June 30, 2023
Volume 30, Issue 16
This Report summarizes opinions
issued on June 27, 2023 (Part I).
Part I: Opinions
Moore v. Harper, 21-1271. By a 6-3 vote, the Court held that the Elections Clause “does not insulate state legislatures from the ordinary exercise of state judicial review.” In doing so, the Court rejected what has come to be known as the “independent state legislature theory.” This case arises out of a dispute about the interpretation of the Constitution’s Election’s Clause (Article I, §4, cl. 1.), which provides: “The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.”
Following population changes reflected by the 2020 Census, North Carolina’s legislature in 2021 enacted new districting maps for the U.S. Congress as well as the state legislature. Several groups of plaintiffs sued in North Carolina state court, asserting that each map constituted an impermissible partisan gerrymander in violation of the North Carolina Constitution. After a trial before a three-judge panel, the trial court found that, although the congressional district map was unlawful, the court could not afford relief because partisan gerrymandering claims are nonjusticiable political questions under the state constitution. The North Carolina Supreme Court reversed, holding that these claims were justiciable and striking down the maps as unconstitutional partisan gerrymanders. The court also rejected the argument that the Elections Clause in the Federal Constitution vests exclusive and independent authority in state legislatures to draw congressional maps (commonly known as the “independent state legislature theory”). The state legislature adopted a new congressional districting plan, but the trial court rejected that plan and adopted interim maps developed by several Special Masters. The legislative defendants filed an emergency application with the U.S. Supreme Court, which declined to issue an emergency stay, but granted certiorari. After the 2022 elections, there was a change in composition of the North Carolina Supreme Court, which reheard the case. The new majority reversed course, dismissing the plaintiffs’ claims and permitting the legislature to redraw the maps. But the court did not revisit the earlier ruling that the Elections Clause does not shield state legislatures from review by state courts. In an opinion by Chief Justice Roberts, the Court affirmed the earlier North Carolina Supreme Court decision rejecting the independent state legislature theory.
Before turning to the merits, the Court first held that this case was not moot despite the North Carolina Supreme Court’s overruling of the previous rulings. The Court explained that although the legislature may now draw new congressional maps, the North Carolina Supreme Court did not disrupt the earlier ruling in its entirety, including the ruling regarding the federal Elections Clause and enjoining use of the 2021 maps. Thus, the state legislative defendants have not received the complete relief they sought. The Court pointed to other reasons why this case is not moot. First, it pointed to a North Carolina “trigger statute,” which makes the original maps effective if “the United States Supreme Court . . . reverses” the North Carolina Supreme Court’s original decision. Second, the Court found that this case fits within the second “Cox” exception to the rule that the Court only has jurisdiction to review final state judgments.
Turning to the merits, the Court held that the Elections Clause does not shield state legislatures’ acts concerning federal elections from review by state courts, rejecting the so-called “independent state legislature theory.” The Court first summarized the long and well-established history of state courts reviewing state legislative acts. Next, the Court explained that the Elections Clause does not carve out an exemption from state-court judicial review for acts of state legislatures concerning elections to federal offices. Past precedent―in particular, Ohio ex rel. Davis v. Hildebrant, 241 U.S. 565 (1916), Smiley v. Holm, 285 U.S. 355 (1932), and Arizona State Legislature v. Arizona Independent Redistricting Comm’n, 576 U.S. 787 (2015)―rejected the contention that the Elections Clause vests state legislatures with exclusive and independent authority when setting the rules governing federal elections. In Smiley, for example, the Court upheld a governor’s veto of a map drawn by the legislature, ruling that “[n]owhere in the Federal Constitution could we find ‘provision of an attempt to endow the legislature of the State with power to enact laws in any manner other than that in which the constitution of the State has provided that laws shall be enacted.’” Those rulings, held the Court, comport with the understandings of the Constitution’s Framers, who understood that “when legislatures make laws, they are bound by the provisions of the very documents that give them life,” namely state constitutions which afford judicial review to state courts. Thus, the Court rejected the notion that state legislative action under the Elections Clause is purely federal in character, beyond the jurisdiction and review by state courts.
The Court concluded by noting that although state courts retain judicial review in this arena, “state courts do not have free rein.” The Court explained: “As in other areas where the exercise of federal authority or the vindication of federal rights implicates questions of state law, we have an obligation to ensure that state court interpretations of that law do not evade federal law.” This comports with Supreme Court rulings permitting itself to review state rulings concerning issues involving, for example, the Federal Constitution’s Takings Clause or Contracts Clause. The Court declined to adopt a specific test for federal court review of state court constitutional rulings, “hold[ing] only that state courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections.” The Court declined to address whether the North Carolina Supreme Court’s original ruling failed that standard as not properly presented at this juncture.
Justice Kavanaugh issued a three-page concurring opinion to clarify his view as to what standard a federal court should employ when reviewing a state court’s ruling on an issue implicating the Elections Clause. He stated that he would adopt former Chief Justice Rehnquist’s standard from Bush v. Gore, 531 U.S. 98 (2000): whether the state court “impermissibly distorted” state law. And, he explained, this standard would apply not only to state court interpretations of state statutes, but also to state court interpretations of state constitutions.
Justice Thomas wrote a dissenting opinion, which was joined in full by Justice Gorsuch and joined in part by Justice Alito. Justice Thomas began by explaining his view that this case is moot and thus should have been dismissed (which was the only portion of this dissenting opinion joined by Justice Alito). For Justice Thomas, this is a “straightforward case of mootness” because the “federal defense no longer makes any difference to this case—whether we agree with the defense, disagree with it, or say nothing at all, the final judgment in this litigation will be exactly the same.” In reversing course, he explained, the North Carolina Supreme Court held that the issue is non-justiciable under the North Carolina Constitution. Therefore, despite that court’s declining to revisit the original ruling on the Federal Constitution’s Elections Clause, “this case is over, and petitioners won,” and as a result, “petitioners’ alternative Elections Clause defense to those claims no longer requires decision; the merits of that defense simply have no bearing on the judgment between the parties in this action.”
Justice Thomas (joined only by Justice Gorsuch) then turned to the merits. For Justice Thomas, the majority missed the mark on the issue before it, as it “devotes little attention to the source and recipient of the power described in the Elections Clause.” He wrote that petitioners’ arguments were based on the following premises: “In prescribing the times, places, and manner of congressional elections, the lawmaking body or power of the state, as established by the state Constitution performs a federal function derived from the Federal Constitution, which thus transcends any limitations sought to be imposed by the people of a State. As shown, each premise is easily supported and consistent with this Court’s precedents.” (Citations and quotation marks omitted.) Justice Thomas interpreted the precedents upon which the majority relied as permitting state constitutions to establish “a procedurally complete exercise of the lawmaking power”; but “nothing in their holdings speaks at all to whether the people of a State can impose substantive limits on the times, places, and manners” of that lawmaking power. In the end, Justice Thomas maintained, whether state courts can exercise judicial review of Elections Clause legislation “sheds no light on the question presented.” That is because “Petitioners’ argument [] is that legislation about the times, places, and manner of congressional elections is not limited by state constitutions—because the power to regulate those subjects comes from the Federal Constitution, not the people of the State.”
Justice Thomas concluded with a criticism of the majority’s “general advice” to state and lower federal courts on how to exercise judicial review over cases implicating the Elections Clause. He expressed his fear that by using Bush v. Gore as a “loose touchstone,” the majority “opens a new field for Bush-style controversies over state election law—and a far more uncertain one.” He worried that a rash of post-election cases will “arise haphazardly, in the midst of quickly evolving, politically charged controversies, and the winners of federal elections may be decided by a federal court’s expedited judgment that a state court exceeded ‘the bounds of ordinary judicial review’ in construing the state constitution.”
Counterman v. Colorado, 22-138. By a 7-2 vote, the Court held that, to establish that a statement is a “true threat” unprotected by the First Amendment and subject to liability, the government must show that the speaker “had some subjective understanding of the threatening nature of his statements.” But the Court went on to hold that “a mental state of recklessness is sufficient.” C.W. was a singer and musician in Colorado. Although Billy Counterman never met C.W., he formed some sort of unrequited attachment to her. He sent C.W. “hundreds” of Facebook messages to which she never replied. She repeatedly blocked him, but he created new accounts and continued to message her. Some of his messages suggested that he was watching her. In others, he expressed anger and “envisaged harm befalling her.” Counterman’s messages greatly affected C.W.; she was afraid that he was following her and would hurt her. She suffered severe anxiety and canceled performances. The State of Colorado prosecuted Counterman for stalking, relying entirely on the contents of his messages. Before trial, he moved to dismiss the charge against him, claiming that his words did not constitute a “true threat” for the purposes of the First Amendment because he did not intend them to be threatening. Applying the objective standard required by Colorado precedent, the trial court denied his motion, finding that a reasonable person could view the messages as threatening. The jury convicted Counterman, and he renewed his argument on appeal. The Colorado Court of Appeals affirmed, holding that the state did not have to prove that he subjectively intended to threaten C.W. In an opinion by Justice Kagan, the Court vacated and remanded.
The Court explained that true threats, like defamation and obscenity, are not protected by the First Amendment. The Court defined true threats as “’serious expression[s]’ conveying that a speaker means to ‘commit an act of unlawful violence.’” Whether a statement is a true threat, said the Court, depends upon its effect on the recipient, not the subjective “’mental state of the author.’” “Yet,” held the Court, “the First Amendment may still demand a subjective mental-state requirement shielding some true threats from liability. The reason relates to what is often called a chilling effect.” The Court reasoned that “[b]y reducing an honest speaker’s fear that he may accidentally [or erroneously] incur liability, a mens rea requirement provide[s] breathing room for more valuable speech.” (Quotation marks omitted.) And it found that this “kind of ‘strategic protection’ features in our precedent concerning the most prominent categories of historically unprotected speech,” such as civil proceedings for defamation, as well as criminal prosecutions for obscenity and incitement.
Having concluded that the First Amendment requires some proof of a culpable mental state to sustain a true threat prosecution, the Court had to decide which mens rea standard was appropriate. From the three traditional subjective mens rea states―purpose, knowledge, and recklessness―the Court concluded that “recklessness offers the right path forward.” Requiring proof of the more demanding standards would make it more difficult for states to protect against damaging threats and “convict[] morally culpable defendants.” Recklessness would also match the standard used in defamation cases, and “we see no need to offer greater insulation to threats than to defamation.” The Court acknowledged that a recklessness standard was less demanding than that applicable to incitement prosecutions, but believed that difference was justified because “incitement to disorder is commonly a hair’s-breadth away from political ‘advocacy.’” Because Colorado convicted Counterman without proving that he was reckless with respect to the threatening nature of his messages, the Court vacated his conviction.
Justice Sotomayor, partially joined by Justice Gorsuch, concurred in part and in the judgment. Both justices agreed that true-threat prosecutions require some proof of a subjective mens rea and further agreed that recklessness was appropriate for those, like Counterman’s, based on “stalking that involved threatening statements.” Because stalking can be carried out through actions―in this case, repeatedly forcing intrusive communications on C.W.―as well as speech, the First Amendment offers less protection and recklessness is an appropriate standard. But these two justices would not have reached the question of what true-threat prosecutions require in general. They emphasized the risks of crafting too low a standard for true threats; the risk of “overcriminalizing upsetting or frightening speech” could chill “charged political speech” and turn ill-considered jokes or comments into criminal offenses. The two justices believed that the majority erred by defining true threats without reference to a subjective mental state. In their view, precedent and the historical record showed that courts had always considered the subjective intent of the speaker in threat prosecutions.
Writing for herself, Justice Sotomayor believed that the government must prove that a speaker intended the statement to be threatening. The majority’s attempt to distinguish between true threats and incitement failed because “the Court’s own cases show time and time again how true-threats prosecutions sweep in political speech.” She maintained that the government must show that a defendant knew “the character and nature of the materials” in obscenity prosecutions, and concluded that “the considerations that drove this Court to approve a higher mens rea for obscenity apply here as well for both situations will often turn on ambiguous social standards. Although a recklessness standard applies to defamation cases, a civil plaintiff must prove a “high degree of awareness” that the statement was false. Taken together, these standards showed that ordinary recklessness was too low of a standard to apply to true threats.
Justice Thomas dissented. Although he joined Justice Barrett’s dissent in full, he wrote separately to criticize the majority for relying on the recklessness standard for defamation cases set out in New York Times Co. v. Sullivan, 376 U.S. 254 (1964). In his view, Sullivan was a “flawed, policy-driven” decision and he invited the Court to “reconsider” it.
Justice Barrett, joined by Justice Thomas, also dissented. Justice Barrett agreed with the majority that the nature of a threat―both in its “social value” and its “potential for ‘injury’”―can be judged purely objectively. To Justice Barrett, it was unnecessary to engraft a subjective “buffer zone” because the Court has “held that nearly every category of unprotected speech may be regulated using an objective test.” The Court has upheld legislation that used objective tests to regulate fighting words and misleading commercial speech. Justice Barrett believed that the majority and concurring justices overread obscenity cases; in her view, the Court has only rejected state obscenity laws that imposed strict liability. Defamation was an inapposite comparison because threats do not typically touch on matters of public concern, and public figures cannot use their own speech to lessen the impact of threats. Although Justice Barrett acknowledged that incitement does require proof of specific intent, she agreed with the majority that this standard was justified to protect political advocacy.
Justice Barrett believed that true threats, properly defined, are a narrow category. It was therefore unnecessary to create a broad buffer zone to protect legitimate speech. Many states had laws like Colorado, yet “Counterman still struggles to identify past prosecutions that come close to infringing on protected speech.” The historical record was largely silent; although it showed that some jurisdictions chose to impose a subjective standard, it did not prove that the First Amendment required one. To Justice Barrett, the recklessness standard has even less historical justification. Because the majority arrived at that standard by weighing competing interests, Justice Barrett believed that legislatures should be free to do the same and arrive at different results. Although the majority crafted its rule because of the harshness of imposing criminal sanctions on speech, its holding would reach civil matters as well, like domestic-violence restraining orders, civil enforcement actions, and school discipline.
Mallory v. Norfolk Southern Railway Co., 21-1168. By a 5-4 vote, the Court held that a Pennsylvania law requiring a corporation to consent to personal jurisdiction to do business in the state does not violate the Due Process Clause. Robert Mallory worked for Norfolk Southern Railway as a freight car mechanic for 20 years in Ohio and Virginia. During that time, he contends, he was responsible for spraying boxcar pipes with asbestos, handling chemicals, and demolishing car interiors that contained carcinogens. After he left the company, he moved to Pennsylvania and then Virginia, and was diagnosed with cancer. Mallory sued Norfolk Southern in Pennsylvania state court under a federal law that creates a workers’ compensation scheme permitting railroad employees to recover damages for their employers’ negligence. Norfolk Southern resisted the suit on the grounds that any effort by a Pennsylvania court to exercise personal jurisdiction over it would offend the Due Process Clause of the Fourteenth Amendment because Mallory resided in Virginia, the company was based in Virginia, and the alleged injuries took place in Ohio and Virginia. Mallory, on the other hand, argued that a Pennsylvania law required companies that register to do business there—as Norfolk Southern did—to consent to personal jurisdiction in Pennsylvania courts. The suit worked its way up to the Pennsylvania Supreme Court, which sided with Norfolk Southern, holding that the law violated the Due Process Clause. In an opinion by Justice Gorsuch, the Court reversed and remanded (though only a portion of his opinion was joined by a majority of the Court—Justices Gorsuch, Thomas, Sotomayor, Jackson, and Alito).
The Court held that this case is controlled by Pennsylvania Fire Ins. Co. of Philadelphia v. Gold Issue Mining & Milling Co., 243 U.S. 93 (1917), which unanimously upheld a similar Missouri law as comporting with due process. The Court explained that Norfolk Southern concedes that it registered to do business in Pennsylvania, that it established an office there to receive service of process, and that in doing so it understood it would be amenable to suit on any claim: “It is enough to acknowledge that the state law and facts before us fall squarely within Pennsylvania Fire’s rule.”
Writing for himself and three Justices (Thomas, Sotomayor, and Jackson), Justice Gorsuch noted that at the founding, “an in personam suit against an individual ‘for injuries that might have happened any where’ was generally considered a ‘transitory’ action that followed the individual. All of which meant that a suit could be maintained by anyone on any claim in any place the defendant could be found.” That rule, he observed, “still applies to natural persons today. Some call it ‘tag’ jurisdiction.” See Burnham v. Superior Court of Cal., County of Marin, 495 U.S. 604 (1990) (holding that an individual could be subject to suit in California even though he had few contacts with the state because he was served with process during a short visit to the state). Justice Gorsuch said that “the question arose how to adapt the traditional rule about transitory actions for individuals to artificial persons created by law”―and that Pennsylvania Fire answered that question, correctly, based on “the principle that due process allows a corporation to be sued on any claim in a State where it has appointed an agent to receive whatever suits may come.”
Justice Gorsuch rejected the Pennsylvania Supreme Court’s inference (and Norfolk Southern’s argument) that Pennsylvania Fire had been overruled by International Shoe Co. v. Washington, 326 U.S. 310 (1945). International Shoe recognized “specific” and “general” personal jurisdiction over corporate defendants. But, found Justice Gorsuch, “all International Shoe did was stake out an additional road to jurisdiction over out-of-state corporations. Pennsylvania Fire held that an out-of-state corporation that has consented to in-state suits in order to do business in the forum is susceptible to suit there. International Shoe held that an out-of-state corporation that has not consented to in-state suits may also be susceptible to claims in the forum State based on ‘the quality and nature of [its] activity’ in the forum.” And so, while Shaffer v. Heitner, 433 U.S. 186, 212 n.39 (1977). said that “prior decisions . . . inconsistent with” International Shoe are overruled, there is no inconsistency. Finally, Justice Gorsuch noted that “when Mr. Mallory sued, Norfolk Southern employed nearly 5,000 people in Pennsylvania. It maintained more than 2,400 miles of track across the Commonwealth. Its 70-acre locomotive shop there was the largest in North America.” “Given all this,” he asked, “on what plausible account could International Shoe’s concerns with ‘fair play and substantial justice’ require a Pennsylvania court to turn aside Mr. Mallory’s suit?”
Justice Jackson wrote a short concurrence to explain her view that in addition to Pennsylvania Fire, the Court’s decision in Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694 (1982), is “particularly instructive.” In that case, she explained, the Court confirmed that the due process “requirement of personal jurisdiction” is an individual, waivable right. Thus, when Norfolk Southern freely agreed to register in Pennsylvania as a foreign corporation, it did so to receive the benefits of conducting business there in exchange for submitting to the jurisdiction of Pennsylvania courts. This, she concluded, poses no due process concerns.
Justice Alito wrote a concurring opinion in which he agreed that Pennsylvania Fire controls this case, but “stress[ed] that it does so due to the clear overlap with the facts of this case” not necessarily because he agreed that the Constitution “permits a State to impose such a submission-to-jurisdiction requirement.” He explained that Norfolk Southern’s Due Process Clause challenge is suspect because the Court had never held that “a State’s assertion of jurisdiction unconstitutionally intruded on the prerogatives of another State when the defendant had consented to jurisdiction in the forum State.” That is because the Due Process Clause applies to individual persons, who may freely waive their due process rights. Instead, Justice Alito stated, this case presents a federalism concern more squarely within the scope of the dormant Commerce Clause. In Justice Alito’s view, there is a “good prospect” that a state’s assertion of jurisdiction over lawsuits “with no real connection to the State”—such as potential applications of Pennsylvania’s law at issue here—may violate the dormant Commerce Clause. Because the Pennsylvania Supreme Court did not address a dormant Commerce Clause claim, Justice Alito would still remand, but permit Norfolk Southern to raise that claim anew.
Justice Barrett wrote a dissenting opinion, which was joined by the Chief Justice and Justices Kagan and Kavanaugh. Justice Barrett maintained that the Court’s holding circumvents longstanding precedent that the Due Process Clause does not allow state courts general jurisdiction over foreign defendants merely because they do business in the State: “By relabeling their long-arm statutes, States may now manufacture ‘consent’ to personal jurisdiction.” Even though the Pennsylvania law announces that registering to do business “shall constitute a sufficient basis” for general jurisdiction, Justice Barrett explained, the Court’s precedent is “crystal clear” that simply doing business in a state is insufficient for general jurisdiction. Rather, absent exceptional circumstances, a corporation is subject to general jurisdiction only in the state in which it is incorporated or has its principal place of business. And, she added, it is unreasonable from a due process standpoint to extract consent from a corporation in cases where it has “no connection whatsoever.” Justice Barrett also disputed the Court’s reliance on Pennsylvania Fire because that case was decided prior to the Court’s ruling in International Shoe, which recognized that general jurisdiction for a corporation is limited to the state of incorporation or principal place of business.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel, (202) 326-6010
- Todd Grabarsky, Supreme Court Fellow
- Van Snow, Supreme Court Fellow
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