Last Month at the Supreme Court | December 2023

Happy Holidays from Dykema’s appellate group! The December 2023 edition features an exciting dive into both classic constitutional issues and emerging areas of law. This month, learn more about how the Justices tackle the gun rights of those subject to domestic violence protective orders, due process rights to post-seizure hearings, registration of trademarks referencing political figures, sovereign immunity under the Fair Credit Reporting Act, public officials’ use of social media, and the Supreme Court’s new Code of Ethics.

Supreme Court Weighs Gun Rights For Domestic Violence Offenders

In United States v. Rahimi, the central question before the Court is whether the government may restrict gun ownership for individuals subject to domestic violence protective orders under 18 U.S.C. § 922(g)(8). This is a critical Second Amendment challenge, marking the first significant test of the Second Amendment’s individual right to bear arms since the Court’s 2022 Bruen decision. Read the full synopsis here.  

Supreme Court Considers Whether Due Process Clause Requires Post-Seizure Probable Cause Hearings for Innocent Vehicle Owners

In Culley v. Marshall, the Supreme Court is asked to determine whether the Due Process Clause requires a state or local government to provide a post-seizure probable cause hearing before a statutorily-required civil forfeiture proceeding. In determining whether a hearing is required, the Court must decide which rule applies: the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983), and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit, or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976), as held by at least the Second, Fifth, Seventh, and Ninth Circuits. Read the full synopsis here.

Supreme Court to Decide Whether Refusal to Recognize Trademark Criticizing a Public Figure Violates the Free Speech Clause

Vidal v. Elster addresses the complex intersection between trademark registration and freedom of speech under the First Amendment. Read the full synopsis here.

Supreme Court Contemplates Whether Sovereign Immunity Is Waived Under The Fair Credit Reporting Act

In Department of Agriculture, Rural Development Rural Housing Service v. Kirtz, the Court is considering whether civil liability provisions of the Fair Credit Reporting Act (FCRA) unequivocally and unambiguously waive the sovereign immunity of the United States. Read the full synopsis here.

Supreme Court Examines Whether Public Officials’ Social Media Activity Constitutes State Action in O’Connor-Ratcliff and Lindke

In O’Connor-Ratcliff v. Garnier and Lindke v. Freed, the Court is considering whether a public official engages in state action subject to the First Amendment by blocking an individual or deleting comments from the official’s personal social-media account. While the First Amendment restricts “state action” when government officials act in their official capacities, it does not impose the same constitutional obligations on private conduct. Read the full synopsis here.

Supreme Court’s First Code Of Ethics

Historically, the Supreme Court has never published a code of conduct for the Justices. That changed this past month when the Supreme Court published the first Code Of Conduct For Justices Of The Supreme Court Of The United States. The Code includes a statement from the Supreme Court noting that, while for the most part the rules and principles are not new, the absence of such a code “has led in recent years to the misunderstanding that the Justices . . . regard themselves as unrestricted by any ethics rules.” According to the Court, the Code is published to “dispel this misunderstanding.” Read the full synopsis here.

For more information, please contact Chantel Febus, James Azadian, David Schenck, Theodore Seitz, Christopher Sakauye, McKenna Crisp, Monika Harris, or Puja Valera.