The Upside-Down Treatment of Religious Exceptions Cases in the Supreme Court

MICHAEL C. DORF

Cornell law professor Michael C. Dorf comments on the U.S. Supreme Court’s decision last week to reject an emergency application from the State of Alabama to lift a stay on the execution of Willie B. Smith III. Professor Dorf observes the Court’s unusual alignment of votes in the decision and argues that, particularly as reflected by the recent COVID-19 decisions, the liberal and conservative Justices have essentially swapped places from the seminal 1990 case Employment Division v. Smith, which established that the First Amendment does not guarantee a right to exceptions from neutral laws of general applicability.

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Campbell v. Wilkinson

Docket: 20-11002

Opinion Date: February 19, 2021

Judge: James C. Ho

Areas of Law: Civil Procedure

The Fifth Circuit reversed the district court's dismissal of plaintiff's claims of discrimination and retaliation under Title VII of the Civil Rights Act. The district court dismissed the suit under Federal Rule of Civil Procedure 41(b) on the ground that plaintiff's counsel failed to retain local counsel as required by local rules. The court held that dismissal was unwarranted because Berry v. CIGNA/RSI-CIGNA, 975 F.2d 1188 (5th Cir. 1992), sets forth a strict framework that district courts must meet to justify dismissal with prejudice—and one that the district court plainly failed to meet here. In this case, the record shows neither a clear record of delay or contumacious conduct, nor the futility of lesser sanctions, nor any aggravating factor. Accordingly, the court remanded for further proceedings.

United States v. Kim

Docket: 18-51024

Opinion Date: February 19, 2021

Judge: James L. Dennis

Areas of Law: Copyright, Criminal Law

After defendant pleaded guilty to one count of criminal copyright infringement, the district court sentenced defendant to 46 months' imprisonment and ordered him to pay restitution to the copyright owner, Scientific Games Corporation. After determining that defendant's appeal waiver did not bar defendant's challenge, the Fifth Circuit vacated the restitution order, concluding that the government failed to carry its burden of properly establishing the number of infringing items placed into commerce that defendant was responsible for and the resulting harm to Scientific Games in terms of lost net profit. The court remanded for the district court to reanalyze the government's evidence and to determine the number of counterfeit Life of Luxury (LOL) motherboards actually sold and put into the market to compete with legitimate LOL games and the net profit lost by Scientific Games as a result. The court dismissed defendant's challenge to the imposition of a sentencing enhancement because it is barred by his appeal waiver.