Court adds two new cases to merits docket

Court adds two new cases to merits docketThis morning the justices issued orders from last week’s private conference. They added two new cases to their merits docket for the term and denied review in a group of capital cases from Florida, with the latter spurring three separate (and sometimes strongly worded) opinions. The justices will once again return to the subject of […]

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Court adds two new cases to merits docket

This morning the justices issued orders from last week’s private conference. They added two new cases to their merits docket for the term and denied review in a group of capital cases from Florida, with the latter spurring three separate (and sometimes strongly worded) opinions.

The justices will once again return to the subject of racial gerrymandering, in a case from Virginia challenging the districting plan drawn in 2011 for the state’s House of Delegates. In 2017, the Supreme Court ruled that a three-judge district court had applied the wrong legal standard when it upheld 12 districts against claims that they were the product of racial gerrymandering. The justices sent the case back to the lower court, ordering it to take another look at 11 of those districts – and, in particular, whether race was the primary factor used to draw the districts. (The justices upheld the 12th district.)

Applying the standard outlined by the Supreme Court, the lower court concluded that race was indeed the primary factor driving the district boundaries. Because the legislature also had not shown that it needed to use the same population targets in each of the “vastly dissimilar” districts at issue to comply with federal voting rights laws, the lower court continued, the districts violate the Constitution.

The Virginia House of Delegates and Kirkland Cox, the speaker of the House of Delegates, appealed to the Supreme Court, which announced today that it would review their appeal. (Redistricting cases are among a narrow set of cases with an automatic right to appeal to the Supreme Court.)

The Virginia board of elections and department of elections and several state officials filed a separate brief, represented by Virginia’s solicitor general, Toby Heytens. Heytens urged the justices to dismiss the legislature’s appeal, telling them that the House of Delegates and Cox lack a legal right to appeal because Virginia’s attorney general is responsible for representing the state in cases like this one. The fact that Mark Herring, Virginia’s attorney general, has declined to appeal the lower court’s decision to the Supreme Court does not, Heytens contended, allow the legislators to do so instead.

This morning the justices announced that they would review the district court’s decision, but they also ordered the parties to address the question broached by Heytens — whether the legislature and Cox have a legal right to bring their appeal — in their briefs.

The events giving rise to PDR Network v. Carlton & Harris Chiropractic, which was granted today, took place in 2013, when people apparently still sent faxes. The petitioner in the case, PDR, sent Carlton & Harris, a West Virginia chiropractor, a fax offering the company a free copy of the Physicians Desk Reference. Carlton & Harris declined the offer and instead sued PDR in federal court, alleging that PDR had violated the Telephone Consumer Protection Act, a federal law that allows consumers to sue (and recover money from) senders of unsolicited fax advertisements.

PDR asked the court to dismiss the case, arguing that the fax was not an unsolicited advertisement because it was offering the desk reference for free. Carlton & Harris countered that the fax was indeed an unsolicited advertisement because a 2006 order by the Federal Communications Commission interpreted the term to include faxes that offer goods and services at no cost to the recipient.

The district court agreed with PDR, but the U.S. Court of Appeals for the 4th Circuit reversed. PDR then went to the Supreme Court, asking the justices to weigh in, and today they agreed to consider whether the Hobbs Act – which provides a mechanism for courts to review some agency orders – required the district court to accept the FCC’s legal interpretation of the TCPA.

The justices also denied review in a group of capital cases from Florida, all challenging the application of the Supreme Court’s 2015 decision in Hurst v. Florida, striking down Florida’s sentencing scheme for death-penalty cases. Under that system, the jury rendered an “advisory” sentence but the judge independently weighed the factors for and against a death sentence before entering a sentence. In Hurst, the justices concluded that this system violated the Sixth Amendment, which guarantees the right to a trial by jury, because a jury, rather than a judge, must find the facts necessary to impose a death sentence.

After the U.S. Supreme Court’s decision in Hurst, the Florida Supreme Court rejected challenges by inmates in cases in which the jury had unanimously recommended death. The state court reasoned that any error under Hurst was harmless because the jury would have found, beyond a reasonable doubt, all of the requirements necessary to impose the death penalty.

Several inmates came to the U.S. Supreme Court, urging the justices to overturn the Florida Supreme Court’s ruling. They contended that the state court’s decision is inconsistent with Caldwell v. Mississippi, in which the Supreme Court held that a death sentence is not valid when the jury believes that it is not ultimately responsible for determining whether a death sentence is appropriate.

Today’s announcement that the Supreme Court would not review the cases led to separate opinions from three justices. Justice Stephen Breyer filed an opinion “respecting” the denial – that is, he neither agreed nor disagreed, but simply wrote separately to comment on it. Breyer observed that the cases present several issues relating to the death penalty, including one that Breyer has “previously described as a serious flaw in the death penalty system: the unconscionably long delays that capital defendants must endure as they await execution.” More broadly, Breyer continued, a death sentence should reflect a jury’s conclusion that death is “proper retribution” for the crime, but jurors might not have voted for a death sentence if they had known that it would take so long to carry out the execution and that the sentence would be flawed in so many other ways. As he has written before, Breyer concluded that the “flaws in the current practice of capital punishment could often cast serious doubt on the death sentences imposed in these and other capital cases,” but he suggested that “it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.”

Justice Clarence Thomas wrote to express his agreement with the decision to deny review, in an opinion that began with a graphic account of the crime committed by inmate Michael Reynolds and continued with descriptions of the crimes committed by other inmates in a footnote. Thomas rebutted Breyer’s arguments, point by point, before concluding that, in his view, the “only thing ‘cruel and unusual’” in Reynolds’ case was his “brutal murder of three innocent victims.”

Justice Sonia Sotomayor dissented from the denial of review, in an opinion that began by acknowledging that the inmates whose petitions were rejected today “have been convicted of gruesome crimes. Their victims, and the families and communities of those victims, have suffered.” But, Sotomayor explained, she was “also mindful that it is this Court’s duty to ensure that all defendants, even those who have committed the most heinous crimes, receive a sentence that is the result of a fair process.”

The justices will meet again for their next conference on Friday, November 16.

This post was originally published at Howe on the Court.

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After federal government filing, 9th Circuit rules in DACA dispute

After federal government filing, 9th Circuit rules in DACA disputeThree days ago, the federal government went to the Supreme Court, asking the justices to weigh in on a dispute over the Trump administration’s decision to end a program known as Deferred Action for Childhood Arrivals even before the federal courts of appeals – and in particular the U.S. Court of Appeals for the 9th […]

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After federal government filing, 9th Circuit rules in DACA dispute

Three days ago, the federal government went to the Supreme Court, asking the justices to weigh in on a dispute over the Trump administration’s decision to end a program known as Deferred Action for Childhood Arrivals even before the federal courts of appeals – and in particular the U.S. Court of Appeals for the 9th Circuit – could review the government’s appeal from district court rulings against it. Today the 9th Circuit issued its ruling in the challenge to the termination of the program, known as DACA, which allows some undocumented immigrants who came to the United States as children to apply for protection from deportation. The ruling means not only that the Supreme Court is now more likely to take up the DACA dispute, but that it could do so this term.

In its filing on Monday, the federal government complained that the 9th Circuit had heard oral argument in the dispute in mid-May but had not yet issued its ruling. Arguing that the Supreme Court would inevitably have to weigh in on the DACA dispute, the government urged the justices to go ahead and do so now, without waiting for the courts of appeals to rule. Otherwise, the government contended, the Supreme Court might not decide the question until next term, which would require the government to keep DACA in place even though it believes the program is not legal.

In an opinion issued today, a three-judge panel of the 9th Circuit upheld a federal district court’s order requiring the government to keep the DACA program in place. Although the 9th Circuit’s ruling went against the government, the decision likely helped the government’s cause at the Supreme Court, because the justices rarely grant petitions for review before the courts of appeals have ruled; the justices prefer to have the benefit of those courts’ opinions, even if they often do not follow them.

The challengers’ response to the government’s petition is currently due on December 5. Assuming that the court does not extend that deadline, the justices could announce as soon as mid-January whether they will take up the dispute.

This post was originally published at Howe on the Court.

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A “view” from the courtroom: The investiture of Justice Brett Kavanaugh

A “view” from the courtroom: The investiture of Justice Brett KavanaughToday the Supreme Court held an investiture ceremony for Justice Brett Kavanaugh. Kavanaugh took the oath of office on October 6, shortly after he was confirmed, and he began to participate in the Supreme Court’s cases two days later, so this morning’s six-minute ceremony is largely a formality, at which the court will officially receive […]

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A “view” from the courtroom: The investiture of Justice Brett Kavanaugh

Today the Supreme Court held an investiture ceremony for Justice Brett Kavanaugh. Kavanaugh took the oath of office on October 6, shortly after he was confirmed, and he began to participate in the Supreme Court’s cases two days later, so this morning’s six-minute ceremony is largely a formality, at which the court will officially receive Kavanaugh’s commission; the ceremony, which is followed by a reception, also gives Kavanaugh a chance to celebrate with his family, friends and colleagues.

It hasn’t been that long – less than 18 months – since the court held an investiture ceremony for Justice Neil Gorsuch, so many of the details are familiar to the press corps. We are ushered to our seats in the press section roughly 40 minutes before the ceremony begins, giving us plenty of time to gossip and crane our necks to try to spot the notables in the audience.

From left to right: retired Justice Anthony M. Kennedy, Associate Justices Neil M. Gorsuch, Sonia Sotomayor, Stephen G. Breyer, Clarence Thomas, Chief Justice John G. Roberts, Jr., President Donald J. Trump, First Lady Melania Trump, Associate Justice Brett M. Kavanaugh, Mrs. Ashley Kavanaugh, Associate Justices Samuel A. Alito, Jr. and Elena Kagan. (Fred Schilling, Collection of the Supreme Court of the United States)

Many (if not all) of the judges of the U.S. Court of Appeals for the District of Columbia Circuit, where Kavanaugh was a judge until recently, are in attendance, sitting in the front row of the public section. The group includes Merrick Garland, who was nominated in 2016 by President Barack Obama to fill the seat that Gorsuch now holds.

Sitting several rows ahead of Garland is Mitch McConnell, the Senate majority leader, who famously refused to hold a hearing for Garland. McConnell is accompanied by his wife, Elaine Chao, the Secretary of Transportation.

Senator Lindsay Graham, a staunch defender of Kavanaugh during Kavanaugh’s Senate confirmation hearings, is also in attendance, as is former White House counsel Don McGahn.

Shortly before the ceremony begins, White House press secretary Sarah Sanders is escorted to one of the seats normally reserved for lawyers. Sanders, whose relationship with the press has sometimes been contentious, does not follow the example set by her predecessor, Sean Spicer, who sat with reporters in the press section during the Gorsuch investiture.

The real show gets underway when Kavanaugh and his wife, Ashley, are escorted into the room and Kavanaugh takes a seat in what the court’s Public Information Office explains is the same chair that was “used by Chief Justice John Marshall during the early 19th century” and has since been used “for the investiture of every member of the Court since Lewis F. Powell, Jr., took his Judicial Oath in 1972.”

The next entrants on to the stage are President Donald Trump and his wife, Melania. They are seated in the front row of the seats perpendicular to the bench, normally reserved for the justices’ guests, next to retired Justice Anthony Kennedy, whom Kavanaugh succeeds. Justice John Paul Stevens, who is 98 years old, attended the Gorsuch investiture but is not here today.

The justices themselves then take the bench, but there is a notable absence. Shortly before we came upstairs, the Public Information Office issued a press release announcing that 85-year-old Justice Ruth Bader Ginsburg has been admitted to George Washington University Hospital for “observation and treatment” after falling last night in her office at the court. She has, the court tells us, three broken ribs.

Chief Justice John Roberts welcomes the president and first lady, along with Kennedy. He does not mention Ginsburg’s absence.

The next part of the ceremony draws more interest than we would have expected a few days ago. Matthew Whitaker, whom the president named as acting attorney general yesterday in the wake of Jeff Sessions’ resignation, rises to present Kavanaugh’s commission – the piece of paper formally appointing him to the court – to the justices. Like Deputy Attorney General Rod Rosenstein, who is seated with Whitaker at the table usually designated for lawyers who are arguing at the court, Whitaker is dressed in a formal morning coat, and when he presents the commission his voice is very different from Sessions’ southern drawl.

Scott Harris, the clerk of the Supreme Court, then reads Kavanaugh’s commission aloud. Notably, although it was presented to the court by Whitaker, it was signed before yesterday, by the president and Sessions.

With the ceremony nearing the end, Kavanaugh ascends to the bench to take the judicial oath. On his way to the middle of the bench, where the chief justice is waiting, Kavanaugh passes Gorsuch and Justices Sonia Sotomayor, Stephen Breyer and Clarence Thomas and shakes hands with them. After taking the oath, Kavanaugh then moves toward his seat on the far opposite end of the bench, shaking hands with Justices Samuel Alito and Elena Kagan along the way.

After Roberts issues a “warm welcome” to Kavanaugh, the ceremony is over – although a reception, to which the press corps is not invited, will likely go on for far longer than the six-minute ceremony.

Kavanaugh’s investiture ceremony differs from Gorsuch’s in one other way: It is a lovely fall day in Washington, but Kavanaugh did not make the traditional walk down the front steps of the Supreme Court building. In a statement issued last week, the court’s press office indicated that there would not be any opportunities for the press to take photos today; according to Bloomberg’s Greg Stohr, Kathleen Arberg, the chief public information officer at the court, said that the decision not to include the walk was made out of an “abundance of caution due to security concerns.”

This post was originally published at Howe on the Court.

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Argument analysis: Court hard to read in Sudan service dispute

Argument analysis: Court hard to read in Sudan service disputeThe Supreme Court heard oral argument today in a lawsuit alleging that the Republic of Sudan provided support to the al Qaeda terrorists who bombed the USS Cole in 2000, killing 17 sailors and injuring 42 others. The question before the court was not whether Sudan can be held liable; a federal court has already […]

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Argument analysis: Court hard to read in Sudan service dispute

The Supreme Court heard oral argument today in a lawsuit alleging that the Republic of Sudan provided support to the al Qaeda terrorists who bombed the USS Cole in 2000, killing 17 sailors and injuring 42 others. The question before the court was not whether Sudan can be held liable; a federal court has already entered a default judgment of over $300 million against it. Instead, the justices are considering a threshold question: whether the plaintiffs in the case – the victims and their families – gave the Sudanese government proper notice of their lawsuit when they sent their complaint to the Sudanese embassy in Washington, D.C. After an hour of debate today, the outcome was hard to predict: Although the justices seemed at first to be leaning toward a ruling for Sudan, it was less clear at the end of the argument how they are likely to rule.

Christopher M. Curran for petitioner (Art Lien)

The case before the justices today hinges on the interpretation of the Foreign Sovereign Immunities Act, a federal law that bars most lawsuits against foreign countries in U.S. courts but also contains an exception for countries, like Sudan, that the U.S. government has designated as “state sponsors” of terrorism. For cases in which lawsuits are permitted, the FSIA specifies how the plaintiffs should serve foreign governments with their complaint: The provision now at issue before the Supreme Court instructs plaintiffs to send the summons and the complaint (along with a translation of the documents) to “the head of the ministry of foreign affairs of the foreign state concerned.”

The plaintiffs in this case sent their complaint to the Sudanese ministry of foreign affairs at Sudan’s embassy in Washington. When Sudan didn’t respond by the deadline, a federal district court in Washington entered the default judgment against it. In the process of trying to enforce that judgment, the case wound up in the U.S. Court of Appeals for the 2nd Circuit, which agreed with the plaintiffs that sending the complaint to the foreign minister at Sudan’s embassy in the United States complied with the FSIA. The complaint did not, the 2nd Circuit ruled, need to be served on the foreign minister at the foreign ministry in Khartoum, Sudan’s capital.

Arguing on behalf of the Sudanese government today, attorney Christopher Curran urged the justices to reverse the 2nd Circuit’s decision. The FSIA’s requirement that the complaint be “addressed and dispatched” to the foreign minister means, he said, that it should be sent to the foreign minister at his address in Sudan. If Congress had wanted the complaint to go through an intermediary like the embassy, Curran emphasized, it would have said so specifically, as it did elsewhere in the FSIA.

Some justices disagreed with Curran, suggesting that as a practical matter, it would be more efficient and convenient to serve the foreign minister at Sudan’s embassy in the United States. Who knows, Chief Justice John Roberts wondered aloud, how long it would take the complaint to get to the foreign country; the complaint would be “much more likely” to reach the foreign ministry if it were sent to the foreign country’s embassy in the United States.

Justice Samuel Alito reiterated this idea, asking Curran whether, when Congress passed the FSIA, it thought that sending a set of documents to Khartoum with a request for a return receipt (another requirement imposed by the FSIA) was simple.

Curran parried Alito’s question by responding that Congress knew that, in some cases, the return receipt might never come back from the foreign country. But Alito remained skeptical, observing that Curran’s interpretation of the FSIA would require the receipt to come back “from the far reaches of the world.”

Justice Elena Kagan also seemed dubious, telling Curran that the FSIA does not specify that the mailing be sent to the foreign minister “at his own office.” There seems to be, she suggested, something special about embassies that would lend themselves to receiving complaints in lawsuits against a foreign government. Everyone understands, she continued, that embassies are intended to be a foreign government’s point of contract with the country that hosts them.

Some of Kagan’s colleagues, however, took a contrary view. Justice Sonia Sotomayor noted that she had looked at state laws governing the service of complaints and that virtually all states require service where the defendant lives or does business. The idea, she concluded, is that you serve someone where you are likely to find him – which, for a foreign minister, is not normally an embassy overseas.

Justice Stephen Breyer posited that service on the foreign ministry, rather than the embassy, was preferable to avoid having the complaint fall through the cracks. The Sudanese embassy in Washington, he pointed out, operates with only minimal staffing: one ambassador and one assistant, along with four American employees working in the mailroom. Who knows what’s going to happen to the complaint if it gets sent to the embassy? Breyer queried.

Arguing for the plaintiffs, attorney Kannon Shanmugam echoed Roberts’ suggestion that allowing service by mail at the embassy is perhaps the most reliable method to ensure that the foreign minister actually receives the complaint, which is the concern at the heart of the state laws cited by Sotomayor. Indeed, Shanmugam stressed, when this lawsuit was filed in 2004, it was hard to find someone willing to deliver the complaint to the foreign ministry in Khartoum because the country was consumed by a civil war.

Kannon K. Shanmugam for respondents

In a move that Shanmugam sharply criticized in his briefs, the federal government filed a “friend of the court” brief that sympathized with the plaintiffs in the case but ultimately urged the justices to rule in favor of Sudan. Some justices seemed somewhat perplexed by the government’s filing, with Alito and Justice Brett Kavanaugh asking Assistant to the U.S. Solicitor General Erica Ross to describe how exactly the government would be harmed by a ruling for the plaintiffs.

Ross explained that the U.S. government has many embassies, so that it would be problematic to accept complaints at all of them, not to mention the U.S. consulates that could also be affected by the court’s decision.

It was not clear that the justices were satisfied with the government’s rationale, but on the other hand Kavanaugh and Justice Neil Gorsuch also seemed to suggest that a ruling against the plaintiffs might, in essence, be the lesser of two evils, because plaintiffs could still serve foreign governments through the U.S. State Department (under another provision of the FSIA) even if service by mail at the foreign ministry proved unsuccessful.

Shanmugam’s chances seemed to wane when he acknowledged that he was not aware of any case in which service through the State Department had not worked. But the momentum somehow seemed to shift after Alito asked Shanmugam whether, if the plaintiffs were to lose and had to serve Sudan through the State Department, the Sudanese government would make an appearance in the proceedings.

Shanmugam emphasized that the case would “have to start over,” and during his rebuttal Curran assured the justices that Sudan would “appear and defend itself.”

But that response prompted the justices to pepper Curran with questions that boiled down to an inquiry into what Sudan had known about this lawsuit against it, and when it knew it. In other words, had Sudan actually failed to learn about the lawsuit in time, or was it using the service question to try to evade the judgment?

Alito seemed to think it was the latter. Had the Sudanese government forgotten about the USS Cole incident, he asked Curran, or did it not know that the litigation was going on?

Justice Ruth Bader Ginsburg chimed in: Did Sudan have notice of the lawsuit?

Curran confirmed that someone at the Sudanese embassy had known about the lawsuit, although it was less clear whether anyone at the foreign ministry in Khartoum had known about it.

When did they know about it, Breyer asked?

Curran answered that, as far as he could tell from the record, the embassy employee had known about it after the motion for the default judgment was filed, but before the district court actually entered the default judgment.

With his time running out, Curran told the justices that the plaintiffs’ proposed rule was “broad and unpredictable” and “leaves too much creativity for plaintiffs and courts.” Five justices may well agree with him, but with the tide seeming to change at the end the case may wind up being much closer than expected.

If the argument in the courtroom was largely a dry discussion of legal and practical issues, the scene outside the Supreme Court building after the argument was more emotional. Two service members who were on the ship when it was bombed had come to Washington to watch the argument, and they were joined by the family members of three sailors who were killed in Yemen.

The named plaintiff in the case, Rick Harrison, described how he and his shipmates “spent 19 days fighting for our lives and fighting for the ship.” Harrison suffered a fractured spine, a major concussion, and damage to his knees.

Another service member who was on board the Cole, David Morales, emphasized that the lawsuit was not about the money, but instead about accountability. “To see our country” siding with Sudan “is very painful,” he said. Morales carries a piece of the Cole’s hull with him at all times to remember the day.

Lorrie Triplett lost her husband, Andrew, in the bombing. She told reporters that her “emotions were so high” and she didn’t “understand why we have to endure such pain.”

A decision in the case is expected sometime next year.

This post was originally published at Howe on the Court.

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Argument analysis: Relatively subdued court is divided in lethal-injection case

Argument analysis: Relatively subdued court is divided in lethal-injection caseThe Supreme Court heard oral argument this morning in the case of Russell Bucklew, who was scheduled to die by lethal injection earlier this year. The court has already rejected several broad challenges to the constitutionality of lethal injection as a method of execution, but the justices put Bucklew’s execution on hold back in March […]

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Argument analysis: Relatively subdued court is divided in lethal-injection case

The Supreme Court heard oral argument this morning in the case of Russell Bucklew, who was scheduled to die by lethal injection earlier this year. The court has already rejected several broad challenges to the constitutionality of lethal injection as a method of execution, but the justices put Bucklew’s execution on hold back in March so that they could consider his argument that executing him by lethal injection would violate the Constitution’s ban on cruel and unusual punishment because, as a result of a rare medical condition, he is likely to undergo a “gruesome” and “excruciating” death even if the execution goes as planned. The justices were relatively subdued but seemed to be mostly divided along ideological lines, and it seemed very possible that the outcome could hinge on the vote of the court’s newest justice, Brett Kavanaugh, who at times appeared sympathetic to Bucklew.

Robert Hochman for petitioner (Art Lien)

Bucklew has been on death row in Missouri for 20 years for the 1996 murder of Michael Sanders, who at the time was living with Stephanie Ray, Bucklew’s former girlfriend. As part of the same series of events, Bucklew kidnapped and raped Ray, and he wounded a state trooper during a shootout. Bucklew has a condition known as cavernous hemangioma, which causes fragile blood-filled tumors to grow in his head, neck and throat.

One of the main points of contention before the court was Bucklew’s assertion that, if the state follows its lethal-injection protocol, he could wind up choking on his own blood and in extreme pain. Bucklew’s attorney, Robert Hochman, told the justices that the team carrying out the execution could have to try to administer the three drugs used in the lethal-injection protocol through Bucklew’s femoral vein – in essence, Hochman stressed, “carving up” Bucklew’s leg for up to 15 minutes. More broadly, Hochman complained, the execution team would not have critical information about Bucklew that would allow it to address his particular needs and potentially alleviate his pain, nor would Bucklew and his lawyers have information about the team’s training and experience. Hochman urged the court, at the very least, to invalidate the lower court’s ruling and send the case back for more fact-finding on whether the state’s lethal-injection protocol can be changed to reduce the likelihood that Bucklew will suffer.

Justice Elena Kagan asked only a few questions, but she appeared receptive to Bucklew’s arguments. She observed that the court’s earlier opinions rejecting challenges to lethal injection had emphasized the need to defer to states in determining the appropriate method of execution. But when state officials make decisions about what method of execution to use, she stressed, they are looking at the big picture and prisoners generally, rather than thinking about individual inmates. And that means, she suggested, that the state isn’t entitled to the same kind of deference here, because the state wasn’t thinking about an inmate like Bucklew.

Kavanaugh appeared concerned about the prospect that inmates like Bucklew could suffer excruciating pain as a result of the method of execution selected by the state. He asked Missouri Solicitor General John Sauer, who argued for the state, whether an execution could go forward even if would create “gruesome brutal pain.” When Sauer responded that it could, Kavanaugh pressed him to explain whether there were any limits on how much pain the execution could inflict. Sauer’s answer: Yes, an execution could not go forward if the pain were so gruesome and brutal that the state would be deliberately inflicting pain for the sake of pain.

D. John Sauer, Missouri state solicitor (Art Lien)

Sauer pushed back against the idea that Bucklew was likely to suffer at all if he were executed by lethal injection, emphasizing that Bucklew has suffered from cavernous hemangioma his entire life but only raised this challenge shortly before his execution. Bucklew’s real goal in pressing this case, Sauer told the justices, is delay – indeed, this is Bucklew’s third “method of execution” challenge.

Some of the court’s more conservative justices appeared to side with the state on this issue, as well as on the second point of contention in the case: whether Bucklew needs to suggest, and has in fact offered, another method of execution that will be less painful than lethal injection. Arguing for Bucklew today, Hochman maintained that inmates must suggest an alternate method of execution only when they are arguing that a method of execution is always unconstitutional (known as a “facial” challenge), rather than arguing, as Bucklew is here, that a method of execution is unconstitutional in his particular case (known as an “as-applied” challenge). But in any event, Hochman continued, other states have adopted lethal gas – the alternative Bucklew has proposed — as a method of execution, even if there are details about lethal-gas executions to be worked out.

Justice Neil Gorsuch, who spoke up very little during the oral argument, disagreed with Hochman. When it comes to suggesting an alternative method of execution, he asked, why wouldn’t the court do the exact same analysis for an as-applied challenge as it would do for a facial challenge?

Chief Justice John Roberts also pushed back, telling Hochman that the Eighth Amendment prohibits the unnecessary infliction of pain. To show that something is unnecessary, he explained, an inmate needs to demonstrate that there is a less painful alternative, and it’s impossible to make that showing with a method of execution that has never been used.

Sauer agreed with Roberts, telling the justices that Bucklew could have suggested already-tested methods of execution, such as hanging or the firing squad, instead of lethal gas. But he didn’t, Sauer stressed, because his real purpose was just to delay his execution.

Justice Sonia Sotomayor took a different view, telling Sauer that the court imposed the requirement that an inmate challenging the constitutionality of a particular method of execution propose another method to avoid a back-door attack on the death penalty itself. (The idea, as Roberts noted today, is that the death penalty itself is constitutional, so if an inmate is going to argue that one method is unconstitutional because it is too painful, there has to be another, less painful method that is constitutional. Sotomayor also had sharp words for the rule itself, which the Supreme Court adopted before she was a justice, observing that she didn’t know “where the Court made up this alternative remedy idea.”) But when one inmate is attacking the use of a method of execution in his specific case, she continued, there shouldn’t be any need for the inmate to suggest another method.

Justice Stephen Breyer also appeared receptive to Bucklew’s argument. The fact that a method of execution hasn’t been used before is a strike against it, he acknowledged, but it shouldn’t be a fatal strike. Later on, Breyer told Sauer that, if the state executes Bucklew by lethal injection, “it’s going to be like slowly drowning him to death.” But it can’t be, Breyer continued, that the state can’t use another method of execution without “15 years of testing” it.

At one point, Breyer addressed Sauer directly, asking “what do you recommend we do?” In Breyer’s view, the state should “deal with this as a person, not a lawyer” and hold a hearing to discuss Bucklew’s condition and how to move forward to minimize the risks that could arise at Bucklew’s execution. Sauer resisted, telling Breyer that sending the case back will simply cause more delay, and that the justices already have enough evidence to decide the case. As is so often the case, Breyer likely hopes that he can pick up five votes for a narrow ruling – perhaps one that sends the case back to the lower courts for more fact-finding, as Hochman suggested. Kavanaugh could be Breyer’s best hope for such a result, but we will probably have to wait several months to find out.

This post was originally published at Howe on the Court.

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Federal government returns to Supreme Court on DACA termination

Federal government returns to Supreme Court on DACA terminationThe federal government tonight returned to the Supreme Court, asking it once again to intervene in a dispute over the Trump administration’s decision to end the program known as “Deferred Action for Childhood Arrivals,” which allows undocumented immigrants who came to the United States as children to apply for protection from deportation. The Obama administration […]

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Federal government returns to Supreme Court on DACA termination

The federal government tonight returned to the Supreme Court, asking it once again to intervene in a dispute over the Trump administration’s decision to end the program known as “Deferred Action for Childhood Arrivals,” which allows undocumented immigrants who came to the United States as children to apply for protection from deportation.

The Obama administration established DACA in 2012. But in September 2017, the the Trump administration announced its plans to terminate DACA, making some of the 800,000 young adults who qualified for the program eligible again for deportation.

In January, a federal judge in California barred the federal government from ending DACA. The Justice Department appealed that decision to the U.S. Court of Appeals for the 9th Circuit, but it also asked the Supreme Court to weigh in even before the 9th Circuit ruled — a procedure known as “cert before judgment.”

Requests to grant review before judgment are unusual, and they are even more rarely granted. In a brief two-sentence order in February, the court rejected the government’s request “without prejudice” – leaving the government the option to file another petition for review later on, presumably after the 9th Circuit ruled on its appeal. At the time, the justices added what seemed to be a caveat to their ruling, writing that although they were turning down the government’s application, it “is assumed that the Court of Appeals will proceed expeditiously to decide this case.”

Tonight, the federal government went back to the Supreme Court, asking the justices to step in before three different courts of appeals can rule in the dispute over DACA. In one of the briefs (all of which were signed by U.S. Solicitor General Noel Francisco), the government told the justices that the 9th Circuit heard oral argument in the case on May 15 but has not yet issued its decision. The other two cases are not as far along: The federal government filed its notice of appeal from the decision against it in the U.S. District Court for the District of Columbia in August, while oral argument has been scheduled in the U.S. Court of Appeals for the 2nd Circuit for January 2019.

The federal government has asked the Supreme Court to take up two related questions. The first is whether the Trump administration’s decision to end DACA is something that courts can review at all, or whether it is instead the kind of decision left to administrative agencies. The second question is whether, even if courts can review the decision to end DACA, that decision violated various laws governing administrative actions.

The federal government urged the justices to intervene now, emphasizing that the Supreme Court is going to have to step in eventually. But unless it does so now, it could be “at least another year” before the Supreme Court rules on the DACA termination dispute. Until then, the government will have to maintain a policy that it believes is illegal and “sanctions the ongoing violation of federal law by more than half a million people.” The government also asked the court to review all three cases together, but it noted that it had brought them all to the Supreme Court at the same time to ensure that at least one of them would be suitable for review.

Under the Supreme Court’s normal procedures, the challengers in each case would have 30 days to file their briefs opposing review. On that schedule, if the justices were to grant review, the court could hear oral argument and decide the dispute before the end of the current term in late June.

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Divided court denies review in “net neutrality” cases

Divided court denies review in “net neutrality” casesThis morning the Supreme Court issued orders from the justices’ private conference on Friday. The justices did not add any new cases to their docket for the term – they did that on Friday afternoon – nor did they call for the views of the U.S. solicitor general in any cases. But one order today […]

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Divided court denies review in “net neutrality” cases

This morning the Supreme Court issued orders from the justices’ private conference on Friday. The justices did not add any new cases to their docket for the term – they did that on Friday afternoon – nor did they call for the views of the U.S. solicitor general in any cases. But one order today in particular was significant: The justices declined to review a decision by the U.S. Court of Appeals for the District of Columbia Circuit upholding the Obama administration’s “net neutrality” rules, which (generally speaking) required internet service providers to treat all data on the internet equally.

The rules, which were issued in 2015, have since been replaced by a 2018 order by the Federal Communications Commission eliminating net neutrality, so the justices were not expected to weigh in on the merits of these cases. Instead, the real question was the fate of the D.C. Circuit’s decision upholding the rules: Would the Supreme Court allow it to stand – which would mean that it could serve as precedent for future cases – or would the justices instead invalidate the D.C. Circuit’s decision and send it back with directions to dismiss the cases as moot (a doctrine known as Munsingwear vacatur), because the net neutrality rules are no longer in effect?

Today, over a year after the petitions seeking review of the D.C. Circuit’s decision were filed, a divided Supreme Court simply declined to consider the cases, leaving the D.C. Circuit’s decision in place. The court’s newest justice, Brett Kavanaugh, was expected to recuse himself from voting on the petitions because he had participated in the cases while on the D.C. Circuit, and he did. But Chief Justice John Roberts also recused himself – presumably (although there is no way to know for sure) because he owns stock in one of the companies challenging the rules.

With Roberts and Kavanaugh both recused, that left only seven justices. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch indicated that they would have opted for Munsingwear vacatur, which would have left the D.C. Circuit’s ruling without any precedential value. But they would have needed at least one more vote for that result, which they were apparently not able to get with Roberts and Kavanaugh recused.

The justices did not act on several petitions that they have now repeatedly considered at their private conferences, including a challenge to mandatory bar dues, a case involving whether individuals can bring lawsuits to challenge a state’s disqualification of a Medicaid provider, and the case of a high-school football coach who contends that his First Amendment rights were violated when he was fired for praying on the field after a game.

This post was originally published at Howe on the Court.

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

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Justices refuse to block climate-change trial

Justices refuse to block climate-change trialTonight the Supreme Court declined to intervene to block the trial in a lawsuit filed by a group of children and teenagers who have asked a federal district court in Oregon to order the federal government to prepare and put in place a plan to phase out fossil-fuel emissions. Although the justices’ ruling formally cleared […]

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Justices refuse to block climate-change trial

Tonight the Supreme Court declined to intervene to block the trial in a lawsuit filed by a group of children and teenagers who have asked a federal district court in Oregon to order the federal government to prepare and put in place a plan to phase out fossil-fuel emissions. Although the justices’ ruling formally cleared the way for a trial in the case to go forward, the court stressed that the government may be able to get the relief that it is seeking in the U.S. Court of Appeals for the 9th Circuit, and it did not foreclose the possibility that the government could return to the Supreme Court yet again.

This afternoon’s order was the latest chapter in the climate-change lawsuit, which was originally filed in 2015, during the Obama administration. The plaintiffs contend that the federal government’s conduct has led to a “dangerous climate system,” in conflict with their constitutional right to a “climate system capable of sustaining human life.”

The federal government first came to the Supreme Court in the case last summer, asking the justices to block discovery and a trial until the U.S. Court of Appeals for the 9th Circuit could rule on the government’s request to have the case dismissed or, at the very least, put on hold. But the justices declined to step in, describing the government’s request as “premature.” At the same time, the justices acknowledged that the plaintiffs’ claims are “striking” and that there are “substantial grounds for difference of opinion” on whether those claims belong in court at all; they also emphasized that the district court should “take these concerns into account in assessing the burdens of discovery and trial, as well as the desirability of a prompt ruling on” other motions that the government had filed seeking dismissal of the plaintiffs’ claims.

With a trial looming, the government returned to the Supreme Court again last week, complaining that the district court had declined to “meaningfully narrow” the scope of the case. It asked the justices to either end the lawsuit altogether or, at a minimum, review the district court’s rulings allowing the case to go forward. Chief Justice John Roberts, who at the time handled emergency requests from the geographic area that includes Oregon, agreed to put discovery and the trial on hold temporarily to give the plaintiffs an opportunity to respond to the government’s application.

In their response, the plaintiffs urged the justices to allow the trial to go forward. They noted that most pretrial fact-finding had already been completed, with the only remaining discovery “extremely limited.” The only harm that the government has cited to justify putting the trial on hold, the plaintiffs argued, is that it would otherwise be required to “participate in the normal process of trial and await appellate consideration until after final judgment” – which, in the plaintiffs’ view, is an “ordinary” burden rather than the kind of irreparable harm necessitating emergency relief. By contrast, they suggested, stopping the trial now “will disrupt the integrity of the judiciary’s role as a check on the political branches and will irreparably harm these children.” Indeed, the plaintiffs asserted, discovery and a trial are essential because the district court can’t decide the questions presented by their lawsuit, involving the plaintiffs’ legal right to bring the lawsuit and the allocation of power between the different branches of government, until the facts have been better developed.

In a reply brief, the federal government pushed back, telling the justices that it had made every possible effort in the lower courts to avoid reaching this point, but had been unsuccessful. The government emphasized that what the plaintiffs are asking the federal courts to do is extraordinary, “nothing less than a complete transformation of the American energy system – including the abandonment of fossil fuels.” Such a request, the government continued, “has no place in federal court,” so that granting the government a reprieve from the upcoming trial would “preserve the judiciary’s essential role under the Constitution.”

The government added that, contrary to the plaintiffs’ assurances, the prospect winning on appeal after an “extensive” trial had already taken place would provide little comfort to the government, because of the enormous amount of resources that would have to be devoted to pretrial preparations and the trial itself.

In an unsigned three-page order issued tonight, the Supreme Court explained that it would block the proceedings in the district court only if the government were likely to prevail on its request for an order of the Supreme Court, in particular, requiring the district court to dismiss the case. But the government cannot meet that standard, the justices continued, because it may be able to get the relief that it is seeking in the 9th Circuit. The court acknowledged that the 9th Circuit has twice turned down requests from the government to order the district court to dismiss the case, but it reasoned that the 9th Circuit did so because of the prospect that the plaintiffs’ claims against the government might eventually be dismissed through more conventional avenues. The justices concluded that those “reasons are, to a large extent, no longer pertinent” with a 50-day trial – which had been scheduled for October 29 – looming.

The court therefore denied the federal government’s request to keep the trial on hold “without prejudice” – that is, leaving open the possibility that the dispute could return to the Supreme Court again. The justices’ earlier order putting the trial on hold temporarily, to give them time to consider the government’s request, is terminated. Justices Clarence Thomas and Neil Gorsuch indicated that they would have granted the government’s request.

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Busy afternoon at the Supreme Court: Six grants and one reargument order, but no stay in census dispute

Busy afternoon at the Supreme Court: Six grants and one reargument order, but no stay in census disputeThis afternoon the Supreme Court issued orders from the justices’ private conference. The justices added six new cases, for a total of five hours of oral argument, to their merits docket for the term, and they ordered reargument in a case that was argued before Justice Brett Kavanaugh joined the court. In a separate order, […]

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Busy afternoon at the Supreme Court: Six grants and one reargument order, but no stay in census dispute

This afternoon the Supreme Court issued orders from the justices’ private conference. The justices added six new cases, for a total of five hours of oral argument, to their merits docket for the term, and they ordered reargument in a case that was argued before Justice Brett Kavanaugh joined the court. In a separate order, the justices also rejected the government’s request to delay the trial in a dispute over a question regarding citizenship on the 2020 census.

Perhaps the biggest news of the day was the justices’ announcement that they would once again wade into the thorny questions surrounding religious-themed monuments on public land. In 2005, the Supreme Court rejected a challenge to a Ten Commandments monument on the grounds of the Texas state capitol, with Justice Stephen Breyer concluding that, although the monument bore a religious message, it was part of a display that relayed a secular message and had not been challenged in the 40 years that it had stood on the capitol grounds.

The monument in today’s cases is the “peace cross,” erected 93 years ago in the Washington, D.C., suburbs to commemorate local soldiers who died in World War I. A nonprofit called the American Humanist Association and several area residents filed a lawsuit in 2014. They argued that, because it is in the form of a cross, the monument endorses Christianity – which, they said, is a violation of the Constitution’s establishment clause, which bars the government from favoring one religion over another. A federal appeals court ruled for the challengers, but now the justices will review that ruling.

The court’s decision, which is likely to come next year, could affect not only the “peace cross” but also other similar monuments, including at Arlington National Cemetery. The justices could also try to provide more clarity on how courts should deal with claims under the establishment clause: Justice Clarence Thomas has written recently that the Supreme Court’s establishment clause cases are “in disarray,” and a federal appeals court in Atlanta described them as a “hot mess” even as it concluded that the presence of a cross in a Pensacola, Florida, park violates the Constitution. More broadly, the addition of the two cases (which will be consolidated for one hour of oral argument) to the court’s docket transforms what had been a relatively sleepy term into one that is likely to draw a good deal of public interest.

The Social Security Administration’s “Appeals Council” reviews appeals from administrative decisions by individuals seeking disability benefits. The question that the justices agreed to review today in Smith v. Berryhill is whether, if the Appeals Council decides that an appeal was filed too late, that ruling is a “final decision” that courts can review.

The case began when Ricky Lee Smith’s application for supplemental-security-income benefits was denied. Smith says that his lawyer asked the Appeals Council to review the denial within the 60-day window to appeal, but the Appeals Council said that the appeal never arrived, and the council dismissed his case because it was not filed on time. When Smith went to federal court, the district court dismissed his case because there was no final decision for it to review, and the U.S. Court of Appeals for the 6th Circuit affirmed.

Smith asked the Supreme Court to weigh in, and the federal government agreed that review is warranted. The government explained that it had “reexamined the question” presented by Smith’s case and “concluded that its prior position was incorrect”; if necessary, the government continued, the justices should appoint another attorney to defend the 6th Circuit’s decision. If the justices opt to follow the government’s suggestion, that order could come in the next few weeks.

The question that the justices agreed to decide in Gray v. Wilkie is a fairly technical legal one, arising out of a federal law intended to help veterans who served in Vietnam – some more than 50 years ago.

In 1991, Congress passed the Agent Orange Act to make it easier for veterans who were injured by the toxic herbicide in Vietnam to obtain disability benefits. Under the law, veterans could establish the necessary link between their disabilities and military service required to obtain benefits as long as they served in the “Republic of Vietnam” during a 13-year period and developed any one of several diseases linked to Agent Orange.

In 2016, the Department of Veterans Affairs made changes to its interpretation of the Agent Orange Act by revising the manual in which it publishes its policies and procedures for resolving claims for benefits. According to the manual, only veterans who set foot on Vietnamese soil or served in the country’s “inland waterways” would be able to meet the requirements of the Agent Orange Act. The manual defined “inland waterways” to exclude members of the U.S. Navy who – like petitioner Robert Gray – had served in Vietnam’s ports, harbors and bays.

Gray challenged the VA’s interpretation in the manual, relying on a federal law that gives the U.S. Court of Appeals for the Federal Circuit authority to review challenges to rules and policies issued by the VA before the rules are actually enforced. The rationale behind that law was to allow veterans to challenge the VA’s actions without, Gray explained having to “first litigate such challenges through the notoriously backlogged and inefficient VA disability claims process.” But the Federal Circuit ruled that it lacked the power to review Gray’s challenge because the interpretation appeared in the manual and was not binding on the board that decides veterans-benefit claims.

Gray asked the Supreme Court to revisit the lower court’s ruling, telling the justices that if allowed to stand it will impose “significant hardship” on veterans, and today the justices agreed to do so.

The justices also agreed to review the case of Jason Mont, who was sentenced to seven years in prison on federal drug charges, followed by five years of supervised release. When Mont had approximately one year left on supervised release, his probation officer told the district court that Mont had violated the terms of his supervised release and had also been indicted on state drug charges.

In June 2016, approximately six months before his supervised release was scheduled to end, Mont was taken into custody and held at a local jail until March 21, 2017, when he was sentenced in state court to six years in prison, with credit for the 10 months that he spent in state custody.

At a hearing on his supervised release, Mont argued that the federal district court no longer had the power to consider violations of his supervised release because his supervised release had expired in early March 2017. The district court rejected that argument and sentenced him to 42 months in prison; the court of appeals upheld that ruling.

Mont then went to the Supreme Court, which today agreed to decide whether a period of supervised release for one offense is paused under federal law while in inmate is held in custody awaiting trial, when that pre-trial time in custody is later credited toward the inmate’s sentence for another offense.

In Flowers v. Mississippi, the justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi. Flowers was tried six times. During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials. Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors.

The Mississippi Supreme Court rejected Flowers’ challenge to Evans’ jury selection, but the U.S. Supreme Court ordered the state supreme court to reconsider that ruling in light of the Supreme Court’s 2016 decision in Foster v. Chatman, in which the court held that the defendant in a capital case had shown intentional discrimination in the selection of jurors. When the case went back to the Mississippi Supreme Court, that court again upheld the ruling for the state, reasoning that Evans’ past discrimination did not affect its analysis. Flowers then returned to the justices, asking them to weigh in on whether the Mississippi Supreme Court was correct. The justices agreed to review Flowers’ case, although they ordered Flowers and the state to brief a slightly different question than the one that Flowers had suggested: whether the Mississippi Supreme Court had properly applied the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, holding that it is unconstitutional to strike potential jurors based on their race, to Flowers’ case.

The justices also ordered additional briefing and reargument in Knick v. Township of Scott, a property-rights case that was argued on October 3, before Kavanaugh joined the court on October 9. There is no way to know for sure, but presumably the eight members of the court who did hear oral argument in the case were deadlocked, leading to today’s order. The first round of briefs will be due in late November, with reply briefs to follow in late December, setting the case up for a second argument in 2019.

In a separate order issued this afternoon, the justices also turned down the federal government’s request to delay a trial in a dispute over the return of a question regarding citizenship status to the census. The order means that the trial, scheduled to begin on Monday, will go ahead. In earlier orders, the justices had blocked the plaintiffs challenging the question – who argue that the question will discourage immigrants from responding to the census, leading to an inaccurate count – from questioning Secretary of Commerce Wilbur Ross about his decision to reinstate the question, but they had allowed the plaintiffs to question John Gore, a senior official in the Department of Justice, and to conduct other fact-finding in advance of the trial. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch all indicated that they would have granted the government’s request.

The justices are expected to issue additional orders from today’s conference on Monday at 9:30 a.m.

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Court announces proposed rule changes

Court announces proposed rule changesThis morning the Supreme Court announced several proposed changes to its rules and invited the public to comment on those proposed revisions by the end of the month. If the changes are implemented, their effect would fall almost exclusively on lawyers and litigants before the court. The first of the four substantive proposed changes to […]

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Court announces proposed rule changes

This morning the Supreme Court announced several proposed changes to its rules and invited the public to comment on those proposed revisions by the end of the month. If the changes are implemented, their effect would fall almost exclusively on lawyers and litigants before the court.

The first of the four substantive proposed changes to the rules would require a petition for review to contain a complete list of all court proceedings, at any level, “that are directly related to the case in this Court.” Such a requirement, the comment to the proposed revision explains, “will assist in evaluating whether a Justice’s involvement in a case before joining the Court might require recusal.” To ensure that the list is complete, another proposed change would require the brief opposing review to correct any mistakes or omissions in the list of related cases. There is no way to know what prompted these proposed changes, but earlier this year now-retired Justice Anthony Kennedy – who joined the Supreme Court in 1988 – had to recuse himself from a case about tribal fishing rights when he belatedly realized that he had participated in the case as a judge on the U.S. Court of Appeals for the 9th Circuit. Without Kennedy in the case, the court deadlocked 4-4, leaving the lower court’s decision in place.

Under the court’s current rules, a reply brief on the merits is due either 30 days after the respondent’s brief is filed or by 2 p.m. one week before the oral argument, whichever comes first. Another revision proposed today would shorten the time to file the reply brief, which would now be due either 30 days after the respondent’s brief or by 2 p.m. 10 days before the oral argument in the case. The comment accompanying the proposed change explains that this revision is intended to provide “additional time for the Court to review reply briefs.”

Last year the Supreme Court moved to electronic filing for almost all briefs filed with the justices. One proposed revision today makes clear that, despite the advent of electronic filing, “paper remains the official form of filing.”

The final change proposed today would reduce the word limits for all briefs filed on the merits. If this change is implemented, the limit for merits briefs would be reduced by 2000 words (from 15,000 to 13,000); reply briefs would go from 6000 words to 4500 words; and “friend of the court” briefs would be reduced by 1000 words, from 9000 to 8000. The federal courts of appeals, a comment to the proposed change explains, imposed similar cuts two years ago.

This post was originally published at Howe on the Court.

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