Supreme Court to Hold Oral Arguments by Phone

Photo by Pavan Trikutam on Unsplash

Zachery Hullinger, Associate Member, University of Cincinnati Law Review

In response to COVID-19 and the accompanying restrictions on gatherings, the Supreme Court had previously postponed its March and April argument sessions.[1] On April 13, 2020, the Court took further action, announcing that it would hold oral arguments via telephone for ten sets of these cases.[2] These oral arguments are scheduled for early May, while the other postponed cases will reportedly be rescheduled for the fall, though the Court has not officially announced this.[3]

While oral arguments do not typically change the outcome of Supreme Court cases, they are the most public aspect of the process. The Court can, and does, decide cases without oral argument,[4] but has not opted to completely dispense with arguments as part of its transition to a remote work environment. The decision to hold oral arguments by phone does, however, fall notably short of the actions taken by some lower courts, which have provided for oral arguments via video conference.[5] While these alternative formats certainly present challenges for an unwieldy nine Justice panel—or eight, as Justice Thomas rarely asks questions[6]—these problems are no less present for phone calls than for video conferences. Phone calls do not address the issues of delayed feedback and, more importantly, present no visual cues to the parties to indicate when the Justices may ask questions. The real reason the Supreme Court opted for telephone conferences, rather than video, is not ease—it is reticence. The Supreme Court has been resistant to allowing any video of its oral arguments, out of concern that it would result in theatrics and decontextualized video clips.[7] The Court’s unwillingness to provide or even utilize video feeds of its arguments during these extraordinary circumstances indicate that public access to arguments will be limited to audio for the foreseeable future.

Also of note are the cases that the Supreme Court has selected for argument in May. The Court did not merely schedule those cases that had been delayed the longest, and some of the cases are quite time-sensitive.  Colorado Department of State v. Baca concerns the constitutionality of state faithless elector laws. Had the case been postponed until the fall, it may not have been decided before the 2020 election. Also of potential import in the election are several cases involving efforts to obtain President Trump’s financial records.[8] 

While the Supreme Court’s procedural responses may be the issue of the day, this new oral argument format ensures that the focus will soon return, as always, to the substance of the cases.

[1] Lawrence Hurley, Supreme Court Postpones April Oral Arguments over Coronavirus, Reuters (Apr. 3, 2020),

[2] Adam Liptak, Supreme Court Will Hear Oral Arguments by Phone Because of Coronavirus, NY Times (Apr. 13, 2020),

[3] Amy Howe, Court Sets Cases for May Telephone Arguments, Will Make Live Audio Available, SCOTUSblog (Apr. 13, 2020),

[4] The Supreme Court can reverse cases summarily, without briefing or oral argument.  See William Baude, Foreword: The Supreme Court’s Shadow Docket, 9 NYU J.L. & Liberty 1 (2015).

[5] See Chuck Lindell, In a First, Texas Supreme Court Goes Live on YouTube, Statesman (Apr. 8, 2020),

[6] Adam Liptak, Clarence Thomas Breaks a Three-Year Silence at Supreme Court, NY Times (Mar. 20, 2019),

[7] Justices Scalia and Breyer both indicated their opposition to videoing oral arguments when they appeared before the Senate in 2011.  See Considering the Role of Judges under the Constitution of the United States: Hearing Before the S. Comm. on the Judiciary, 112 Cong. 137 (2011) (where Justice Scalia said that “for every ten people who sat through our proceedings gavel to gavel, there would be 10,000 who would see nothing but a 30-second outtake from one of the proceedings, which I guarantee you would not be representative of what we do.”).

[8] Nina Totenberg, Supreme Court to Hear Arguments by Telephone, Including on Trump’s Financial Records, NPR (Apr. 13, 2020),

A Work Made For Hire Analysis of Code Revision Commission v. Public.Resource.Org, Inc.

Law Books” by Mr.TinDC is licensed under CC BY-NC-ND 2.0.

Mike Chernoff, Associate Member, University of Cincinnati Law Review

I. Introduction

In the United States, copyright protection can be extended to original works of authorship fixed in any tangible medium.1 However, this protection is restricted for works that have been created as a statement of law.The Supreme Court will be hearing a case in the near future that will consider the annotations associated with the Official Code of Georgia Annotated, which were written by a third party, but approved by the Georgia General Assembly.3  Specifically, the case will consider whether these annotations are an official government edict for purposes of a copyright analysis.

Part II of this article will give further background information on United States copyright laws concerning government works and works made for hire. Part III will discuss this arrangement, and the aforementioned lawsuit involving the Official Code of Georgia Annotated lawsuit, Code Revision Commission v. Public.Resource.Org, Inc., that occurred due to a third party website distributing the Code despite the State of Georgia’s claimed copyright over the annotations.4 Part IV will analyze the copyright claim issue by the State of Georgia by viewing the annotations from a “work made for hire” viewpoint.

II. Copyright Background

The Constitution gives Congress the power “[t]o promote the Progress of Science and useful Arts, by securing for limited Time to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.”.5 Congress used this power to pass the Copyright Act, which states, “[c]opyright protection subsists . . . in original works of authorship fixed in any tangible medium of expression.”Authorship is a central point of copyright law, and the statute clarifies that “Copyright in a work . . . vests initially in the author or authors of the work.”

Under United States copyright law, copyright protection is “not available for any work of the United States Government.”8 While this law applies to the federal government, there is no mention of state governments in the federal statute.However, the United States Copyright Office has a policy against registering a government edict that has been issued by any state government, including legislative enactments, judicial decisions, or similar types of official legal materials.10 This view has been confirmed by the courts in rulings that have established that with respect to government works, “the People” are the “author.”11 

The Supreme Court first addressed the issue of copyrighting government edicts in Wheaton v. Peters.12 In Wheaton, the Court unanimously held that “no reporter has or can have any copyright in the written opinions delivered by this Court; and that the judges thereof cannot confer on any reporter any such right.”13 The Supreme Court extended this ruling to state court opinions in Banks v. Manchester.14 Before Banks, an Ohio statute provided for the appointment of an official reporter for the Supreme Court of Ohio and this reporter was tasked with securing a copyright on the court’s decisions.15 The Ohio statute also required the Secretary of State to contract a publisher to have the exclusive right to publish the reports of the official court reporter.16 In Banks, the chosen publisher sued to enforce its copyright interest in the work of the judges of the Supreme Court of Ohio.17 The Court decided against the publisher in Banks because the publisher did not qualify as the author of the works.18 The Supreme Court  explained that the judges could not be the authors of the works because they write opinion in their judicial capacity.19 The Court suggested that preventing the judges from having a copyrightable interest in the opinions was sound public policy and would support the notion that all should have free access to judicial opinions in the interest of  justice.20

III. Case History

In Georgia, the official published set of statutes are collected in the Official Code of Georgia Annotated (“OCGA”).21 Along with the language of the statutes, the OCGA also includes annotations, which consist of history lines, repeal lines, cross references, commentaries, case notations, editor’s notes, excerpts from law review articles, summaries of opinions of the Attorney General of Georgia, summaries of advisory opinions of the State Bar, and other research references.22 These annotations are part of the official code, as stated in the OCGA when the code states that the statutes “shall be merged with annotations . . . and [are] published by authority of the state . . . and when so published [are to] be known and may be cited as the ‘Official Code of Georgia Annotated.’”23 However, these annotations are for convenient reference only and are not part of the law.24

Per an agreement with the State of Georgia, these annotations were initially prepared by Mathew Bender & Co., Inc., which is a part of the LexisNexis Group (“Lexis”).25 Under this agreement, Lexis has the exclusive right of publication of the OCGA, but is also responsible for the ongoing publication and maintenance of the OCGA, including the associated editorial, publication, and distribution costs.26 The agreement directs what types of annotations should appear in the OCGA as well as how Lexis should generate and arrange the content.27 The Code Revision Commission (“the Commission”) is tasked with supervising Lexis’s work and has final editorial control over the OCGA.28 The Commission consists of the Lieutenant Governor of Georgia, four members of the Georgia senate, the Speaker of the Georgia House of Representatives, four additional members of the Georgia House of Representatives, and five members appointed by the president of the State Bar of Georgia.29 After the Commission has approved the annotations, the Georgia General Assembly must vote to the OCGA the official codification of Georgia’s laws, and thus, must vote to incorporate the annotations as part of the OCGA.30

This agreement requires Lexis to create a free, unannotated, online version of the OCGA, and the agreement also limits the price that Lexis can charge for the OCGA.31 In return, Lexis has the exclusive right to produce and sell print, CD-ROM, and online versions of the OCGA.32 Lastly, the agreement provides that all the parts of the OCGA that are copyrightable, “shall be copyrighted in the name of the State of Georgia.”33

Public.Resource.Org (“PRO”) is a non-profit organization that aims to improve public access to government records and primary legal matters.34 For example, PRO has published various state statutory codes online.35 PRO purchased all 186 volumes of the print version of the 2013 edition of the OCGA, scanned the documents, and uploaded the documents  to its own website.36 These documents were then freely accessible to the public, and copies of these documents were distributed to other organizations and other websites.37

The Commission sent cease and desist letters to PRO demanding that it no longer publish the OCGA on the ground that it infringed upon the State of Georgia’s copyright in the work.38 After PRO refused to comply with the cease and desist letters, the Commission sued PRO seeking injunctive relief to restrict PRO from publishing the OCGA, resulting in Code Revision Commission v. Public.Resource.Org, Inc.39 PRO responded by denying that the State of Georgia held an enforceable copyright in the OCGA because the OCGA was a law that was in the public domain.40

The United States District Court for the Northern District of Georgia granted partial summary judgment for the Commission and rejected PRO’s motion for partial summary judgment as the court concluded the annotations in the OCGA lack the force of law and are, therefore, not public domain material.41 The District Court issued a permanent injunction against PRO requiring PRO to no longer produce or display the OCGA.42 PRO appealed this decision and the case was heard by the 11th Circuit Court of Appeals.43

On appeal, the Circuit Court reversed the District Court’s judgment and ruled in favor of PRO.44 The Circuit Court reasoned that the annotations in the OCGA were sufficiently law-like to be considered a work of the government and are not copyrightable.45 Due to the Commission’s direct supervision over Lexis’s work on the annotations, the annotations were created by legislative authority.46 The procedural method of approval, outlined in Part II, for the annotations was relevant to the circuit court’s decision.47  The Georgia General Assembly and the Governor both have to approve of the OCGA each year.48 The Circuit Court reasoned that this exemplifies the American system of government, therefore, the entirety of the OCGA is in effect, authored by the Georgia General Assembly.49 The circuit court also concluded this viewpoint was supported by the authoritative control that the Commission exercised over every stage of the creation of the OCGA annotations.50 

On June 24, 2019, the Supreme Court of the Untied States granted the Commission’s petition for a writ of certiorari.51

IV. Discussion

A potential argument in favor of affirming the circuit court’s decision can be reached by analogizing the agreement between the State of Georgia and Lexis to that of a typical work made for hire under United States copyright law. 

When the creator of a work is hired by another entity, the hiring entity may be considered the “author” for purposes of copyrightability in specific situations.52 A situation in which a work would be considered a “work made for hire” is when the work is “specially ordered or commissioned for use as a contribution to collective work,” as part of one of nine areas of subject matter, which include compilations, and when the parties have expressly agreed in a written instrument that the work shall be considered a work made for hire.53 

The State of Georgia contracted with Lexis for the purpose of creating and drafting the annotations that appear in the OCGA.54 A “compilation” is defined as “something gathered together especially from various sources.”55 The OCGA can be considered a gathering of the laws of Georgia into one document. From this viewpoint, the OCGA has characteristics that satisfy the definition of a compilation, thus satisfying the first element of a work made for hire. The agreement also stated that the State of Georgia would be the holders of any copyright that stemmed from the annotations that Lexis had written.56 While this may not expressly state that Georgia and Lexis had agreed to a work made for hire, the effect would be the same as if the agreement had said so. Both elements of a work made for hire are satisfied, and the State of Georgia could be considered the “author” of the annotations.

Due to the State of Georgia’s status as the legal “authors” of the annotations, the Court should treat the annotations as if the Commission had originally written them. In this analysis, the Court should consider whether a statute annotation that was originally written by the Georgia General Assembly should be considered copyrightable. Based on the Court’s reasoning in Banks, annotations written by Georgia’s Commission or General Assembly are not protected by copyright because the officials involved in these bodies would have written the annotations in their elected capacity.57 If annotations written by members of the Georgia General Assembly were hidden from the public under a veil of copyright, then the public would be deprived from the justice that the annotations provide. The result should be no different if the Georgia General Assembly hired an organization to write the annotations in its place. When the annotations are viewed as a work made for hire for the Georgia General Assembly, the result is clear that the state should not gain copyright protection over any portion of the OCGA.

V. Conclusion

Free and open access to state laws are an integral part of a person’s right to justice. The importance of this right establishes the reasoning behind Section 105 of the Copyright Act and the Copyright Office’s policy on government edicts.58  Hiring a third party should not be a loophole to allow a government to restrict a person’s right to access the laws and judicial opinions of their state. The Supreme Court should consider work made for hire copyright protection doctrine to confirm that the agreement between Georgia and Lexis prescribes Georgia as the authors of the annotations for purposes of copyright. Since the Georgia General Assembly would be considered the author of the annotations and the annotations are an addendum to the law, the state should not be afforded copyright protection on the annotations.

  1. 17 U.S.C. § 102 (2019).
  2. See 17 U.S.C. § 105 (2019); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.6(C)(2) (3d ed. 2017).
  3. See Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229 (11th Cir. 2018).
  4. Id.
  5. U.S.Const. art. I, § 8, cl. 8.
  6. 17 U.S.C. § 102 (2019).
  7. 17 U.S.C. § 201(a) (2019).
  8. 17 U.S.C. § 105 (2019).
  9. Id.
  10. U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.6(C)(2) (3d ed. 2017).
  11. Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229, 1236 (11th Cir. 2018).
  12. Id. at 1237; Wheaton v. Peters, 33 U.S. 591, 668 (1834).
  13. See Wheaton, 33 U.S. 591, 668.
  14. Code Revision Comm’n, 906 F.3d at 1237; Banks v. Manchester, 128 U.S. 244, 254 (1888).
  15. Banks, 128 U.S. at 245, 249.
  16. Id. at 246.
  17. See id.
  18. Id. at 252.
  19. 253.
  20. Id.
  21. Code Revision Comm’n v. Public.Resource.Org, Inc., 906 F.3d 1229, 1233 (11th Cir. 2018).
  22. Id.
  23. Ga. Code Ann. § 1-1-1 (2019)
  24. Ga. Code Ann. § 1-1-7 (2019)
  25. Code Revision Comm’n, 906 F.3d at 1234.
  26. Id.
  27. Id. at 1233.
  28. Id.
  29. Id.
  30. Id. at 1245.
  31. Id. at 1234.
  32. Id.
  33. Id.
  34. Id.
  35. Id. at 1235.
  36. Id.
  37. Id.
  38. Id.
  39. Id.
  40. Id.
  41. Id.
  42. Id.
  43. Id.
  44. Id. at 1255.
  45. Id. at 1243.
  46. Id. at 1233.
  47. 1253.
  48. Id.
  49. Id.
  50. Id. at 1244.
  51. Id. at 1229.
  52. 17 U.S.C. § 101 (2019).
  53. Id.
  54. Code Revision Comm’n, 906 F.3d at 1234.
  55. Compilation, Merriam-Webster Dictionary, (last visited Sep. 10, 2019).
  56. Code Revision Comm’n, 906 F.3d at 1234.
  57. Banks v. Manchester, 128 U.S. 244, 253 (1888).
  58. See 17 U.S.C. § 105 (2019); U.S. Copyright Office, Compendium of U.S. Copyright Office Practices § 313.6(C)(2) (3d ed. 2017).

The Expanding Blocking Patent Doctrine: a Reversal of Burden of Proof?

Patents, Pez #1” by etorov is licensed under CC BY-SA 2.0.

Nathan Potter, Blog Editor, University of Cincinnati Law Review

I. Introduction

Overcoming obviousness is becoming increasingly difficult in some industries due to competitors seeking “blocking” patents.[1] A blocking patent is obtained by one patentee to restrict the make, use, sale, and/or export of an earlier patent owned by a different patentee. This may prohibit both patentees’ use of their respective patents due to the likelihood of infringement. Because a blocking patent may dissuade a competitor from pursuing innovation, it can be difficult to apply the objective indicia of nonobviousness (including commercial success, long felt but unsolved needs, and failure of others) listed in Graham v. John Deere Co.[2] This conflict has been brought to the Supreme Court of the United States in Acorda Therapeutics, Inc. v. Roxane Laboratories, Inc.[3] This petition has been distributed for conference on October 1, 2019.[4]

II. Background

A patent must be a nonobvious invention over prior art.[5] 35 U.S.C. § 103 evaluates nonobviousness from the perspective of a person having ordinary skill in the art (a “PHOSITA”). If a PHOSITA would determine that a potentially patentable invention is an obvious variation or addition to prior art, then the invention is not patentable. When determining whether a potentially patentable invention is obvious, the PHOSITA will use the four Graham factors: (1) the scope and content of the prior art; (2) the differences between the prior art and the claims at issue; (3) the level of ordinary skill in the art; and (4) secondary considerations (or the indicia of nonobviousness).[6]

These “secondary” considerations have become increasingly important since Graham. The Federal Circuit has emphasized the importance of secondary considerations in “guard[ing] as a check against hindsight bias.”[7] The Federal Circuit has also used secondary considerations to reverse district courts’ findings of obviousness.[8] The Federal Circuit has even commented on the necessity of analyzing secondary considerations before pronouncing an invention at issue in a case as obvious.[9]

III. Acorda Therapeutic, Inc. v. Roxane Laboratories, Inc., et al.

Acorda centers on four patents that claim the administration of a medication that is used to improve walking in individuals with multiple sclerosis.[10] Acorda was granted an exclusive license for another patent (the Elan patent) from Elan Corporation.[11] The Elan patent discouraged other companies from researching the administration of medication as detailed in the Acorda patents because of the likelihood that those developments would infringe the Elan patent.

One of Acorda’s arguments was “that the district court improperly applied a categorical rule that a blocking patent (the Elan patent) negates any findings in favor of Acorda on the objective indicia of commercial success, failure of others, and long felt but unmet need.”[12] The Federal Circuit sided with the district court, stating the ruling was based on the factual findings of the case, not a categorical ban.[13] The Federal Circuit continued, stating that a blocking patent, by itself, does not discount evidence of commercial success as a secondary consideration, but it requires a more fact-specific inquiry.[14] However, the existence of a blocking patent does lead to the logical conclusion that competitors may be less commercially motivated to pursue similar research.[15] After losing its appeal to the Federal Circuit, Acorda raised its case to the Supreme Court.

A. Petitioner’s Brief

Acorda’s brief asks whether objective indicia of nonobviousness may be partially or entirely discounted by the existence of a blocking patent, and, if so, whether the defendant must prove implicit or actual blockage.[16] The brief alleges that the Federal Circuit’s opinion is in direct conflict with Graham and opens the obviousness inquiry to hindsight bias.[17] The brief also alleges that the Federal Circuit has overridden the Supreme Court’s decision in Microsoft Corp. v. i4i Limited Partnership, which said that patents are presumed valid under 35 U.S.C. § 282(a) and that it is up to the challenger to prove invalidity, based on obviousness, by clear and convincing evidence.[18]

Acorda argues three key points against the concept of blocking patents within the pharmaceutical industry.[19] First, that 35 U.S.C. § 271(e)(1)’s safe harbor provision will protect researchers from being accused of infringement.[20] Second, that the defendants were capable of researching the art in the Elan patent outside the U.S.[21] And third, that the blocking patent could have been licensed to the defendants for a share of the profits.[22] Acorda then concludes, under these points, that any finding of blockage would have to be implicit.[23]

Acorda also argues that the Federal Circuit improperly applied the “clear and convincing evidence” standard.[24] Further, Acorda stated that the defendants did not have to overcome this standard because the Federal Circuit negated Acorda’s evidence of commercial success and other indicia of nonobviousness.[25] Acorda concludes that the blocking patent doctrine improperly shifted the burden of proof to Acorda.[26]

B. Respondents’ Brief

The Respondents’ brief alleges that the district court correctly found Acorda’s patents to be obvious in light of published studies and other evidence.[27] Respondents also point out that the Federal Circuit’s review was to consider whether the district court’s factual findings were clearly erroneous.[28] They stated that the Federal Circuit correctly sided with the district court while also rejecting any categorical rules regarding blocking patents.[29]

The Respondents’ brief argues that Acorda’s accusation of the creation of a categorical rule in the blocking patent doctrine is incorrect and “illusory.”[30] The brief goes on to say that there is no conflict between the outcome in the present case and any decision by the Supreme Court.[31] In this fact-specific inquiry, the Court must consider that the long felt need and commercial success are due to the blocking patent preventing competitors from devoting resources to do research based off the claimed invention.[32] Finally, Respondents surmise that even with the evidence of objective indicia of nonobviousness, Acorda’s patents would be held obvious under the prior art.[33]

IV. Discussion

The Petitioner and the Respondents both presented compelling arguments. There is no evidence of actual blockage. Licensing is common in the pharmaceutical industry. The Respondents never said they sought a license from Elan or Acorda of the Elan patent. Acorda admits that it was given an exclusive license, but there is no mention whether Acorda was permitted to assign that license. But, is it necessary to show actual blockage when the facts of a case strongly lead to an implicit conclusion?

The standard is clear and convincing evidence, not actual proof. The Respondents provided several secondary sources which backed their opinion that a blocking patent severely inhibits the commercial incentive for the Respondents to have pursued invention based on the Elan patent. However, this is still not concrete proof that the Elan patent actually blocked the Respondents’ research in the area.

Secondary considerations, or the indicia of nonobviousness, carry more weight today than they did in 1966, when Graham was decided. This was due to the recognition that those factors are best suited to tipping the scales on whether a patent is invalid due to obviousness. However, when there is significant research in the field and a patent which blocks others’ commercial viability, the court must view any secondary considerations in the light of the facts surrounding a case. To do otherwise, would allow one patentee to dominate a particular area of a field of research. Therefore, the existence of a blocking patent will almost always negate the effectiveness of secondary considerations in an obviousness analysis.

Acorda understates the importance of Federal Circuit’s standard of review. The Federal Circuit could only overturn the district court if it found the ruling to be clearly erroneous. This provided a great deal of deference to the district court, which tried the case based on the facts. Even though the Federal Circuit reviewed those facts, they came to the same conclusion. 

V. Conclusion

Acorda lost its appeal to the Federal Circuit on the facts of the case. It is undeniable that a blocking patent heavily weighs against a court’s consideration of the indicia of nonobviousness. This is the correct approach. Requiring a defendant to show proof of actual blockage is unrealistic in the world of pharmaceuticals. To suggest that a company is welcome to research the claimed invention outside the U.S. is a weak argument. The district court gave the Acorda patents their presumption of validity; however, the respondents overcame this presumption. Acorda relied too heavily on the indicia of nonobviousness to prove their patents were valid, and so those patents were found invalid. The Supreme Court does not need to grant certiorari on this issue because the Federal Circuit has already provided a correct decision. Requiring a defendant to show proof of actual blockage is too heavy a burden and potentially impossible.

[1] 35 U.S.C. § 103. A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.

[2] 383 U.S. 1, 17 (1966).

[3] 903 F.3d 1310 (Fed. Cir. 2018, cert. pending, Apr. 8, 2019).

[4] Acorda Therapeutics, Inc. vs. Roxane Laboratories, Inc., No. 18-1280 (U.S. Apr 08, 2019).

[5] Prior art is any evidence that your invention is already disclosed to the public. Prior art could be disclosed by the inventor or someone else and does not need to be fixed in a tangible medium.

[6] Graham, 383 U.S. at 17.

[7] In re Cyclobenzaprine Hydrochloride Extended-Release Capsule Patent Litig., 676 F.3d 1063, 1079 (Fed. Cir. 2012). See also Apple Inc. v. ITC, 725 F.3d 1356, 1365 (Fed. Cir. 2013).

[8] See Transocean Offshore Deepwater Drilling, Inc. v. Maersk Drilling USA, Inc.,699 F.3d 1340 (Fed. Cir. 2012); Plantronics, Inc. v. Aliph, Inc., 724 F. 3d 1343 (Fed. Cir. 2013); Leo Pharm. Prods., Ltd. v. Rea, 726 F.3d 1346 (Fed. Cir. Aug. 12, 2013).

[9] Apple, 725 F.3d at 1365.

[10] Acorda, 903 F.3d at 1313.

[11] Id.

[12] Id. at 1328.

[13] Id. at 1337.

[14] Id. at 1338 (citing Merck Sharp & Dohme Corp. v. Hospira, Inc., 874 F.3d 724 (Fed. Cir. 2017).

[15] Id

[16] Brief for Petitioner at i, Acorda Therapeutics, Inc. vs. Roxane Laboratories, Inc., No. 18-1280 (U.S. Apr. 8, 2019) (

[17] Id. at 2.

[18] Id. at 3.

[19] Id. at 20.

[20] Id.

[21] Id.

[22] Id.

[23] Id.

[24] Id. at 22.

[25] Id.

[26] Id. at 23.

[27] Brief for Respondents at i, Acorda Therapeutics, Inc. vs. Roxane Laboratories, Inc., No. 18-1280 (U.S. Apr. 8, 2019) (

[28] Id.

[29] Id.

[30] Id. at 1.

[31] Id.

[32] Id. at 14.

[33] 18.

2020 Presidential Campaign: The Revived Plan to Pack the Court

“Atop the front steps”by bobosh_t is licensed under CC BY-SA 2.0

John Simon, Blog Editor, University of Cincinnati Law Review

I. Introduction

With the 2020 presidential campaign in full swing, Americans have had the opportunity to view the Democratic contenders debate the issues on multiple occasions. While the candidates have addressed issues pertaining to healthcare, college education, and the environment, one key issue remains murky: the state of the Supreme Court and a possible attempt to reset the scales by packing the most powerful court in the United States. 

In May of 2019, Senate Majority Leader Mitch McConnell, while speaking at a Chamber of Commerce luncheon in Paducah, Kentucky, remarked that if a Supreme Court seat opened up in 2020, prior to the potential election of a Democratic President, the seat would be filled.[1] McConnell noted that, while government action is generally reversible, appointments to the federal judiciary are not: “What can’t be undone is a lifetime appointment to a young man or woman who believes in the quaint notion that the job of the judge is to follow the law…[t]hat’s the most important thing we’ve done in the country, which cannot be undone.”[2] These comments come three years after Senator McConnell blocked President Obama’s attempt to fill the Supreme Court seat left vacant by the death of Justice Antonin Scalia.[3]

With both McConnell’s comments and a string of recent anti-abortion legislation being passed at the state level, various Democrats naturally have taken issue with who sits on the bench.[4] This article will focus on the concept of court packing, its significance in United States history, and the plan presented by various Democratic candidates on the campaign trail. 

II. Court Packing in U.S. History

While several accounts of the showdown between President Franklin Roosevelt and the Supreme Court of the United States exist—coined the “switch in time that saved nine”—the most popular begins with the election of Franklin Roosevelt in 1932.[5] At that time, the Great Depression continued to debilitate the United States’ economy through crippling deflation, high unemployment rates, and low GDP.[6] Roosevelt promised the American people a “new deal” transformation of the traditional “laissez faire” political philosophy ascribed to by the American government into a system focused on a government-regulated economy.[7] Roosevelt’s “New Deal” sought to reverse the detrimental effects of the Great Depression. As Roosevelt took office in 1933, his New Deal became the focus for his administration. A significant portion of the New Deal was enacted within three months from Roosevelt’s inaugural day in office.[8] The plan initially focused on providing temporary aid to the unemployed while also revitalizing business and agricultural communities.[9] However, by 1935, nearing the reelection campaign, momentum stalled as the four conservative majority—known to Roosevelt as the “Four Horsemen”—gained the necessary swing vote from Justice Owen Roberts to overturn “New Deal” legislation.[10]

Over the next year, leading up to the 1936 election, the Supreme Court, on multiple occasions, overturned such federal legislative acts and programs like the Agricultural Adjustment Act and the National Recovery Administration.[11] In its final action of the 1936 term, the Supreme Court overturned a New York law that provided minimum wage to women and children.[12]

In 1936, Roosevelt won his second election by a landslide.[13] However, his victory was overshadowed by the fear that the Supreme Court would continue to undo legislative acts in furtherance of the New Deal.[14] Recognizing that the Court stood as the final obstacle preventing the passage of additional New Deal legislation, Roosevelt recognized that a direct confrontation was necessary.[15] At the same time, the public viewed the Supreme Court as an untouchable body; Roosevelt had to be cautious.[16] Following the election, Roosevelt and his Attorney General Homer Cummings drafted the final version of the plan to change the composition of the Supreme Court of the United States.[17]

In February 1937, Roosevelt finally unveiled his plan by proposing to Congress that he be permitted to appoint an additional justice to the Supreme Court for each member of the Court over the age of 70 who did not retire.[18] Additionally, the plan called for additional lower court judges to be appointed.[19] Roosevelt justified his plan by noting that a lack of judges had backlogged the judicial system.[20] Roosevelt also relied on the issue of capacity, stating that  “age or infirm judges” attributed to the problem, recognizing that while it was a delicate subject, it still merited dialogue.[21]

While the country split evenly on the constitutional issue of whether Roosevelt could add justices to the Supreme Court, the matter seemingly resolved itself. In several decisions following Roosevelt’s proposal, the Supreme Court reversed course, voting 5-4 to find constitutional a state minimum wage law and the Social Security Act.[22] Both swing votes—Chief Justice Hughes and Justice Roberts—sided with the liberal minority.[23] With the majority now in favor of New Deal policies, Roosevelt could continue his agenda.[24] Further, and more important, the proposed plan to pack the Supreme Court of the United States was not pursued as the issue had become moot.[25]

III. Amending the Supreme Court Today

Several Democratic candidates have pitched the idea of reforming the Supreme Court. For instance, hopeful Pete Buttigieg, mayor of South Bend, Indiana, believes that five additional members should be added to the Court.[26] In his opinion, the Court should be composed of five Republicans, five Democrats, and five members jointly selected by the sitting members of the Court.[27] Former Representative Beto O’Rourke stated that justices should be afforded 18-year term limits.[28] Senator Kamala Harris remarked that she would be open to the idea of adding justices to the Supreme Court, stating that “[t]he most critical issues of our lifetimes, before and in the future…will be decided by that United States Supreme Court.”[29]

Left-wing groups and scholars also strongly support Supreme Court reform. For instance, Pack the Court, a liberal group which supports the addition of justices to the bench, has launched an aggressive campaign to catch the attention of Democratic candidates.[30] Brian Fallon, director of Demand Justice, hopes to make the courts a key point in the 2020 election.[31] Specifically, he has urged the candidates to support the notion of setting term limits for justices.[32]

At the same time, the court packing plan being kicked around has been met with opposition, most notably from current Justice Ruth Bader Ginsburg.[33] She told NPR that nine was a good number and that she thought “it was a bad idea when President Franklin Roosevelt tried to pack the court.”[34] Justice Ginsburg added that the Constitution prescribes lifetime appointments for federal judges and that the Constitution cannot be easily amended.[35] Thus, the proposals put forward by Democratic candidates, in her opinion, remain unrealistic.

IV. Conclusion

With the Supreme Court growing more conservative and the current balance of power sitting 5-4 in favor of the conservative coalition, members of the Democratic Party have found it necessary to discuss ways of balancing the scales. With the 2020 election on the horizon, Democratic candidates have spoken publicly regarding measures that can be taken to reform the Court. While it’s unclear how court reforms may evolve in the future, the controversial issue will certainly be a point of concern as the campaign heats up.

[1]Ted Barrett, In reversal from 2016, McConnell says he would fill a potential Supreme Court vacancy in 2020, CNN (May 29, 2019),


[3]Joan Biskupic, Democrats look at packing the Supreme Court to pack the vote, CNN (May 31, 2019),


[5]See Daniel E. Ho & Kevin M. Quinn, Did A Switch in Time Save Nine?, Journal of Legal Analysis (2010), (noting that the popular account of the story revolves around conflict between President Franklin Roosevelt and the Supreme Court whereby President Roosevelt threatened to reform the Supreme Court so that his “New Deal” policies would not be overturned. Yet an analysis of the decisions that “saved nine” shows that Justice Roberts voted consistent with his prior positions).

[6]Richard H. Pells & Christina D. Romer, Great Depression, Encyclopedia Britannica (Jul. 12, 2019),

[7]New Deal, Encyclopedia Britannica (Jul. 4, 2019),

[8]William E. Leuchtenberg, When Franklin Roosevelt Clashed with the Supreme Court—and Lost, Smithsonian Magazine (May 2005),














[22]Id.see also West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937); see also Helvering v Davis301 U.S. 619 (1937).




[26]Richard Wolf, Liberal groups seek to make Supreme Court an issue in 2020 presidential race, and conservatives exult, USA Today(Jul. 28, 2019),



[29]Biskupic, supra note3.

[30]Philip Elliott, The Next Big Idea in the Democratic Primary: Expanding the Supreme Court?, Time Magazine (Mar. 13, 2019),

[31]Wolf, supra note26.


[33]Nina Totenberg, Justice Ginsburg: ‘I Am Very Much Alive’, NPR (Jul. 24, 2019),



Michigan v. Frederick: A Chance to Clarify Law Enforcement’s Knock-and-Talk Procedures

“Doors in the interior” by Dmitry Grigoriev is licensed under CC BY-NC-ND 4.0

John Simon, Blog Editor, University of Cincinnati Law Review

I. Introduction

In recent history, the Supreme Court has averaged 7,000-8,000 new petitions annually.[1] Of those new cases filed, approximately 80 receive plenary review with oral arguments heard before the Court. [2] On June 3, 2019, the State of Michigan submitted a petition for a writ of certiorari to have a Fourth Amendment case heard by the Justices.[3] The case of Michigan v. Frederick, which has an extensive legal history stretching back to 2012, asks the Court to clarify the limits that apply to law enforcement’s use of knock-and-talk procedures when attempting to conduct a warrantless search.[4] This article examines Supreme Court precedent regarding knock-and-talk procedures, Michigan’s disputed case, and the constitutional implications which might stem from the Supreme Court’s decision to grant or deny cert.

II. Background

While not directly on point with the issue of knock-and-talk procedures, the Supreme Court provided a glimpse into the Fourth Amendment analysis that shapes such encounters in Kentucky v. King.[5] In that case, police officers set up a controlled purchase of crack-cocaine outside an apartment complex in Lexington, Kentucky.[6] An officer observed the drug transaction and immediately radioed to other officers to move in on the suspect who was walking inside.[7] Just before officers arrived, the suspect went into an apartment. The officers then heard a door shut, but were uncertain which unit the suspect entered.[8] Smelling marijuana coming from one of the apartments, the police decided to approach that door.[9] They knocked on the door and announced to the occupants that it was the police.[10] Hearing rustling and movement on the inside, the officers believed that drug evidence was being destroyed.[11] At that point, they kicked in the door and found three occupants with marijuana and cocaine.[12]

King, one of the occupants, challenged his charges based on an alleged Fourth Amendment violation.[13] The case made its way to the Supreme Court after the Kentucky Supreme Court held that the police created an exigency prior to entering the apartment in violation of the Fourth Amendment.[14]

The Supreme Court ultimately reversed, finding that the police had not created an exigency or threatened to violate the Fourth Amendment prior to entering the apartment.[15] While the decision rested upon the exigent circumstance exception to the Fourth Amendment, the Court seemingly found support for the premise that the police did not create an exigency by looking at the implied license theory. The Court noted that when law enforcement officers knock on a door without a warrant, they are acting within the bounds of normal, private citizens; as such, the occupant has no obligation to open his door or to talk.[16] The Court further wrote that the choice to open the door and speak to police does not require occupants to let the police in, and that the occupants still have the freedom to refuse to answer questions at any time.[17]

Two years after the King case, the Court yet again invoked the implied license theory approving the law enforcement’s use of knock-and-talk procedures.[18] In Florida v. Jardines, police received an unverified tip that Jardines was growing marijuana inside his home.[19] A month later, police drove to Jardines’ home to investigate.[20] Upon seeing no cars in the driveway and the blinds drawn, police approached the home with a drug-sniffing dog.[21] The dog immediately picked up the scent which led officers to apply for a search warrant. Officers executed the search warrant a day later and discovered marijuana.[22]

At trial, Jardines moved to suppress the drug evidence on the basis of a Fourth Amendment search violation.[23] The case worked its way to the Florida Supreme Court, which granted the motion, finding that the use of the drug-sniffing dog constituted a search in violation of the Fourth Amendment.[24]

On appeal to the Supreme Court, Justice Scalia, writing for the majority, held that while the police have an implied license to approach a home, knock on the door, and engage in a conversation with the home’s occupant, using drug-sniffing dogs exceeded the scope of the implied license.[25] As Justice Scalia wrote: “We have…recognized that ‘the knocker on the front door is treated as an invitation or license to attempt an entry, justifying ingress to the home by solicitors, hawkers and peddlers of all kinds.’”[26] Justice Scalia explained that knocking on the door is a common-sense occurrence, one that has been “managed without incident by the Nation’s Girl Scotus and trick-or-treaters.”[27] Effectively, law enforcement has the authority to act as any ordinary citizen would in approaching someone’s front door. Such actions do not constitute a trespass. However, the introduction of a trained drug-sniffing dog changes the situation entirely and is no longer comparable to the ordinary door-knocker – as Justice Scalia noted, merely hanging a door knocker does not qualify as an invitation for drug-sniffing dogs.[28]

Therefore, the Court affirmed the decision of the Florida Supreme Court finding that law enforcement, despite maintaining an implied license to enter someone’s property, exceeded the implied license by engaging in activities that the ordinary citizen would not while on someone’s property.[29]

III. Michigan v. Frederick[30]

Michigan v. Frederick presents a fairly straightforward timeline. In March 2014, officers with Michigan’s Kent Area Narcotics Enforcement Team (“KANET”) received a tip during an investigation that corrections officers in the Kent County Sheriff Department were purchasing “marijuana butter.”[31] The tip named Michael Frederick and Todd Van Doorne as corrections officers purchasing the marijuana butter.[32]

Hours after receiving the tip, at approximately 4:00 a.m., seven KANET officers, equipped with tactical vests and handguns, arrived at Frederick’s home.[33] Four officers approached the front door and knocked.[34] Within minutes, Frederick answered the knocks at which time the KANET officers informed Frederick of the pending criminal investigation and asked to enter his home.[35]The KANET officers asked Frederick for consent to search his home, which Frederick granted.[36] During the search, the KANET officers recovered the marijuana butter.[37]

At approximately 5:30 that same morning, the KANET officers arrived at Van Doorne’s home.[38] Four officers approached the side door and knocked.[39] Van Doorne, recognizing some members of the KANET team, opened the door and greeted the officers.[40] The KANET officers explained the purpose for their visit.[41] Van Doorne, thinking that he could clear the matter quickly by providing his medical marijuana card, invited the officers into his home.[42] Van Doorne consented to a search of his home which also revealed his marijuana butter.[43]

Frederick and Van Doorne were suspended from the Kent County Sheriff Department and were each charged with various drug offenses.[44] Both filed motions to suppress the evidence found during KANET’s searches arguing that consent was involuntarily obtained and that the knock-and-talk procedures violated the Fourth Amendment.[45] The trial court denied the motions finding the consent to be voluntarily given and that the knock-and-talk procedures did not implicate the Fourth Amendment’s protections.[46]

The Michigan Court of Appeals denied the defendants’ separately filed applications for leave to appeal.[47] The Supreme Court of Michigan remanded the cases to the appellate court for consideration of the Fourth Amendment issues under the Supreme Court decision in Jardines v. Florida.[48]

The Michigan Court of Appeals, on remand, was asked to “consider only whether the knock-and-talk procedures conducted in these cases were consistent with the Fourth Amendment as articulated in Jardines.”[49] Relying on federal precedent, the Michigan Court of Appeals affirmed the trial court’s decision holding that case law approves of law enforcement’s use of knock-and-talk procedures under the framework of an implied license to enter an individual’s property.[50] The court acknowledged the confines of the implied license, noting that such a license permits an individual to approach the home by a front path, knock on the door, and wait briefly for a response before leaving.[51] The Michigan Court of Appeals stated that a Fourth Amendment violation requires circumstances that “transform” a lawful entrance into a warrantless search.[52] Interpreting Jardines, the Michigan Court of Appeals found that police do not commit Fourth Amendment violations by simply approaching a home and asking to speak with the person who lives there. But, the court continued, there is a violation when the police enter that home not with the intent to speak to the occupant, but with the sole intent to conduct a search.[53]

Ultimately, the Michigan Court of Appeals affirmed the trial court’s decision to deny the motions to suppress, distinguishing the case from the facts presented in Jardines.[54] The court found that “[i]n each instance, officers approached the home, knocked, and waited to be received. And in each instance, the officers were received by the homeowners.”[55] Nothing in the record reflected the KANET unit’s intention to use the knock-and-talk as a smokescreen to conduct the search. Rather, the facts conveyed the officers’ intention to speak with the occupants of each home to ascertain information that would aid in the investigation.[56]

On appeal to the Michigan Supreme Court, the consolidated cases were remanded to the trial court with instructions to treat the knock-and-talks as illegal searches but for further examination of each appellant’s consent.[57] The Michigan Supreme Court, relying on precedent from the Supreme Court, found that knock-and-talk procedures do not implicate the Fourth Amendment when conducted in the proper scope.[58] However, police conduct outside of an implied license constitutes a trespass.[59] Trespass alone is insufficient to constitute a search in violation of the Fourth Amendment, but trespass in conjunction with conduct evincing information-gathering behavior constitutes an illegal search.[60]

Applying caselaw to the consolidated cases, the Michigan Supreme Court found that the KANET unit’s conduct constituted a Fourth Amendment violation.[61] The court was unwilling to extend the implied scope of the license to “predawn approaches” and held that the police were trespassing.[62] The KANET unit exceeded the scope of the implied license by entering constitutionally protected areas at unjustifiable times of the day.[63] However, as the court noted, trespass alone does not violate the Fourth Amendment; law enforcement must also seek information while trespassing. Regarding this prong of the analysis, the Michigan Supreme Court stated: “The KANET officers were not simply cutting across the defendants’ lawns as a shortcut, stopping by to drop off a get-well-soon basket…The officers approached each house to obtain information about the marijuana butter they suspected each defendant possessed.”[64] Thus, the KANET unit violated the Fourth Amendment’s protections against unreasonable searches.[65]

The Michigan Supreme Court remanded the case to the trial court to determine whether the consent provided after the search was attenuated from the illegality.[66] At the time of this article, the trial court on remand has granted the motions to suppress, ultimately preventing the prosecution from proceeding with trials against the defendants.[67] The cases are now pending before the Supreme Court.

IV. Legal Positions

The State of Michigan’s petition sequentially outlines the following questions: (1) whether the Fourth Amendment applies to knock-and-talk procedures; (2) whether the Michigan Supreme Court correctly determined that pre-dawn visits constitute trespass, exceeding the scope of an implied license; and (3) whether a trespass coupled with the intent to gather information constitutes a search under the Fourth Amendment.[68]

The petition argues that Supreme Court precedent expressly permits consensual encounters between law enforcement and citizens. Knock-and-talk procedures fall squarely within consensual encounters because law enforcement is acting as any other private citizen might act.[69]

Although the petition acknowledges that Supreme Court precedent has upheld knock-and-talk procedures, the thrust of the argument is that courts are unclear as to the limits, if any, on knock-and-talk procedures.[70] Specifically, after the Jardines decision was published, federal and state courts have had difficulty determining how to analyze the implied license that permits knock-and-talk encounters.[71] Regarding Justice Scalia’s quip regarding the Girl Scouts, the petition notes: “Some courts have seized upon this dicta to find a Fourth Amendment violation where police operate outside of the framework of what a Girl Scout might do.”[72] For instance, the Ninth Circuit found a Fourth Amendment violation when police approached a suspect’s home at 4:00 a.m. with the intent to arrest the suspect—an action that the ordinary person would not willingly accept.[73] On the other hand, the Tenth Circuit found that Jardines left knock-and-talk procedures undisturbed.[74]

While the State of Michigan ultimately asks the Supreme Court to issue a ruling clarifying whether Jardines in fact changed knock-and-talk protocol, the petition also explicitly requests the Court to approve of pre-dawn knock-and-talks. The petition states:

Petitioner submits that the implied license is not inherently violated by a predawn visit. While perhaps not desired, a person might approach a home for assistance at 4 am if that person had car trouble and did not have a working cell phone, for instance. Such a person should not be found liable in tort for trespass nor would the person generally be subject to criminal prosecution for trespass.[75]

According to the State of Michigan, the situation described above should be viewed similarly to law enforcement acting quickly to investigate a tip.[76]

Alternatively, the State of Michigan is arguing that if such a time constraint is imposed upon law enforcement’s knock-and-talk procedures, then acquiring consent precludes any consideration of the knock-and-talk as a search.[77] The petition notes that to find otherwise would significantly depart from precedent that police are able to ask for consent to speak to someone, or to search their home; asking to search a home is different, the State emphasized, from actually looking in the home.[78] The State of Michigan indicated that the Supreme Court has traditionally followed the objective standard whereby the evaluation of a knock-and-talk case centered on whether the officer went to a door, knocked, waited for the occupant to answer the door, and talked to that occupant.[79] In that scenario, there is no search.

In response to the State of Michigan’s brief, Frederick primarily focused on the State of Michigan’s apparent dislike for the Jardines decision as well as the lack of case law supporting the State of Michigan’s interpretation of Jardines. Frederick argued that the State decision had not even created a split between circuits or the highest state courts.[80]

Among those cases cited by the State of Michigan, Frederick points out each court ultimately found that law enforcement has an implied license to enter a person’s property.[82] However, none of those courts explicitly approved of 4:00 a.m. visits.[83] Because the State of Michigan did not provide sufficient support for its position that the implied license to enter one’s property extends to pre-dawn visits, Frederick asked the Court to deny the petition for certiorari.[84]

V. Future

With the State of Michigan’s petition being filed in early July, it remains unclear whether the Supreme Court will grant certiorari. Under Jardines, the Court confirmed that law enforcement may use knock-and-talk procedures. However, knock-and-talk procedures must be used within the confines of an implied license—such as is provided to any person whose trade requires entrance onto another’s property.

The present case attempts to widen the scope of the implied license to provide law enforcement with greater latitude in conducting a knock-and-talk by virtue of being able to go to someone’s door in the middle of the night. To the contrary, Jardines addressed whether the implied license was exceeded through the use of a drug-sniffing dog on someone’s premises. When the Court published the Jardines decision, the Court split 5-4 finding that such an activity exceeded the implied license and constituted a search in violation of the Fourth Amendment.[85] The five Justice majority consisted of Justices Scalia, Thomas, Ginsburg, Sotomayor, and Kagan.[86] The four Justice minority was composed of Justices Roberts, Kennedy, Alito, and Breyer.[87] Since that decision, Justice Scalia has passed, and Justice Kennedy has retired, opening the door to Justices Gorsuch and Kavanaugh playing significant roles in the overall outcome of the case.[88]

[1] The Justices’ Caseload, Supreme Court of the United States (July 10, 2019),

[2] Id.

[3] Aurora Barnes, Petitions of the week, SCOTUSblog (July 3rd, 2019),

[4] Id., quoting

[5] Kentucky v. King, 563 U.S. 452 (2011).

[6] Id. at 455 (2011).

[7] Id. at 456.

[8] Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. at 456-457.

[13] Id. at 457.

[14] Id. at 458.

[15] Id. at 472.

[16] Id. at 469.

[17] Id. at 470.

[18] Florida v. Jardines, 569 U.S. 1 (2013)

[19] Id. At 3.

[20] Id.

[21] Id.

[22] Id. at 4.

[23] Id. at 4-5.

[24] Id.

[25] Id. at 8.

[26] Id.

[27] Id.

[28] Id. at 9

[29] Id.


[31] People v. Frederick, 886 N.W.2d 1, 3 (Mich. App. 2015).

[32] Id.

[33] Id.

[34] Id.

[35] Id.

[36] Id.

[37] Id.

[38] Id.

[39] Id.

[40] Id. at 4.

[41] Id.

[42] Id.

[43] Id.

[44] Id.

[45] Id.

[46] Id.

[47] Id.

[48] Id.

[49] Id. at 5.

[50] Id.

[51] Id. at 6 (citing Florida v. Jardines, 569 U.S. 1, 7 (2013)).

[52] Id. at 7.

[53] Id. at 9.

[54] Id. at 15.

[55] Id. at 7.

[56] Id. at 12.

[57] People v. Frederick, 895 N.W.2d 541, 542 (2017).

[58] Id. at 544.

[59] Id. at 545.

[60] Id.

[61] Id. at 546-547.

[62] Id. at 547.

[63] Id.

[64] Id.

[65] Id. at 548.

[66] Id. at 549.

[67] Petition for Writ of Certiorari at 8, People v. Frederick (Jun. 3, 2019).

[68] Id. at 1-2.

[69] Id. at 9-10.

[70] Id.

[71] Id. at 11.

[72] Id.

[73] Id. at 12 (citing United States v Lundin, 817 F3d 1151, 1159 (CA 9, 2016)).

[74] Id. (citing United States v Carloss, 818 F3d 988, 993 (CA 10, 2016)).

[75] Id. at 15.

[76] Id.

[77] Id. at 16.

[78] Id. “Asking if one may look in someone’s home is not the same as the person actually looking in the home.”

[79] Id. at 21.

[80] Respondents’ Brief in Opposition at 2, People v. Frederick, No. 18-1513 (Jun. 25, 2019).

[81] Id. at 3. “Petitioner has not even attempted to demonstrate how that Michigan Supreme Court decision created or exacerbated a split among the circuits or state courts of last resort.”

[82] Id. at 3-4 (citing, e.g., United States v. Carloss, 818 F.3d 988, 994-95 (10th Cir. 2016), United States v. Walker, 799 F.3d 1361 (11th Cir. 2015)).

[83] Id.

[84] Id. at 4-5.

[85] See, 569 U.S. 1 (2013).

[86] Id.

[87] Id.

[88] See, Sophie J. Hart & Dennis M. Martin, Judge Gorsuch and the Fourth Amendment, SLR (Mar. 2017), (noting that Judge Gorsuch, while a Court of Appeals Judge with the Tenth Circuit, dissented in the Carloss case writing that “No Trespassing” signs on a person’s property remove law enforcement’s implied license)

Knick v. Township of Scott: Supreme Court Overrules Precedent.

“Farm”by Digitalnative is licensed under CC BY-NC-ND 2.0

Kyle Greene, Blog Editor, University of Cincinnati Law Review

In a recent 5-4 decision, the Supreme Court overruled precedent, now allowing property owners to immediately bring a Takings Clause federal claim when their state government takes control of their property without just compensation.[1] The right exists regardless of whether a state procedure to apply for compensation is in place, or whether the state promises to pay sometime in the future.[2] This Article will explain the Court’s majority reasoning in Knick v. Township of Scott and why it decided to overrule the previously controlling case of Williamson County Regional Planning Comm’n v. Hamilton Bank of Johnson. It will further describe the dissent’s concerns in the majority’s reasoning, and finally, conclude that while the majority’s decision alleviates some problems with Williamson, it also potentially subjects federal courts to have to analyze complex state law issues which they may not be best suited to handle.

I. The Overruled Precedent: William County Regional Planning Comm’n v. Hamilton Bank of Johnson City

In Williamson County, a property developer brought suit in federal court against a zoning board that rejected the developer’s proposal for a new subdivision, alleging Fifth Amendment Takings Clause violations.[3] The Supreme Court decided the developer’s case was not yet ripe for review in a federal court because (1) the developer still had an opportunity to seek variance from an appeals board, so the taking was not yet final, and (2) the developer did not have a federal takings claim because he had not sought compensation “through the procedures the State had provided for doing so.”[4] The Court reasoned that when a State provides adequate procedures for seeking compensation, the property owner cannot claim a violation of the Taking Clauses until its exhausts those procedures and is denied. Thus, a Takings Clause violation does not exist untill the state procedure for compensation denies the property owner of compensation.[5]

Under the Williamson County rule of law, the Supreme Court decided San Remo Hotel, L. P. v. City and County of San Francisco.[6] In San Remo, the plaintiffs brought their Takings Clause claim in state court as required by Williamson County.[7] However, when the plaintiff’s claim for compensation was denied, they were unable to later bring their Fifth Amendment claim to federal court.[8] The Court reasoned that the Full Faith and Credit Statute required the federal court to give preclusive effect to the state court’s decision, blocking any subsequent consideration of whether the plaintiff suffered a taking within the meaning of the Fifth Amendment.[9] Therefore, under Williamson County’s state litigation requirement, a plaintiff alleging a Takings Clause violation must first bring their claim through state procedures, but if they lose, then under San Remo they will be barred from bringing a federal claim because of the obligations under the Full Faith and Credit Statute.

II. The Supreme Court’s Answer: Knick v. Township of Scott

The Supreme Court recently sought to relegate the problems with Williamson in its June 2019 decision in Knick v. Township of Scott.[10] A woman had a family graveyard near the back of her 90 acre plot of land, as is fairly customary in Pennsylvania.[11] Scott Township passed an ordinance that “all cemeteries . . . be kept open and accessible to the general public during daylight hours.”[12] The Township had the authority to enter any property to determine the existence and location of cemeteries to enforce their ordinance.[13] The Township utilized their authority and found the small graveyard in Knick’s backyard. They notified her that she was violating the ordinance by failing to open it to the public and notified her of the violation. [14]In response, Knick sought declaratory and injunctive relief in state court, alleging that the ordinance effectively operates as a taking of her property.[15] The Township then withdrew its violation and stayed enforcement until after the state proceedings.[16] However, by doing so, the state court declined to rule on the claim because as long as the Township wasn’t enforcing the ordinance, she could not demonstrate irreparable harm for equitable relief. Knick, determined for relief on the issue, next brought her claim in federal court alleging the ordinance violated the Takings Clause of the Fifth Amendment. [17] The Third Circuit followed Williamson County and dismissed her claim because she had not exhausted state proceedings in the form of an inverse condemnation claim.[18]

The Supreme Court saw Knick’s claim and its lengthy backstory as an opportunity to rectify the perceived problems with Williamson County. The Court pointed out the oddity that the Williamson County and San Remo cases caused by requiring plaintiffs to first exhaust a state court proceeding for compensation, but then subsequently being barred under the Full Faith and Credit Statute from winning their federal claim.[19] The Supreme Court declared this development to be unworkable in current jurisprudence and found the state litigation requirement null and void.

The Supreme Court also reiterated that the “Fifth Amendment right to full compensation arises at the time of taking, regardless of post-taking remedies that may be available to the property owner.”[20] The Court explained that the Fifth Amendment violation occurs as soon the government takes their property without paying for it.[21] Even if the government promises a later payment or remedies the violation in a state proceeding, the violation still occurred. The Court analogized the Williamson County theory to that of a bank robber: “A bank robber might give the loot back, but he still robbed the bank.”[22] Therefore, the Williamson County logic that a violation does not occur untill the plaintiff exhausts state proceedings and is still left without compensation is untenable.[23] Instead, the Court decreed “because a taking without compensation violates the self-executing Fifth Amendment at the time of the taking,” the property owner can bring a federal suit immediately after the taking regardless of any promised payment or available state procedures.[24] Thus, the government infringed on Knick’s Fifth Amendment rights when they first enforced the ordinance, and that violation exists whether or not they later decided to stay their enforcement.[25]

III. The Dissent

Justice Kagan took issue with the Majority overruling Williamson County as it, in effect, rejects a line of cases going back to the late 1800s.[26] Justice Kagan also challenged the majority decision reasoning that a promise of contemporaneous payment still results in taking under the Fifth Amendment, citing a long history of cases that allowed future payment for taken property.[27]

Most interestingly, Justice Kagan’s dissent explores the practical effect of the Majority’s decision. The dissent explains that “today’s decision means that government regulators will often have no way to avoid violating the Constitution.”[28] Because there are a lot of different ways that a regulation could affect property interests, the government will never know when it is violating the Fifth Amendment.[29] A government actor can never know when their actions will result in a taking because there is no set formula for determining whether a government action is a taking.[30]

Lastly, Justice Kagan explains that the Majority’s new rule will result in federal courts potentially dealing with an influx of cases that can more effectively be dealt with in state court. Now, federal courts will be forced to make rulings on complex and perhaps minute state laws (e.g. Pennsylvania’s graveyard law) to determine if the regulation is a taking.[31] The dissent reasons that this type of state law interpretation is better suited for state courts.[32]

IV. Conclusion

While the Knick majority ruling took on to correct what they saw as an unworkable set of cases in Williamson County and San Remo, they may have caused more problems than they solved. Plaintiffs will rejoice in now having multiple avenues for relief to choose from. Moreover, they will have an easier time winning those claims as Knick made clear a violation occurs and must be remedied as soon as the taking occurs whether or not they are promised compensation in the future. However, the dissent makes sounder practical points. Governments will be walking on eggshells every time they carry out an ordinance that in any way relates to private property interests with no way of determining if it amounts to a taking. The dissent is likely correct in noting that many of these issues are better suited for state court. It is unlikely that a federal court would know more about an obscure graveyard ordinance than the local state court whose judges dealt with it for a number of years. Federal court judges should get out the statute books and brush up on the various odd state property laws of their jurisdiction because they’ll be seeing a lot more of it after the ruling in Knick.

[1]Knick v. Township of Scott, No. 17-647, 2019 WL 2552486 (U.S. June 21, 2019).

[2] *7.

[3]William County Regional Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172 (1985)


[5]See id.

[6]San Remo Hotel, L. P. v. City and County of San Francisco, 545 U.S. 323, 337-399, 125 S.Ct. 2491 (2005).



[9] 343-345.see also 28 U.S.C. § 1739.

[10]Knick v. Township of Scott, No. 17-647, 2019 WL 2552486 (U.S. June 21, 2019).

[11] *3.



[14] *4.

[15] *4.



[18]Id.(“inverse condemnation is a cause of action against a governmental defendant to recover the value of the property which has been taken in fact by the government defendant.” United States v. Clarke, 445 U.S. 253,357).

[19] *12.

[20] *5. Citing Jacobs v. United States, 290 U.S. 13, 54 S.Ct. 26 (1933).

[21] *6 citing First English Evangelical Lutheran Church of Glendale v. County of Los Angeles, 482 U.S. 304, 107 S.Ct. 2378.

[22] *7.




[26] *14 (Justice Kagan dissenting)



[29]Id.citing Arkansas Games and Fish Comm’n v. United States, 568 U.S. 23, 31, 133 S.Ct. 511 (2012).


[31] *19


Justice Kennedy: To Swing or Not to Swing

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The recent death of Justice Antonin Scalia has both political parties upset, as both parties want control in appointing the new Justice to replace him. Until Justice Scalia’s seat can be filled, the politically divided Supreme Court risks a 4-4 tie on almost all major contentious cases that are before the Court. In the event of a tie, the Supreme Court traditionally takes one of two approaches. It could result in affirmance by an equally divided Court, Continue reading “Justice Kennedy: To Swing or Not to Swing”

The First Amendment: Does the Government’s Intent Matter?

Author: Brooke Logsdon, Associate Member, University of Cincinnati Law Review

The Supreme Court recently heard oral arguments on the political speech case, Heffernan v. City of Paterson.[1] The case involved Officer Heffernan, who was demoted from his position as a detective because his department believed that he was supporting the adverse mayoral candidate.[2] More specifically, Officer Heffernan was observed acquiring a lawn sign for his ill mother, who supported Mr. Spagnola, a candidate trying to unseat the incumbent mayor.[3] The city demoted him because of his “overt involvement in a political election.”[4] Officer Heffernan maintains that he only picked up the sign for his mother and was not in any way involved in the political campaign.[5] He sued based on unconstitutional retaliation under the First Amendment,[6] alleging a violation of his freedom of speech and freedom of association rights.[7] Since the City intended to infringe on the political beliefs of Officer Heffernan, the Officer’s Constitutional rights were violated.

The Third Circuit and SCOTUS: Does Government Intent Really Matter?

The central issue in Heffernan is whether the intent of the government matters in a First Amendment case. In other words, does it matter that the government intended to deprive someone of their First Amendment rights, even though no speech took place? For example, if a government entity were to fire an employee for praying—a clear violation of the free exercise clause—when in fact the employee was not actually praying, but only thinking to himself, does the firing still result in a violation of the First Amendment?

The Third Circuit Court of Appeals affirmed the district court’s order of summary judgment, rejecting Officer Heffernan’s claims.[8] In evaluating his free speech claim, the court took issue with whether a jury could find that Heffernan actually spoke on a matter of public concern.[9] If he engaged in political speech, his speech would be protected under the First Amendment. The court evaluated whether Heffernan intended to communicate his political beliefs by picking up the sign. The court doubted this element because Heffernan repeatedly denied having any political involvement at all.[10] He also stated that he was only picking up a sign for his mother and that was all.[11] Therefore, according to the Third Circuit, Heffernan did not speak on a matter of public concern.

The court also rejected Heffernan’s freedom of association claim on the ground that Heffernan did not “maintain[] an affiliation with a political party.”[12] Heffernan argued that because he passively supported Mr. Spagnola and was close friends with him, a “political affiliation” existed.[13] Rejecting that argument, the court found that any political affiliation that might have occurred was mere cursory contact necessary to pick up the sign.[14] Therefore, no reasonable jury could conclude that Heffernan actually exercised his right to freedom of association.[15]

The Supreme Court is presently divided on the issue of government intent for purposes of First Amendment violations. At oral argument in front of the Supreme Court, Justice Kagan stated that if the Court dismissed Officer Heffernan’s claims, it would be permitting the government to punish someone that does not share its views any time that person is not actively opposed to those views.[16] For instance, those individuals who actively engage in political discourse would continue to be protected under the First Amendment, but the apathetic or partially-involved individuals would not. Here, Officer Heffernan, while he had political views, was not actively asserting those views. Therefore, the First Amendment would not protect him because the intent of the government does not matter, only the action of the citizen matters.

The Justices were clearly divided on whether Officer Heffernan actually associated with or spoke on a public matter.[17] Justice Scalia argued that although he was fired for the wrong reason, “there is no constitutional right not to be fired for the wrong reason.”[18] Moreover, Officer Heffernan was not associating or speaking.[19] In contrast, Justice Kagan argued that regardless of whether Heffernan was associating or speaking, his intent does not matter.[20] The First Amendment prohibits the government from retaliating against citizens for having views different from the government.[21] Therefore, the government’s intent is the critical inquiry.

Government Intent Should Be a Touchstone for First Amendment Rights

The Third Circuit gave little credence to Officer Heffernan’s rights under the First Amendment. Just because Heffernan did not actively assert his political opinion does not mean that he is not protected. The purpose of the First Amendment is to protect citizens from the government. Citizens lack adequate protection if they must act in certain ways in order to receive full protection. The government’s intent matters when the First Amendment is implicated. Although Officer Heffernan may have not asserted his First Amendment right, he was still punished by the government for having an unpopular political view. Even though he did not actually have that view, he was still harmed and his First Amendment rights were still implicated. Therefore, the Supreme Court should embrace Justice Kagan’s rationale and uphold the Constitutional rights of Officer Heffernan.

First Amendment Rights: Active Assertion or Implicit Fundamental Right

It is counterintuitive to allow a government to punish a person based on that person’s views, so long as that person is not actively asserting his views. Such a notion cuts against the fundamental idea behind the Bill of Rights and the Declaration of Independence. Certain inalienable rights, like life and liberty, are conveyed upon individual citizens at birth and these rights are in constant effect, existing continuously. Making individual liberties contingent on their active assertion diminishes their fundamental importance and meaning.

To determine if the government violated Officer Heffernan’s rights, the Court should evaluate whether the government punished him because he held opposing political views. Here, the government punished Heffernan because he was perceived as having opposing political views. Whether Heffernan actually attempted to politically express or associate himself by picking up the sign is of no consequence; the government’s sole intent was to punish him for having his opposing political views.

Underlying the First Amendment protections is the notion that the government cannot pass rules or act in such a way that infringes someone’s ability to hold certain political views. The First Amendment begins with, “Congress shall make no law . . . .”[22] If Officer Heffernan’s claims are dismissed, the Supreme Court will effectively establish a judicial rule that allows for the government to punish citizens for views that are different than its own. Ultimately, the right of freedom of speech and association is also a right against government action that adversely affects such rights, and the government action in this case did just that.

Does Intent Matter in Freedom of Association?

Although the Third Circuit seemed to give a lackluster analysis when evaluating Officer Heffernan’s freedom of association claim, and Justice Scalia seemed to write off the idea that he was associating at all, the freedom of association protects Officer Heffernan in this case. Even though Officer Heffernan disavowed any intention of supporting the candidate by picking up the sign, he was still associating with the campaign. The mere act of picking up the sign connected him to Mr. Spagnola’s political campaign and ideas.

 That Officer Heffernan did not have the intention to support the candidate when picking up the sign does not mean he did not associate with the campaign. His very presence means that he was in the literal sense, associating. In addition, the fact that the government actually punished him for doing so, regardless of his protests, suggests that his intention did not matter either. That he was seen with the candidate’s sign was enough to fire him for “overt involvement with a political campaign.” In effect, the Third Circuit’s holding protects only those people actively involved in asserting their First Amendment rights. Such a rule of law cuts against the Constitution’s fundamental ideals.


The government abridged Officer Heffernan’s First Amendment rights. Although he had no political intent in his mind, he still associated with the political campaign while he picked up the sign for his mother. The Constitution should protect him from the government’s retaliatory action regardless of his intentions because the government sought to punish him for having opposing political views. If Officer Heffernan’s claims are dismissed, apathetic citizens throughout the country could have their First Amendment rights taken away because they do not actively assert their political views. Allowing the government to get away with reprehensible behavior simply because Officer Heffernan’s involvement was passive does not honor the spirit of the First Amendment’s protections. It also severely limits the scope of the First Amendment, a tool used to prohibit the government from engaging in certain types of behavior. The Supreme Court should depart from the Third Circuit’s reasoning and protect the First Amendment rights.

[1] Heffernan v. City of Paterson, SCOTUS Blog, (Feb. 12, 2016), available at

[2] 777 F.3d 147, 149 (3rd Cir. 2015).

[3] Id at 150.

[4] Id.

[5] Id.

[6] Id.

[7] Id.

[8]Id. at 149.

[9]Id. at 152-153.

[10] Id.

[11] Id. at 153.

[12] Id.

[13] Id.

[14] Id.

[15] Id.

[16] Transcript of Oral Argument, at 58 Heffernan v. City of Paterson, No. 14-1280 (U.S. argued Jan. 19, 2016).

[17] See Oral Argument generally.

[18] Oral Argument at 6.

[19] Oral Argument at 5.

[20] See Oral Argument at 46.

[21] Oral Argument at 58.

[22] U.S. Const. amend. I

Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   

Author: Maxel Moreland, Associate Member, University of Cincinnati Law Review

Under the Fourth Amendment, absent an impartial and neutral judge or magistrate, warrantless searches are unconstitutional, subject to only a few exceptions.[1] Leak examined two such exceptions—a search incident to a lawful arrest and inventory searches done pursuant to law enforcement’s community-caretaking function. Continue reading “Ohio Clarifies: Law Enforcement Cannot Conduct Unjustified Search of Vehicle Subsequent to a Recent Occupant’s Arrest   “

Limits on Judicial Elections: A Thing of the Past?

Author: Andrea Flaute, Associate Member, University of Cincinnati Law Review

From basic speech restrictions to an outright prohibition on personally solicited campaign funds, judicial candidates, prior to the decisions in Republican Party of Minnesota v. White and Williams-Yulee v. Florida Bar, lacked the basic leeway given to every other candidate to control their campaign.[1] In the wake of White, candidates in judicial elections are now permitted to speak freely about disputed legal and political issues.[2] However, the Supreme Court decision in Williams-Yulee maintained that those same judicial candidates are still barred from personally soliciting campaign funding.[3] Continue reading “Limits on Judicial Elections: A Thing of the Past?”