U.S. Supreme Court

Erwin Chemerinsky

Erwin Chemerinsky

The blockbuster cases of the last two weeks of June deservedly attracted great media attention: Trump v. Hawaii, which upheld President Donald Trump’s travel ban; Janus v. American Federation, which overruled Abood v. Detroit Board of Education and held that nonunion members cannot be required to pay the share of the union dues that support collective bargaining activities; Carpenter v. United States, which held that police must get a warrant before obtaining stored cellular location information; South Dakota v. Wayfair, which reversed earlier decisions and held that states can force out-of-state merchants to collect sales taxes even if they do not have a physical presence in the state.

What, though, were some of the “sleeper” cases of the term that did not attract as much media attention, but are likely to have a major effect on the law and litigation?


In Epic Systems v. Lewis, the court in a 5-4 decision ruled that an employer may lawfully require its employees to agree, as a condition of employment, to take all employment-related disputes to arbitration on an individual basis and to waive their right to participate in a class action suit or class arbitration.

The case involved an effort by workers to file a class action suit against an employer for violating the federal minimum wage law. The employer sought to dismiss the case because it had insisted as a condition of employment that the employees waive their ability to go to court or be part of a class action; any dispute had to be resolved out of court in an arbitration.

The National Labor Relations Act, a federal law adopted in 1935, protects a right for employees to engage in “concerted activities for the purpose of … mutual aid or protection.” Justice Neil M. Gorsuch, joined by the conservative justices—John G. Roberts Jr., Anthony Kennedy, Clarence Thomas, and Samuel A. Alito—rejected this and said the arbitration clause in the employment contract that was insisted upon by employers had to be enforced, and the workers could not go to court or even have a class action in arbitration. The U.S. Supreme Court invoked the Federal Arbitration Act, a law adopted in 1925, which provides that arbitration clauses in contracts shall be enforced.

The case has great significance for workers in allowing employers to insist as a condition of employment that employees submit any disputes to individual arbitrations. The ability to bring a class action is especially crucial when a large number of people each lose a relatively small amount of money. This is exactly what occurs when there is wage theft. As Justice Ruth Bader Ginsburg noted: “Violations of minimum-wage and overtime laws are widespread. … One study estimated that in Chicago, Los Angeles, and New York City alone, low-wage workers lose nearly $3 billion in legally owed wages each year.”

But the larger significance of the case, which has not received substantial attention, is in the high court holding that the ability to engage in “concerted activities for the purpose of … mutual aid or protection” refers only to doing so for union organizing purposes. For example, the National Labor Relations Board has held for over 70 years that this protects the ability of employees to share wage information. But this, and much else, is in doubt given the court’s very narrow reading of this statutory language as being only about protection for union organizing.


Robert McCoy was indicted for a triple murder in Louisiana. He initially had a public defender, but because of disagreements, he discharged the public defender. His family hired a new lawyer, Larry English, who strongly advised McCoy to admit to the killings, but deny that he had the requisite mental intent to be guilty of first-degree murder. McCoy vehemently disagreed and was adamant that English not do this. He even moved to have English removed as counsel. The trial court denied this motion and told English: “You are the attorney” and “you have to make the trial decision of what you’re going to proceed with.”

At the beginning of his opening statement at the guilt phase of the trial, English told the jury there was “no way reasonably possible” that they could hear the prosecution’s evidence and reach “any other conclusion than Robert McCoy was the cause of these individuals’ death.”

McCoy objected. The trial court rejected this objection. Continuing his opening statement, English told the jury the evidence is “unambiguous,” that “my client committed three murders.” McCoy testified in his own defense, maintaining his innocence and pressing an alibi. In his closing argument, English reiterated that McCoy was the killer. McCoy was convicted and sentenced to death.

The Supreme Court, in a 6-3 decision, held that it violates the Sixth Amendment for defense counsel to concede guilt over the defendant’s objections. The court reiterated the traditional understanding: Trial management is the lawyer’s province. Counsel makes the decisions such as “what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence.” Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal.

Justice Ruth Bader Ginsburg explained that a client determines the objectives of representation, and that includes whether to admit to the killings. This reaffirmed a basic legal principle: The client determines the goals of representation, but the lawyer determines the means. But the court went further and said that because the issue is the client’s autonomy and not counsel’s performance, this is not analyzed as an ineffective assistance of counsel issue. The court says that this is a structural error and the defendant need not show prejudice, which would be required under an ineffective assistance of counsel rationale. This is an important change in the law, and one that provides greater protection for the rights of clients to make key choices in criminal cases.


Supplemental jurisdiction gives a federal court the authority to decide state law claims that arise from the same matter as federal law claims that are properly before the court. It is authorized by 28 U.S.C. §1367. If a federal court dismisses the federal claims, it then can—and often will—dismiss the state law claims. The plaintiff then can refile the state law claims in state court. This case involves the statute of limitations for refiling the state law claims in state court.

Specifically, Section 1367(d) provides: “The period of limitations for any [state] claim [joined with a claim within federal-court competence] shall be tolled while the claim is pending [in federal court] and for a period of 30 days after it is dismissed unless state law provides for a longer tolling period.” The issue in this case: Does the word “tolled,” as used in §1367(d), mean the state limitations period is suspended during the pendency of the federal suit; or does “tolled” mean that, although the state limitations period continues to run, a plaintiff is accorded a grace period of 30 days to refile in state court post dismissal of the federal case?

Stephanie C. Artis was fired from her job as a health inspector in the District of Columbia. Thirteen months later, Artis sued the District in the United States District Court for the District of Columbia, alleging claims under both federal law and D.C. law. The district court dismissed the federal claims and then used its discretion to dismiss the state law claims. Artis refiled her state-law claims in state court 59 days after dismissal of her federal suit. Reading §1367(d) as a 30-day grace-period prescription, her complaint would be time-barred. Reading §1367(d) as stopping the limitations clock during the pendency of the federal-court suit, her complaint would be timely.

The court held in a 5-4 decision that the word “tolled” in §1367(d) means the state limitations period is suspended during the pendency of the federal suit. It is not just a 30-day grace period. Justice Ginsburg, writing for the court, said that the word “tolled,” in the context of a time prescription like §1367(d), means that the limitations period is suspended (stops running) while the claim is pending elsewhere, then starts running again when the tolling period ends, picking up where it left off. The court said that this fits the ordinary meaning of the term “tolled,” as well as how it has been used in other Supreme Court case. The practical effect of this decision is that many more claims will be able to be refiled in state court after being dismissed by the federal court.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s the author of seven books, including The Case Against the Supreme Court (Viking, 2014).