Chemerinsky: These Supreme Court sleeper cases will have lasting impact
Erwin Chemerinsky. (Photo by Jim Block)
The October 2023 term had many blockbuster decisions that deservedly received headlines. But there also were some important cases that received far less media attention that will have a significant impact on the law. Here are a few of what I regard as the “sleeper” cases of the term.
Statute of limitations for challenges to agency actions
The issue in Corner Post v. Board of Governors of the Federal Reserve System is when a challenge to an agency action must be filed in court to be timely. The Administrative Procedure Act imposes a six-year statute of limitations under 28 U.S.C. Section 2401(a). But is that calculated from the time the agency acts or is it determined from the time a person is injured by the agency action? The court, in a 6-3 decision with the majority opinion written by Justice Amy Coney Barrett, chose the latter. Justice Ketanji Brown Jackson wrote a vehement dissent.
The court began by quoting the relevant language from the statute of limitations: “Every civil action commenced against the United States shall be barred unless the complaint is filed within six years after the right of action first accrues.” The court then focused on Section 702 of the Administrative Procedure Act, which entitles a person to judicial review when they are “suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action.” The court concluded that a cause of action accrues when a person is injured.
Justice Jackson, in her dissent, said the implications of the court’s decision would be “staggering.” She disagreed with the majority as to the meaning of “accrues” and expressed great concern that those challenging agency actions could do so indefinitely into the future. She wrote: “This means that, from this day forward, administrative agencies can be sued in perpetuity over every final decision they make.” She said that the majority’s approach “creates uncertainty for the Government and every entity that relies on the Government to function.”
She powerfully concluded her dissent by tying it to the other cases of the term: “At the end of a momentous term, this much is clear: The tsunami of lawsuits against agencies that the court’s holdings in this case and Loper Bright have authorized has the potential to devastate the functioning of the federal government.”
Federal bribery law
In a series of recent cases, the U.S. Supreme Court has narrowed the federal laws used in corruption and white-collar criminal prosecutions. For example, in Skilling v. United States, the court narrowed the scope of the federal “honest services fraud” statute to include only bribes and kickbacks, but not fraud. In McDonnell v. United States in 2016, the court vacated the bribery convictions for the former governor of Virginia, narrowing the meaning of an “official act” under the bribery statute so that it did not include actions such as setting up a meeting, calling another public official or hosting an event.
Once more this term, in Snyder v. United States, the court narrowly interpreted a federal criminal law meant to deal with corruption. The case involved a federal law—18 U.S.C. Section 666(a)(1)(B)—which makes it a crime when an official “corruptly solicits or demands for the benefit of any person, or accepts or agrees to accept, anything of value from any person, intending to be influenced or rewarded in connection with any business, transaction, or series of transactions of such organization, government or agency involving anything of value of $5,000 or more.”
In 2013, Indiana’s City of Portage awarded two contracts worth $1.1 million to Great Lakes Peterbilt, a local truck company, for the purchase of five trucks. The following year, Mayor James Snyder (who was also mayor when Portage awarded the contracts) received a $13,000 check from Peterbilt. Snyder was charged and convicted of violating 18 U.S.C. Section 666(a)(1)(B).
The Supreme Court, in a 6-3 decision split along ideological lines, reversed the conviction and held that there is fundamental distinction between illegal bribes and permissible gratuities, and that the check paid to Snyder was a gratuity. Justice Brett Kavanaugh wrote for the conservative majority, while Justice Jackson wrote for the three liberal dissenters. Justice Kavanaugh focused on the statutory language and concluded the federal law prohibited only bribes, meaning payments before an official act in order to influence the public official. The court said the statute does not make it a crime to give gratuities to state and local officials that are a “token of appreciation after the official act.”
Justice Jackson wrote a strong dissent and argued that Section 666 was meant to prohibit gratuities as well as bribes. She, too, focused on the statutory language. She said on its face, Section 666’s “use of the term ‘influenced’ captures quid pro quo bargains struck before an official act is taken—and therefore bribes,” while “the term ‘rewarded’ easily covers the concept of gratuities paid to corrupt officials after the fact.”
Snyder is a blow to the government’s ability to prosecute state and local officials for accepting gratuities under Section 666. This means that it falls on state and local governments to call their officials to task, if they have the legislation to do so. In Snyder’s case, Indiana did not have such a law. The case is also a message to state and local officials and those who want to influence them: It is fine to give a gift after the government official’s decision, even a large one, so long as there is not a quid pro quo. It also continues the court’s narrowing of federal laws that concern corruption and white-collar crime.
Sentencing
Erlinger v. United States has the potential for being one of the more important criminal law rulings of the term, with implications beyond the Armed Career Criminal Act. In Apprendi v. New Jersey, in 2000, the Supreme Court held that any factor other than a prior conviction that leads to a sentence greater than the statutory maximum must be proved to the jury beyond a reasonable doubt. The qualification that this principle does not apply to a prior conviction was based on a decision from two years earlier in Almendarez-Torres v. United States. There have been countless petitions for certiorari over the last quarter century urging the court to reconsider Almendarez-Torres, but all have been denied. Erlinger v. United States rejects the application of Almendarez-Torres in the context of the ACCA and raises the serious possibility that the court might finally reconsider Almendarez-Torres.
The issue in Erlinger is whether a defendant facing potential heightened punishment under the ACCA has a Sixth Amendment right to a jury determination of whether his predicate offenses were committed on different occasions. If the offenses were on different occasions, they count as separate crimes and can trigger the heightened punishment under the act. But if they were on the same occasion, they count as one crime.
The Supreme Court, in a 6-3 decision, held that the Fifth and Sixth Amendments guarantee that the defendant is entitled to a jury determination of whether the prior offenses were on different occasions for purposes of ACCA. There was an unusual split among the justices. Justice Neil Gorsuch wrote a majority opinion joined by Chief Justice John Roberts and Justices Clarence Thomas, Sonia Sotomayor, Elena Kagan and Barrett. Justices Kavanaugh, Samuel Alito and Jackson dissented.
The court began by stressing the importance of jury trials under the Fifth and Sixth Amendments and describing them as fundamental reservations of power to the American people that prevent prosecutorial overreach and misconduct. Justice Gorsuch explained that “only a jury may find facts that increase the prescribed range of penalties to which a criminal defendant is exposed,” be it the maximum or the minimum sentence a defendant faces.
Justice Gorsuch thus explained that whether the four burglaries Erlinger committed 26 years ago should be counted as one criminal offense or as at least three distinct offenses is a critical finding of fact that determines whether enhanced sentencing would apply. Therefore, it should have been left to a jury to decide.
The court said the Almendarez-Torres case is considered “as ‘at best an exceptional departure’ from ‘historic practice.’” Justice Gorsuch noted that Justice Thomas, who provided the fifth vote in Almendarez-Torres’s 5-4 majority, has since called for it to be overruled. The court said no party requested Almendarez-Torres be revisited, and there was no need to do so in this case.
Justice Thomas wrote a concurring opinion and said the time has come to overturn Almendarez-Torres once and for all.
There were two dissenting opinions by Justices Kavanaugh and Jackson. Justice Kavanaugh argued that the Supreme Court’s precedents “establish that a judge may make the different-occasions determination.” Justice Kavanaugh stressed that Apprendi did not overrule Almendarez-Torres and that he would oppose doing so.
In Justice Jackson’s dissent, she argued that Apprendi was “wrongly decided” and objected to extending the Apprendi rule to recidivist factfinding. She wrote that although the Sixth Amendment “vests juries with sentencing power,” the effect of Apprendi is to “oust the legislature from its rightful place in the sentencing policy sphere” so “the policymaking branches of our government can no longer devise more nuanced, creative approaches to factfinding at sentencing that better reflect the differing competencies of jurors and judges.”
Erlinger is important for defendants charged under the ACCA in holding that any time there is a question regarding how many predicate offenses a defendant has that might subject them to enhanced ACCA punishment, defendants have the right for that question to be decided by a jury. But the case may have larger significance in suggesting that a majority of the justices are finally willing to overrule Almendarez-Torres.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including the forthcoming No Democracy Lasts Forever: How the Constitution Threatens the United States (August 2024) and A Court Divided: October Term 2023 (October 2024).
This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.
