The U.S. Supreme Court decision yesterday that likely will get the most attention is Medina v. Planned Parenthood South Atlantic, in which a 6–3 Court that lined up according to the conservative vs. liberal stereotype, held that “Section 1396a(a)(23)(A) of the Medicaid Act does not clearly and unambiguously confer individual rights enforceable under 42 U.S.C. §1983.”

Medina v. Planned Parenthood South Atlantic

The question before the Court was whether individual Medicaid beneficiaries may sue state officials under §1983, the venerable civil rights statute, for failing to comply with the “any qualified provider” provision of the Medicaid law. Planned Parenthood South Atlantic operates two clinics in South Carolina, serving both Medicaid and other patients alike. Among the services it provides is performing abortions. In 2018, South Carolina, citing state law prohibiting public funds for abortion, expelled Planned Parenthood from the state’s Medicaid program. At the same time, the state took steps that it claimed would ensure that other providers would continue offering necessary medical care and family planning services. Planned Parenthood and a patient named Julie Edwards brought a class action suit, claiming that the exclusion of Planned Parenthood violated the any-qualified-provider provision of the statute by depriving her and others of their preferred providers of gynecological care.

Justice Gorsuch, writing for himself and the other five jurisprudential conservatives, noted that §1983 allows private parties to sue state actors that violate their “rights” under the federal “Constitution and laws.” “But federal statutes do not automatically confer §1983-enforceable ‘rights.’ This is especially true of spending-power statutes like Medicaid, where ‘the typical remedy’ for violations is federal funding termination, not private suits.”

While Congress sometimes allows private enforcement through §1983, spending-power legislation cannot predicate a §1983 enforcement suit unless Congress “speaks with a clear voice, and manifests an unambiguous intent to confer individual rights.” The requirement of “unmistakable” notice assures that grantees know that they might be subject “to private suits . . . whenever they fail to comply with a federal funding condition.” Here, citing other recent decisions, the Court concluded that the statute at issue did not clearly and unambiguously confer a “right to support a cause of action under §1983.”

The Court went on to note that this standard is a “demanding” and “significant hurdle” that will be cleared only in the “atypical case.” The Court also noted that, in the past, it had sometimes “taken an expansive view of its power to imply private causes of action to enforce federal laws.” Both Justice Thomas, concurring, and Justice Jackson (along with Justices Sotomayor and Kagan), dissenting, are aware of this history. Thomas cites it, urging that the Court go further in narrowing the application of §1983. Jackson would have the Court return to that lenient application, given the remedial intention of the post-Civil War legislation.

There is little question that the Medina decision will be controversial. Putting aside any discussion of which side of the Court might have the better of the argument, I note that this is another in a series of unrelated cases in which the Court is taking a narrow view of standing. We can expect to see comparable assertions of private rights of action and text-based oppositions to them coming up in areas far afield from reproductive rights, such as cybersecurity and data privacy.

Hewitt v. United States

Hewitt v. United States involves the application of the “First Step Act,” a federal enactment that eliminated a harsh provision of earlier law that required the “stacking” of 25-year periods of incarceration for first-time violators of 18 U.S.C. §924(c), a law that criminalized possessing a firearm while committing other crimes. Congress not only rejected the harsh stacking provision, but also made the statute’s more lenient penalties partially retroactive, providing that the statute applies if a sentence “has not been imposed” upon an eligible §924(c) offender as of the date of the First Step Act’s enactment.

The question presented concerned an “edge case,” asking, “What penalties apply when a §924(c) offender had been sentenced as of the Act’s enactment, but that sentence was subsequently vacated, such that the offender must face a post-resentencing?” The Supreme Court held that, under those circumstances, a sentence “has not been imposed” for purposes of §403(b).

Interestingly, the government agreed with the petitioners, so an amicus was appointed to defend the judgment of the U.S. Court of Appeals for the Fifth Circuit, which held (as the amicus and the dissent contend) “that §403(b) excludes any defendant who was sentenced prior to the enactment date of the First Step Act—even if his sentence was later vacated.” They argue that, because the statute applies only “if a sentence for the offense has not been imposed as of ” the First Step Act’s enactment date, and a sentence “has . . . been imposed” upon that defendant as a matter of historical fact,” the statute therefore does not apply.

However, Justice Jackson, writing for a majority that included, as to the key operative sections of the opinion, the Chief Justice and Justices Sotomayor, Kagan, and Gorsuch, concluded that, based on “the text of §403(b) and the nature of vacatur, . . . a sentence has been imposed for purposes of that provision if, and only if, the sentence is extant—i.e., has not been vacated.”

Justice Alito, joined by Justices Thomas, Kavanaugh, and Barrett, accused the majority of manipulating the language of the statute to reach a desired result. The majority, as one would expect, held that theirs was a literal reading of the actual text. An outside observer might suggest that Justice Kagan’s proclamation, several terms ago, that “we’re all textualists now” likely applies. However, that fact doesn’t guarantee that all the Justices will read a text in the same way.

Gutierrez v. Saenz

In contrast to several other cases discussed in this blog post, a somewhat lenient approach both to standing and to redressability under 42 U.S.C. §1983 governed the outcome in Gutierrez v. Saenz. Ruben Gutierrez, a convicted murderer who claimed that potentially favorable DNA evidence had been withheld by the state of Texas, filed suit under §1983 against Luis Saenz, the district attorney who has custody of the untested evidence. Gutierrez argued that Texas’s DNA testing procedures violated his liberty interests. The U.S. District Court for the Southern District of Texas agreed with him, “finding it fundamentally unfair that Texas gives prisoners the right to challenge their death sentence through habeas petitions but prevents them from obtaining DNA testing to support those petitions unless they can establish innocence of the underlying crime.” However, the Fifth Circuit disagreed, holding that Gutierrez lacked standing to bring his §1983 suit because his claimed injury was not redressable, since a declaratory judgment in his favor “would be unlikely to cause the prosecutor to ‘reverse course and allow testing.’”

In another split decision, the Supreme Court reversed, with Justice Sotomayor writing for herself, the Chief Justice and Justices Kagan, Kavanaugh, and Jackson, and with Justice Barrett concurring in the judgment, that Gutierrez has standing to bring his §1983 claim challenging Texas’s postconviction DNA testing procedures under the Due Process Clause. State court defendants “have a liberty interest in demonstrating [their] innocence with new evidence under state law. . . . For that reason, a state-created right to postconviction procedures can sometimes create rights to other procedures essential to realizing the state-created right.”

The majority opinion criticizes the dissenting opinions of Justice Thomas and Justice Alito, which Thomas and Gorsuch joined, as faultily addressing redressability by focusing on the declaratory judgment of the district court rather than on what Gutierrez was actually complaining about. Contrary to the lower court’s holding, which was dependent upon its belief that Gutierrez would be unable to demonstrate his innocence, the proper focus of the inquiry was Gutierrez’s complaint.

“First, to the extent the Fifth Circuit based its assessment of redressability on the declaratory judgment the District Court later issued, rather than Gutierrez’s complaint, it turned the Article III standing inquiry on its head. Gutierrez’s standing does not depend on the relief the District Court ultimately granted on the merits.” The proper focus of the standing inquiry should thus have been the complaint, which challenges not only Texas’s limitation to actual innocence claims, but also the other barriers erected to Gutierrez’s DNA testing as well. “Second, and more fundamentally, the Fifth Circuit erred in transforming the redressability inquiry into a guess about whether a favorable court decision will ultimately result in the prosecutor turning over the DNA evidence.” Its decision, therefore, was reversed, and the case remanded.

Riley v. Bondi

Another split decision was delivered in Riley v. Bondi, although the split here was somewhat different from those in some other of the Court’s most recent cases. Instead, a 5–4 Court, in an opinion by Justice Alito, joined in the operative part by Justices Sotomayor, Kagan, Gorsuch (who also dissented in part), and Jackson, with Justice Thomas separately concurring, held that an order from the Board of Immigration Appeals denying deferral of removal in a “withholding only” proceeding is not a “final order of removal” under 8 U.S.C. § 1252(b)(1). In other words, the 30-day filing deadline to challenge a final order of removal is a “claims-processing rule,” not a jurisdictional requirement.

The distinction between the two is important not just to immigration lawyers but to the rest of us as well. The consequences of miscategorizing a rule as jurisdictional can be very consequential with respect to the adjudication of cases in federal courts. Supreme Court precedent thus “shows reluctance to label rules ‘jurisdictional’ unless Congress clearly signals that intent. While Congress need not use ‘magic words’ to indicate that a rule is jurisdictional, . . . the Court’s recent decisions require an exceedingly strong signal for jurisdictional classification. That demanding requirement is not met here.” However, yielding to the government’s argument as to the outcome of the case, the lower court’s order as to jurisdiction was dismissed, and the case was allowed to proceed on remand.

As I’ve suggested previously, the end of the term is often characterized by a flurry of opinions, some significant (such as Medina), in which the Court is divided. In part, that relates to a “secretarial” problem occasioned by the circulation of multiple majority, concurring, and dissenting opinions and attempts by the Justices to harmonize their views, if possible. In any event, while Washington weather and the calendar indicate that summer is here, the Court’s summer hasn’t quite started.