By Will Merrix 
Photo credit: Fred Schilling, Collection of the Supreme Court of the United States
Introduction and Key
The following story is the first part of a series covering every Supreme Court case heard during their 2023-2024 term. This edition covers each decision with a 5-4 justice split. The cases below are in alphabetical order and are marked with their respective area(s) of the law. The heading of each case also includes how each justice voted. To represent their votes, the justices have been abbreviated as follows: Clarence Thomas (CT), Samuel Alito (SA), Neil Gorsuch (NG), Brett Kavanaugh (BK), John Roberts (JR), Amy Coney Barrett (AB), Elena Kagan (EK), Sonia Sotomayor (SS), and Ketanji Brown Jackson (KJ).
Becerra v. San Carlos Apache Tribe (5-4 in favor of San Carlos Apache Tribe) (Native American Law/Administrative Law) (JR, EK, SS, KJ, NG vs. AB, SA, CT, BK)
The Indian Health Service (IHS) is a federal sub-agency within the Department of Health and Human Services, responsible for administering healthcare services to Native American tribes. In administering these services, the Indian Health Care Improvement Act (IHCIA) permits the IHS to “collect the funds due from third-party insurers like Medicare, Medicaid, and private insurers” which can then be distributed to qualified recipients. The Indian Self-Determination and Education Assistance Act, a law enacted by Congress, allows tribes to enter into contracts with the IHS, permitting the tribe to self-administer healthcare services and programs for which the IHS would otherwise be responsible.
Contracts under the Indian Self-Determination and Education Assistance Act give tribes two ways to acquire funds for healthcare. One way is through the mandatory amount the IHS must send them, which is equal to the amount Congress allocated to the IHS absent a contract with a tribe. The other way is by directly billing third parties. However, because of administrative expenses incurred by tribes themselves in the course of administering healthcare, tribes were still falling short monetarily under the IHS funding scheme.
To remedy the tribe’s fiscal shortfalls, Congress mandated the IHS provide contract support costs, by amending the Indian Self-Determination and Education Assistance Act. The San Carlos Apache Tribe attempted to collect contract support costs from the IHS after incurring administrative costs through the billing of a third-party. The IHS refused to distribute the funds and the San Carlos Apache Tribe sued the government for breach of contract.
The Supreme Court granted certiorari to determine whether or not the Indian Self-Determination and Education Assistance Act requires the IHS to pay contract support costs on tribal programs funded through collections on third parties.
Writing for the five-justice majority, Chief Justice Roberts concluded the IHS must provide contract support costs for the administrative bills tribes incur when they use income collected from third parties. The majority ruled in favor of the San Carlos Apache Tribe. They said the language in the Indian Self-Determination and Education Assistance Act requires that “when the tribe uses program income to further the functions, services, activities, and programs it assumed from IHS [obtaining healthcare] and incurs reasonable costs for required support services, those costs are ‘contract support costs’.” Those include any costs incurred by billing third parties under the IHCIA. Because the contracts the IHS and tribes enter into require the tribes to take over the administration of healthcare, the majority reasoned that any expenses tribes incur while carrying out healthcare administration using program funds, IHS-related or not, are eligible for reimbursement as contract support costs.
The four-justice dissent written by Justice Kavanaugh argued contract support costs were limited to the expenses directly authorized under the Indian Self-Determination and Education Assistance Act. The dissent reached its conclusions by reasoning that because the ability tribes have to collect third-party revenue was only granted to them via contract with the IHS under the IHCIA, not the Indian Self-Determination and Education Assistance Act itself, the government need not provide contract support costs for expenses incurred through billing third parties. The dissent offers the alternative that the ability to collect third party revenue and be reimbursed by the federal government should be directly addressed by “Congress and the President in the legislative process” rather than interpreted through the language of various laws.
If this case interests you, you can find oral arguments here and the full Supreme Court opinion here. You can also read the San Carlo Apache Tribe’s brief here and the United States’ brief here.
Campos-Chaves v. Garland (5-4 in favor of Garland) (Immigration Law/Administrative Law) (SA, CT, JR, BK, AB vs. SS, KJ, EK, NG)
To remove a person who came to the United States illegally, the government must follow certain laws set out in statutes enacted by Congress. Under 8 U.S.C. §1229(a)(1), the Department of Homeland Security must issue a document called a “Notice to Appear” (NTA) to the person it is seeking to remove. The NTA must contain seven pieces of information, among which are the time and place of the immigrant’s removal proceeding. Under a separate section of the same statute, §1229a(b)(5)(C)(ii), noncitizens may challenge their removal order “at any time if the alien demonstrates that the alien did not receive notice in accordance with paragraph (1) or (2) of section 1229(a).”
Paragraph (1) of §1229(a) lays out precisely what must be included within an NTA. Of note, the Supreme Court has heard cases about §1229(a)(1) before. In Pereira v. Sessions, the court said an NTA lacking the time and place of the hearing is not considered a valid “notice to appear under §1229(a).” In a different case soon after Pereira called Niz-Chavez v. Garland, the court held an NTA must be “a single document containing all the information about an individual’s removal hearing specified in §1229(a)(1).” Paragraph (2) of §1229(a) compels the government to notify immigrants of their “new time or place of the proceedings” if there is a “change in the time or place” of their hearing. These notices are called “notices of hearing,” and are usually used when the original date and time from the NTA must be changed.
After entering the country illegally, the government attempted to deport Moris Campos-Chaves and issued him an NTA. Campos-Chaves’ NTA lacked a time and place. After sending the NTA, the government then sent a notice of hearing containing the time and place of Campos-Chaves’s hearing. Campos-Chaves failed to appear for his immigration hearing and was ordered removed in absentia. In absentia removal is when a person is given a summary deportation as a result of not appearing at a hearing. Campos-Chaves later moved to reopen his immigration proceedings and challenge his removal order under §1229a(b)(5)(C)(ii) on the grounds his NTA was defective because the government had failed to include a time and place in the original document.
The Supreme Court granted certiorari to determine if the government can serve an NTA that initially lacks the time and place of proceedings but then follow it up with a correct notice of hearing at a later date. The legal question asks where the notice is in accordance with paragraph (1) or (2) of section 1229(a) as is required to defeat an NTA claim under §1229a(b)(5)(C)(ii).
The majority sided with the government. They argued Campos-Chaves received proper notice under §1229(a)(2) so he can not have his in absentia removal order revoked through challenge under §1229a(b)(5)(C)(ii). The majority reasoned, through quoting precedent, that the word “or” is “almost always disjunctive,” meaning the government need only provide adequate notice under one paragraph of §1229(a) or the other, not both. They go on to say the language in the law which states “paragraph (1) or (2)” is used in a way that makes it “unambiguously disjunctive,” meaning both the plain meaning of “or” and statutory context support the interpretation that only one of the two elements is required.
The majority dismissed the term “change” in paragraph (2), arguing that a notice of hearing does not necessarily need to replace an already set time; it can also be used to set an original time and place when the NTA did not include one. They dismissed the reading of a “new” time and place in paragraph (2) as presupposing an “old” time and place, saying “it runs against how [“new”] is ordinarily used.” The majority also points to the statute referencing “the written notice,” concluding the statute seeks “only” a single document with notice informing the immigrant of the hearing they subsequently missed, as was the case here. Ultimately, the above reasoning allows for the majority’s conclusion stating, “Notice under paragraph (2) supersedes the NTA; when there is paragraph (2) notice, it is that notice which informs the alien when to appear, not the NTA.” According to the majority, if an immigrant receives compliant paragraph (2) notice, they must attend the hearing and raise objections about the NTA at the hearing.
The dissent opens by saying the majority “[defies] the plain text and context of the statute, sidesteps [the court’s] precedents, and upends the careful in absentia removal framework Congress crafted.” The dissent argues no matter what the “or” means, the court has previously said the government must issue complete and compliant NTA’s; the government can thus not “choose to provide either a paragraph (1) or paragraph (2) notice and still be in compliance with the statute.” Because paragraph (2) is intended to play a supporting role to paragraph (1), “an incomplete NTA cannot be cured with proper paragraph (2) notice” nor can a paragraph (2) notice “stand alone.” The dissent also says the nature of the paragraph (2) notice serves to notify immigrants of a “change” and the “use of the word ‘change’ in the context of a statute that first requires something—e.g., the setting of a time and place—presumes the earlier existence of that thing to be swapped out.” All of the dissent’s reasoning leads them to conclude paragraph (2) notice is only valid if “the Government has complied with its preexisting obligation under paragraph (1) to provide written notice of the noncitizen’s duty to appear at removal proceedings at a particular time and place.”
If this case interests you, you can find oral arguments here and the full Supreme Court opinion here. As well as the United States (Garland) brief here and Campos-Chaves’ brief here.
Harrington v. Purdue Pharma L.P. (5-4 in favor of Harrington) (Bankruptcy Law) (CT, SA, NG, AB, KJ vs BK, JR, EK, SS)
Purdue Pharma is a prescription drug corporation that sits at the center of America’s growing opioid crisis. Purdue Pharma is jointly owned by the Sackler family who purchased the company in 1952. Around the 1990s, Purdue Pharma began making and aggressively pushing– at the direction of the Sacklers– an opioid pain relief drug known as OxyContin. In 2007, “one of [Purdue Pharma’s] affiliates pleaded guilty to a federal felony for misbranding OxyContin as a less-addictive, less-abusable alternative to other pain medications.” The affiliate’s felony conviction unleashed a deluge of lawsuits against Purdue Pharma.
In an attempt to ensure they were not personally affected by the mass of lawsuits, the Sacklers over the next few decades withdrew around $11 billion from Purdue Pharma leaving the company with substantially weakened financial prospects. Eventually, lawsuits piled up against both Purdue Pharma itself and the Sackler family directly. Due to their financial status, Purdue Pharma as a company filed for Chapter 11 bankruptcy in 2019. Chapter 11 bankruptcy is one type of bankruptcy declaration under which a company, rather than liquidating, makes a plan to “reorganize,” allowing the company to continue operations while working to pay off creditors. Purdue Pharma proposed a plan that would see the Sackler family return roughly $4.3 billion to Purdue to help overcome its bankruptcy and in return the Sacklers would receive a “release and injunction” order, “releasing the family from all opioid-related claims and enjoining victims from bringing such claims against them in the future.” In effect, the Sacklers intended this one time payment to the company to absolve them from any future lawsuits.
A bankruptcy court approved Purdue Pharma’s reorganization plan in full. However, a district court overruled and vacated the bankruptcy court’s approval of Purdue Pharma’s plan. The district court held “nothing in the law authorized the bankruptcy court to extinguish claims against the Sacklers without the consent of the opioid victims who brought them.” On appeal, the Second Circuit then reversed the district court ruling which reinstated the proposed bankruptcy plan.
The Supreme Court granted certiorari to decide if as part of a Chapter 11 bankruptcy plan, courts could approve orders extinguishing claims by non-debtors against other non-debtor third parties without the consent of the claimants.
The majority of the court agreed “nothing in present law authorizes the Sackler discharge” of fiduciary responsibility. The court reached its conclusion first by examining the language of the relevant bankruptcy code. The relevant statutory language says plans may “include any other appropriate provision not inconsistent with the applicable provisions of this title.” Using a principle of statutory interpretation, the majority proceeded to examine the language “in light of its surrounding context.” The surrounding context pointed to by the majority are the preceding provisions “all of which concern the debtor” and not a third party. Because the preceding language “authorizes a bankruptcy court to adjust claims without consent only to the extent such claims concern the debtor,” the Sacklers as a third party can not receive their release and injunction as part of the reorganization plan, according to the majority.
The court affirmed its conclusions by looking to the broader context of the bankruptcy code and the history of Chapter 11 bankruptcy discharges. Noting the rest of the code “generally reserves discharge for a debtor who places substantially all of their assets on the table,” the majority said the Sacklers are neither a debtor nor have they placed substantially all of their assets on the table. Turning towards precedent, the majority said most bankruptcy proceedings “from 1800 until 1978 generally reserved the benefits of discharge to the debtor.” The majority also highlights the fact that Congress knows how to carve out exemptions for third parties to discharge claims as it has done with respect to asbestos-related bankruptcy, yet they have not done so for these circumstances.
The dissent authored by Justice Kavanaugh “emphatically” grieves the majority’s decision, in the face of “virtually all of the opioid victims and creditors fervent support [and] approval,” to “upend the carefully negotiated Purdue bankruptcy plan and the prompt and substantial recovery guaranteed to opioid victims and creditors.” The dissent believes a central pillar of bankruptcy is “to preserve the debtor’s estate so as to ensure fair and equitable recovery for creditors” and the majority’s decision directly contradicts that pillar. It says the majority’s reliance on its statutory interpretation is “factually incorrect several times over” because it goes against a host of common practices in bankruptcy as well as the fact “that the purpose of §1123(b) is to grant bankruptcy courts ‘broad power’ to approve plan provisions “‘necessary for a reorganization’s success.’” The dissent believes once the current Chapter 11 plan is annulled, creditors will individually race to sue the Sacklers, including nearly every state seeking to recover their portion of the Sackler’s assets.
The dissent sees the release and injunction order as “appropriate” under the relevant statutory language to ensure victims receive “meaningful recovery” in the face of the collective action problem which arises if all the individuals can sue the Sacklers. The dissent believes that because “‘without the release, the plan will unravel,’ and ‘there will be no viable path to any victim recovery,’” the court should have let the bankruptcy system “prevent that exact sort of collective-action problem.” In the end, the dissent admonishes the majority for causing “future victims of mass tort to suffer greatly” by “jettisoning a carefully circumscribed and critically important tool that bankruptcy courts have long used and continue to need to handle mass tort bankruptcies going forward.”
If this case interests you, you can find oral arguments here and the full Supreme Court opinion here. As well as The United States Trustee’s (Harrington) brief here, Purdue Pharma’s brief here, and The Official Committee of Unsecured Creditors of Purdue Pharma’s brief in support of Purdue Pharma here.
Ohio v. Environmental Protection Agency (5-4 in favor of Ohio) (Administrative Law/Environmental Law) (CT, SA, NG, BK, JR vs. AB, EK, SS, KJ)
In 2015, the Environmental Protection Agency (EPA) promulgated The Good Neighbor Provision under the Clean Air Act (CAA). The provision required states upwind to ensure their air pollutants do not affect the ability of downwind states efforts to meet the acts prescribed National Ambient Air Quality standards. The EPA defines upwind and downwind to mean “transported air pollution, is emitted at one location (upwind) and then blown by wind to another location (downwind).” It also adjusted ozone level requirements, necessitating states to submit new State Implementation Plans (SIPs) detailing how they were going to meet the revised standards. After reviewing all of the state’s SIPs, the EPA moved to disqualify roughly 20 SIPs for failing to comply with the Good Neighbor Provision. For the states whose SIPs were disqualified, the EPA sought to enforce a Federal Implementation Plan (FIP).
Before the implementation of the FIP, courts around the country temporarily halted the EPA’s disqualification of 12 SIP’s. Due to these stay judgments, the EPA could no longer enforce their FIPs against those 12 states but could still enforce the FIP against the remaining 8. Those states who did not receive stays of their SIP disqualification, along with some companies, sued the EPA. They argued the EPA’s application of the FIP after several states had dropped out by having their SIP disqualification stayed was “arbitrary” or “capricious” under the Administrative Procedures Act. As a result, they also requested a stay of the EPA’s ability to enforce the FIP pending their appeal that it was “arbitrary” or “capricious.” The D.C. Circuit denied the state’s and companies request for a stay and they subsequently appealed to the Supreme Court.
The Supreme Court granted certiorari to decide whether or not “to stay any effort to enforce the FIP against [the remaining states] while their appeal unfolded.”
Writing for the majority, Justice Gorsuch granted the state’s application for a stay of the FIPs enforcement against them. Gorsuch began by outlining the four prongs courts use to review requests for stays. “(1) whether the applicant is likely to succeed on the merits, (2) whether it will suffer irreparable injury without a stay, (3) whether the stay will substantially injure the other parties interested in the proceedings, and (4) where the public interest lies.” Under these four prongs, the majority granted the states a stay based on the states’ likelihood to prevail on their “arbitrary” or “capricious” claim, writing “we agree with the applicants that EPA’s final FIP likely runs afoul” of precedent requiring agencies to provide thorough and complete explanations to objections.
The majority attributes their belief that the states’ are likely to succeed on their “arbitrary” or “capricious” claim because of how the “EPA chose to determine which emissions ‘contribute[d] significantly’ to downwind states’ difficulty meeting national ozone standards.” The majority notes the original calculations were made with the assumption all 23 upwind states would participate in the program. However, once several states dropped out the remaining states raised concerns about the emissions standards now that there were less states participating. The majority says the EPA was faced with these concerns during the commenting period but offered no meaningful response to them. The majority fought the EPA’s defense by saying the agency’s acknowledgment of the concerns about the emission standards upon a reduced pool of states through its severability rule, saying if states dropped out of the FIP then it would still apply to remaining states, did nothing to offer an explanation or solve the concerns. Because the majority saw “one reason for caution after another” about the EPA rule, the majority stayed the EPA from enforcing its rule against the states until the state’s lawsuit over the legality of the FIP is resolved.
With four justices in dissent, Justice Barrett argued that the states are unlikely to succeed on the merits of their case and the court should have accordingly refused their request for a stay. Justice Barrett challenges the majority’s assertion that the EPA did not provide an adequate explanation to the states regarding their concerns during the policy comment period. The comment period allows states to work directly with executive agencies on how to implement a new regulation. The Clean Air Act requires that objections raised during the comment period must be “raised with reasonable specificity.” Justice Barrett said the procedural bar has rendered the states’ current complaint “not judicially reviewable” because their objections during the comment period do not resemble their objections before the court.
The dissent argues further that the EPA’s actions are likely not “arbitrary or capricious” because the agency “appears” to have set its air quality standards independent of the number of states covered. Justice Barrett claims even if the states were to clear the procedural bar and show the rule to be arbitrary or capricious, they would still fail due to the CAA’s “stringent harmless-error rule.” The stringent-harmless error rule allows courts to invalidate the agency guidelines only if “the errors were so serious and related to matters of such central relevance to the rule that there is a substantial likelihood that the rule would have been significantly changed.” For the dissent, it is “difficult to imagine a ‘substantial’ likelihood that the rule would have been ‘significantly’ different had EPA just responded more thoroughly.”
If this case interests you, you can find oral arguments here and the full Supreme Court opinion here. As well as Ohio’s application for a stay here and The United States (EPA) response to the application for a stay here.
Texas v. New Mexico and Colorado (5-4 in favor of The United States) (Contracts/Original Jurisdiction/Reclamation Law) (BK, JR, EK, SS, KJ vs. AB, NG, SA, CT)
After originating in Colorado, the Rio Grande River flows southward delivering water first to New Mexico then to Texas, eventually leading to parts of Mexico. Three states, Colorado, New Mexico, and Texas, together have an agreement known as the Rio Grande Compact which dictates how water is to be apportioned among the states. Mexico on the other hand has an agreement with the United States about how much water Mexico will receive from the Rio Grande.
In 2013, Texas sued the other two states alleging, among other things, New Mexico was not delivering its required amount of water and was instead impermissibly siphoning it off. The suit went straight to the Supreme Court under its original jurisdiction because the suit was between states. Six court terms ago, the United States asked the Supreme Court to allow them intervene in the lawsuit on behalf of Texas, as the United States felt New Mexico’s misuse of water was affecting the country’s ability to satisfy its obligations to Mexico. The court unanimously agreed the United States could intervene in the lawsuit in order to defend its “distinctively federal interests,” namely the way in which the states’ compact would impact the United States agreement to deliver water from the Rio Grande to Mexico.
As the case moved along, overseen by a special master appointed by the Supreme Court, Texas, Colorado, and New Mexico eventually asked for a “Consent Decree” to resolve the state’s dispute. A consent decree can be thought of not as a final judgment but rather as a settlement agreement between the states involved, which they all consented to. The United States then objected to the consent decree.
The Supreme Court scheduled oral arguments this term to decide if the special master could enter a consent decree among the states without the United States consent as an intervening party.
For a five justice majority, Justice Jackson wrote “We agree with the United States.” Relying on a case known as Firefighters v. City of Cleveland the majority ruled that “parties who choose to resolve litigation through settlement may not dispose of the claims of a third party.” The majority found the United States had valid claims of interest in the compact by looking directly at the earlier case when the Court granted the United States the ability to intervene in the lawsuit. The majority reasoned that because the decree would “cut off the United States’ requested relief as to New Mexican groundwater pumping,” the decree could not be issued without the United States’ consent. For the majority, because “the consent decree would dispose of the United States’ Compact claims without its consent,” the decree can not be entered by the special master. Taking both what the court said six terms ago and what it said in Firefighters, the majority concluded its decision in the present case “follows directly from [its] prior recognition of the United States’ distinct federal interests in the Rio Grande Compact.” They went on to say that “having allowed the United States to intervene to assert [their interests], we cannot now allow Texas and New Mexico to leave the United States up the river without a paddle.”
In a four justice dissent, Justice Gorsuch says the majority’s decision is “ inconsistent with how original jurisdiction cases normally proceed, defies 100 years of this Court’s water law jurisprudence, and represents a serious assault on the power of States to govern the water rights of users in their jurisdictions.” With respect to his first criticism Justice Gorsuch argues “the federal government seeks to prolong this original jurisdiction dispute, a form of litigation usually reserved for disputes between States” over the consent of the states themselves. Instead the dissent believes the government should not need to consent to the decree because original jurisdiction cases typically only involve states in the first place. According to the dissent, the decree “does not impose any new improper duty or obligation on the federal government or deny it the ability to pursue any valid claim it may have.”
The dissent thinks the government could simply raise any claims it still has in a lower court “where disputes between the federal government and States are normally tried.” On the last two points, Justice Gorsuch details some of the courts precedents in water rights cases which have said the ability to control water “is an essential attribute of [State] sovereignty” and have urged states to settle such disputes “by mutual accommodation and agreement” rather than lawsuits. The dissent ends by expressing its belief the majority’s ruling will have a negative effect on future disputes over water rights because states will be hesitant to work with the Federal government lest they sit in the way of the states potential agreements. The dissent says “the majority’s shortsighted decision will only make it harder to secure the kind of cooperation between federal and state authorities reclamation law envisions and many river systems require.”
If this case interests you, you can find oral arguments here and the full Supreme Court opinion here. As well as The United States brief here and Texas, Colorado, and New Mexico’s joint brief here.
Conclusion
5-4 cases often attract the most attention from the public. They are either history making or rule on hot button issues in the public eye. Yet, for all their attention, between the 2006 October term and the 2021 October term of the Supreme Court, 5-4 decisions made up only 20% of all the decisions. This year that percentage was 8.3%. The 5-4 decisions from the court’s last term certainly deserve your attention, but so does the court’s other work. The Political Review at Florida State University will continue to cover more of the court’s work from last term, as well as a preview of what the court will hear in its coming term which starts on October 7, 2024.