A Backward- and Forward-Looking Assessment of the Supreme Court’s “Faithless Elector” Cases: Part One in a Two-Part Series

VIKRAM DAVID AMAR

In this first of a two-part series of columns about the U.S. Supreme Court’s recent decision in the “faithless elector” cases, Illinois law dean and professor Vikram David Amar expresses disappointment that the majority opinion—authored by Justice Elena Kagan—and concurring opinion—by Justice Clarence Thomas—are not as well reasoned or careful as they could be. Amar points out some of the ways in which the opinions fall short, noting some of the arguments that merited more discussion, or at least more thorough consideration.

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J.S.T. Corp. v. Foxconn Interconnect Technology, Ltd.

Docket: 19-2465

Opinion Date: July 13, 2020

Judge: Barrett

Areas of Law: Business Law, Civil Procedure

Bosch, an engineering company, asked J.S.T. to design and manufacture a connector that Bosch could incorporate into a part that it builds for GM. For a time, Bosch retained J.S.T. as its sole supplier of those connectors. Then, according to J.S.T., Bosch wrongfully acquired J.S.T.’s proprietary designs and provided them to J.S.T.’s competitors, who used the stolen designs to build knockoff connectors and eventually to displace J.S.T. from its role as Bosch’s supplier. After filing various lawsuits against Bosch, J.S.T. filed suit in Illinois against the competitors, alleging misappropriation of trade secrets and unjust enrichment. The Seventh Circuit affirmed the dismissal of the case for lack of personal jurisdiction. The competitors’ only link to Illinois is that they sell their connectors to Bosch, knowing that the connectors will end up in GM cars and parts that are sold in Illinois. For personal jurisdiction to exist, though, there must be a causal relationship between the competitors’ dealings in Illinois and the claims that J.S.T. has asserted against them. No such causal relationship exists.

Brown v. Polk County

Docket: 19-2698

Opinion Date: July 13, 2020

Judge: Scudder

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Brown, a detainee at Wisconsin’s Polk County Jail, underwent a physical search of her body cavities. The institution had a written policy authorizing such a search to be conducted by medical personnel when there was reasonable suspicion to believe an inmate was internally hiding contraband. Fellow inmates had reported that Brown was concealing methamphetamine inside her body, which prompted jail staff to invoke the policy. Officers took Brown to a hospital, where a doctor and nurse first conducted an ultrasound, then inspected both her vagina and rectum in a private room without officers present. The search revealed no drugs. Brown sued under 42 U.S.C. 1983, alleging violation of her Fourth Amendment rights. The district court granted the defendants summary judgment. The Seventh Circuit affirmed. The defendants had reasonable suspicion that Brown was concealing contraband, their suspicion justified the cavity search, and the ensuing search was reasonable.

Gysan v. Francisko

Docket: 19-1471

Opinion Date: July 13, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Officer Francisko, checking hunters’ licenses, approached a van parked on the side of a road. Armed hunters had just emerged from the woods. The driver, Cataline, was acting strangely but handed Francisko his driver’s license. While Francisko was doing a license check, Cataline called 911 and said: “I am in a lot of trouble … I think I am going to be disappearing.” He then hung up. Francisko told Cataline that he was free to go. The 911 operator reached Officer Kuehl’s supervisor, who told him to stop Cataline to check whether he was fit to drive. The officers followed Cataline’s van, pulled it over, and asked Cataline to turn off the engine. He did not comply but stared straight ahead. After ignoring three requests, Cataline put the van into reverse, turned, and pointed the van west in the eastbound lanes of the Interstate. Cataline then made another turn and plowed the van into the side of Kuehl’s car. Kuehl and Francisko say that Kuehl was pinned behind the door. Francisko shot Cataline, who died at the scene. The district court granted the defendants summary judgment in a suit under 42 U.S.C. 1983. The Seventh Circuit affirmed. Cataline’s behavior and the odd 911 call would have led an officer to be concerned that he posed a danger to himself and others. Francisko and Kuehl testified that they saw the van cross the white line on the highway several times. The stop was reasonable and compatible with the Fourth Amendment.

Marling v. Brown

Docket: 19-3077

Opinion Date: July 13, 2020

Judge: Frank Hoover Easterbrook

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

Marling was arrested while driving his car. Police took an inventory. The trunk held a locked box. An officer opened the box with a screwdriver and found illegal drugs. Marling was armed, despite felony convictions. After unsuccessfully moving to suppress the box's contents, Marling received a 38-year sentence, as a habitual criminal. He filed an unsuccessful state court collateral attack, arguing that his lawyers furnished ineffective assistance by not arguing that opening the box damaged the box, in violation of police policy. The court of appeals found that the record did not establish damage to the box. A federal district court issued a writ of habeas corpus, ruling that a photograph showed damage to the box. The Seventh Circuit reversed. A factual mistake by a state court does not support collateral relief unless a correction shows that the petitioner “is in custody in violation of the Constitution or laws or treaties” of the U.S. Not every departure from any policy violates the Fourth Amendment. The policy at issue states an officer “should avoid” opening a container when that would cause “unreasonable potential damage.” The policy is valid: it combines a presumptive rule of opening everything with a discretionary exception. Because the policy is valid, the search is valid. A district judge’s disagreement about whether the officer followed the local policy is not a sufficient ground for collateral relief.

Peterson v. Barr

Docket: 20-2252

Opinion Date: July 12, 2020

Judge: Diane S. Sykes

Areas of Law: Criminal Law, Government & Administrative Law

In 1996 Lee murdered an Arkansas family of three in pursuit of funds for a white supremacist organization. Lee was convicted of capital murder in aid of racketeering, 18 U.S.C. 1959(a)(1), and sentenced to death. His execution was scheduled for December 9, 2019, but was stayed by one district judge in connection with Lee’s 28 U.S.C. 2241 habeas petition, and another who was hearing a challenge to the federal execution protocol. In December 2019, the Seventh Circuit vacated the stay in the section 2241 proceeding. The D.C. Circuit vacated the injunction in the execution-protocol case in April 2020. Lee’s execution was rescheduled for July 13. On July 7, family members of the victims sought an injunction; they want to attend the execution although they oppose it. The Warden authorized them to be witnesses, but they object to carrying out the execution during the COVID-19 pandemic. They raise health concerns, citing age, underlying medical conditions, and the need to travel interstate to reach the Terre Haute prison. A district judge issued a preliminary injunction. The Seventh Circuit vacated that injunction, finding the Administrative Procedures Act claim frivolous. The challenged action—setting an execution date—may not be judicially reviewable; the Bureau of Prisons observed the minimal regulatory requirements and has the unconstrained discretion to choose an execution date. In addition, the plaintiffs have no statutory or regulatory right to attend the execution and are not “adversely affected or aggrieved,” 5 U.S.C. 702.

United States v. Blake

Docket: 19-2508

Opinion Date: July 13, 2020

Judge: Brennan

Areas of Law: Criminal Law, Tax Law, White Collar Crime

Blake, who has an MBA, engaged in a fraudulent tax scheme but claims unnamed users in internet chat rooms persuaded him to pursue his hidden federal “legacy trusts.” Blake filed eight different individual tax returns using fraudulent information, at one point faking his own death. He was convicted of presenting a false or fictitious claim to a U.S. agency, 18 U.S.C. 287, and theft of government money, 18 U.S.C. 641. Blake’s base offense level was six; 16 levels were added for an intended loss in excess of $1.5 million (U.S.S.G. 2B1.1(b)(1)(I)). Two more levels were added for obstruction of justice (3C1.1). Blake’s guidelines range was 51–63 months' imprisonment. Blake objected to including in the loss calculation $900,000 in claimed refunds in the 2008–2010 filings, arguing he was not responsible for those filings. He also claimed $300,000 should be the intended loss amount because he intended to obtain only his “legacy trust” funds which he believed were about that amount. Under Blake’s calculations, his guidelines range was 33–41 months. The district court rejected his arguments. The Seventh Circuit affirmed his sentence of 36 months in prison plus restitution. The district court did not commit reversible error. Blake's ineffective assistance of counsel claim was dismissed without prejudice as “better raised on collateral review.”

Escobedo-Marquez v. Barr

Docket: 19-1025

Opinion Date: July 13, 2020

Judge: Per Curiam

Areas of Law: Immigration Law

Marquez and her 12-year-old daughter, Diana applied for admission into the U.S. at the California border. Marquez sought asylum and withholding of removal based on her belief that she could not live as an openly gay woman in Mexico without being persecuted. Marquez claims she received threats (via texts, social media, and letters) of physical harm to herself and her children. She reported the threats to the police, who did not help her. The threats stopped within four months. Marquez testified that she is concerned that her sexual orientation would limit her opportunities to work in Mexico and that other children might bully Diana for having a gay mother. Diana had attempted suicide because her peers at school had bullied her for reasons unrelated to her mother’s sexual orientation. Marquez fears that further bullying could trigger Diana again to try to take her own life. The IJ denied the applications. She found Marquez credible and characterized her experiences in Mexico as “unsettling,” but not sufficiently imminent or severe to establish persecution. The IJ found that the threats stemmed not from her status as a gay person but from a personal dispute with an ex‐girlfriend; Marquez had not shown a well‐founded fear of future persecution. The BIA affirmed, noting reports of “positive developments" concerning the rights of LGBT persons in Mexico.” The Seventh Circuit denied a petition for review, finding the decision supported by substantial evidence.