Emerging from the pattern of unanimity, or near unanimity, that has characterized most of the cases decided so far this term, the Supreme Court decided one of its most eagerly awaited and controversial casesAnd the outcome of the case will confound the predictions of many voting-rights analysts and critics of the Court and its Chief Justice.

The case is Allen v. Milligan, and, in a 5-4 opinion written by the Chief Justice, and joined by Justices Sotomayor, Kagan, and Jackson, and, most significantly, by Justice Kavanaugh, the Court held that a districting plan adopted by the State of Alabama for its 2022 congressional elections likely violated Section 2 of the Voting Rights Act, 52 U. S. C. §10301. I think it is fair to say that, following the oral argument of the case, most liberal commentators expected significant further erosion of Section 2, and most politically, if not jurisprudentially, conservative observers were licking their lips. Each side has been surprised.

In a lengthy and detailed narration of legislative history, unusual for a conservative textualist, the Chief Justice began by recalling that, in City of Mobile v. Bolden, 446 U. S. 55 (1980), the Court held that the Fifteenth Amendment—and thus Section 2 from which it is derived—prohibits states from acting with a “racially discriminatory motivation” or an “invidious purpose” to discriminate, but it did not prohibit laws that are discriminatory only in effect. In the wake of substantial public criticism that this interpretation did not adequately protect individual voting rights, Congress passed a compromise amendment to Section 2 that incorporated both an effects test and a disclaimer that “nothing” in Section 2 “establishes a right to have members of a protected class elected in numbers equal to their proportion in the population.” Section 10301(b). Thus, the Court was called upon to decide a case under a law that precariously prohibits a congressional districting plan, the effect of which is to have a disparate impact upon a racial group at the same time that it prohibits a quota-like proportionality requirement.

Both the majority and the dissenters acknowledge that the amended Section 2 disputes are to be resolved under the formulation described in Thornburg v. Gingles, 478 U. S. 30 (1986), which requires rejection of “a certain electoral law, practice, or structure [if it] interacts with social and historical conditions to cause an inequality in the opportunities enjoyed by black and white voters.” That occurs where an “electoral structure operates to minimize or cancel out” minority voters’ “ability to elect their preferred candidates.” There are three preconditions for such a holding: (1) that a minority must be large enough and geographically compact enough to constitute a majority in a “reasonably configured district, (2) that the minority group must be “politically cohesive,” and (3) that it must be demonstrable that a white majority also operates as a bloc that enables it to defeat the candidates preferred by the minority group. If those preconditions are satisfied, it is then a plaintiff’s burden to show that the challenged political regime is not “equally open” to minority voters. The district court had found that each of these conditions had been satisfied and that the plaintiffs had demonstrated a reasonable likelihood of showing that the 2022 Alabama plan violated Section 2. The Court not only upheld the factual findings under a clear-error review standard but also rejected the state’s “race-neutral benchmark” theory. The Chief Justice put together a majority that concludes that its application of Gingles has, in fact and law, established a meaningful constraint on proportionality, at least on the facts of this particular case. Thus, while handing a significant victory to voting rights advocates who feared that the Court would put Section 2 on life support, it may not result in turning off the spigot of Section 2 challenges to congressional redistrictings in the states. Alabama now must go back to the drawing board.

By the way, to those of you who might ask what the court of appeals, not just the district court, had to say about this, recall that the Voting Rights Act provides for direct appeals from the district court to the Supreme Court.

Less generally noteworthy, but important to those who defend health care fraud cases and their clients, is the Court’s unanimous holding in Dubin v. United States that a person convicted of health care fraud under 18 U. S. C. §1347 after he overbilled Medicaid for psychological testing performed by the company he helped manage also can commit “[a]ggravated identity theft” under 18 U.S.C. §1028A(a)(1), but that he didn’t do so here. Section 1028A(a)(1) applies when a defendant, “during and in relation to any [predicate offense, such as health care fraud], knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person.” The government argued that §1028A(a)(1) was automatically satisfied because David Dubin’s fraudulent Medicaid billing included the patient’s Medicaid reimbursement number—a “means of identification.” In an opinion written by Justice Sotomayor (Justice Gorsuch concurring), the Justices rejected the government’s broad categorical assertion because the application of the term “used” is highly situational and can’t possibly require a finding of identity theft in every case of overbilling. Instead, the Court held, under §1028A(a)(1), a conviction must be predicated on a defendant using another person’s means of identification “in relation to” a predicate offense when the use is at the crux of what makes the conduct criminal. Here, as the petitioner did not use the patient’s means of identification in relation to a predicate offense within the meaning of §1028A(a)(1), his conviction was reversed, and the case was remanded for further proceedings consistent with the Supreme Court’s opinion.

Health and Hospital Corporation of Marion County v. Talevski is another case related to health care, this one holding that the Federal Nursing Home Reform Act (FNHRA) unambiguously creates rights enforceable by private actions under 42 U. S. C. §1983 and that there is no conflict between private enforcement and the remedial scheme devised by Congress in FNHRA. The case arose when the estate of Gorgi Talevski complained about the treatment Mr. Talevski was provided in a county-owned nursing home and that the nursing home violated his statutory rights to be free from unnecessary chemical restraints and to be discharged only when certain preconditions are met. In holding that the estate could maintain an action under Section 1983, the Court rejected the idea that the fact that FNHRA was enacted under the spending clause precluded a 1983 suit because a strict textual reading of the statute unambiguously confers enforceable rights and shows no intent to restrict their enforcement, two mandatory prerequisites that have been satisfied here. Justice Jackson wrote for the Court and, except for Justices Thomas and Alito, all of the other Justices joined. While this case directly affects a limited universe of nursing home patients, the Court’s upholding of a private right of action could affect the outcome of cases brought under other statutes not only governing health care but also entirely unrelated areas of federal finance and benefits law.

As was the case last week with respect to the Andy Warhol photos of Prince, today’s unanimous opinion in today’s intellectual property (IP) case, Jack Daniel’s Properties, Inc. v. VIP Products LLC, is replete with illustrations. Here, Justice Kagan, who dissented in the Warhol case, was able to write for the whole Court today. The case concerned the application of the Lanham Act, the core federal trademark statute, to Jack Daniel’s claim that a dog toy marketed by VIP that was diplomatically described as looking like a bottle of Jack Daniel’s whiskey likely caused confusion and dilution of the Jack Daniel’s trademark. VIP argued that the satirical nature of various captions on the dog toy insulated it from liability under the doctrine of Rogers v. Grimaldi, 875 F. 2d 994 (2d Cir. 1989), which held that an artistically expressive use of a trademark will be insulated by the First Amendment unless the use of the mark has no artistic relevance to the underlying work. In rejecting VIP’s view, the Court held that when an alleged infringer uses a trademark as a designation of source for the infringer’s own goods—in other words, a purely commercial, not an artistic expression—the Rogers test does not apply.

Two IP cases in two weeks, and, in both, the incumbent copyright or trademark owner prevailed. While the somewhat crude dog toy isn’t exactly a work of exalted literary expression, advocates for broader First Amendment protections will be unhappy for the second week in a row.

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