O'Melveny Insights 2023

37 The framework the Court established 20 years ago for enforcing the implied causes of action in those statutes strongly suggested the answer was yes. Justices Kavanaugh and Gorsuch, however, supplied the pivotal votes against the plaintiff on the ground that judicially implied causes of action themselves are unjustified. Similarly, in Vega v. Tekoh, the Court considered whether 42 U.S.C. § 1983 provides a remedy for violations of the Court’s well-known Miranda rule—the rule requiring that police officers warn custodial suspects of their rights before questioning them. Miranda is another decadesold rule that several Justices believe to be of questionable origin, and many Justices likewise question whether Section 1983 is truly meant to allow damages actions for violations of constitutional rights. A majority of the Court thus declined to endorse a statutory remedy for violations of the Miranda rule. At oral argument, Justice Kavanaugh encapsulated his approach to Miranda: “Accept it, but don’t extend it.” This new approach to precedent upends the traditional understanding that past Supreme Court decisions should be understood as not just deciding particular cases, but also establishing legal rules that ought to be applied whenever sound logic dictates. As Justice Alito put it just a few years ago, when the Court decides a case, “We can’t just say that on the particular facts here,” one party wins. “We have to have a rule that can be applied in other cases.” It now seems, however, that a Court majority is prepared to treat a growing number of past decisions as applicable only to their own particular facts. This new practice has profound implications for individuals, businesses, and all other parties with cases before the Court—or with issues that could be headed there. For one thing, it is vital to have lawyers who understand and know how to speak the Court’s modern language of statutory interpretation. In this sense, Supreme Court counsel is another form of local counsel. O’Melveny once again named to The National Law Journal’s Appellate Hot List, a select group of the most active and influential firms at the Supreme Court. Take last Term’s decision in Cummings v. Premier Rehab Keller. The question there was whether recipients of federal funds that discriminate against individuals because of their race, sex, or disability—in violation of Title IV, Title IX, and related statutes—must pay damages for a plaintiff’s resulting emotional distress