Legal Sidebari

Congressional Court Watcher: Recent
Appellate Decisions of Interest to Lawmakers
(May 15–May 21, 2023), Part 1
May 22, 2023
The federal courts issue hundreds of decisions every week in cases involving diverse legal disputes. This
Sidebar series selects decisions from the past week that may be of particular interest to federal lawmakers,
focusing on orders and decisions of the Supreme Court and precedential decisions of the courts of appeals
for the thirteen federal circuits. Selected cases typically involve the interpretation or validity of federal
statutes and regulations, or constitutional issues relevant to Congress’s lawmaking and oversight
functions.
Some cases identified in this Sidebar, or the legal questions they address, are examined in other CRS
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This week’s Congressional Court Watcher is divided into two parts because of the number of notable
decisions issued over the past week. This Legal Sidebar (Part 1) discusses Supreme Court activity from
May 15 through May 21, 2023, while a companion Legal Sidebar (Part 2) addresses decisions of the U.S.
courts of appeals from that period.
Decisions of the Supreme Court
Last week, the Supreme Court issued opinions in six cases:
• Communications: The Court decided two cases from the Ninth Circuit involving social
media companies’ possible civil liability under the Anti-Terrorism Act for conduct that
allegedly aided terrorist groups. In the first case, the Court unanimously ruled that
defendant social media companies could not be found liable for aiding and abetting
terrorist groups under the Anti-Terrorism Act for “knowingly” providing “substantial
assistance” to those groups through their use of the companies’ generally available
services. In so ruling, the Court construed the Act’s civil liability standard against the
backdrop of common law tort liability principles for aiding and abetting set forth in an
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earlier D.C. Circuit case (Twitter, Inc. v. Taamneh). For similar reasons, the Court, in a
per curiam opinion, ruled that plaintiffs in the second case were unlikely to succeed in
their Anti-Terrorism Act civil suit alleging that Google’s YouTube platform assisted the
Islamic State by promoting the organization’s recruitment videos. The Court therefore
declined to reach the question on which it had granted certiorari—whether Section 230 of
the Communications Act of 1934, as amended, rendered Google immune from suit
(Gonzalez v. Google LLC).
• Intellectual Property: The Supreme Court unanimously held that certain patents held by
Amgen, which claimed a class of antibodies used to treat high low-density lipoprotein
cholesterol, did not satisfy the Patent Act’s enablement requirement (35 U.S.C. § 112).
That provision requires that a patent’s specification include a written description
sufficient “to enable any person skilled in the art . . . to make and use the” invention. The
Court reasoned that Amgen had enabled the specific antibodies it discovered, but not the
entire “genus” of antibodies claimed, because the specification contained no more than
“research assignments” for generating the other antibodies in the class (Amgen Inc. v.
Sanofi).
• Intellectual Property: In a 7-2 decision, the Supreme Court held that the Andy Warhol
Foundation’s commercial licensing of an artwork that Warhol made using a photograph
of the musician Prince by the photographer Lynn Goldsmith was unlikely to fall under the
“fair use” exception of the Copyright Act. The majority held that, because the original
photograph by Goldsmith and the Foundation’s commercial use shared substantially the
same purpose and Warhol’s use was not sufficiently transformative, the first fair use
factor favored Goldsmith (Andy Warhol Found. for the Visual Arts, Inc. v. Goldsmith).
• Labor & Employment: The Court, in a 7-2 ruling, held that a State National Guard is an
executive agency under the Federal Service Labor-Management Relations Statute and is
therefore subject to the Federal Labor Relations Authority’s (FLRA’s) jurisdiction when it
hires and supervises “dual-status” technicians performing work in their federal civilian
roles (Ohio Adjutant Gen.’s Dep’t v. FLRA).
• Tax: The Supreme Court unanimously upheld a Sixth Circuit ruling that the petitioners—
third parties associated with a delinquent taxpayer—were not entitled to notice of, or an
opportunity to bring an action to quash, an Internal Revenue Service (IRS) summons for
their bank account records. Although the IRS is generally required to provide notice when
issuing a summons, 26 U.S.C. § 7609(c)(2)(D)(i) waives notice if the IRS summons is “in
aid of the collection of . . . an assessment made . . . against the person with respect to
whose liability the summons is issued.” The Court held this waiver of notice is not
limited to circumstances where the delinquent taxpayer has a legal interest in the
accounts or records sought (Polselli v. IRS).
In addition, the Court remanded back to the D.C. Circuit with instructions to dismiss as moot several
states’ request to intervene to defend the executive branch’s now-terminated “Title 42” policy. Justice
Jackson would have instead dismissed the writ of certiorari as improvidently granted (Arizona v.
Mayorkas).
This past week, the Supreme Court also agreed to hear four more cases next term, with two consolidated
for argument:
• Criminal Law & Procedure: In consolidated cases, the Court has been asked to resolve
a circuit split over the interplay between the Armed Career Criminal Act (ACCA) and the
Controlled Substances Act (CSA). The ACCA increases the mandatory minimum for
federal criminal defendants who possess a firearm and have certain prior convictions,

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• including state drug convictions defined with reference to the CSA. The circuits are split
on whether sentencing courts must look to the CSA’s controlled substances list in effect at
the time of the defendant’s prior state conviction or the list in effect at the time of the
conviction for the federal firearm offense (Brown v. United States; Jackson v. United
States).
• Election Law: The Court agreed to review a district court three-judge panel’s decision
that a district in South Carolina’s congressional redistricting plan following the 2020
Census was an unconstitutional racial gerrymander (Alexander v. South Carolina State
Conf. of the NAACP).
• Separation of Powers: In a case from the D.C. Circuit, the Supreme Court is asked
whether individual Members of Congress satisfy constitutional standing requirements for
bringing suit to compel the General Services Administration to provide information to the
Members about the agency’s implementation of a lease agreement with a company owned
by then-President Donald Trump. The Members brought the lawsuit under 5 U.S.C.
§ 2954, which directs executive agencies to provide, upon request of any seven members
of the House Oversight and Accountability Committee or any five members of the Senate
Committee on Homeland Security & Governmental Affairs, information related to any
matter in the respective Committee’s jurisdiction (Carnahan v. Maloney).

Author Information

Michael John Garcia

Deputy Assistant Director/ALD




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