The statistics of relists, OT 2016 edition: Has the relist lost its mojo? Not quite

With the new term about to start, we thought it was time to look back and see what lessons we could learn from the relist statistics for October Term 2016. The big picture remains much as it has since the Supreme Court began relisting cases for OT 2014: Relists are an effective prerequisite for most […]

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With the new term about to start, we thought it was time to look back and see what lessons we could learn from the relist statistics for October Term 2016. The big picture remains much as it has since the Supreme Court began relisting cases for OT 2014: Relists are an effective prerequisite for most plenary grants, in which a case is scheduled for briefing and oral argument, and still are an excellent predictor of eventual grants. But as we noted last year, the relist story is not static. Relists were less reliable predictors of grants for OT 2016 than for the prior two terms, and the dynamic for multiple relists was quite different this past term than it was during OT 2015.

Relists are, as they have long been, prerequisites to most plenary grants. Relists appear to be a mechanism for avoiding improvident grants by allowing the justices and their clerks to double-check for procedural or other obstacles to the resolution of a case on the merits, known as vehicle problems, before granting. Of the 75 plenary grants in OT 2016 (including consolidated cases), 71 percent had been relisted at least once. That is a bit lower than in OT 2015, when 77 percent of grants had been relisted, and lower still than in OT 2014, when 82 percent of cases were relisted. What to make of this reduced reliance on relists, if that is what it is, is hard to say. Perhaps the Supreme Court has become more confident in its ability to discern potential vehicle problems without multiple passes, or perhaps court personnel are just working faster. Perhaps the desire to avoid difficult cases while awaiting a replacement for Justice Antonin Scalia meant that the court looked for “easier” cases with fewer vehicle issues.

The reliability of relists as predictors for grants has gone down a bit. This term, virtually the same number of cases were relisted as last term, 122 for OT 2016 versus 121 for OT 2015. Of those, a petition with one or more relists was ultimately granted 43 percent of the time this term, compared with 50 percent in OT 2015. Although this is still well above the overall grant rate for cert petitions generally, which is about one percent, the decrease means that petitioners now face odds worse than a coin flip of getting a grant after one or more relists. The odds of a summary disposition – a disposition without briefing and oral argument – are also lower, with 11 percent of petitions that were relisted at least once ending in a summary disposition compared with 17 percent in OT 2015. The logical result of the reduction in grants and summary dispositions for relists is that the denial rate has increased: A relisted petition overall had 45 percent odds of a denial in OT 2016, as opposed to 33 percent in OT 2015. Court-watchers should continue to pay attention to relists (and perhaps even Relist Watch, as painful as that is), but they’re less reliably a preview of the Supreme Court’s merits docket and summary dispositions than they used to be.

Although multiple relists are a smaller part of the overall pool of relisted petitions – 61 percent of relisted cases were resolved after only one relist – there were still 48 petitions that went through multiple relists, and the impact of a multiple relist has changed compared to OT 2015. In OT 2015, the odds of a relist ultimately ending in a plenary grant decreased with each successive relist, from 50 percent for one or more relists, 31 percent for two or more relists, 15 percent for three or more, 11 percent for four or more, and zero percent for the rest. Not so in OT 2016. This term, the odds of an ultimate grant form a U-shape (what you might call the Masterpiece Cakeshop Effect, after the current king of the relisted grants), with the highest odds of a grant after one relist (50 percent) and six relists (38 percent), and the lowest odds falling in the middle: two relists (15 percent), three relists (11 percent), four relists (13 percent), and five relists (27 percent). Driving this trend is a sharp increase in the likelihood that a case relisted twice will be relisted again, from 58 percent of twice-relisted cases in OT 2015 to 75 percent this past term. So if the Supreme Court decides one relist is not enough, then most of the time two relists will not be enough either, or for that matter three relists (66 percent relisted again) or even four relists (46 percent relisted again). It’s hard to say whether there are any lessons to be learned here; it may be that serial relisting is an artifact of the delay in the appointment of a ninth justice. Only time will tell.

The odds of a denial have also shifted. In OT 2015, the odds of a case ultimately ending in denial (versus a grant or summary disposition) were relatively flat after one, two, three and even four relists, at between 33 percent and 39 percent. In OT 2016, the odds of an ultimate denial after each relist spike after the first relist from 45 percent to between 55 percent and 75 percent for each successive relist. If this is an emerging pattern (which remains to be seen), it suggests that after the second relist, a petitioner will likely have to agonize through serial relists, only to end up with an eventual denial about two-thirds of the time.

With that, enjoy your relist-free days. Relist Watch will probably return in a few weeks.

Thanks to Andrew Quinn for undertaking the unenviable task of reading every Relist Watch to prepare the relist data used in this article, and to Bryan Gividen for gathering the relists in the first place.

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Cert grants from the long conference: The September effect

The Supreme Court’s September 25 “long conference” is now behind us; if the past is any guide, the grants out of that conference should be released on Thursday, September 28. The initial grants out of the long conference are the single biggest exception to the ordinary rule that the Supreme Court will relist a case […]

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The Supreme Court’s September 25 “long conference” is now behind us; if the past is any guide, the grants out of that conference should be released on Thursday, September 28. The initial grants out of the long conference are the single biggest exception to the ordinary rule that the Supreme Court will relist a case at least once before granting certiorari to give the justices and clerks the time necessary to do a second round of checks for vehicle problems. Presumably, they use the extra time they have over the summer to do that second look, so they don’t need to relist the cases before granting.

Thinking through the issue made me wonder about the timing of the distribution to chambers of cert materials (petition, brief in opposition, reply brief) for the cases the Supreme Court grants out of the long conference. I was curious about whether the initial grants released the same week as the conference were distributed earlier in the summer and the cases granted in October (or later), after relists, were distributed later in the summer. To find out, we analyzed all the long conference grants from the last three terms – every long conference since the court began routinely relisting cases before granting cert.

The actual numbers mildly bear out the predicted pattern; the relisted cases were almost entirely from August and September. But there were plenty of cases granted the week of the long conference that were first distributed as late as the second September distribution.

Overall, the numbers look like this:

 

 

A few things stick out:

  • June distribution appears to be the kiss of death: Only one grant came from June distributions. Remember that the first week or two of June distributions are resolved at late June conferences before the Supreme Court leaves for the summer, so the full month of June cases isn’t under consideration at the long conference. But the number of grants is still unusually low. These distributions are made before new clerks arrive at the court beginning in July, so there’s no reason to believe that these cases would be affected by the arrival of new clerks who are thought to be wary of embarrassing themselves by recommending a grant in a case that is not truly cert-worthy or that has vehicle problems. Early July distributions likewise fare poorly: Only one grant came from the first two weeks of July distributions. Late June and early July thus represent a four-week Dead Zone that yielded only two grants over three terms.
  • Later July distributions did reasonably well for summer distributions. Some court-watchers have speculated that outgoing clerks feel freer to recommend grants, particularly when they’re leaving the court and won’t have to live with it if they recommend a grant in a case that is later dismissed as improvidently granted.
  • August is a light month. We are trying to determine whether fewer cases are distributed during this period; distributions are driven by the arrival of briefs in opposition, and it can be expected that lawyers might seek extensions for BIO deadlines to avoid having brief deadlines disrupt August vacations. Because most justices stagger the arrival of clerks during July, the low grant rate for August may also reflect the much-discussed “nervous clerk” effect.
  • September is surprisingly heavy. September is a mirror image of June in that only a couple of weeks’ worth of distributions go to the long conference. But those two weeks yield a disproportionate share of long conference grants – 42.5 percent during OT 2014-OT 2016. But note the variability: After two terms of heavy grants from September distributions (eight and eight, respectively, for OT 2014 and OT 2015), there was only one in OT 2016. (There was a reduction in grants from the long conference that year, because the eight-member court was being very picky about grants; perhaps the September downturn was just a part of that general reluctance to grant.)
  • There may be a self-fulfilling prophecy element to the timing. My colleague Jeremy Marwell suggested that, because it has long been understood that early summer is a dead zone, experienced Supreme Court counsel (and even some less experienced ones) may avoid filing cert-worthy petitions that would ordinarily be distributed in late June and early July, and instead seek extensions that push those cases to the latter half of the summer. Sure enough, the dockets for the granted cases in our sample reflect a number of extensions by petitioners’ counsel – mostly procured by specialist Supreme Court lawyers – that move case distributions from mid-June to mid-July, mid-July to mid-August, early August to early September, and – my favorite – mid-July to mid-September. It is impossible to tell, of course, whether those extensions were sought mainly to improve the timing or merely because specialist Supreme Court counsel are frequently brought in fairly late and need time to get up to speed. But it is a noteworthy coincidence in any event.

The long conference has a reputation for having a low grant rate. But on closer examination, not every week of the summer is equal; petitioners tend to do better in some than others. Late July and September distributions appear to be particularly promising, the second week in September especially so.

Thanks to Kent Piacenti for helping compile the data and drafting this post; thanks to Ralph Mayrell for composing the graphs.

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Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claims

Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claimsIn one of the last decisions of its October 2016 term, a sharply divided Supreme Court yesterday ruled against a Texas prisoner facing a death sentence, declining to extend its 2012 ruling in Martinez v. Ryan. Instead, for a 5-4 majority, Justice Clarence Thomas concluded in Davila v. Davis that when a state prisoner fails […]

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Opinion analysis: In Texas capital case, divided court limits scope of “nested” ineffective-assistance claims

In one of the last decisions of its October 2016 term, a sharply divided Supreme Court yesterday ruled against a Texas prisoner facing a death sentence, declining to extend its 2012 ruling in Martinez v. Ryan. Instead, for a 5-4 majority, Justice Clarence Thomas concluded in Davila v. Davis that when a state prisoner fails in a state post-conviction proceeding to challenge the effectiveness of his direct-appeal lawyer, he may not raise that claim in a federal habeas petition – even if his failure was caused by ineffective assistance of his post-conviction counsel. Whereas Martinez (and its sequel, Trevino v. Thaler) had held that such “nested” ineffectiveness-of-counsel claims can be pursued in federal habeas petitions, the Supreme Court’s decision in Davila v. Davis limits Martinez and Trevino to circumstances in which the underlying ineffectiveness claim goes to the prisoner’s trial lawyer, not to any deficiencies by the counsel handling his direct appeal. And although the issue in Davila is narrow and technical, the case may come to serve as a broader flashpoint in the ongoing debate over the proper role and scope of collateral post-conviction review.

As the argument preview summarized, Erick Davila was convicted and sentenced to death in 2009 for killing a woman and her five-year-old granddaughter as part of a shooting spree in which he would later claim he was aiming at an individual he (apparently incorrectly) thought to be affiliated with a rival gang. At trial, he presented two defenses: that the witnesses had mistaken him for someone else, and that, even if he was the perpetrator, he lacked the specific intent to kill the victims. With regard to the latter defense, the judge gave the jury an erroneous instruction over the contemporaneous objection of Davila’s counsel. The instruction suggested, contrary to the relevant Texas law, that Davila could be convicted of capital murder even if he only intended to kill the intended target, and no one else. Unfortunately for Davila, neither his appellate lawyer nor his state post-conviction counsel sought to press that issue. And although Davila claimed that his appellate lawyer therefore provided ineffective assistance, the district court held that he had defaulted that claim by failing to raise it in his state collateral post-conviction review proceeding.

In his concise and direct opinion for the majority, Thomas began by reiterating the continuing force of the court’s 1991 ruling in Coleman v. Thompson, which held, among other things, that there is no right to counsel (or, by extension, to the effective assistance of counsel) in state post-conviction proceedings. Martinez and Trevino, Thomas explained, only recognized a “narrow,” “highly circumscribed” “equitable exception” to Coleman’s more general rule, one that should not be expanded “to new categories of procedurally defaulted claims” absent compelling reasons for doing so.

As Thomas explained, “The Court in Martinez made clear that it exercised its equitable discretion in view of the unique importance of protecting a defendant’s trial rights, particularly the right to effective assistance of trial counsel.” In contrast, “Claims of ineffective assistance of appellate counsel … do not pose the same risk that a trial error—of any kind—will escape review altogether, at least in a way that could be remedied by petitioner’s proposed rule.” After all, if, as in Davila, the claim is properly raised at trial, then at least one court (the trial court) will have had the chance to pass upon it. And if the claim is not properly raised at trial, then in most cases, “the prisoner could not make out a substantial claim of ineffective assistance of appellate counsel,” because “[d]eclining to raise a claim on appeal … is not deficient performance unless that claim was plainly stronger than those actually presented to the appellate court.”

Finally, Thomas concluded, expanding Martinez and Trevino to encompass ineffective assistance of appellate counsel “would not only impose significant costs on the federal courts, but would also aggravate the harm to federalism that federal habeas review necessarily causes,” and for benefits that would be “small.” After all, even though “permitting a state prisoner to bring a meritorious constitutional claim that could not otherwise be heard is beneficial to that prisoner,” there likely would not be that many cases in which a prisoner, through ineffective assistance of his appellate counsel, was deprived of the ability to bring a meritorious challenge that had already been considered – and rejected – by the trial court.

Writing for himself and Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, Justice Stephen Breyer (who had penned the majority opinion in Trevino) wrote an especially pointed dissent. After describing the“[f]our features of the claim of ineffective assistance of trial counsel [that] led the Martinez Court to its conclusion,” Breyer walked through why he believed each also applied to claims like Davila’s. “Suppose that, during the pendency of the appeal, appellate counsel learns of a Brady violation, juror misconduct, judicial bias, or some similar violation whose basis was not known during the trial,” Breyer posited. “And suppose appellate counsel fails to pursue the claim in the manner prescribed by state law. Without the exception petitioner here seeks, no court will hear either the appellate-ineffective-assistance claim or the underlying Brady, misconduct, or bias claim.”

As for the costs of extending Martinez to ineffective assistance of appellate counsel, Breyer criticized the majority for failing to substantiate its claims. As he noted, “Texas’ estimate of added workload comes down to an increase of ‘dozens’ of cases out of 7,500 cases in total [in the Ninth Circuit, which has applied Martinez since late 2013]. That figure represents an increase, but not an increase significant enough to warrant depriving a prisoner of any forum to adjudicate a substantial claim that he was deprived of his constitutional right to effective assistance of appellate counsel.”

Finally, Breyer pointed to Justice Antonin Scalia’s dissent in Martinez, which had observed that there “is not a dime’s worth of difference in principle between [ineffective-assistance-of-trial-counsel] cases and many other cases in which initial state habeas will be the first opportunity for a particular claim to be raised,” including “claims asserting ineffective assistance of appellate counsel.” “I agree,” Breyer concluded.

*                   *                   *

Compared to some of the major habeas decisions from October Term 2015, it’s hard to see Davila as anything other than an important, but narrow, clarification of the scope of Martinez and Trevino. At the same time, with the focus of courts and commentators increasingly shifting to the nature and scope of state post-conviction proceedings, how one views the relationship between Coleman and Martinez has consequences far beyond the specific question presented – and decided – in Davila. And with Justice Anthony Kennedy (and Justice Neil Gorsuch) joining the remaining Trevino dissenters to cabin the scope of Martinez and Trevino, the scale appears to have tipped, at least for the moment, back in Coleman’s direction.

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Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actions

Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actionsInvolving as it does a relatively technical question about class action procedures, California Public Employees’ Retirement System v. ANZ Securities did not look like a probable candidate for the final day of the term. But it was not until the last Monday in June that we finally received a 5-4 decision, with Justice Anthony Kennedy […]

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Opinion analysis: Divided court holds firm on deadlines for investors opting out of securities class actions

Involving as it does a relatively technical question about class action procedures, California Public Employees’ Retirement System v. ANZ Securities did not look like a probable candidate for the final day of the term. But it was not until the last Monday in June that we finally received a 5-4 decision, with Justice Anthony Kennedy writing for the narrow majority.

The issue in the case involves the right to opt out of a class action: When representatives file a class-action proceeding, any of the members of the class are entitled to “opt out” and represent themselves. The question in this case is how statutes of limitations work in that situation. Does the filing of the main class action count as the filing for the individual that opts out or does the party that wants to opt out have to file its own complaint before the deadline? The Supreme Court has addressed a similar question before, in its 1974 decision in American Pipe & Construction v. Utah. The court held in that case that the class complaint did count as the claim of the individual claimants for purposes of statutes of limitation; specifically, it held that the class complaint “tolled,” or suspended, the statute of limitations so that the individual’s later complaint was timely.

The securities laws include two different kinds of filing deadlines. Specifically, for claims about misrepresentations in connection with the issuance of securities (under Section 11 of the Securities Act), Section 13 establishes two distinct deadlines: a one-year deadline running from the “discovery of the untrue statement” and an outside three-year deadline running from the date on which the statement was made. The U.S. Court of Appeals for the 2nd Circuit consistently has held that tolling under American Pipe applies only to the one-year deadline, not the three-year deadline. Applying that rule, it barred the action brought in this case by CalPERS – which opted out of a large class action brought against Lehman Brothers. The original action was brought in a timely manner, but CalPERS did not opt out of that action until more than three years after the challenged statements.

Kennedy’s opinion for the court affirms the 2nd Circuit’s decision, treating the case as directly governed by Kennedy’s 2014 opinion for the court in CTS Corp. v. Waldburger, which outlined a firmly bounded framework for analyzing statutes of limitation and statutes of repose. Repeatedly quoting from Waldburger, Kennedy explains:

Statutes of limitation are designed to encourage plaintiffs “to pursue diligent prosecution of known claims.” … In contrast, statutes of repose are enacted to give more explicit and certain protection to defendants. … For this reason, statutes of repose begin to run on “the date of the last culpable act or omission of the defendant.”

In this case, the opinion explains, the statute “in clear terms” bars any action more than three years after the offering, “admits of no exception[,] and on its face creates a fixed bar against future liability.” For the majority, then, the statute’s tie to “the defendant’s last culpable act [rather than] the accrual of the claim … is close to a dispositive indication that the statute is one of repose.”

Once the opinion has adopted the Waldburger framework and concluded that the three-year deadline is a statute of repose, the idea that tolling should extend the deadline has little chance of success. As Kennedy sees it, equitable tolling of a statute of repose is almost nonsensical: “In light of the purpose of a statute of repose, the provision is in general not subject to tolling,” especially “customary tolling rules arising from the equitable powers of courts. … The unqualified nature of [a statute of repose] supersedes the court’s residual authority and forecloses the extension of the statutory period based on equitable principles.” Turning to the specific tolling rule before the court, Kennedy notes that because the “tolling rule applied in American Pipe … was grounded in the traditional equitable powers of the judiciary,” it “does not apply to the 3-year bar mandated in § 13.” “[T]he object of a statute of repose, to grant complete peace to defendants, supersedes the application of a tolling rule based in equity.”

The opinion acknowledges the practical concerns that CalPERS emphasized in its briefing – that a rule that bars tolling will force sophisticated litigants to file large numbers of separate protective complaints even before they decide to opt out – but takes the position that those concerns “likely are overstated,” pointing to the absence of “any recent influx of protective filings in the Second Circuit, where the rule affirmed here has been the law since 2013.”

The opinion closes with a coda offering a page of classic Kennedy prose, noting the strong interests on both sides of the case:

Tolling may be of great value to allow injured persons to recover for injuries that, through no fault of their own, they did not discover because the injury or the perpetrator was not evident until the limitations period otherwise would have expired. This is of obvious utility in the securities market, where complex transactions and events can be obscure and difficult for a market participant to analyze or apprehend. …

The purpose of a statute of repose, on the other hand, is to allow more certainty and reliability. These ends, too, are a necessity in a marketplace where stability and reliance are essential components of valuation and expectation for financial actors.

Having made it clear to the reader that the court has taken note of those interests, the opinion closes by distancing itself from any obligation to resolve the tension between them. Thus, reiterating what the early pages had made clear, the majority describes the appropriate analysis as a “straightforward” application of a statute that “displaces the traditional power of courts to modify statutory time limits in the name of equity.” If anybody is going to take action to lessen the practical obstacles of class actions, it will have to be Congress.

The most obvious take on CalPERS is to file it as another in the continuing line of cases reflecting a general skepticism about the social value of large-scale class-action litigation. In case of doubt, the “tie” in those cases seems always to go to the class-action defendants. There surely is a bit of truth in that view, but on a broader jurisprudential front I would add just a note about the parallelism between the decision here and the recent decisions in Petrella v. Metro-Goldwyn-Mayer and SCA Hygiene Products v. First Quality Baby Products. The two earlier cases involved the statutes of limitations in intellectual property cases – Petrella under the Copyright Act and SCA Hygiene under the Patent Act. In both cases, the court rejected the use of laches to bar cases filed before the expiration of a statute of limitations in a federal statute. Although the earlier cases gave plaintiffs longer to sue (ensuring that they got the entire statutory limit) and this one makes it harder to sue (firmly holding plaintiffs to the statutory limit), all three of the cases show a court receding from the business of case-by-case equitable decisions about the timeliness of litigation. I will not be at all surprised to see more of these kinds of cases rising to the top of the court’s docket in the next few years.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. The author of this post, however, is not affiliated with the firm.]

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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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No decision in two immigration-enforcement cases

No decision in two immigration-enforcement casesPresident Donald Trump has made immigration enforcement a top priority. Two immigration-enforcement cases looked likely to have a big impact on the Trump administration’s plans. Both were argued before the confirmation of Justice Neil Gorsuch. Today, the Supreme Court, apparently deadlocked, ordered reargument of the cases. One of the cases, Jennings v. Rodriguez, involved immigration […]

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No decision in two immigration-enforcement cases

President Donald Trump has made immigration enforcement a top priority. Two immigration-enforcement cases looked likely to have a big impact on the Trump administration’s plans. Both were argued before the confirmation of Justice Neil Gorsuch. Today, the Supreme Court, apparently deadlocked, ordered reargument of the cases.

One of the cases, Jennings v. Rodriguez, involved immigration detention. Detained immigrants ordinarily have been eligible to post bond and be allowed release from custody. In a January 25, 2017, executive order, among numerous immigration-enforcement initiatives, Trump announced an end to the “catch and release” of immigrants facing removal from the United States. Detention without bond thus became official immigration-enforcement policy.

Generally speaking, criminal and civil detention of U.S. citizens is subject to basic constitutional safeguards. Such a rights-based system, however, fits uncomfortably into the much more limited constitutional protections historically offered to noncitizens. Reflecting this tension, the Supreme Court’s immigration-detention decisions are not altogether consistent.

In a class-action challenge to immigrant detention, Jennings v. Rodriguez raised the question whether immigrants, like virtually any U.S. citizen placed in criminal or civil detention, must be guaranteed a bond hearing. The U.S. Court of Appeals for the 9th Circuit affirmed a district court injunction requiring bond hearings every six months for immigrant detainees.

Indefinite detention without a hearing and possible release is difficult to justify as a matter of constitutional law. At the same time, however, some justices at oral argument expressed concern that the 9th Circuit had acted more like a legislature than a court in mandating a bond hearing every six months. In the end, the court apparently needed a tiebreaking vote and will address immigration detention next term.

Another case that the court did not decide involved criminal removal. In the last few years, the Supreme Court has decided a steady number of criminal-removal cases. In light of the Trump administration’s stated emphasis on the removal of “criminal aliens,” we will likely see more criminal removal cases in the future. Most of the removal cases that have recently come before the court, including Esquivel-Quintana v. Sessions decided earlier this term, have raised ordinary issues of statutory interpretation and administrative deference.

Sessions v. Dimaya instead was a constitutional challenge to a criminal-removal provision in the immigration laws, which historically have been largely immune from judicial review. The court appears to be moving toward applying ordinary constitutional norms to the immigration laws. Earlier this term, for example, the court in Sessions v. Santana-Morales held that gender distinctions favoring women over men in the derivative-citizenship provisions of the immigration laws violated the Constitution’s equal protection guarantee.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. The Immigration and Nationality Act defines “aggravated felonies” expansively. That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and 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.”

James Garcia Dimaya, who immigrated lawfully from the Philippines in 1992, has two residential burglary convictions; neither involved violence. Based on the convictions, the immigration court and the Board of Immigration Appeals ordered Dimaya removed from the United States. The U.S. Court of Appeals for the 9th Circuit found that Section 16(b) was unconstitutionally vague and vacated the order. To reach that conclusion, the 9th Circuit relied on the Supreme Court’s 2015 opinion in Johnson v. United States, in which court found the Armed Career Criminal Act’s similarly worded definition of “violent felony” was so vague as to violate due process.

The application of the void-for-vagueness doctrine to the immigration laws apparently divided the court. At oral argument, the justices seemed to agree that the court should review immigration-removal provisions under the standard due process test for vagueness. However, they appeared to be divided as to whether the case at hand was distinguishable from Johnson and thus whether Section 16(b) is unconstitutionally vague.

For the last decade, immigration cases have been a bread-and-butter part of the Supreme Court’s docket. The Supreme Court has slowly but surely moved immigration law toward the constitutional mainstream. We will have to wait until the next term to see if the court continues that trend with respect to immigrant detention and criminal removal.

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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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Opinion analysis: Majority sides with employee in civil service argument, but Gorsuch announces his presence with authority

Opinion analysis: Majority sides with employee in civil service argument, but Gorsuch announces his presence with authorityThe late Justice Byron White used to say that every new justice created a “new” Supreme Court. Perry v. Merit Systems Protection Board, decided on Friday, may be remembered as the opening salvo in the battle over statutory interpretation on the “new” Roberts court featuring Justice Neil Gorsuch (who, appropriately, clerked for White). A seven-justice […]

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Opinion analysis: Majority sides with employee in civil service argument, but Gorsuch announces his presence with authority

The late Justice Byron White used to say that every new justice created a “new” Supreme Court. Perry v. Merit Systems Protection Board, decided on Friday, may be remembered as the opening salvo in the battle over statutory interpretation on the “new” Roberts court featuring Justice Neil Gorsuch (who, appropriately, clerked for White).

A seven-justice majority held that “mixed cases” should be reviewed in full in federal district court even when the MSPB dismissed the Civil Service Reform Act claims for lack of jurisdiction. That conclusion flowed from the court’s unanimous 2012 decision in Kloeckner v. Solis and reflected the “more sensible” reading of the statute that best served “the CSRA’s objection of creating an integrated scheme of review.” But Gorsuch authored a sharp dissent, calling out the majority for “offer[ing] little in the way of traditional statutory interpretation,” for failing to “grapple with the statute’s text and structure,” and for refusing to follow the “perfectly good law” that Congress had written.

Under the CSRA, federal employees who suffer serious adverse employment actions seek administrative review before the MSPB, with judicial review of the MSPB’s order in the U.S. Court of Appeals for the Federal Circuit, where review is circumscribed and deferential.

An employee also can bring a “mixed case,” alleging that he suffered an adverse employment action appealable to the MSPB and that the basis for the action was, in whole or in part, discrimination prohibited by federal employment-discrimination statutes – including Title VII, the Age Discrimination in Employment Act and the Americans With Disabilities Act. Under 5 U.S.C. § 7703(b)(2), mixed cases and pure discrimination cases can be pursued in accordance with the relevant employment-discrimination law – that is, through a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a civil action in an appropriate district court and appeal to a regional federal court of appeals.

Alternatively, under 5 U.S.C. § 7702(a)(1), an employee can bring a mixed case to the MSPB, which must decide both the appealable adverse employment action and the issue of discrimination. In Kloeckner, the court held unanimously that the statutory framework established “in crystalline fashion” that when an employee takes a mixed case to the MSPB, the board’s decision must be challenged in federal district court, whether the MSPB rejected the employee’s discrimination claim on the merits or on some procedural ground (such as untimeliness of the claim).

In this case, the MSPB had determined that Anthony Perry had voluntarily agreed to his sanctions (a 30-day suspension and early retirement) and that his agreement was not coerced; the board therefore lacked jurisdiction, because voluntary actions are not serious actions appealable to the board. The question before the court was where Perry should seek review when the MSPB dismissed his mixed case not on the merits and not on a procedural ground, but for lack of jurisdiction.

The government argued that jurisdictional dismissals must be reviewed in the Federal Circuit, because jurisdictional dismissals are different from procedural or merits-based dismissals. Consequently, Perry would have to bifurcate his case: pursue his discrimination claim in district court and challenge the jurisdictional CSRA dismissal in the Federal Circuit.

Justice Ruther Bader Ginsburg wrote for a majority that included Chief Justice John Roberts and Justices Anthony Kennedy, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan. Ginsburg rebuffed the government’s argument on three points.

First, the MSPB did have jurisdiction over Perry’s claim. Like a court’s, an administrative agency’s jurisdiction is determined by the claimant’s non-frivolous allegations. Perry complained of a personnel action serious enough to warrant MSPB review, and those allegations were not frivolous or insubstantial. Because Perry also alleged that the action was based on discrimination, this was a mixed case that must be reviewed in district court under Kloeckner.

Second, the court identified “multiple infirmities” in the government’s proposed distinction between procedural or merits dismissals on one hand and jurisdictional dismissals on the other. The distinction was “newly devised,” because the government had expressly rejected that distinction in Kloeckner, and appeared to be reversing course only after the adverse result in that prior case. The majority described the distinction as “perplexing,” “elusive,” “slippery” and “unworkable.” The MSPB might “disassociate” itself from complaints based on many threshold determinations; there was no reason to treat different thresholds differently. Jurisdiction and merits may overlap, as they did here: Whether Perry voluntarily accepted the sanctions, the fact on which the MSPB concluded that it lacked jurisdiction, formed the heart of the dispute on the merits of Perry’s complaint.

Third, the majority rejected the bifurcation of claims as inconsistent with the statutory scheme. It repeated Kloeckner’s insistence that had Congress wanted to bifurcate claims, it would have said so. It recognized that sending all MSPB decisions to the Federal Circuit would promote national uniformity, but said that uniformity “should not override the expense, delay, and inconvenience of requiring employees to sever inextricably related claims, resorting to two discrete appellate forums, in order to safeguard their rights.”

The majority closed by insisting that its approach did not “tweak” the statute, the term Gorsuch used; rather, it read the statute “sensibly” to refrain from appeal-splitting bifurcation. The court included an emphatic and explicit two-part holding, intended to foreclose further attempts to work around Kloeckner: The Federal Circuit is the proper review forum when the MSPB disposes of complaints arising solely under the CSRA, while all mixed cases disposed of by the MSPB are properly reviewed in district court.

Justice Gorsuch’s dissent was not surprising, given his aggressive and skeptical questioning during oral argument. Like his first opinion for the court earlier this month in Henson v. Santander Consumer, his first dissent (joined by Justice Clarence Thomas) is written as an essay, without section breaks, and in a conversational and pithy rhetorical style. But the sharpness of Gorsuch’s views about statutory interpretation and of his disagreement with the majority (and with the petitioner, Perry) is unmistakable. Perry, Gorsuch began, “asks us to tweak a congressional statute,” but “I decline Mr. Perry’s invitation and would instead just follow the words of the statute as written.” Indeed, “Perry’s is an invitation I would run from fast,” given that it is “seriously atextual and practically unattractive.”

According to Gorsuch, the basic rule at issue was that appeals of MSPB decisions were to be filed in the Federal Circuit, with deferential review, to ensure uniform law governing executive-branch personnel actions. The exception was for agency actions that violated not only the CSRA, but also antidiscrimination laws, which also could be presented to the MSPB. Such cases of discrimination were exempt from the Federal Circuit default rule and instead could be brought in district court. Putting these directions together, he argued, the statutory scheme is plain: Disputes over civil-service laws head to the Federal Circuit, and discrimination cases go to district court. To the extent that requires an employee such as Perry to follow different paths for what began as a single complaint, that is a congressional command, not to be ignored because Perry considers it a “hassle.”

While acknowledging that the court was bound by Kloeckner, Gorusch argued that Kloeckner did not address or answer the question in this case. He read Kloeckner as addressing only where the employee should take the discrimination piece of a mixed case, and the answer was district court. Kloeckner did not require the court to decide, and the court did not decide, that an employee also could challenge the adverse civil-service ruling (what Perry sought to appeal) in district court. Although a footnote in Kloeckner stated that “the suit will come to the district court for a decision on both questions,” that was dicta that did not bind the court in a different case.

Congress, Gorsuch insisted, created a good statute. To the extent the statute needed repair, “there’s a constitutionally prescribed way to do it. It’s called legislation.” And although making new laws is difficult and protracted, that is not a constitutional bug, but “the point of the design, the better to preserve liberty.”

Gorsuch’s textualism often is compared with that of the justice he replaced, the late Antonin Scalia. But Scalia joined the unanimous court in Kloeckner. That difference may foretell where the textualism debate will go on the new Supreme Court.

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Opinion analysis: In regulatory takings case, court announces a new test

Opinion analysis: In regulatory takings case, court announces a new testUnder the doctrine of regulatory takings, government regulation that goes “too far” in burdening property rights counts as a taking under the Fifth Amendment, entitling the owner to “just compensation.” In deciding such claims, courts often must deal with a tricky preliminary question: How should they define the bounds of the property that the government […]

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Opinion analysis: In regulatory takings case, court announces a new test

Under the doctrine of regulatory takings, government regulation that goes “too far” in burdening property rights counts as a taking under the Fifth Amendment, entitling the owner to “just compensation.” In deciding such claims, courts often must deal with a tricky preliminary question: How should they define the bounds of the property that the government has allegedly taken? That question, often dubbed “the denominator problem,” could be outcome-determinative. For example, a regulatory burden on a small pond may seem minor if the property interest is defined as the developer’s much larger contiguous holdings, but severe if the property is defined as the pond itself. The court has long maintained that the denominator analysis must focus on the “parcel as a whole,” but that cryptic instruction has left litigants and lower courts at sea.

The parties in Murr v. Wisconsin offered the court three very different approaches to the denominator analysis. The case is interesting, and challenging, because each test would vindicate a slightly different view of the takings clause. As described in my earlier post, the Murrs argued that  a “merger” provision in state and local law — which barred them from selling separately their two undersized, riverfront lots — was a taking of the one lot they wished to sell. The Murrs urged a bright-line denominator test, hinging on the lot lines of the parcel alleged to be taken. This test would typically make it easier for landowners to assert takings. The state, arguing against a taking, offered a different bright-line test based on state law taken as a whole; here, the state’s merger provision would set the denominator as both lots together. The state’s test would offer the greatest deference to state prerogatives in defining property. Finally, the county (and in a similar vein, the United States as amicus) offered a multi-factor approach that would provide the least predictability, but the most flexibility to determine the interests of justice in any given case.

In today’s 5-3 decision, the court ruled against the Murrs, adopting aspects of the tests pressed by the county and the United States. Writing for the majority, Justice Anthony Kennedy stated that the denominator question, like the overall takings inquiry, turns on a multi-part analysis. “Like the ultimate question whether a regulation has gone too far,” he wrote, “the question of the proper parcel in regulatory takings cases cannot be solved by any simple test.” The court rejected the “formalistic” rules proposed by both the Murrs and Wisconsin. The Murrs’ proposed test, the court explained, would unjustifiably elevate lot lines over other aspects of state law. And although state law is relevant to the inquiry, the majority could not accept Wisconsin’s proposal to define the denominator based on state law as a whole: Courts must also “weigh[] whether the state enactments at issue accord with other indicia of reasonable expectations about property.”

The court emphasized that any denominator test must ascertain, through an “objective” analysis, “whether reasonable expectations about property ownership would lead a landowner to anticipate that his holdings would be treated as one parcel, or, instead, as separate tracts.” The court’s prescribed test includes three factors: “[1] the treatment of the land under state and local law; [2] the physical characteristics of the land; and [3] the prospective value of the regulated land.” With regard to the third factor, the analysis should give “special attention to the effect of burdened land on the value of other holdings.”

 The court then applied these guidelines and concluded that the Murrs’ two lots should be treated as one for takings analysis. First, Wisconsin property law — specifically, the merger provision — treats the two parcels as one. Second, the lots are contiguous, and their “rough terrain,” “narrow shape,” and riverfront location all make land-use regulations predictable. Third, the lots are more valuable when combined. Going one step further (and arguably a bit beyond the question presented), the court then held that, on the facts of this case, no taking had occurred.

The court’s selection of a standard over a rule may sound like a property law technicality. But it also implicates deeper questions about the takings clause. All sides agree that, as the majority explains, the takings clause serves dual goals of protecting both private property rights and the government’s need to regulate in the public interest. But where does the emphasis belong — and who gets to decide? As I’ll explain, there are reasons to doubt that the choice of denominator test will drastically change the outcomes of takings cases. Still, the provocative theme of a battle between property rights and government regulation bubbles near the surface of this case, as do questions about how much deference is warranted to states, localities, and their lawmaking bodies. These controversial issues likely explain why the justices labored over the case until the penultimate day of opinion announcements.

Indeed, Chief Justice John Roberts’ dissent, joined by Justices Samuel Alito and Clarence Thomas, criticized the majority’s approach as a threat to property rights. Although the dissent did not dispute the court’s holding that no taking had occurred in this case, it rejected the new denominator test. Quoting Alexander Hamilton, the dissent noted that “‘the security of Property’ is one of the ‘great object[s] of government.’” But the new test, the dissent explained, stacks the deck in the government’s favor. It does that through “clear double counting”—considering the government’s interests not just in the ultimate inquiry into whether a taking occurred, but also when defining the denominator. Once applied, the dissent stated, this will push courts to define parcels in ways that align with “[r]easonable government regulation,” making it less likely that such regulation will be deemed a taking. Thomas penned a short separate dissent, expressing interest in taking a “fresh look” at whether the court’s regulatory-takings doctrine can be squared with the Constitution’s original public meaning.

This decision is certainly one for property law casebooks, and it provides a new test that will now play a major role in regulatory-takings litigation. It’s not clear, however, that the stakes are quite as high as the opinions suggest. The denominator question, after all, is just a preliminary step; courts must then decide whether a taking occurred, applying (as relevant here) the tests from Penn Central Transportation Co. v. New York City or Lucas v. South Carolina Coastal Council. In some cases — like this one — judges may be able to agree on whether a taking has occurred despite disagreement on what constitutes the denominator. Moreover, the Penn Central test, the usual test in regulatory-takings cases, is famous for the broad discretion it affords courts. Whether the denominator test preferred by the dissent and the Murrs would actually have spurred courts to find more takings, despite their broad discretion at the second step of the process, is an interesting but unclear empirical question. The more certain result of Murr is that the takings analysis is now more complex. Courts and litigators will spend the coming years interpreting the Supreme Court’s new, open-textured definition of the takings denominator.

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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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