Today’s orders

Today’s ordersYesterday the justices of the Supreme Court released several decisions in cases that were argued on the merits and announced that they would add several new cases – including, most notably, the litigation over the president’s “travel ban” – to their docket for next term. The justices did not take the bench today, but they […]

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Today’s orders

Yesterday the justices of the Supreme Court released several decisions in cases that were argued on the merits and announced that they would add several new cases – including, most notably, the litigation over the president’s “travel ban” – to their docket for next term. The justices did not take the bench today, but they did release a new set of orders from yesterday’s conference. This morning’s order list sent four cases back to the state courts for them to take another look in light of yesterday’s decision in Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri’s exclusion of a church from a state program intended to provide funding for recycled playground surfaces violated the Constitution. The justices also added six new cases, for a total of five hours of argument, to their docket for the next term.

Two of today’s new grants came in cases in which the court had asked the federal government to weigh in and the acting solicitor general (on behalf of the federal government) had recommended that the court take up the case. Rubin v. Islamic Republic of Iran arises out of efforts to enforce a $71.5 million judgment against Iran for its role in a 1997 suicide bombing in Jerusalem; the plaintiffs want to satisfy that judgment by seizing ancient Persian artifacts that have been on loan to the University of Chicago since the 1930s. A federal law, the Foreign Sovereign Immunities Act, generally protects property in the United States that is owned by foreign governments from being seized, but the FISA carves out some limited exceptions – including when the property at issue is used for commercial activity and when the plaintiff has obtained a judgment against a “terrorist party.” Today the justices agreed to decide whether a provision of the FSIA creates a “freestanding” immunity exception (as the plaintiffs in this case argue) or whether the other requirements for seizing a foreign state’s property still apply.

And in Cyan Inc. v. Beaver County Employees Retirement Fund, the justices will consider whether a 1998 federal law, the Securities Litigation Uniform Standards Act, prohibits a state court from exercising jurisdiction over lawsuits that only allege violations of the Securities Act of 1933. In this case, shareholders who bought stock in Cyan after its initial public offering but then experienced “weaker-than-expected” results filed a class action under the 1933 act, which creates causes of action for false statements made in connection with the public offering of stocks. In a somewhat unusual twist, the federal government agreed with a California appeals court that SLUSA does not strip state courts of jurisdiction over this lawsuit. But the government nonetheless urged the justices to grant review, describing the case as presenting a “difficult interpretive issue that has generated confusion in lower courts.”

The justices added two more cases to their docket in which the acting solicitor general had recommended that review be denied: Christie v. NCAA and National Thoroughbred Horsemen’s Association v. NCAA, which were consolidated for one hour of oral argument. In these cases, the lower courts ruled that a 2014 law passed by the New Jersey legislature allowing sports gambling at its casinos and race tracks was pre-empted by a federal law, the Professional and Amateur Sports Protection Act, that prohibits states from authorizing sports-gambling schemes. The Supreme Court will now weigh in on whether Congress can bar the states from authorizing sports gambling, or whether the PASPA instead violates the Tenth Amendment, which provides that powers which are not specifically given to the federal government or taken from the states are reserved for the states.

In PEM Entities v. Levin, the justices agreed to decide whether bankruptcy courts should apply a federal rule of decision, involving a multi-factor test, or state law when deciding whether to recharacterize a debt claim as a capital contribution in bankruptcy. And in Marinello v. United States, the justices will consider whether a conviction for trying to impede or obstruct the administration of the tax laws requires the government to show that the defendant knew of a pending IRS action when he acted.

Finally, the justices sent several cases involving the use of public funds in religious schools back to the state courts for them to reconsider in light of Trinity Lutheran. A trio of cases – Doyle v. Taxpayers for Public Education, Douglas County School District v. Taxpayers for Public Education and Colorado State Board of Education v. Taxpayers for Public Education – had asked the Supreme Court to review a decision by the Supreme Court of Colorado. The Colorado court had ruled that a public program to provide scholarships for use at private schools, including religious ones, violated the state constitution, which contains a provision that bars the state from spending public funds “in aid of any church or sectarian society, or for any sectarian purpose.” And in New Mexico Association of Nonpublic Schools v. Moses, the justices had been asked to weigh in on the New Mexico Supreme Court’s reliance on a similar state constitutional provision to uphold the exclusion of religious and private schools from a secular textbook-lending program.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Cyan. However, I am not affiliated with the firm.]

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Today’s orders (part 2)

Today’s orders (part 2)This morning at 9:30 am the justices released orders from last week’s private conference. I covered some of the highlights from those orders in an earlier post, but today’s orders also included an unusually high number of separate opinions regarding the cases in which the court acted – including three by the court’s newest justice, […]

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Today’s orders (part 2)

This morning at 9:30 am the justices released orders from last week’s private conference. I covered some of the highlights from those orders in an earlier post, but today’s orders also included an unusually high number of separate opinions regarding the cases in which the court acted – including three by the court’s newest justice, Neil Gorsuch.

Gorsuch dissented from the court’s denial of review in Mathis v. Shulkin, in which the justices had been asked to review a rule created by the U.S. Court of Appeals for the Federal Circuit to use in cases involving disabled veterans who are seeking compensation for disabilities that they suffered while they were serving in the armed forces. The Federal Circuit applies a presumption that the medical professionals whom the Department of Veterans Affairs uses to evaluate these disabled veterans are competent to provide their opinions on any medical issues, which – veterans argue – then imposes a difficult burden on disabled veterans to show that the examiners are not in fact competent.

In a brief but sometimes folksy opinion that speaks directly to the reader at one point (“Now, you might wonder if our intervention is needed to remedy the problem.”), Gorsuch noted that judges on the Federal Circuit had voiced concerns about the presumption, which “may well mean the presumption’s days are numbered.” “But,” Gorsuch continued, “I would not wait in hope. The issue is of much significance to many today and, respectfully, it is worthy of this Court’s attention.”

Justice Sonia Sotomayor had her own statement – not a dissent – regarding the denial of review in the veterans’ case. She agreed with Gorsuch that the presumption “is questionable,” but in her view, this was not an appropriate case in which to take up the question because Mathis had not asked the VA for the credentials of his examiner. “Full review,” she explained, “would require a petition arising from a case in which the VA denied a veteran benefits after declining to provide the medical examiner’s credentials. Until such a petition presents itself,” she concluded, “staying our hand allows the Federal Circuit and the VA to continue their dialogue over whether the current system for adjudicating veterans’ disability claims can be squared with the VA’s statutory obligations to assist veterans in the development of their disability claims.”

In Bay Point Properties v. Mississippi Transportation Commission, Gorsuch (joined by Justice Clarence Thomas) issued a statement regarding the court’s denial of review in a case involving the Constitution’s just-compensation clause, which bars the government from taking private land for a public use “without just compensation.” Gorsuch suggested that the Mississippi Supreme Court’s decision allowing states to limit compensation when it “negotiates an easement limited to one purpose but later uses the land for an entirely different purpose” conflicts with the decision of a federal court of appeals and “seems difficult to square with the teachings of this Court’s cases holding that legislatures generally cannot limit the compensation due under” the Constitution’s takings clause. In light of the “general importance” of the question presented in the case, Gorsuch asserted, the court should grant review of the issue “at its next opportunity.”

Gorsuch concurred in the court’s disposition of Hicks v. United States, in which inmate Marcus Hicks argued that he should have his 20-year sentence reduced because, even though he committed his crime before the enactment of a federal sentencing law that would have given him a lower sentence, he was sentenced after the law went into effect. The federal government agreed that Hicks’ sentence was too long, and it asked the Supreme Court to send the case back to the U.S. Court of Appeals for the 5th Circuit for it to consider whether Hicks can meet the other criteria necessary to revise his sentence when he had failed to argue in that court that the sentence was too long. The justices agreed to do so today.

Gorsuch explained that he could not “think of a good reason to say no” to Hicks’ request. The court, he reasoned, routinely sends cases back to the lower court “not only when we are certain that curing the error will yield a different outcome, but also in cases where we think there’s a reasonable probability that will happen” – which is precisely the case here. Gorsuch acknowledged that the Supreme Court is not required “to rove about looking for errors to correct in every case in this large country,” and he agreed with the late Justice Antonin Scalia, whom he succeeded, that the court should be cautious before stepping into cases like this. But in this case, he concluded, “the lone peril” “seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.”

Chief Justice John Roberts dissented from the court’s decision in Hicks, joined by Thomas. Roberts emphasized that despite the government’s concession that Hicks received the wrong sentence, only two of the four criteria to have Hicks’ sentence reduced had been met. Using some folksy language of his own, Roberts pushed back against Gorsuch’s suggestion that the court should nonetheless send the case back to the lower court because “the outcome on remand is a no-brainer.” “But without a determination from this Court that the judgment below was wrong or at least a concession from the Government to that effect, we should not, in my view, vacate the Fifth Circuit’s judgment.”

Finally, Roberts – joined by Thomas, Gorsuch, and Justice Samuel Alito – dissented from the court’s decision to send the case of Johnson v. Alabama back to the state court for it to reconsider the case. Toforest Johnson, the inmate in the case, was convicted of murder and sentenced to death based on the testimony of a witness who said that she had heard Johnson confess to the crime during a phone call. Many years later, Johnson sought to vacate his conviction on the ground that prosecutors had failed to tell him that the witness had been paid for her testimony – in violation of their obligations under Brady v. Maryland, in which the Supreme Court held that prosecutors must provide defense attorneys with evidence favorable to the defendant. A state court rejected his request, relying on a state-law rule that Brady does not apply to evidence that would impeach a witness.

In its brief opposing review, the state urged the Supreme Court to vacate the lower court’s ruling and send Johnson’s case back so that the Alabama Court of Criminal Appeals could reconsider it in light of a 2013 Alabama Supreme Court ruling that rejected the criminal court’s interpretation of the state-law rule. That is what the Supreme Court did today, but Roberts and his three colleagues disagreed with that disposition of the case. Roberts reasoned that the state courts were aware of the 2013 ruling but still “declined to upset the decision below.” Emphasizing that the question before the Supreme Court “concerns state collateral review—purely a creature of state law that need not be provided at all”—Roberts concluded that, no matter what “one’s view on the propriety of our practice of vacating judgments based on positions of the parties, the Court’s decision to vacate this state court judgment is truly extraordinary.”

The justices also invited the acting solicitor general to file briefs expressing the views of the United States in four new cases:

There is no deadline for the federal government to file its briefs in response to today’s invitations.

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Today’s orders (part 1)

Today’s orders (part 1)It was a busy day at the Supreme Court today, with the justices’ release of decisions in argued cases and their order allowing at least part of the so-called “travel ban” to go into effect. But even before the justices acted on the travel ban and issued their opinions, they also released orders from last […]

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Today’s orders (part 1)

It was a busy day at the Supreme Court today, with the justices’ release of decisions in argued cases and their order allowing at least part of the so-called “travel ban” to go into effect. But even before the justices acted on the travel ban and issued their opinions, they also released orders from last week’s private conference, and the list included some orders that would likely be front-page news on any other day. After a whopping 14 relists, the Supreme Court announced that it will review the case of a Colorado man who contends that requiring him to make wedding cakes for same-sex marriage celebrations would violate his religious beliefs. The court declined, however, to take up an important California gun rights case, over a dissent from Justice Clarence Thomas that was joined by Justice Neil Gorsuch.

One of today’s two grants came in Masterpiece Cakeshop v. Colorado Civil Rights Commission, in which the justices will consider the collision between religious beliefs and laws barring discrimination against LGBTQ people. Masterpiece Cakeshop is a custom-cake business owned by Jack Phillips, who describes himself as a “cake artist.” Phillips argues that Colorado’s public accommodations law violates the First Amendment by requiring him to create custom wedding cakes for same-sex weddings, in violation of his religious beliefs. The business had filed its petition for review nearly a year ago, in July 2016, but a series of delays – ranging from efforts by the commission to waive its right to respond to a request for the lower-court record – meant that the justices did not actually consider the petition at their private conference until February 24. The justices didn’t act on the petition after that conference, nor after the 13 that followed. Because the court had denied a similar petition three years ago, many court watchers attributed the delay to the possibility that one or more of the justices was writing a dissent from the denial of review. But that conventional wisdom proved to be wrong today; the case is likely to be argued in the fall, with a decision on the merits sometime next year.

In addition to the government’s petitions for review of the lower-court rulings blocking the implementation of President Donald Trump’s travel ban, the justices today added a third case to their docket for next term: Digital Realty Trust v. Somers. The case centers on a provision of the Dodd-Frank Act that bars retaliation against whistleblowers who make disclosures that “are required or protected under the Sarbanes-Oxley Act.” The respondent in the case, Paul Somers, worked for Digital Realty Trust, a real estate investment trust specializing in properties for data centers, until he was fired; he filed a lawsuit under the anti-retaliation provision, arguing that he was terminated for making internal complaints protected by the Sarbanes-Oxley Act. The company argued that his claims could not go forward because he had not complained to the Securities and Exchange Commission, as the Dodd-Frank Act’s definition of “whistleblower” requires. A federal district court denied the company’s motion to dismiss, and the U.S. Court of Appeals for the 9th Circuit affirmed.

The justices declined to take up the case of Peruta v. California, in which they had been asked to decide whether the Second Amendment protects the right to carry a handgun outside the home for self-defense. Nine years ago, a divided Supreme Court ruled that the Second Amendment guarantees an individual’s right to have a gun, at least in one’s home. Two years later, the court – once again by a vote of 5-4 – confirmed that the Second Amendment right to bear arms applies fully to the states as well as the federal government. Since then, however, the court has been reluctant to take on other gun rights cases, and it had denied other cases presenting very similar issues. So it was not entirely a surprise when, after relisting the case seven times, the court announced that it had denied review.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from the denial of review and would have granted the petition. Thomas complained that, even if other justices “do not agree that the Second Amendment likely protects a right” to carry a gun in public, “the time has come for the Court to answer this important question definitively.” Moreover, he added, the denial of review “reflects a distressing trend: the treatment of the Second Amendment as a disfavored right.” “For those of us who work in marbled halls,” he concluded, “guarded constantly by a vigilant and dedicated police force, the guarantees of the Second Amendment might seem antiquated and superfluous.” But, he continued, “the Framers made a clear choice: They reserved to all Americans the right to bear arms for self-defense. I do not think we should stand idly by while a State denies its citizens that right, particularly when their very lives may depend on it.”

The justices also summarily reversed a decision by the Arkansas Supreme Court on the rights of same-sex parents to be listed on their children’s birth certificates. The case arose when two married same-sex couples had daughters in the state in 2015 using anonymous sperm donors. The couples asked to have both women’s names on the birth certificate when the children were born, but only the birth mothers were listed. By contrast, state law requires a married woman’s husband to be listed as the second parent on the child’s birth certificate, even if he is not the child’s biological parent.

Today the Supreme Court, in an unsigned opinion issued without briefing on the merits or oral argument, ruled that the different treatment of married same-sex and opposite-sex couples violates the Constitution by denying same-sex couples “the constellation of benefits that the State has linked to marriage.” The court rejected the state’s argument that which parents are listed on a child’s birth certificate doesn’t have anything to do with marriage but is instead just a way to memorialize a child’s parentage. “Arkansas law,” the court explained, “makes birth certificates about more than just genetics” – particularly when married men must be listed on their child’s birth certificate even if they are not their child’s biological father.

Gorsuch dissented from today’s summary ruling, in an opinion joined by Thomas and Justice Samuel Alito. In his view, the court should overturn a lower court’s ruling without briefing and oral argument only when “the law is settled and stable, the facts are not dispute, and the decision below is clearly in error” – criteria that this case cannot meet. Gorsuch acknowledged that the court’s 2015 decision in Obergefell v. Hodges “addressed the question whether a State must recognize same-sex marriages.” But, he continued, that ruling did not say anything about birth certificates for the children of same-sex couples.

 

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Opinion analysis: Court sends cross-border shooting lawsuit back to lower court

It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandez’s family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandez’s right under the Fourth Amendment to […]

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It has been a little over seven years since 15-year-old Sergio Hernandez was shot by Jesus Mesa, a U.S. Border Patrol agent, while Hernandez was standing on the Mexican side of the border. Hernandez’s family filed a lawsuit against Mesa, arguing that (among other things) the shooting violated Hernandez’s right under the Fourth Amendment to be protected against excessive deadly force. Both Mesa and the U.S. government urged the Supreme Court to uphold the lower courts’ rulings dismissing the family’s lawsuit, but their case survived – at least for now. Acknowledging that the facts outlined in the family’s lawsuit “depict a disturbing incident resulting in a heartbreaking loss of life,” the justices sent the case back to the lower court for it to take another look.

View of the courtroom on the last day of opinions (Art Lien)

The Hernandez family had asked the justices to weigh in on two questions: whether the Fourth Amendment’s bar on excessive deadly force applies outside the United States and how courts should make that determination; and whether, even if Hernandez was protected by the Fifth Amendment’s guarantee that his life would not be taken without proper judicial proceedings, Mesa is immune from suit. But the justices asked the two sides to brief another question: whether the Hernandez family can rely on the Supreme Court’s 1971 decision in Bivens v. Six Unknown Named Agents, holding that a plaintiff can bring a private federal case for damages against federal officials who allegedly violated his constitutional rights, at all.

In an unsigned opinion, the Supreme Court emphasized today that the lower court had not given any consideration to the Bivens question. The justices noted that plaintiffs cannot rely on Bivens when there are “special factors counselling hesitation in the absence of affirmative action by Congress.” And in another decision last week, the court continued, it indicated that the focus of that inquiry should be whether courts are “well suited, absent congressional action or instruction, to consider and weigh the costs and benefits of allowing a damages action to proceed.” Therefore, the court concluded, the case should go back to the lower court for it to consider what effect that ruling might have on the Bivens question in this case. Doing so, the court indicated, might eliminate any need for the court of appeals to decide whether Hernandez was protected by the Fourth Amendment – which, the court seemed to suggest, could be preferable to deciding the “sensitive” and potentially “far reaching” Fourth Amendment question.

The court disagreed with the lower court’s conclusion that Mesa was entitled to qualified immunity from the family’s Fifth Amendment claim. That conclusion, the court explained, rested on the fact that Hernandez was not a U.S. citizen and did not have any connection to the United States. But that fact isn’t relevant to whether Mesa can be immune from a lawsuit, the court countered, because Mesa only learned after the shooting that Hernandez was not a U.S. citizen. Here too, the court stressed, the lower court had not addressed whether the family’s claim could even proceed under Bivens; it will now consider that question, as well as a series of other arguments about qualified immunity, on remand.

Justice Clarence Thomas wrote separately to indicate that, in his view, the Hernandez family could not rely on Bivens at all. “This case,” he contended, “arises in circumstances that are meaningfully different from those at issue in Bivens and its progeny” – in particular, conduct that occurs across an international border. He would not have sent the case back to the lower court; instead, he would have put a halt to it altogether.

Justice Stephen Breyer dissented, joined by Justice Ruth Bader Ginsburg. In his view, Hernandez was protected by the Fourth Amendment when he was shot. Even if he was on the Mexican side of the border, Breyer reasoned, his location should not, standing alone, be dispositive. This is particularly true, Breyer continued, when you consider several factors. For example, Mesa – who shot Hernandez – is a federal law-enforcement officer, and the culvert where Hernandez was shot is in fact a “special border-related area” run by an international commission to which the United States contributes tens of millions of dollars each year. Moreover, a finding that Hernandez was not protected by the Fourth Amendment would create an anomalous result: Mesa could be held liable for shooting Hernandez if Hernandez was on the U.S. side of the “imaginary mathematical borderline running through the culvert’s middle,” but not if Hernandez was just a few feet on the other side of that line, even if everything else about the case, including Mesa’s behavior, remained the same. When all of these things are considered together, Breyer concluded, there is “more than enough reason for treating the entire culvert as having sufficient involvement with, and connection to, the United States to subject the culvert to Fourth Amendment protections.” He would therefore decide the Fourth Amendment question in favor of Hernandez and send the case back to the lower court for it to decide the Bivens and qualified immunity questions.

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Opinion analysis: Church prevails in funding dispute

Opinion analysis: Church prevails in funding disputeBefore Justice Antonin Scalia died last year, the Supreme Court agreed to review a church’s challenge to Missouri’s denial of the church’s application for a grant to resurface its playground. The church contended that its exclusion from the state-run program violated the U.S. Constitution by discriminating against religious institutions, while the state countered that the […]

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Opinion analysis: Church prevails in funding dispute

Before Justice Antonin Scalia died last year, the Supreme Court agreed to review a church’s challenge to Missouri’s denial of the church’s application for a grant to resurface its playground. The church contended that its exclusion from the state-run program violated the U.S. Constitution by discriminating against religious institutions, while the state countered that the church can still worship however it wants to – the state just isn’t going to pay for it. Today, in an opinion by Chief Justice John Roberts, the court ruled that the state’s policy did indeed violate the church’s right to free exercise of its religion.

Five years ago, Trinity Lutheran Church applied for a grant from a state program that gives funds to nonprofits to reimburse them for the installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground-resurfacing program, ranked Trinity Lutheran’s application fifth out of 44, but it still did not give the church one of the 14 grants that it awarded. The department explained that the Missouri state constitution bars money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

Chief Justice Roberts with opinion in Trinity Lutheran (Art Lien)

Trinity Lutheran challenged the denial in federal district court, where it argued that the state’s refusal to give it a grant violated both the First Amendment’s free exercise clause, which bans the government from making laws or enacting policies “prohibiting the free exercise” of religion, and the 14th Amendment’s equal protection clause, which requires a state to apply its laws equally. The lower courts ruled for the state, and the Supreme Court agreed to weigh in on January 15, 2016.

With his relatively brief – only 15 pages – opinion, Roberts seemed to regard the case as a relatively straightforward one. He explained that under the Supreme Court’s cases interpreting the free exercise clause, the government needs a very good reason to rely on someone’s religious identity to deny him a benefit that would otherwise be generally available. And here, he continued, that is exactly what the state’s policy does: It discriminates against the church by barring it from receiving the playground funding just because it is a church. The church cannot both continue to operate as a church and receive the funding; it has to choose between the two. Moreover, Roberts added, the state has not provided anything close to the kind of compelling reason that it would need to exclude the church from the program: All it has said is that it wants to try to steer clear of concerns about violating the Constitution’s establishment clause, which bars the government from favoring religion.

In conclusion, Roberts acknowledged that the stakes in this case were relatively low, noting that the result of the state’s policy “is, in all likelihood, a few extra scraped knees” if the church could not replace its gravel playground with the softer rubber surface that the state’s program would fund. “But the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church,” Roberts continued, “is odious to our Constitution all the same, and cannot stand.”

Justices Anthony Kennedy, Samuel Alito and Elena Kagan joined the Roberts opinion in full. Justices Neil Gorsuch and Clarence Thomas joined almost all of the Roberts decision. In a separate opinion joined by Thomas, Gorsuch suggested that the Roberts opinion left “open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use.” But that line is hard to draw, Gorsuch continued, and the distinction shouldn’t matter anyway. Gorsuch and Thomas also declined to sign on to the third footnote in the Roberts opinion, which emphasized that the issue before the court in this case was “express discrimination based on religious identity with respect to playground resurfacing” and that the court was not weighing in on “religious uses of funding or other forms of discrimination.” Gorsuch agreed that the footnote was “entirely correct,” but he expressed concern that the footnote could be interpreted to indicate that today’s ruling applies only to playground cases “or only those with some association with children’s safety or health.” To the contrary, he concluded, what matters in the Supreme Court’s cases are general principles, which “do not permit discrimination against religious exercise—whether on the playground or anywhere else.”

In contrast, footnote 3 may have been key for Justice Stephen Breyer, who wrote that he agreed “with much of what the Court says and with its result.” But he would not draw any broader conclusions about how the free exercise clause would apply to other kinds of government benefits.

Justice Sonia Sotomayor dissented, in an opinion (joined by Justice Ruth Bader Ginsburg) that she summarized from the bench – a signal that she strongly disagrees with today’s ruling. Sotomayor lamented that even if the court depicted the case as a simple one “about recycling tires to resurface a playground,” it was in fact “about nothing less than the relationship between religious institutions and the civil government—that is, between church and state.” “The Court today,” she continued, “profoundly changes that relationship by holding, for the first time, that the Constitution requires the government to provide public funds directly to a church.” But if the separation of church and state means anything, she concluded, “it means that the government cannot, or at the very least need not, tax its citizens and turn that money over to houses of worship. The Court today blinds itself to the outcome this history requires and leads us instead to a place where separation of church and state is a constitutional slogan.” Another sign of Sotomayor’s discontent: She closed both her written opinion and her summary from the bench with the phrase “I dissent,” rather than the traditional phrase “I respectfully dissent.”

Under the court’s normal procedures, the justices would have heard oral argument in the church’s case in either the spring or fall of 2016. But instead the case languished on the court’s docket, without any explanation from the court, until April 19. By that time, Justice Neil Gorsuch had been confirmed to the court, and the new Missouri governor, Eric Greitens, had announced a shift in the state’s policy: Going forward, the department could give grants to religious groups to fund (among other things) recycled playground surfaces like the one for which the church had applied. In the end, the shift in policy did not make a difference in the court’s ruling: In the first footnote in the case, the court explained that it could still rule on the merits of the church’s challenge because the state had not made “absolutely clear” that it would not change the policy back again. And, although there had been speculation that the justices were holding off hearing oral argument in the case to avoid a 4-4 deadlock, the fact that Sotomayor and Ginsburg were the lone dissenters indicates that, at least in the end, the justices were not all that closely divided.

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Justices agree to weigh in on travel ban, allow parts of it to go into effect

Justices agree to weigh in on travel ban, allow parts of it to go into effectToday the Supreme Court agreed to review rulings by two lower courts blocking the implementation of President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” Citing national-security concerns, the order imposed a freeze on new visas from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). But the full U.S. […]

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Justices agree to weigh in on travel ban, allow parts of it to go into effect

Today the Supreme Court agreed to review rulings by two lower courts blocking the implementation of President Donald Trump’s March 6 executive order, popularly known as the “travel ban.” Citing national-security concerns, the order imposed a freeze on new visas from six Muslim-majority countries (Iran, Libya, Somalia, Sudan, Syria and Yemen). But the full U.S. Court of Appeals for the 4th Circuit had put the order on hold last month, concluding that – although it did not specifically say so – the order likely violated the Constitution because the president intended to discriminate against Muslim travelers. Earlier this month, a three-judge panel of the U.S. Court of Appeals for the 9th Circuit also blocked the order, but on a different ground: It concluded that the order exceeds the authority that Congress has given the president to regulate immigration. The court’s announcement today means that the justices will review both of those decisions. The justices also granted the Trump administration’s request to allow the ban to go into effect, at least for would-be travelers who don’t already have some connection to the United States.

The announcement came in a brief, unsigned opinion issued by the justices when they took the bench this morning to release opinions in cases argued on the merits earlier this term. The court’s opinion focused primarily on the government’s request to reinstate the ban while the cases are before the Supreme Court. Emphasizing that the purpose of temporary relief like this is “to balance the equities as the litigation moves forward,” the court made clear that it had the authority to “tailor” its ruling so that it applied to some, but not all, of those affected.

That is precisely what it did. The lower courts had considered the hardships that the ban would create for the named plaintiffs in the case: two men with family members who want to come to the United States from the affected countries; and the state of Hawaii, whose state university had admitted students from those countries. But, the court explained today, the lower courts’ orders barring enforcement of the ban “reach much further than that,” because they also apply to people living overseas “who have no connection to the United States at all.” When those people are unable to come to the United States, the court reasoned, their constitutional rights are not violated – because they have no right to come to the United States – and their exclusion from the country does not harm anyone in the United States.

The justices therefore upheld the lower courts’ orders blocking enforcement of the ban with regard to the named plaintiffs and others like them – people who “have a credible claim” of a genuine relationship with someone or an institution in the United States. When that relationship is with an individual, the court made clear, it must be a close family member. And when the relationship is with an institution, the relationship must also be a genuine one, rather than one created just to get around the travel ban.

Justice Clarence Thomas filed a separate opinion, which was joined by Justices Samuel Alito and Neil Gorsuch. They would have allowed the government to reinstate the ban for all travelers from the six affected countries, regardless of any personal connection that those travelers might have with the United States. Thomas complained that today’s order could prove “unworkable,” requiring government officials to try to figure out whether would-be travelers have enough of an connection to the United States to come here, and could “invite a flood of litigation.”

The court combined the two cases for oral argument, which will take place in October of this year. The justices also asked the two sides to address a new question: Whether the challenges to the provision suspending entry for travelers from the six Muslim-majority countries became moot – that is, no longer an ongoing dispute – on June 14, 2017. In a filing on June 12, the challengers in the 4th Circuit case had argued that the provision would expire on that day: They reasoned that the March 6 order made clear that the bar would apply for 90 days from March 16, when the order became effective, and that 90-day period ended on June 14. But on June 14, Trump amended the March 6 order to specify that the bar would go into effect when the lower-court orders blocking its implementation were lifted. That change, the government argued, meant that the case was still alive, but the Supreme Court will now have the final say.

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And then there were six – the remaining cases

And then there were six – the remaining casesThe justices are expected to take the bench on Monday at 10 a.m. to issue opinions in argued cases. There are six decisions still outstanding, involving everything from cross-border shootings to the death penalty and public funding for playgrounds at religious preschools. To be sure, there is no guarantee that we will actually get opinions […]

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And then there were six – the remaining cases

The justices are expected to take the bench on Monday at 10 a.m. to issue opinions in argued cases. There are six decisions still outstanding, involving everything from cross-border shootings to the death penalty and public funding for playgrounds at religious preschools. To be sure, there is no guarantee that we will actually get opinions on the merits in all six of these cases: Three of the remaining cases were argued before Justice Neil Gorsuch took the bench in April, creating a not-insubstantial possibility that the justices are deadlocked. With Gorsuch now on the bench, the justices could order reargument in those three cases, which would presumably take place next fall. But we will know much more by the end of Monday morning. In any event, here is a brief summary of each of the six cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)

January sitting (January 9 to 18)

Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”

Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

February sitting (February 21 to March 1)

Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.

Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer.

In a decision issued on Monday, the court – in an opinion by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.

By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.

April sitting (April 17 to 26)

California Public Employees’ Retirement System v. ANZ Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand.

Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.

There are three opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, but it’s hard to know which one or how many of the three remaining decisions he will write. Ginsburg and Alito have each written two of the April opinions so it is unlikely they will be writing again for that session.

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Opinion analysis: Immigrant who received bad advice gets another shot at staying in the U.S.

Yesterday the Supreme Court sent the case of a Bosnian Serb woman who was stripped of her citizenship for lying to immigration officials back to the lower courts. The justices rejected the government’s argument that Divna Maslenjak could lose her citizenship simply by making false statements, no matter how trivial. Instead, the court ruled, Maslenjak’s […]

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Yesterday the Supreme Court sent the case of a Bosnian Serb woman who was stripped of her citizenship for lying to immigration officials back to the lower courts. The justices rejected the government’s argument that Divna Maslenjak could lose her citizenship simply by making false statements, no matter how trivial. Instead, the court ruled, Maslenjak’s lies can only be held against her if they would have mattered to immigration officials. Today the justices gave another immigrant, Jae Lee, a second chance to stay in the United States after bad advice from his lawyer led him to plead guilty, even though his odds of winning at trial were low and he was likely to be deported anyway.

Chief Justice Roberts with opinion in Lee v. U.S. (Art Lien)

Lee’s saga – which Chief Justice John Roberts, in his opinion for the court, recounted in some detail – began in 2009, when he pleaded guilty to possession of ecstasy with the intent to distribute it and was sentenced to one year and one day in prison. It was only after he pleaded guilty that Lee – who was a lawful permanent resident of the United States – learned that deportation was mandatory for crimes like his. For Lee, who had come to the United States nearly 30 years before, this was a penalty worse than prison: He owned two restaurants in the United States and was the sole caregiver for his elderly parents; by contrast, he no longer had any ties to South Korea, where he was born.

Lee went back to federal court, seeking to overturn his conviction. He argued that when his attorney advised him to take the guilty plea and assured him that he would not be deported, Lee was deprived of his constitutional right to have the assistance of a competent lawyer. The federal government agreed that the performance of Lee’s trial lawyer was deficient. But Lee’s conviction should still stand, the government argued, because the Supreme Court’s 1984 decision in Strickland v. Washington also requires a defendant to show that he was prejudiced by that inadequate assistance. And that, the government contended, Lee cannot do because the case against him was so strong. The U.S. Court of Appeals for the 6th Circuit agreed, holding that “no rational defendant charged with a deportable offense and facing overwhelming evidence of guilt would proceed to trial rather than take a plea deal with a shorter prison sentence.”

Today the Supreme Court reversed. In his decision, which was joined by Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan, Roberts conceded that, in most cases, a defendant will not be able to show that he was prejudiced by taking a guilty plea when the evidence against him is overwhelming. But the court declined to enshrine that generalization in a categorical rule. Both common sense and the Supreme Court’s own case law, Roberts explained, acknowledge “that there is more to consider than simply the likelihood of success at trial.” Instead, Roberts continued, a defendant who is deciding whether to take a guilty plea will also consider the consequences of his conviction – after both a trial and a guilty plea. And the fact that a defendant’s odds of prevailing at trial may be very low does not end the inquiry: When the question is “what an individual defendant would have done,” Roberts reasoned, “the possibility of even a highly improbable result” – an acquittal – “may be pertinent to the extent it would have affected his decisionmaking.”

“In the unusual circumstances of this case,” Roberts determined, Lee has “adequately demonstrated a reasonable probability that he would have rejected the plea had he known that it would lead to mandatory deportation.” When Lee was deciding whether to accept the plea deal, Roberts observed, his most important consideration was whether he would be deported. This should hardly come as a surprise, Roberts added, when the Supreme Court itself has “recognized that preserving the client’s right to remain in the United States may be more important to the client than any potential jail sentence.” If Lee’s attorney had provided accurate advice, Roberts stressed, Lee “would have known that accepting the plea agreement would certainly lead to deportation. Going to trial? Almost certainly.” At least in Lee’s case, Roberts concluded, “that ‘almost’ could make all the difference,” particularly when the plea deal may have only saved Lee a year or two in prison. “Not everyone in Lee’s position would make the choice to reject the plea,” Roberts agreed. “But we cannot say it would be irrational to do so.”

Justice Clarence Thomas, in a dissent joined by Justice Samuel Alito, had harsh words for the court’s ruling today. As an initial matter, Thomas reiterated that, in his view, the Constitution does not protect a defendant’s right to receive accurate information about the effect that a guilty plea will have on his immigration status. But in any event, Thomas argued, Lee cannot show that he was prejudiced by his lawyer’s bad advice because going to trial would not realistically have made any difference: If he “had gone to trial, he not only would have faced the same deportation consequences, he also likely would have received a higher prison sentence.”

Thomas also warned that today’s ruling will have “pernicious consequences for the criminal justice system” by undermining the finality of convictions. He predicted a flood of new challenges to plea agreements, in which defendants will “bear a relatively low burden to show prejudice” from their attorneys’ deficient advice. And that will in turn “impose significant costs on courts and prosecutors,” he suggested, by requiring additional evidentiary hearings. “In circumstances where a defendant has admitted his guilt, the evidence against him is overwhelming, and he has no bona fide defense strategy,” Thomas concluded, “I see no justification for imposing these costs.”

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And then there were nine – the remaining decisions

And then there were nine – the remaining decisionsThe justices are expected to take the bench tomorrow at 10 a.m. to issue opinions in argued cases. There are nine decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those nine cases, […]

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And then there were nine – the remaining decisions

The justices are expected to take the bench tomorrow at 10 a.m. to issue opinions in argued cases. There are nine decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those nine cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)

January sitting (January 9 to 18)

Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”

 Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

February sitting (February 21 to March 1)

Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.

Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer. In a decision issued on Monday, the court – in a decision by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.

By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.

March sitting (March 20 to 29)

Murr v. Wisconsin: This important property-rights case was filed by four siblings who received two adjoining lots on a river in Wisconsin from their parents, who had bought one lot and built a home on it and then purchased the second lot as an investment. The siblings wanted to sell the second lot and use the money to renovate the home on the first lot. But a local zoning ordinance, passed after their parents had purchased the lots, blocked them from doing so on the ground that the two lots had been “merged” into one lot because they were contiguous and had the same owners, even though they were both deeded and taxed separately. The siblings argued that this ordinance imposed an unconstitutional taking on them. But the state appeals court disagreed and ruled that the two parcels should be considered as one; if the parcels are viewed together, the siblings were not deprived of all of the value of their land – a requirement for a taking. The Supreme Court has said that, to determine whether a regulation is a taking, you look at the regulation’s effect on the “parcel as a whole.” The question that the justices will decide in this case, in essence, is what constitutes the parcel?

The siblings argue that the parcel is only the second lot, because courts should look at the lot lines that are on record. The two lots, they say, “were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed.” The state countered that courts should take into account the entire body of the state’s property laws and the owner’s reasonable expectations, which in this case would require the court to look at both parcels together. In its brief in the case, the federal government proposed case-by-case analysis – which in this case, it argued, favors treating the two parcels as one.

 The justices agreed to review this case well over a year ago, before the death of Justice Antonin Scalia. But the court did not schedule it for oral argument until March 2017, by which point Justice Neil Gorsuch had been nominated but not yet confirmed. At the March 20 argument, the eight-member court appeared closely divided; as is so often the case, the outcome could hinge on Kennedy’s vote.

Lee v. United States: This is yet another installment in the series of “crimmigration” cases ” – that is, cases at the intersection of criminal law and immigration –  at the court this term. It features a scenario familiar in immigration law: A noncitizen gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.

The immigrant in this case, Jae Lee, came to the U.S. from South Korea in 1982 and went on to become a successful businessman. But in 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended a guilty plea, in the hope of receiving a shorter sentence. But, and despite assurances to the contrary from Lee’s attorney, Lee’s guilty plea actually led to his permanent and mandatory deportation. Lee tried to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.

Kennedy has not yet written for March, so at least one of these two remaining decisions will almost certainly be his.

April sitting (April 17 to 26)

Perry v. Merit Systems Protection Board:Under federal law, a federal employee who is fired or demoted can go to the Merit Systems Protection Board and, if necessary, appeal the board’s decision to the U.S. Court of Appeals for the Federal Circuit. However, the Federal Circuit’s review of that ruling is fairly limited. But if a federal employee contends that he was fired or demoted as a result of discrimination (known as a “mixed” case), he can seek a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a lawsuit in an appropriate district court and an appeal to a regional federal court of appeals. But the employee also has another option: He can go to the MSPB. The question before the court is whether the board’s decision in these “mixed” cases should be reviewed in a federal district court or a federal court of appeals.

California Public Employees’ Retirement System v. ANV Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand..

Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.

There are four opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, but it’s hard to know which one or how many of the four remaining decisions he will write.

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Opinion analysis: Justices uphold convictions in infamous D.C. murder case

Opinion analysis: Justices uphold convictions in infamous D.C. murder caseThis morning the justices upheld the convictions of seven men who had been convicted of the brutal beating, sodomy, and murder of Catherine Fuller, a District of Columbia mother of six, in 1984. Writing for the court in Turner v. United States, Justice Stephen Breyer concluded that even if the prosecutors had given the defense […]

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Opinion analysis: Justices uphold convictions in infamous D.C. murder case

This morning the justices upheld the convictions of seven men who had been convicted of the brutal beating, sodomy, and murder of Catherine Fuller, a District of Columbia mother of six, in 1984. Writing for the court in Turner v. United States, Justice Stephen Breyer concluded that even if the prosecutors had given the defense attorneys evidence that would have been helpful to the men, the jurors likely would have reached the same result.

Justice Breyer with opinion in Turner v. U.S. (Art Lien)

The Supreme Court rarely weighs in on cases that are “legally simple but factually complex.” This is in no small part because the relatively few cases that the justices review often make their way to the court after the lower courts have reached different decisions under the same legal principle, and the justices want to make sure that their opinions establish clear legal principles that can govern the thousands of cases argued in the lower courts each year. But “legally simple but factually complex” is exactly how Breyer described the issue before the court today.

Because the government did not dispute that the evidence that had been withheld was favorable to the defendants, the only question before the court, Breyer emphasized, was whether the evidence was “material” – that is, that “there is a reasonable probability that, had the evidence been disclosed, the result of the proceeding would have been different.” But, Breyer concluded, the men cannot make this showing. The men’s primary argument, he observed, is that the prosecutors should have given them information about the identity of James McMillan, another man who had been spotted in the alley and was convicted of a similar crime seven years later, as well as a statement by Willie Luchie, who walked through the alley around the time of the murder. If they had received that information, the men contended, they could have “challenged the Government’s basic theory that Fuller was killed in a group attack.”

But when the withheld evidence is considered along with the rest of the evidence before the jury, Breyer explained, “it is too little, too weak, or too distant from” the other evidence to have made a difference. The fact that McMillan had been seen in the alley, Breyer reasoned, would only matter if there had not been a group attack. The same is true, Breyer suggested, for “Luchie’s ambiguous statement that he heard groans but saw no one” in the garage where Fuller’s body was found. This is particularly true, Breyer continued, when (among other things) two other men had confessed to participating in the crime and had testified against the defendants in exchange for a shorter sentence, and other witnesses had confirmed parts of that testimony.

Justice Elena Kagan dissented from the decision, in an opinion joined by Justice Ruth Bader Ginsburg. Kagan acknowledged that the court’s “conclusion is not indefensible: The Government put on quite a few witnesses who said that the defendants committed the crime.” But Kagan would have reached a different result, because in her view “the whole tenor of the trial would have changed” if the prosecutors had provided the defense lawyers with the evidence that had been withheld. She explained that the jury could have been presented with two very different cases. In the one that the jury actually heard, she suggested, the defendants had “formed something of a circular firing squad” in which each defendant tried to save himself at the expense of his co-defendants. But if they had received the evidence that the prosecutors had suppressed, she wrote, the defendants could have pulled together to show that someone else – such as McMillan – had actually committed the crime. If they had done that, she concluded, “one or more jurors could well have concluded that the Government had not proved its case beyond a reasonable doubt.”

Given the heavily fact-intensive nature of the case, it’s hard to know exactly why the justices agreed to review it in the first place. The lack of a compelling legal question was apparent to them from the outset: When they announced that they would hear the case on the merits, the justices asked the parties to brief only one, straightforward question: whether the men’s convictions must be set aside under Brady v. Maryland, which requires the government to turn over evidence that could exonerate the defendant. Although we may never know for sure, one possibility is that the justices granted review to overturn the convictions because, at least at that stage of the proceedings, the men’s cases seemed so compelling. But on further review, they may have seemed significantly less so – particularly after the oral argument, at which deputy solicitor general Michael Dreeben’s extraordinary command of the facts allowed him to weave a forceful presentation on behalf of the government. The justices often say that oral argument rarely makes a difference in the outcome of a case, but this case may have been the exception.

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