/>iAs we noted a few days ago, the Court issued three new decisions early this week, including in a much-anticipated Second Amendment case (the first such case to reach the Court in a decade). We’re now back to summarize those decisions. There’s a lot to unpack, so we’ll jump right into it.
The marquee decision of the week was in some sense a non-decision, but it still packed a punch: In New York State Rifle & Pistol Ass’n v. City of New York (No. 18-280), the Court dismissed a challenge to a New York City rule regarding the transport of firearms after the City changed the rule. The Court’s decision came in a brief per curiam opinion, prompting a lengthy dissent by Justice Alito and a notable concurrence by Justice Kavanaugh, presaging a likely future decision on the merits.
The conflict at the root of this case dates back to 2008, when the Court first decided, in District of Columbia v. Heller (2008), that the Second Amendment protects the right of individual Americans to keep and bear arms. Two years later, in McDonald v. Chicago (2010), the Court decided that this right was fundamental and therefore applicable to the States through the Fourteenth Amendment. But since that time, the Court has refused to take up any of the many cases seeking to define the contours of the Second Amendment right—much to the annoyance of certain Justices, who’ve claimed that the Court has designated right to bear arms as a “second class right.”
That changed last year, when the Court granted certiorari in New York State Rifle & Pistol, agreeing to decide whether a New York City ordinance that prohibits New Yorkers with licenses to keep a handgun in the home (a “premises license”) from taking that handgun to any firing range outside the City. The challengers argued that the regulation impermissibly burdened their Second Amendment rights, but the District Court and Second Circuit disagreed. Even though the City had prevailed at both levels below, once the Supreme Court granted cert, it (and the State of New York) scrambled to moot the case, evidently concerned that the Court would reverse and, in doing so, potentially undermine other gun-control efforts by State and local governments. The City amended its ordinance to permit gun owners to transport firearms to a second home or shooting range outside the City. And for good measure, the State enacted a law prohibiting the City from reverting to the old rule. The City then moved to dismiss the case as moot, arguing that it had no reason to file a brief given that the law had changed and the challengers had gotten the relief they sought. Several amicus briefs were filed in support of this motion, including one, written by Rhode Island Senator Sheldon Whitehouse and joined by four other Democratic Senators , which starkly argued that a failure to dismiss the case would demonstrate that the Court is “motivated mainly by politics, rather than adherence to the law” and may prompt the public to demand that it be “restructured in order to reduce the influence of politics.” Nevertheless, the Court denied the City’s motion to dismiss, but instructed the parties to be prepared to address the question of mootness at oral argument.
In the end, a majority of the Court agreed with the City that the case is moot. In a per curiam decision apparently joined by six Justices, the Court concluded that the change in the law made Petitioners’ claims for declaratory and injunctive relief moot. Although Petitioners argued that the new rule continues to violate their rights—for example, because it would preclude them from stopping for gas or coffee on the way to their permitted destination—and that they may still be entitled to damages, the majority didn’t bite. The Court’s traditional practice in cases where a legislative change moots a case is to dismiss it and remand to the lower courts to consider, in the first instance, whether the amended legislation continues to be illegal.
Justice Alito, joined by Gorsuch and (for the most part) Thomas penned a dissent that was about fifteen times longer than the per curiam opinion. He recounted the procedural history of the case and scolded the majority for “permit[ting] our docket to be manipulated in a way that should not be countenanced.” On the mootness question, Alito argued that the mere fact that the legislative changes gave petitioners most of what they want does not satisfy the test for mootness. Instead, “a case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the remaining party.” (Emphasis in original.) Here, the legislative changes did not, in fact, grant Petitioners all the injunctive relief they sought. Moreover, if Petitioners prevailed on the merits, then on remand they would be entitled to damages. As for whether Petitioners would be likely to prevail, Justice Alito pulled no punches. In his view, this case concerned “the same core Second Amendment right” as in Heller: “the right to keep a handgun in the home for self-defense.” A necessary concomitant of that right, he maintained, is the right to take one’s handgun outside the home for certain purposes, including to practice at a firing range. And once that concomitant right is recognized, it is incumbent on the City to justify the restrictions that it has placed on it. In Alito’s view, the City failed to do that because it had not pointed to any evidence of laws in force around the time of the adoption of the Second Amendment that prevented gun owners from practicing outside city limits. Interestingly, Justice Thomas apparently did not agree with Justice Alito’s historical argument (and did not write to explain why), but he did join (along with Gorsuch) in the second justification for striking down the original ordinance: The City failed to show that its travel restriction significantly promoted public safety: “The City’s public safety arguments were weak on their face, were not substantiated in any way, and were accepted below with no serious probing.” The City, therefore, violated the petitioners’ Second Amendment rights, the dissenters contended, and the Court should have accepted their challenge.
Straddling the fence was Justice Kavanaugh. In a very brief concurring opinion, he stated that he agreed with the majority’s resolution of the mootness question, but also with Justice Alito’s “general analysis of Heller and McDonald.” He also voiced his concern that the lower courts are not properly applying the Court’s Second Amendment jurisprudence and urged the Court to “address that issue soon.”
Next up is a case that should be of interest to anyone who knows what Lexis or Westlaw are (a group often referred to as “lawyers”). The Copyright Act gives creators various rights to control “original works of authorship.” In Georgia v. Public.Resource.Org, Inc. (No. 18-1150), an unusual five-justice majority concluded that the annotations in Georgia’s official state code don’t count as works of authorship subject to copyright protection because of the good old “public edicts doctrine,” rejecting Georgia efforts to sue a nonprofit for copyright infringement over its publication of the official code online.
The State of Georgia has one official code: the Official Code of Georgia Annotated, or OCGA. As the name suggests, the OCGA contains not only every Georgia statute in force; it also contains annotations summarizing relevant sources of law (like judicial decisions) addressing each provision. The OCGA is assembled by a state entity, called the Code Review Commission, established by Georgia statutes, and the work it produces (both the statutory text and the annotations) are approved by the Georgia legislature each year. But the Commission does not draft the annotations itself; instead, it outsources the work to a division of LexisNexis under a work-for-hire agreement, and Lexis editors perform the majority of the work drafting the annotations each year. As part of this agreement, Lexis has the exclusive right to publish and sell the OCGA, but it has agreed to limit the price of the hard-copy publication and makes available a free online version that does not contain the annotations. PublicResource.Org (“PRO”), a nonprofit that provides access to government records and legal materials, posted a digital version of the OCGA, including the annotations, on the internet. When PRO refused to remove it at the Commission’s request, Georgia sued, claiming that PRO was infringing its copyrights by publishing the annotations. (Georgia did not claim it had any copyrights in the bare statutory text, just the annotations.) The district court partially agreed with Georgia, entering summary judgment on its behalf, but the Eleventh Circuit reversed, relying on several Supreme Court cases addressing the public edicts doctrine. The Court granted cert.
The rare lineup of the Chief Justice and Justices Sotomayor, Kagan, Gorsuch, and Kavanaugh affirmed, in a decision written by the Chief. They agreed with the Eleventh Circuit that the Court’s prior cases dictated the outcome, though they thought the analysis was a bit simpler than the one offered by the Eleventh Circuit below. The public edicts doctrine has its origin in Wheaton v. Peters (1834), a case name that may trigger repressed memories of anyone who ever had to study the Bluebook. (Unfortunately, our Supreme Court Update coverage of that decision is only available in hard copy, so no link this time.) In that case, the Court rejected a copyright suit brought by the Court’s own third official reporter (Wheaton) against its fourth (Peters), concluding that Wheaton could claim no copyright over the Court’s official decisions because the Court didn’t own them either. About fifty years later, the Court affirmed that result in Banks v. Manchester (1888), a case involving Ohio’s official reporter, expanding the rationale of Wheaton to explain that judges’ interpretation and exposition of the law is not a work of “authorship,”—it is the just the law—and so it is not entitled to copyright protection. But the same year, the Court recognized an important limiting principle, holding in Callaghan v. Myers (1888) that a court reporter could claim copyright protection over explanatory materials the reporter himself had created, such as headnotes and editorial comments on judicial decisions. In the majority’s view, these cases established a “straightforward rule.” Because judges are vested with authority to make and interpret the law, they are not the author of the “works” they make in discharge of their official duties. And if judges cannot be the “authors” (for copyright purposes) of their opinions, then legislators cannot be the authors of their statutes either. Nor can they be the authors of anything they perform or deliver in the context of their legislative duties (like committee reports or floor statements). Applying that framework to the case at hand, the majority concluded that Georgia legislators were the authors of the OCGA. True, the OCGA’s annotations were prepared by Lexis editors, but their work was performed for hire, which makes the Commission the sole “author” of their work for copyright purposes. And while the Commission is not identical to the Georgia Legislature, it operates at its behest, is funded by it, and consists primarily of Georgia state legislators. But perhaps most important of all, the Commission’s draft annotations are formally approved each year by the Legislature, in the process “merging” (a term Georgia law itself uses) them with the statutory text. The Court concluded that the Legislature’s act of approving the OCGA each year counts as the discharge of a legislative duties. Finally, it rejected various arguments from Georgia and the dissenters seeking to cabin or rethink the scope of the public edicts doctrine, concluding that the Court’s precedents were clear and supported by the sound policy of ensuring the general public’s free access to sources created by government actors regarding the scope of public laws.
Justice Thomas, joined by Justices Alito and Breyer (except for one footnote), dissented. They read the Court’s 19th Century cases differently. In their view, Wheaton, Banks, and Callaghan established the rule that while judicial opinions, statutes, and other sources of law cannot be copyrighted, notes and other commentary that do not have the force of law can be. And while the annotations in the OCGA may well be approved in some form by the Legislature, there was no dispute that they lack the force of law; they are simply commentary. (The majority preemptively responded that Callaghan drew no such distinction; after all much in judicial opinions lacks the force of law as well—dissents and dicta—yet all agreed that a dissent is no more copyrightable than a majority decision.) Justice Thomas then dismissed the majority’s concerns for public policy and contended that several provisions of the Copyright Act were more in line with his interpretation. He also worried that the majority’s rationale will open the floodgates, as courts will be called on to decide whether each state’s slightly different procedures for publishing and adopting official codes bring them within the scope of the public edicts doctrine.
Justice Ginsburg—sometimes regarded as the Justice most interested in copyright law—took a different approach in a dissent joined by Justice Breyer. While she seemed mostly in agreement with the majority’s view of the 19th Century cases, she parted ways with its conclusion that the writing and approval of the OCGA’s annotations were acts performed in a legislative capacity. Statutory annotations look more like interpretations of legislative text rather than lawmaking: They are written (sometimes long) after the fact, are descriptive rather than prescriptive, and their purpose is merely to provide guidance to the general public rather than to affect the legislative process. Because summarizing statutory text is not a basic legislative function, Justice Ginsburg would hold it to be copyrightable authorship.
Finally, we’ve got a little something for all the Tucker Act nerds out there (you know who you are). In Maine Community Health Options v. United States, No. 18-1023, the Court heard a consolidated group of cases from the Federal Circuit brought by four insurance companies making Tucker Act claims against the federal government for money payable under the Affordable Care Act (“ACA”). The Justices reversed the Federal Circuit by an 8-1 vote, handing a victory to the insurance companies and requiring the U.S. to indemnify them for certain losses they incurred through their participation in an ACA program.
Section 1342 of the ACA incentivized insurance companies to offer plans on online exchanges by limiting their risk during the exchanges’ first three years in operation (2014–16). Under this “Risk Corridors Program,” the government “shall pay” reimbursement of certain losses to plans that proved unprofitable, whereas profitable plans would pay a portion of their profit to the government. The ACA contained no requirement that the Program be budget neutral—that payments given to unprofitable plans be equal to payments received from profitable plans—nor did it appropriate funds for the Program to cover deficits. Lo and behold, the Program ran large deficits, and in appropriations bills for 2014–17 budgets, Congress repeatedly included riders prohibiting the Centers for Medical and Medicaid Services from using appropriated funds to make payments to insurers under the Program. Four insurers with unprofitable plans sued the federal government in the Court of Federal Claims, claiming they were owed hundreds of millions of dollars under the Program. On appeal to the Federal Circuit, a divided panel ruled in the government’s favor, holding that the appropriations riders impliedly suspended or repealed the government’s obligations under ACA.
In an opinion by Justice Sotomayor joined by all but Justice Alito, the Supreme Court reversed. The Court started from the principle that Congress may incur financial obligations (either directly through statutory text or by authorizing agencies to incur obligations) without appropriating funds to satisfy those obligations. Even without a specific appropriation, an obligation can remain enforceable in the courts and payable out of general funds appropriated for the payment of judgments against the government. The Program, the Court concluded, did indeed incur obligations because of § 1342’s mandatory language (“shall pay”) and because it contains no cap, budget-neutrality requirement, or “subject to availability of funds” language—provisions that do appear elsewhere in the ACA and other statutes. The Court also rejected the argument that the appropriations riders were an implied repeal of § 1342, distinguishing this case from precedents in which Congress’s intent to repeal or modify an obligation was made more textually evident. Mere non-appropriation of funds to pay an obligation is not enough to infer that the obligation itself is repealed or modified. In a portion of the opinion not joined by Justices Thomas and Gorsuch, the Court considered legislative history proffered by the government but found it unpersuasive. The final question for the Court was whether damages under the Tucker Act were an available remedy. The Justices concluded that they were, given the unqualified “shall pay” language of § 1342 and given that no separate remedial scheme (under the Administrative Procedures Act or § 1342 itself) supplanted Tucker Act damages. They distinguished past cases in which an APA action has been deemed the proper remedial scheme, as those cases involved prospective declaratory and injunctive relief and ongoing financial relationships. Here, by contrast, the Program was limited to 2014–16 and the claimants sought only damages for past losses.
The lone dissenter, Justice Alito, took issue with the final portion of the Court’s opinion regarding the availability of a damages action as a remedy. The Tucker Act, he observed, does not itself explicitly provide any private right of action. And, in his view, the Court’s precedents have, without adequate consideration, wrongly assumed that such a right exists if a statute “mandates compensation” while providing no separate remedial scheme. \He accused the majority of inferring a private cause of action not explicitly provided for by statute—something the Court has made a concerted effort in recent years to disavow—and effectively “providing a massive bailout for insurance companies that took a calculated risk and lost.”
That’s it for this week. The Court will be back in session the next two weeks, conducting oral argument via teleconference in a slew of important cases (including the Trump subpoena cases) where argument was delayed due to the COVID-19 crisis. For those who are interested in listening in, the Court will be providing the live audio feed to various media companies, which in turn (we understand) will be live streaming them. (More info here.) We’ll be back to tell you how that goes as well as to summarize any newly issued decisions.
