Fed Courts Day at SCOTUS

Monday was the seemingly annual day in which the Court drops multiple Fed Courts decisions.

• CIC Servs. v. IRS held unanimously that an action challenging the validity of a reporting requirement, even one backed by a tax penalty for noncompliance, is not barred by the Anti Injunction Act. The Court identified three features that define whether the purpose of an action is to restrain assessment or collection of a tax: Whether the challenged rule imposes costs separate from any tax, how attenuated the tax payment is from the challenged rule, and whether noncompliance is enforced through non-tax mechanisms, such as criminal penalties. Justice Sotomayor concurred to suggest the answer might be different in a challenge brought by a taxpayer as opposed to a tax adviser (the plaintiff in this case), because those three features, especially costs, play differently for the taxpayer. Justice Kavanaugh concurred to seemingly broaden the Court's opinion as allowing all challenges to regulations backed by tax penalties ("Do X or pay a tax penalty) even if the result of a successful suit would preclude assessment or collection of a tax. Would his reading mean that the ACA individual mandate was not barred by the AIA not because it was not a tax, but because it was a regulation backed by a tax penalty?

• B.P. v. Mayor of Baltimore held 8-1 that when a case is removed in part under § 1442 (federal-officer removal) and the district court remands, all bases for removal may be raised on appeal, even those bases for removal that could not have been appealed independently. Section 1447(d) says "order remaning," which includes all possible bases and grounds for the order remanding. Justice Sotomayor dissented and I think has the better of the argument; the text is not as clear as the majority suggests and the potential mischief--borderline frivolous federal-officer or civil rights removal followed by appeal of other grounds not otherwise appealable--would undermine the purposes of § 1447(d) in limiting appeals of remand orders.

• Edwards v. Vannoy held 6-3 that Ramos v. Louisiana (holding last term that the Sixth Amendment required unanimous juries) did not apply retroactively to habeas actions. The Court held that new procedural rules cannot apply on habeas, eliminating Teague's exception for "watershed" rules of criminal procedure because no rule had ever been held to be such a watershed. Justice Thomas (joined by Justice Gorsuch) concurred to argue that the case should have been resolved under AEDPA--the state court's decision upholding Edwards' conviction could not have been unreasonable prior to the Court changing the law in Ramos. Gorsuch (joined by Thomas) concurred to provide a disquisition on the history and evolution of habeas to argue that modern habeas review of state court judgments does not reflect the original purposes of habeas corpus and does not authorize federal courts to reopen final state court judgments. Justice Kagan (joined by Justices Breyer and Sotomayor) dissented.

Apart from the details, the case included one interest exchange. Justice Kavanaugh wrote the majority here and supported the judgment in Ramos (he joined Gorsuch's plurality in part and concurring in part), while Kagan dissented in Ramos and here. Kavanaugh objected to Kagan criticizing the Court was failing to live up to the promise of Ramos and "impugn[ing]" the Court for shortchanging defendants. Kavanaugh argued that defendants are better off under his (and the Court's) view--some defendants (those whose cases are pending and whose convictions have not completed direct review) benefit, even if not all do. That is better off than if Kagan's view in Ramos had prevailed. Kagan responded that the force of stare decisis shifted--it supported her position in Ramos, but Ramos having been decided as it was, stare decis "was on its side" and the Court must "take the decision on its own terms, and give it all the consequence it deserves." Given recent stories about Kagan's efforts to reach out to Kavanaugh, Kavanaugh seemed put off by Kagan "rhetoric" and what he perceived as an implication of bad faith.