The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
The Supreme Court issued three opinions this morning, though not in any of the term's most watched cases concerning religious liberty, administrative agencies, and the Affordable Care Act.
First, in Jones v. Mississippi, the Court split largely on traditional ideological lines to hold that, under existing Eighth Amendment jurisprudence, the judicial factfinder need not make a separate factual finding that a juvenile defendant is permanently incorrigible before imposing a sentence of life without parole. Justice Kavanaugh wrote the majority, joined by the Chief Justice and Justices Alito, Gorsuch and Barrett. Justice Thomas wrote separately, concurring the result, repeating his objections to some of the Eighth Amendment precedents upon which the majority relied. Justice Sotomayor wrote in dissent, joined by Justices Kagan and Breyer.
In a potentially significant administrative law decision on when litigants must exhaust administrative remedies, the Court held, in Carr v. Saul, that the lower court improperly imposed an issue-exhaustion requirement on Social Security benefit claimants who had sought to press Appointments Clause challenges against Social Security Administration Administrative Law Judges in the wake of Lucia v. SEC. Justice Sotomayor wrote the opinion for the Court, joined by the Chief Justice and Justices Alito, Kagan and Kavanaugh. Justice Thomas concurred in part and concurred in the judgment, joined by Justices Gorsuch and Barrett. Justice Breyer also concurred in part and concurred in the judgment.
Finally, in AMG Capital Management v. Federal Trade Commission, the Court unanimously concluded that Section 13(b) of the Federal Trade Commission Act does not authorize the FTC to seek, or a court to award, equitable monetary relief such as restitution or disgorgement for "unfair or deceptive" practices. Justice Breyer wrote for the unanimous court.
Earlier this year, I predicted that we would see an opinion in California v. Texas by the end of April. Time is running out for this prediction to prove correct. I am fairly confident in the ultimate outcome of that case, though I expect the Court may be splintered on standing and remedy (and there may be some need to harmonize how this case handles severability, in particular, with the Court's pending decision in Collins v. Yellen, the case formerly known as Collins v. Mnuchin).