Years ago, Slate legal correspondent Mark Joseph Stern coined the term “Gorsuch brief”—a brief making “a highly technical argument designed to nab the justice’s vote by fixating on the text of a statute and its meaning at the time of passage.” As Stern has noted, CAC has filed influential “Gorsuch briefs” in the past. A recent victory at the Supreme Court demonstrates that this strategy can continue to produce real wins for everyday Americans, as CAC Legal Fellow Harith Khawaja wrote in Slate magazine.

(Photo credit: Tony Webster)

Indeed, more broadly, CAC’s text-and-history briefs recently helped secure not only this big win for workers, but also wins for consumers and victims of financial scams.

First, in Flowers Foods v. Brock, the Supreme Court unanimously held that “last-mile” delivery drivers who transport goods between two points in the same state to their final destination cannot be forced into arbitration procedures where the deck is often stacked against workers and can instead have their day in court. Although Congress made agreements to arbitrate enforceable in the 1925 Federal Arbitration Act (FAA), the law exempts from forced arbitration transportation workers who are “engaged in . . . interstate commerce.” Our brief argued that even if the driver or vehicle in the last leg of a journey doesn’t cross state lines, they are a part of the chain of interstate commerce and therefore fall within the terms of the exemption. That’s how “engaged in . . . interstate commerce” was understood when the law was written. The Court unanimously agreed. Justice Gorsuch’s opinion for the Court drew heavily on the textual and historical evidence CAC presented in our amicus brief. As Harith explained in Slate, “The repeated success of the Gorsuch brief does lay out a real, repeatable path for progressive advocates to win conservative votes at this Supreme Court—one that traces the justice’s own stated methodological commitments. When the original meaning of a statute favors progressive outcomes, the Gorsuch brief invites the justices to take to the ground they say they stand on.”

Just days later, a CAC text-and-history brief helped secure another win at the Court. In a unanimous decision in Sripetch v. Securities and Exchange Commission, the Court held that the SEC could order disgorgement, meaning that bad actors had to pay back their ill-gotten gains, even if it couldn’t be proven that investors had suffered a financial loss. CAC Legal Fellow Simon Chin noted that “Justice Gorsuch’s opinion for the Court echoed the central argument of the amicus brief we filed on behalf of five of the nation’s leading remedies scholars—that disgorgement has never required a showing that the plaintiff suffered financial harm. For three centuries, courts have stripped wrongdoers of profits obtained by violating another person’s legally protected rights, whether or not the victim could prove any financial loss.” The Court’s decision affirmed this central principle and protected the SEC’s ability to hold wrongdoers accountable to the law.

That same morning, the Supreme Court also ruled against big business interests in Federal Communications Commission v. AT&T and Verizon v. Federal Communications Commission, again echoing our brief. In these consolidated cases, AT&T and Verizon allegedly betrayed the trust of their customers and broke the law by mishandling sensitive location data, and the Court was asked to decide whether the FCC’s two-stage civil-enforcement process violated the Seventh Amendment. The Court agreed that the FCC’s process was constitutional. CAC Senior Appellate Counsel Smita Ghosh explained that the Court drew on our brief: “Echoing the amicus brief CAC filed in the case, the Court observed that the process fits ‘comfortably within’ historical precedents.”

Of course, we know that the Court’s conservative supermajority doesn’t always follow text and history where it leads. Last month’s decision in Louisiana v. Callais was a devastating attack on the Voting Rights Act and the Reconstruction Amendments. Yet even in the wake of this grim news, CAC’s legal scholarship is charting a possible path forward. CAC’s David H. Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, wrote in Slate about how the Constitution’s Guarantee Clause, which provides that “the United States shall guarantee to every state in this Union a Republican Form of Government,” could be “an important hook for congressional action to safeguard an inclusive, multiracial democracy.” As David explains, Congress can still “stamp out state efforts to decimate Black representation, manipulate electoral outcomes, and leave communities of color without an equal voice in government.”

Though the Court’s commitment to text and history can be inconsistent, CAC’s commitment to that approach isn’t. We know that approach continues to bring real wins for everyday Americans. And when the Court turns its back on the text-and-history arguments we present, we’ll explain the problems with those decisions and keep fighting for the progressive promise of our Constitution.

Sripetch v. Securities and Exchange Commission – WIN

The Supreme Court considered whether a showing of pecuniary harm to investors is a prerequisite to an award of disgorgement in a civil action brought by the SEC. CAC filed an amici curiae brief supporting the SEC’s position on behalf of leading scholars on the law of restitution. In a unanimous decision, the Court echoed our brief and held that the SEC does not have to prove that investors suffered a pecuniary loss before a court can order a securities-law violator to disgorge ill-gotten gains. Supreme Court, brief filed April 1, decision rendered June 4.

Federal Communications Commission v. AT&T and Verizon v. Federal Communications Commission – WIN

The Supreme Court considered whether the FCC’s two-stage civil-enforcement process violates the Seventh Amendment.  CAC filed an amicus brief at the Court in support of the FCC, explaining why the agency’s enforcement scheme is constitutional. The Supreme Court agreed, explaining that the FCC’s two-stage civil-enforcement process does not violate the Seventh Amendment. Supreme Court, brief filed March 28, decision rendered June 4.

Flowers Foods v. Brock – WIN

The Supreme Court considered whether the Federal Arbitration Act exempts from arbitration “last-mile” delivery drivers who transport goods between two points in the same state to their final destinations, when the goods were originally shipped from outside the state. CAC filed an amicus brief in support of Mr. Brock, explaining that that last-mile drivers are engaged in interstate commerce within the meaning of the FAA. Echoing our brief, the Supreme Court agreed and held in a unanimous opinion that last-mile transportation workers cannot be forced to arbitrate their employment disputes.  Supreme Court, brief filed January 22, decision rendered May 28.

Rutherford v. United States and Carter v. United States

The Supreme Court considered the scope of a sentencing judge’s discretion to grant compassionate release under the Sentencing Reform Act. CAC filed an amicus brief explaining that both the text and history of the compassionate release statute give judges broad discretion to consider major changes in the law that result in sentencing disparities based solely on when a person was sentenced. The Supreme Court ruled that judges cannot consider these disparities when deciding whether a sentence reduction is warranted. Justice Sotomayor dissented, echoing CAC’s brief. Supreme Court, brief filed August 15, decision rendered May 28.

Fernandez v. United States

The Supreme Court considered the scope of a sentencing judge’s discretion to grant compassionate release under the Sentencing Reform Act. CAC filed an amicus brief explaining that the text and history of the compassionate release statute give judges broad discretion to determine the existence of extraordinary reasons for a sentence reduction. The Supreme Court upheld the Second Circuit’s ruling, concluding that the “supposed invalidity of a conviction” is not an “extraordinary and compelling reason” to “justify compassionate release.” Justice Jackson dissented, echoing our brief. Supreme Court, brief filed August 11, decision rendered May 28.

Pitchford v. Cain – WIN

The Supreme Court considered whether, under federal habeas law, the Mississippi Supreme Court unreasonably held that a criminal defendant waived his right to challenge racial bias in his jury selection.  CAC and the National Association of Criminal Defense Lawyers filed an amici curiae brief in support of Pitchford. Our brief explains that federal courts play a critical, statutorily authorized role in reviewing state-court convictions for certain errors—and that the Fifth Circuit made one such error in unreasonably deciding that Pitchford had waived his right at trial to argue pretext. The Supreme Court agreed, reversing the Fifth Circuit’s decision and holding that the Mississippi Supreme Court’s decision was an unreasonable factual determination. Supreme Court, brief filed February 4, decision rendered May 28.

National Trust for Historic Preservation v. National Park Service

The U.S. Court of Appeals for the D.C. Circuit is considering whether President Trump can unilaterally demolish the White House’s East Wing and build a massive ballroom in its place without Congress’s permission. CAC filed an amici curiae brief on behalf of Members of Congress in support of the challenge to President Trump’s actions. D.C. Circuit Court, brief filed May 28.

District of Columbia v. Trump

The U.S. Court of Appeals for the D.C. Circuit Circuit is considering the legality of President Trump’s deployment of the National Guard to police the District of Columbia. CAC filed an amicus brief in support of the District arguing that the Trump administration has no authority to use troops from the D.C. National Guard to create its own police force. CAC’s brief also shows that the administration lacks authority to bring National Guard troops into Washington, D.C., from outside the District to perform law enforcement functions. D.C. Circuit Court, brief filed May 26.

Rhode Island v. Trump

The United States Court of Appeals for the First Circuit is considering whether the President can unilaterally dismantle the Minority Business Development Agency, the Federal Mediation and Conciliation Service, and the U.S. Interagency Council on Homelessness. Several states whose residents relied on the agencies’ critical services challenged the Trump administration’s actions, and CAC filed an amicus brief supporting the states. First Circuit, brief filed May 13.

Lopez-Campos v. Raycraft – WIN

The Sixth Circuit considered the legality of a Trump administration policy that requires imprisoning all undocumented immigrants during deportation proceedings against them. CAC filed an amicus brief explaining why the Trump policy, even if it were authorized by federal law (which it is not), violates the Due Process Clause of the Fifth Amendment. The Sixth Circuit agreed, concluding that it is unconstitutional to detain immigrants without access to bond hearings. Sixth Circuit, brief filed January 9, decision rendered May 11.

National Digital Inclusion Alliance v. Trump

The District Court for the District of Columbia is considering whether the President can unilaterally terminate a congressionally mandated grant program created by the Digital Equity Act. CAC files an amicus brief in support of the challenge to the elimination of this mandatory program. D.C. District Court, brief filed May 8.