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SCOTUS Issues Two New Opinions

SCOTUS Issues Two New Opinions

The Supreme Court of the United States issued two new opinions Thursday, one of which involves interpretation of foreign law and the other a matter of free speech.

The first, Animal Science Products, Inc., et al. v. Hebei Welcome Pharmaceutical Co., LTD., et al, reviewed a ruling out of the Second Circuit, in which the lower court ruled that US federal courts must defer to a foreign country’s interpretation of its own laws, whenever such interpretation is “reasonable.”  A rare, unanimous SCOTUS disagrees.

The underlying case involved a class-action suit against four Chinese manufacturers and exporters of vitamin C, alleging price fixing and other violations of the Sherman Act. The foreign defendants moved to dismiss the case on the grounds that Chinese law required the companies to take the disputed actions, and arguing that “the foreign sovereign compulsion doctrine” and “principles of international comity” shielded them from liability under US antitrust law. China’s Ministry of Commerce submitted an amicus brief in support of the companies’ position.

The US parties argued that there was no written law or regulation produced by the Chinese which mandated the disputed activities. The lower court denied the motion to dismiss by the defendants and the US purchasers prevailed at jury trial, winning $147 million in damages and an enjoining of further Sherman Act violations by the Chinese sellers. But this verdict was reversed by the Second Circuit, which held that the District Court should have granted the Motion to Dismiss, and that it had not given appropriate deference to the Chinese Ministry’s interpretation of the law. Per the Second Circuit:

“[W]hen a foreign government, acting through counsel or otherwise, directly participates in U.S. court proceedings by providing a [statement] regarding the construction and effect of [the foreign government’s] laws and regulations, which is reasonable under the circumstances presented, a U.S. court is bound to defer to those statements…”
SCOTUS disagrees, holding that “a federal court is neither bound to adopt the foreign government’s characterization nor required to ignore other relevant materials.” The Court said that such issues are to be analyzed as questions of law, not fact, and thus courts should consider other evidence beyond the foreign nation’s interpretation in rendering a conclusion of law. Therefore, writes Justice Ginsburg for the unanimous Court, the Second Circuit “erred in deeming the Ministry’s submission binding, so long as facially reasonable” without considering other evidence and documents presented by the opposing parties.
Ginsburg compares the Second Circuit’s reasoning with situations in which SCOTUS considers the official position of state attorneys general; such evidence is given respectful consideration, “but do not garner controlling weight”. The case is remanded to the Second Circuit Court of Appeals for reconsideration.


In a 7-2 split, the Court also issued its ruling in Minnesota Voters Alliance et al v. Mansky et al, invalidating a Minnesota law prohibiting voters from wearing “political apparel” inside a polling place on election day- but not invalidating such laws altogether. Justice Roberts delivered the opinion of the Court, joined by all but the dissenting Breyer and Sotomayor.

Minnesota’s statute, purportedly intended to ensure permissible “viewpoint neutral restrictions on election-day speech” (see Justice Scalia’s concurrence in Burson v Freeman, 1991, the case upholding the prohibition of campaigning activities within 100 feet of polls), prohibits the wearing of a “political badge, political button, or other political insignia… at or about the polling place”, subjecting transgressors to civil penalty or a misdemeanor charge. Guidance distributed to poll watchers included the following list of banned apparel:

  • Any item including the name of a political party in Minnesota, such as the Republican, [Democratic-Farmer-Labor], Independence, Green or Libertarian parties.
  • Any item including the name of a candidate at any election.
  • Any item in support of or opposition to a ballot question at any election.
  • Issue oriented material designed to influence or impact voting
  • Material promoting a group with recognizable political views (such as the Tea Party, MoveOn.org,and so on).

The Petitioners, Minnesota Voters Alliance (MVA) and other voters’ rights groups, challenged the law as unconstitutional on free speech grounds. The lower court found in favor of the state, reasoning that the rules were akin to other restrictions on free speech relating to political campaigning in the vicinity of polling places.

SCOTUS disagrees, finding that the ban “restricts a form of expression within the protection of the First Amendment”- but the ruling was not so broad as it seems at first blush.

The Court recognized that in nonpublic forums- “a space which is not by tradition or designation a forum for public communication”- the government has more “flexibility to craft rules limiting speech.” SCOTUS finds that Minnesota “may choose to prohibit certain apparel there because of the message it conveys, so that voters may focus on the important decisions immediately at hand.” However, the Court also finds that the law gives no definition of what “political” means, and rejects the state’s contention that the ban only applies to “words and symbols that an objectively reasonable observer would perceive as conveying a message about the electoral choices at issue…” The Court held thusly:

A rule whose fair enforcement requires an election judge to maintain a mental index of the platforms and positions of every candidate and party on the ballot is not reasonable. Candidates for statewide and federal office and major political parties can be expected to take positions on a wide array of subjects of local and national import.
Would a “Support Our Troops” shirt be banned, if one of the candidates or parties had expressed a view on military funding or aid for veterans? What about a “#MeToo” shirt, referencing the movement to increase awareness of sexual harassment and assault? At oral argument, the State indicated that the ban would cover such an item if a candidate had “brought up” the topic.

The Court makes clear its quarrel with Minnesota’s law is its nebulous, undefined and broad scope. They recognize that other states have similar but “more lucid” laws, citing  statutes in California and Texas that include more clearly defined prohibitions, such as candidate names, logos, or likenesses (though they expressly state that they do not take a position on the constitutionality of these other states’ laws.)

The takeaway from Mansky, like most SCOTUS decisions, is more nuanced than headlines or Twitter takes would have you believe. The Court did NOT rule that prohibiting “campaign apparel” at a polling place is a violation of free speech; rather, it held that Minnesota’s law was too imprecise and open to broad interpretation to pass constitutional muster.

The dissent by Sotomayor, joined by Breyer, disagrees with the majority’s opinion that the statute is “not ‘capable of reasoned application’ “, and believes that this question should have been certified to the Minnesota Supreme Court for interpretation and definition rather than striking down the law, an option the state requested the Court to consider. “The Court should be wary of invalidating a law without giving the State’s highest court an opportunity to pass upon it,” writes Sotomayor.

These particular decisions are not world-rocking, but the largely homogeneous agreement of the justices is noteworthy. It is likewise noteworthy that neither of these decisions lend themselves to much partisan hand–wringing- despite the petitioners in Mansky being mostly tea-partiers. Overall, a refreshingly uncontroversial day at the SCOTUS.

Senior Editor

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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16 thoughts on “SCOTUS Issues Two New Opinions

  1. I thought deference to international law was going to be the backdoor gambit by which we get Sharia implemented here in America. I guess we’ll have to deal with unescorted, uncovered women walking around in public like a buncha floozies until we can find something else. Maybe Black Panthers at polling places?

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  2. JUSTICE ALITO: How about a shirt with a rainbow flag? Would that be permitted?

    MR. ROGAN: A shirt with a rainbow flag? No, it would — yes, it would be — it would be permitted unless there was — unless there was an issue on the ballot that — that related somehow to — to gay rights.

    JUSTICE ALITO: How about a shirt that says “Parkland Strong”?

    MR. ROGAN: No, that would — that would be — that would be allowed. I think -­ I think, Your Honor -­

    JUSTICE ALITO: Even though gun control would very likely be an issue?

    MR. ROGAN: To the extent -­

    JUSTICE ALITO: I bet some candidate would raise an issue about gun control.

    MR. ROGAN: Your Honor, the — the -­ the line that we’re drawing is one that is -­ is related to electoral choices in a -­

    JUSTICE ALITO: Well, what’s the answer to this question? You’re a polling official. You’re the reasonable person. Would that be allowed or would it not be allowed?

    MR. ROGAN: The — the Parkland?


    MR. ROGAN: I — I think — I think today that I — that would be — if — if that was in Minnesota, and it was “Parkland Strong,” I — I would say that that would be allowed in, that there’s not -­

    JUSTICE ALITO: Okay. How about an NRA shirt?

    MR. ROGAN: An NRA shirt? Today, in Minnesota, no, it would not, Your Honor. I think that that’s a clear indication — and I think what you’re getting at, Your Honor -­

    JUSTICE ALITO: How about a shirt with the text of the Second Amendment?

    MR. ROGAN: Your Honor, I — I — I think that that could be viewed as political, that that — that would be — that would be -­

    JUSTICE ALITO: How about the First Amendment?


    MR. ROGAN: No, Your Honor, I don’t -­ I don’t think the First Amendment. And, Your Honor, I -­

    CHIEF JUSTICE ROBERTS: No — no what, that it would be covered or wouldn’t be allowed?

    MR. ROGAN: It would be allowed.


    MR. ROGAN: It would be. And — and I think the — I understand the — the idea, and I’ve — I’ve — there are obviously a lot of examples that — that have been bandied about here –

    JUSTICE ALITO: Yeah, well, this is the problem. How about a Colin Kaepernick jersey?

    MR. ROGAN: No, Your Honor, I don’t think that that would be under — under our statute. And I think -­

    JUSTICE ALITO: How about “All Lives Matter”?

    MR. ROGAN: That could be, Your Honor, that could be — that could be perceived as political. And I — I think obviously, Your Honor, there — there are some hard calls and

    there are always going to be hard calls. And that — that doesn’t mean that the line that we’ve drawn is — is unconstitutional or even unreasonable.

    JUSTICE ALITO: How about an “I Miss Bill” shirt?


    MR. ROGAN: I’m sorry, Your Honor? I didn’t –

    JUSTICE ALITO: “I Miss Bill,” or to make it bipartisan, a “Reagan/Bush ’84” shirt?

    MR. ROGAN: Yes, Your Honor, I believe that that’s political.

    Mini-soda did itself no favors here.

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    • I can’t believe how much he telegraphed there.

      “Would a verse from the New Testament of the Bible be okay?”
      “Well, I think that a Bible verse would be fine…”
      “Would a verse from the Koran?”
      “No, a verse from the Koran would be risible.”
      “What about a verse from the Hebrew Scriptures?”
      “Well, depending on the verse allowances…”
      “Something from the Book of Mormon?”
      “We’d want to avoid offending people of different faiths…”

      Dude. You’re just telegraphing what game you’re playing there.

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              • He could have, if he’d aimed for the Sotomayor solution: argue for certification of the matter back to the Minnesota Supreme Court. If that had been where he wanted to go, he could have answered every one of those questions “I don’t know, because we don’t have guidance from the state supreme court interpreting the state’s own laws.”

                Instead, he argued for the statute on its face to prevail, and therefore had to grapple with actual applications. And for that, he no doubt had to confer with the top enforcement official and got back the interpretative hair-splitting he did, and had to apply those ideas as best he could under rapid-fire pressure from Alito and Roberts. [Insert GIF of Homer Simpson in courtroom, tugging nervously at own collar here.]

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  3. IIRC unanimous or near unanimous decisions are not rare on “not exciting” (my words) matters like the first case and a lot of cases involving civil procedure*. The second case seems like a clear cut application of existing law and not a judicial show stopper because election polling places were called nonpublic forums and the Supremes gave states a wide variety of activities that they could prohibit.

    *See BMS v. Superior Court and other cases involving jurisdiction that I hate explaining to my clients. BMS is generally bad for my side of the law (plaintiff-side civil litigation) but it was an 8-1 decision.

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  4. The reason I hate describing jurisdiction to my clients is that it is sometimes necessary but specific personal jurisdiction is only interesting if you are a lawyer.

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  5. As someone who works as an election official, I’m glad our state doesn’t have T-shirt laws so I don’t have to enforce them.

    (Though in Tuesday’s election I can recall only one vaguely political shirt. Lots of Caps stuff though)

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