- Thanks to Indochino for
keeping LegalEagle in the air and helping me look fly. (eagle squawking) Justice Brett Kavanaugh's first term as Supreme Court justice
has come to a close and it was a big one
for the Supreme Court. To recap, Justice Anthony
Kennedy retired in 2018, leaving a very important
vacancy with the court. Kennedy had been the court's swing vote. Lawyers often tailored their arguments specifically to Kennedy since he was capable of siding
with the court's Liberal wing or the court's Conservatives depending on the specific issue. There was wild speculation
as to whether the court would start making a dramatic shift now that it has a solid,
quote, Conservative majority, and I'll note parenthetically
that the political alignments of Conservative and Liberal
don't really hold up when you're talking about
Supreme Court justices but that's probably a
topic for another video. On first blush, it looks
like Chief Justice Roberts may be taking up the mantle of the High Court's
centrist and deciding vote. This term, the Supreme
Court has handed down some big decisions on
partisan gerrymandering, the census, profane trademarks, and more. Now that the Supreme
Court's 2019 term has ended, let's take a look at the
most consequential decisions. (bright music) Hey, LegalEagles! Welcome back to Real Law Review where today we're going to do a roundup of what I consider the Supreme Court's most consequential 2019 decisions. So let's dig right in. The first is the FUCT trademark, which I am allowed to say on this channel because it's spelled F-U-C-T,
not spelled any other way so it's not a swear word. So starting with the FUCT trademark case which invalidated a federal
law that prohibited, quote, immoral or scandalous
trademarks, whatever that means, which, of course, is kind of the point of this particular Supreme Court case. For years, the US Patent and
Trademark Office or USPTO has limited trademark protections for things it deemed vulgar,
offensive, or scandalous but in a victory for free
speech, the Supreme Court held that the street clothing
called FUCT, F-U-C-T, was entitled to federal
trademark protection. That issue was the Trademark Act of 1905 which prohibits the registration of immoral and scandalous trademarks. However, under the First Amendment, you can see where this is probably going, the government can't
penalize a person's speech because it disagrees with the
viewpoint being expressed. Here, the viewpoint being swear words. The Supreme Court held that
it's impossible for the USPTO to decide what it considered
scandalous or immoral without resorting to
viewpoint discrimination. There is no coherent sense of these terms, therefore the USPTO simply
applies its own sense of what is right and wrong and scandalous and what's not scandalous which has some real
First Amendment problems. The 1905 law has led to some
bizarre decisions by the USPTO. For example, the government
granted a trademark for the company that using
the word FCUK, F-C-U-K, but denied it for FUCT, F-U-C-T, even though both simply
play on the word (bleeps) which we have to bleep because
that one is spelled F-U-C-K because YouTube is more arbitrary and capricious than the
USPTO at this point. (grunts) Anyway, as a result, a six-to-three majority
led by Justice Kagan concluded that the prohibition
against the registration of immoral or scandalous trademarks violates the First Amendment. The majority ruled that
The Lanham Act's bars were substantially over broad. As Justice Kagan noted, "There are a great many immoral "and scandalous ideas in the world, "even more than there are swear words "and the Lanham Act should cover them all. "It therefore violates the First Amendment "to deny trademark protection
to those kind of marks." The court made a similar ruling in 2017 when it ruled that a band named The Slants had a right to trademark its name. The band used the term as
a way to reclaim a word that is often used as
a slur against Asians. That case wound up protecting
the Washington Redskins after the USPTO canceled
the team's trademarks after complaints that the word Redskins was a racial slur
against Native Americans. And while reasonable people can disagree as to whether the term
Redskins is offensive or not, we can all agree that we
should fire Dan Snyder, #FireDanSnyder, #HireDavidChang. But back to the case at hand, Justices Roberts, Breyer,
and Sotomayor dissented although they agreed that the
word immoral is over broad, they thought the ban on
scandalous trademarks is constitutional but just needs to be more narrowly tailored. The upshot of this decision is that it's going to open the door to all sorts of new and
interesting and profane trademarks including many that probably involve profanity in the
future, so (beeps) yeah. ♪ America (bleeps) yeah ♪ - Racist jury selection. The court handed a big win to advocates of unbiased jury
trial by ordering a new trial for the death row inmate Curtis Flowers who has been tried six times
over the past two decades. In the American justice
system of jury trials, both sides get an opportunity to strike a limited
number of jurors for cause such as conflicts of interest. The parties also get to strike
a certain number of jurors for any reason whatsoever. These are what are known
as peremptory challenges. There is one huge caveat, though. The attorneys cannot use
their peremptory strikes for racial reasons to
prevent potential jurors from being selected because of their race. This is called a Batson Challenge which we've talked about
on this channel before. It goes back to the Supreme Court case of Batson versus Mississippi. In the Flowers case,
district attorney Doug Evans allegedly used peremptory
strikes to dismiss black jurors from a jury pool in all
six of Flowers' trials. Evans eliminated 41
out of 42 black jurors. The 72 majority opinion
written by Justice Kavanaugh included that the state's pattern of striking prospective black jurors persisted from Flowers'
first trial through his sixth and this was a relentless effort to stop the jury from
having any black jurors which strongly indicated that Evans was trying to try Flowers before the whitest jury he
could possibly find and create. The majority noted that
the prosecutors questioned the black and white
prospective jurors differently. For example, they gave 145 questions to just five perspective black jurors. They asked only 12 questions
to the 11 white jurors seated for Flowers' most recent trial. The prosecutor and his team struck at least one
black prospective juror who was similarly situated
to white prospective jurors who were not struck by the state. So the Flowers case extends the doctrine that was created in
Batson versus Mississippi that you cannot use
your peremptory strikes to strike all or most of the black jurors from a prospective jury
pool which is exactly what happened in the John
Grisham book and movie, A Time to Kill. I'll put a link down to my
review in the description. The hotly-debated census citizenship case. The US Constitution requires The US to conduct a census every 10 years. This is incredibly important for political districting purposes. The census counts every
person in the county and is used to appropriate federal funds, draw electoral districts, and apportion representatives
to the various states. In March of 2018, Secretary
of Commerce Wilbur Ross added a question to the 2020 census which required each person to state whether they
are a US citizen or not. Ross claimed that the Trump administration added the question because it was keen to enforce Federal voting rights laws to better protect minority
and voting rights. This rationale seemed pretty
suspect from the start since the Trump administration
has never filed a lawsuit to enforce the Voting Rights Act and that rationale ran contrary to a lot of the actual language coming out of the Trump administration and from President Trump himself. The outcome of this case turned on whether the Voting Rights Act was really the government's motive for asking the citizenship
question or not, because generally, the courts
don't dispute the rationale that the government puts forward. But under the Administrative
Procedure Act, any agency action that is, quote, arbitrary or capricious violates the law. Moreover at a minimum,
an agency must disclose the basis of its action so
courts can review its legality. Several states sued
the Commerce Department and argued that the question
was arbitrary and capricious and it was a move designed solely to isolate and marginalize
people of color, particularly Latinos
who may be undocumented which would under count the
population in many US states, particularly in the Southwest. The plaintiffs feared that the question would deter many Latinos from
answering the census question because they would fear deportation. The government argued it
was simply a return to form because from 1820 to 1950, the census included a
citizenship question. The government also questioned whether anyone had actual
standing to sue over the question and said that the notion that people would not answer
the question truthfully was based on sheer speculation because the question
hadn't been issued yet. The plaintiffs contended that according to the government's own records, the citizenship question
would lead to an under count of at least five million people. This was the government's
conclusion after the 1950 census which is why the government
dropped the question in the first place. The plaintiffs prevailed
in the lower courts which ruled that Ross's
actions were arbitrary and capricious based on pretext and violated parts of the Census Act. The district court concluded that Ross had exceeded his authority in crafting the question
because of its illegality. The Commerce Department
appealed to the Supreme Court. Now, the Supreme Court narrowly
sided with the plaintiffs in a five-to-four decision with chief justice casting the swing vote. The court first overruled portions of the lower court decision. The majority of justices found that Secretary Ross had the authority to draft the census question and was within his right as agency head to seek records and data. However, Roberts concluded
that the rationale Ross gave for the question, wanting to help minorities
exercise their voting rights, was quote contrived. Although agencies have
broad authority to regulate, they must offer genuine reasons for the decisions that they make. Secretary Ross's reason
for seeking the data that he wanted to improve
voting rights access appeared to play no actual
role in his decision. In fact, Ross first
inquired about reinstating the citizenship question just one week after his appointment. According to Justice Roberts, altogether the evidence tells a story that does not match the
secretary's explanation for his decision. In other words, Ross's reason for asking the
question was pre-textual. The court ruled that for now, the question could not go forward. However, the opinion leaves the door open for the government to
bring back the question if they can come up with
another justification for seeking that
information in the census, which takes us to a similar
case with a different outcome, that on partisan gerrymandering. Partisan gerrymandering is
when one political party draws the district maps at
the other party's expense, making it easier for the party
in power to stay in power. The States use census
data to draw up new maps portioning representatives
to state legislators in federal districts. For many years, the political party with the most power in the states have drawn districts into strange shapes that make it easier for
incumbents to hold on to power. So can state officials ever go so far in drawing partisan districts that it violates the US Constitution? That was the question
before the Supreme Court in this most recent case. Justice Kennedy was the
swing vote back in 2004 when the Supreme Court's
Conservative justices plus Kennedy, whether you consider
him Conservative or not, ruled that the Supreme
Court should stay out of a contentious gerrymandering
case from Pennsylvania. However, Kennedy left the door ajar, stating that in a future case, it could be possible for
one party to skew maps so much that it was unconstitutional. The problem that Kennedy identified was that there seemed to
be no workable standard for determining when gerrymandering
was unconstitutional. However, with Kennedy's swing vote gone, the court's Conservatives easily prevailed in the two cases involving
partisan gerrymandering in North Carolina and
Maryland during this term. In a five-to-four decision
written by Chief Justice Roberts, the Supreme court said that the Federal Courts
now lacked jurisdiction to even hear partisan
gerrymandering cases. Roberts declared partisan
gerrymandering as, quote, "Nothing new and a traditional
part of partisan politics." Roberts and the other four
Conservative justices ruled that the case was not justiciable and that it runs afoul of the
Political Question Doctrine. By the way, background, when a case presents a,
quote, political question, Federal Courts will
refuse to hear the case. The legal doctrine was developed to prevent Federal Courts
from intervening in disputes that are so politically charged that the courts feel that they
should just stay out of them and let the legislatures deal with those particular questions. Here, the majority held that
partisan gerrymandering claims present political questions beyond the reach of the Federal Courts which brings us to the court's opinion in Gamble versus The United States, dealing with the Dual
Sovereignty Doctrine. The Dual Sovereignty Doctrine is a pretty arcane piece of jurisprudence but it generated lots of attention because the media covered it as if it posed the following question. Could a person connected to Donald Trump, like convicted felon Paul Manafort receive a pardon for federal charges but still be prosecuted in the state court for the same things? However, the case pending before the court did not involve Manafort or
any Trump-related official but it might have implications
into those individuals. There's a legal doctrine which holds that because the federal and state governments are, quote, separate sovereigns, the Double Jeopardy Clause does not apply to prosecution of the same crime under both federal and state laws. This is known as the
Separate Sovereigns Doctrine. So the question is can a
person wind up facing state and federal prosecutions
for the same conduct or does that violate the
Double Jeopardy Clause of the Fifth Amendment? In the case at hand,
Terence Gamble was convicted under Alabama state criminal law for being a felon in possession of a gun. He was also prosecuted
under a federal criminal law for being a felon in
possession of a gun as well. He appealed his federal conviction citing the Double Jeopardy Clause. Gamble lost his appeal in the lower courts and the Supreme Court considered the case. The Supreme Court's
seven-to-two majority decision affirmed that Double Jeopardy did not bar Gamble's conviction. Justice Alito wrote the majority opinion that there was no reason to overturn the Dual Sovereignty Doctrine. The Double Jeopardy Clause
bars successive prosecutions for the same offense,
not for the same conduct. That means that Gamble
could not be tried twice for the same violation of
the Alabama Criminal Codes but he could be tried again for arguably the same underlying conduct in both federal and state courts. So while the majority of opinion
certainly will do nothing to advance the cause of
criminal justice reform and most defendants to be
tried by the Federal Government and the state government will
probably just be regular Joes like Terrence Gamble, it does mean that any person Trump pardons for a federal offense can
still be tried in state court. Unconscious and emergency
searches and seizures. Another criminal justice
case from this term placed some additional
limits on your rights under the Fourth Amendment. Six years ago, police found
Gerald Mitchell soaking wet and sloppy drunk in a
sandy beach in Wisconsin. He was shirtless and slurring his words. He took a preliminary breath test which indicated his blood alcohol level was three times the legal limit. Since this test was ineligible
to be used in court, police had to decide how
to get admissible evidence of Mitchell's condition. They took him to a
hospital for a blood test. There was just one hitch. Mitchell passed out in the
backseat of the squad car on the way to the hospital but the hospital staff drew his blood while he was knocked out which indicated a blood
alcohol level of 0.222. The police never obtained a warrant. Mitchell tried to get the results of the blood test thrown out arguing that the cops needed a warrant but Wisconsin state law
says the drivers on his road presumably consent to a blood test. The Supreme Court justices
ruled five to four that the Fourth Amendment
generally does not stop states from taking a blood
sample without a warrant if the suspect is unconscious. The Fourth Amendment to the
Constitution protects your right to unreasonable searches and seizures and it states that both
the right of the people to be secure in their persons,
houses, papers, and effects against unreasonable searches and seizures shall not be violated and
no warrants shall issue but upon probable cause. While the general rule is
that police need a warrant, there are many exceptions to this rule. One of the exceptions is called the Exigent
Circumstances Exception which lets police search without a warrant to prevent the imminent
destruction of evidence. Evidence of a person's blood alcohol level disappears over time as it is absorbed through the bloodstream. The Supreme Court said
that if police waited until an unconscious person is awake, then the evidence that
they were intoxicated could be destroyed which allows police to now draw blood from you
if you are unconscious, without a warrant. The Bladensburg Peace Cross. The Bladensburg Peace Cross is a nearly century-old
monument in Maryland to those who died in World War I. The cross sits on a traffic island that is public land in
Bladensburg, Maryland. The cross is associated with
Christianity, obviously, so the American Humanist
Association filed a lawsuit alleging that the cross's
presence on public land violated the First Amendment's
Establishment Clause. The court's religion cases have recently given the
government wide latitude to include religious
references on state property and material as long as they
can be branded as, quote, ceremonial or celebratory
or commemorative. For example, the court has ruled that the words In God We Trust should remain on the US currency over the objection of non-theists. The court reasoned that the message is of historical importance and is now merely ceremonial
rather than religious. The same is true of the
statement One Nation Under God, another Christian reference, that the court says does not run afoul of the Establishment Clause. Alito wrote, "A government
that roams the land, "tearing down monuments
with religious symbolism "and scrubbing away any
reference to the divine "will strike many as aggressively
hostile to religion." Justices Ginsburg and Sotomayor dissented. Ginsberg wrote, "Just as the Star of David "is not suitable to honor Christians "who died serving their country, "so a cross is not suitable
to honor those of other faiths "who died defending their nation." The court appears to be drawing a line between symbols and monuments which have been in place for many years and those which may be
erected in the future. Alito's argument probably
gave a little bit of life to people who are angry about
the removal of old monuments. However, commentators are split on what that means for new monuments. Now, if you're ever going to try a case before the Supreme Court, you'll need to get a great-looking suit. As evidenced by this footage
from inside the Supreme Court, all the lawyers are dressed to the nines. I'm just kidding, the Supreme Court does
not allow video recording and the lawyers generally dress in suits that are four
sizes too big for them. Still, I would recommend
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Supreme Court summaries? Leave your objections in the comments and check out my other
Real Law Reviews over here where we tackle all of the important legal issues of the day. Click on that playlist and
I will see you in court.
