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Published by Jake Leahy

A Brief Summary of the Five Supreme Court Opinions Released on May 11

On May 11, 2023, the Supreme Court released a batch of five opinions. The cases involves issues such as the jury instruction in a wire fraud case arising under the Governor Cuomo administration, and restrictions on pork production in California.
Cherry blossoms, Supreme Court
Bill Mason, Unsplash
May 14, 2023

The Supreme Court has been unusually slow this term, with fewer rulings compared to past years. However, the pace seems to be accelerating, with 19 opinions released recently, including five last Friday. Major rulings are anticipated in the coming months as numerous cases remain pending. Let’s briefly examine the cases from last Friday.

In this case, the Supreme Court ruled that the right-to-control theory for wire fraud, which has long been recognized in the Second Circuit, cannot be used to convict persons under federal fraud statutes. In this case, Ciminelli was convicted for wire fraud in a bid rigging scheme in the State of New York. The so-called “right-to-control” theory, states that depriving a victim of potentially valuable economic information can be used to establish wire fraud. In ruling in favor of Ciminelli, the Supreme Court reasoned that the right to valuable economic information is not a traditional property interest, and therefore it cannot form the basis for a wire fraud conviction under the relevant statutes.

Justice Thomas delivered the opinion for a unanimous Court.

The Supreme Court considered whether a private decision with influence in the government can be convicted of wire fraud for depriving the public with an “intangible right of honest services.” In this case, Joseph Percoco left a major role in the Cuomo administration to manage the Governor’s re-election campaign. As the same time, he was paid by a real estate developer and he made contacts in the state government to change certain requirements to allow the developer to receive a bid. He was successful with the attempt. The trial court instructed the jury based on the Second Circuit’s 1982 decision in Margiotta, which held that a private person can commit honest-services fraud if they dominate and control government decisions. The Supreme Court ruled that instructing the jury based on Margiotta was error, reasoning that the Margiotta theory was overly vague and lacked sufficient clarity.

Alito delivered the opinion of the Court.

Justice Kagan succinctly summarizes this case in the first paragraph of her opinion, “The question presented is whether the statute categorically abrogates (legalspeak for eliminates) any sovereign immunity the board enjoys from legal claims. We hold it does not. Under long-settled law, Congress must use unmistakable language to abrogate sovereign immunity. Nothing in the statute creating the board meets that high bar.”

The Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA) was enacted in 2016 to address Puerto Rico’s financial crisis, established the Board as an entity within the territorial government of Puerto Rico. The Court held that nothing in PROMESA explicitly abrogates the Board’s immunity, and Congress must clearly state if it intent to do so. The Court emphasized that PROMESA does not provide for suits against the Board or Puerto Rico, nor does it create a cause of action. Although certain provisions in PROMESA reference judicial review and declaratory relief, they do not indicate a general abrogation of the Board’s immunity. The Court concluded that the statutory language and the Board’s protections are consistent with the retention of sovereign immunity. 

Justice Kagan delivered the opinion of the Court. Justice Thomas filed a dissenting opinion.

In National Pork Producers v. Ross, the Supreme Court reviewed whether California’s Proposition 12 regulatory requirements relating to conditions for in-state pork sales unconstitutionally interfered with out-of-state businesses in violation of the dormant commerce clause. 

Justice Gorsuch summarizes the Court’s holding best, writing for the majority: “Assuredly, under this Court’s dormant Commerce Clause decisions, no State may use its laws to discriminate purposefully against out-of-state economic interests. But the pork producers do not suggest that California’s law offends this principle. Instead, they invite us to fashion two new and more aggressive constitutional restrictions on the ability of States to regulate goods sold within their borders. We decline that invitation. While the Constitution addresses many weighty issues, the type of pork chops California merchants may sell is not on that list.”

Justice Gorsuch delivered the opinion of the court with respect to Parts I, II, III, IV-A, and V.

Santos-Zacaria v. Garland reviews two questions, first, if the Section 1252(d)(1) exhaustion of administrative remedies requirement is jurisdictional; and second, whether a non-citizen is required to pursue discretionary review to exhaust administrative remedies.

First, the statute is question is not jurisdictional. A jurisdictional statute establishes the boundaries of the court’s authority to review a claim, whereas a non-jurisdictional statute governs how claims operate within the “bounds” or jurisdiction. When drafting a jurisdictional statute, Congress will unmistakably and clearly state that a statute is jurisdictional. Because Congress did not explicitly state that the statute is jurisdictional, it is not. Second, the non-citizen is not required to exhaust all possible remedies, which would include discretionary review. Rather, a non-citizen is required to pursue all remedies available as of right, because asking the administrative agency to reconsider is discretionary and not available as of right, the non-citizen was not required to pursue this type of relief to meet the exhaustion requirement.

Justice Jackson delivered the opinion of the Court.


The court has dozens of case that are set for review over the coming days, and weeks. Expect many decisions to trickle in, as the Court should end its term by June as is typical. If the opinions released thus far in the session make anything clear (e.g. Santos-Zacaria v. Garland), it is that this Court is insistent on looking to the language specifically authorized by Congress, the jurisdiction question is not new for this Court, and the reasoning is familiar (see MOAC Mall Holdings LLC v. Transform Mall Holdco LLC, reviewing whether a provision in Chapter 11 of the Bankruptcy Code was jurisdictional).

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