach to separate statutory definitional provisions that merely establish the means by which referenced elements may be satisfied rather than stating alternative elements or versions of the offense.
  • Comparative Case: Johnson v. United States (2010)
    • Holding: “Imposing an increased sentence under ACCA’s residual clause violates due process.”
    • No enhancement: (Scalia), Roberts, Ginsburg, Breyer, Sotomayor, Kagan, Kennedy
    • Against: Alito, Thomas


  • Case: Dietz v. Bouldin
    • Question: Whether, after a judge has discharged a jury from service in a case and the jurors have left the judge’s presence, the judge may recall the jurors for further service in the same case.
  • Comparative Case: Blueford v. Arkansas (2012)
    • Holding: “After deliberating for a few hours, the jury reported that it could not reach a verdict. The court inquired about the jury’s progress on each offense. The foreperson disclosed that the jury was unanimous against guilt on the charges of capital murder and first-degree murder, was deadlocked on manslaughter, and had not voted on negligent homicide. The court told the jury to continue to deliberate. The jury did so but still could not reach a verdict, and the court declared a mistrial. When the State subsequently sought to retry Blueford, he moved to dismiss the capital and first-degree murder charges on double jeopardy grounds…. The Double Jeopardy Clause does not bar retrying Blueford on charges of capital murder and first-degree murder.”
    • No bar: Roberts, Scalia, Kennedy, Thomas, Breyer, Alito
    • Against: Sotomayor, Ginsburg, Kagan


  • Case: McDonnell v. U.S.
    • Question: Whether “official action” under the controlling fraud statutes is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power, and whether the jury must be so instructed; or, if not so limited, whether the Hobbs Act and honest-services fraud statute are unconstitutional.
  • Comparative Case: United States v. Sun Diamond Growers (1999)
    • Holding: In order to establish a § 201(c)(1)(A) violation, the Government must prove a link between a thing of value conferred upon a federal official and a specific “official act” for or because of which it was given.
    • Vote Unanimous; Justices still on the Court – Kennedy, Thomas, Ginsburg, Breyer

On Twitter: @AdamSFeldman

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