Tuesday round-up

Tuesday round-upIn The New York Times, Adam Liptak reports on the latest public comments of the Supreme Court’s “most outspoken member,” noting that “[i]n a pair of recent appearances, Justice [Ruth Bader] Ginsburg critiqued the Trump Administration’s travel ban, previewed the coming court term, predicted an end to capital punishment and suggested that other branches of […]

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Tuesday round-up

In The New York Times, Adam Liptak reports on the latest public comments of the Supreme Court’s “most outspoken member,” noting that “[i]n a pair of recent appearances, Justice [Ruth Bader] Ginsburg critiqued the Trump Administration’s travel ban, previewed the coming court term, predicted an end to capital punishment and suggested that other branches of government are in disarray.” In The Salt Lake Tribune, Jessica Miller reports that at the Utah State Bar convention, Ginsburg “had this advice for young lawyers: ‘Do something outside of yourself. Something that will make a difference.’”

Fix the Court offers an end-of-term report on transparency at the Supreme Court, which tells “the story of improvement at the margins – not only with the high court’s website but also regarding digital disclosures, stock selloffs and livestreaming.” In The National Law Journal (subscription or registration required), Tony Mauro reports that with its recent website update, the Supreme Court has taken “baby steps” towards “a planned electronic filing system that will make Supreme Court briefs and documents available to all on the site,” “befitting an institution whose building is decorated with bronze and marble tortoises.”

Briefly:

  • In The University of Pennsylvania’s Regulatory Review, Lori Fox looks at the court’s decision this term in Endrew F. v. Douglas County School District, in which the justices raised the bar for what constitutes an educational benefit for children with disabilities; she observes that after Endrew F., “[p]arents willing to litigate may be more likely to demand particularly broad—and expensive—measures, including private schooling.”

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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No stay for Ohio executions

No stay for Ohio executionsOver a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter. Phillips and […]

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No stay for Ohio executions

Over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg, the Supreme Court last night declined to block the executions of three Ohio men. One of the inmates, Ronald Phillips, is scheduled to be put to death today for the 1993 rape and murder of his girlfriend’s daughter.

Phillips and the other two inmates, Gary Otte and Raymond Tibbetts, had challenged the three-drug protocol that the state plans to use to carry out their executions, arguing that it violates the Eighth Amendment’s ban on cruel and unusual punishment. Phillips’ execution would be the first in Ohio since 2014, when inmate Dennis McGuire was executed using a different combination of drugs. Eyewitnesses said that McGuire appeared to be gasping for air and sometimes choking for roughly half of the 24 minutes it took him to die.

The Supreme Court has ruled that inmates challenging a planned method of execution must show both that the method creates a substantial risk of severe pain and that a less painful alternative is known and available. A federal district court ruled that Phillips and the other inmates had made this showing. It pointed to expert testimony which suggested that midazolam, the first drug in the state’s lethal-injection protocol, will sedate the inmate but will not render him impervious to the pain that the second and third drugs – which paralyze him and then stop his heart – can cause. Moreover, the district court concluded, the inmates had demonstrated that Ohio could use another drug – pentobarbital, a barbiturate that would prevent the inmate from feeling pain – as part of the three-drug protocol instead. But a divided federal appeals court reversed, prompting the inmates to go to the Supreme Court.

The justices refused to intervene. In her brief dissent, Sotomayor complained that the lower court should have given more deference to the district court’s findings. Sotomayor referred back to her dissent in another lethal-injection case earlier this year, in which she had expressed “significant doubts about the wisdom of imposing the perverse requirement that inmates offer alternative methods for their own execution” but, at the very least, had urged her colleagues to provide “clarification and guidance” on the rule. Last night, she closed her opinion by indicating that she would “dissent again from this Court’s failure to step in when significant issues of life and death are present.”

Phillips is scheduled to be executed at 10 a.m. local time today. The executions of Otte and Tibbetts are currently scheduled for September 13 and October 18, respectively.

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Menu of today’s content

Menu of today’s contentToday we continue our symposium on the court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer. Today’s contributions come from Erwin Chemerinsky, Hillary Byrnes and Fred Yarger. These and other contributions are available at this link. Today we also began a symposium on October Term 2016’s death-penalty decisions. Today’s contributions come from Dominic […]

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Menu of today’s content

Today we continue our symposium on the court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer. Today’s contributions come from Erwin Chemerinsky, Hillary Byrnes and Fred Yarger. These and other contributions are available at this link.

Today we also began a symposium on October Term 2016’s death-penalty decisions. Today’s contributions come from Dominic Draye, Austin Sarat, Brian Stull and Brianne Gorod. These and future contributions are available at this link.

Additionally, this morning Amy Howe covered the court’s final orders of the term, and Steve Vladeck analyzed the court’s opinion in Davila v. Davis.

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Menu of today’s content

Menu of today’s contentHere is an overview of today’s case coverage: 6:24 a.m.: Howard Wasserman analyzed the court’s opinion in Perry v. Merit Systems Protection Board. 11:51 a.m.: Amy Howe covered the court’s opinion in Trump v. International Refugee Assistance Project and Trump v. Hawaii. 1:37 p.m.: Amy Howe analyzed the court’s opinion in Trinity Lutheran Church of […]

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Menu of today’s content

Here is an overview of today’s case coverage:

6:24 a.m.: Howard Wasserman analyzed the court’s opinion in Perry v. Merit Systems Protection Board.

11:51 a.m.: Amy Howe covered the court’s opinion in Trump v. International Refugee Assistance Project and Trump v. Hawaii.

1:37 p.m.: Amy Howe analyzed the court’s opinion in Trinity Lutheran Church of Columbia v. Comer.

2:52 p.m.: John Elwood reviewed relists for today’s final conference of the term.

3:51 p.m.: Mark Walsh provided a “view” from the courtroom for today’s orders and opinions.

4:02 p.m.: Kevin Johnson covered the court’s ordered reargument in Sessions v. Dimaya and Jennings v. Rodriguez.

4:23 p.m.: Amy Howe analyzed the court’s opinion in Hernández v. Mesa.

7:17 p.m.: Amy Howe covered today’s order list.

8:21 p.m.: Ronald Mann analyzed the court’s opinion in California Public Employees’ Retirement System v. ANZ Securities.

Molly Runkle also rounded up early outside coverage and commentary on today’s orders and opinions.

We are also hosting a symposium on the court’s ruling in Trinity Lutheran v. Comer. Our first contributions come from Erin Morrow Hawley, Leslie Griffin and Nathan Diament.

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Hawaii to Supreme Court: No need to review travel ban

Hawaii to Supreme Court: No need to review travel banCalling the March 6 executive order signed by President Donald Trump, which put a temporary hold on visas for travelers from six Muslim-majority countries, “grossly unlawful,” the state of Hawaii today urged the Supreme Court to sit out the litigation over the legality of the order, popularly known as the “travel ban.” Instead, the state […]

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Hawaii to Supreme Court: No need to review travel ban

Calling the March 6 executive order signed by President Donald Trump, which put a temporary hold on visas for travelers from six Muslim-majority countries, “grossly unlawful,” the state of Hawaii today urged the Supreme Court to sit out the litigation over the legality of the order, popularly known as the “travel ban.” Instead, the state told the justices, they should allow two lower-court orders putting the order on hold to remain in place. After all, the state suggested, even the federal government – which is defending the order in court — “has revealed by word and deed that even it believes” that the travel ban is no longer necessary.

The Trump administration has asked the justices to reinstate the travel ban, which two separate federal appeals courts had blocked, and review the dispute over the ban on the merits. The government’s original request for the Supreme Court to weigh in came after the U.S. Court of Appeals for the 4th Circuit had blocked the government from implementing the ban, but before the U.S. Court of Appeals for the 9th Circuit had ruled in Hawaii’s challenge to the ban. The justices ordered the latest round of briefing – of which today’s filing was a part – after the 9th Circuit ruled for Hawaii on June 12.

The brief that Hawaii filed today reiterated many of the points that the state made in its earlier briefing. The state complained, for example, that the federal government had doubled “down on a breathtaking vision of unreviewable” power for the executive branch. But, the state maintained, federal immigration laws do not give president “an absolute right to control immigration.” Recounting the history of early U.S. colonists, the state stressed that the Founding Fathers “were thus familiar both with the violent threat posed by religious zealots and with the threat to our liberties posed by governments acting in the name of the United States. Our Constitution,” the state emphasized, “is designed to guard against them both.”

But the main focus of the state’s brief (as well as a short brief filed by the challengers in the 4th Circuit case) was an effort to convince the justices that, putting everything else aside, there is no need for the justices to get involved in the travel ban dispute now. The state explained that, in the wake of the 9th Circuit’s ruling, the president had instructed agencies within the federal government to begin their review – required by the March 6 order – of the procedures that they use to vet visa applications. The government, the state contended, had argued that the ban on new visas for travelers from the six Muslim-majority countries was necessary to give the government time to conduct this review. The government will now be able to start that process soon.

But, the state continued, the provisions in the March 6 order barring new visas for travelers from six Muslim-majority countries won’t go into effect until three days after the freeze is lifted. And the federal government has told the Court that it does not need to hear the case until October, almost nine months after the ban was originally imposed. By that point, the state suggested, the government’s justification for the ban – the need to vet visa procedures – will no longer exist, eliminating any need for the court to weigh in. “Even when faced with important issues,” the state observed, “this Court does not review cases that no longer have any practical urgency.”

Hawaii also told the justices that, if they disagree and decide to review the 4th Circuit’s ruling freezing the travel ban, they should also take on the 9th Circuit’s case. The federal government will file its response to today’s filing by noon tomorrow – presumably in time for it to consider the government’s requests at the justices’ private conference on Thursday.

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Menu of today’s content

Menu of today’s contentHere is an overview of today’s case coverage: 7:12 a.m.: Amy Howe covered the federal government’s change in its position in the cases next term consolidated as Epic Systems Corp. v. Lewis.  12:56 p.m.: Amy Howe covered the court’s grant in partisan-gerrymandering case Gill v. Whitford. 1:52 p.m.: Amy Howe analyzed the court’s opinion in […]

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Menu of today’s content

Here is an overview of today’s case coverage:

7:12 a.m.: Amy Howe covered the federal government’s change in its position in the cases next term consolidated as Epic Systems Corp. v. Lewis. 

12:56 p.m.: Amy Howe covered the court’s grant in partisan-gerrymandering case Gill v. Whitford.

1:52 p.m.: Amy Howe analyzed the court’s opinion in Packingham v. North Carolina.

2:56 p.m.: Ronald Mann analyzed the court’s opinion in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County.

3:47 p.m.: Mark Walsh provided a “view” from the courtroom for today’s opinion announcements.

4:25 p.m.: Amy Howe analyzed the court’s opinion in McWilliams v. Dunn.

9:03 p.m.: Amy Howe analyzed the court’s opinion in Ziglar v. Abbasi.

We are also hosting a symposium on the court’s ruling in Matal v. Tam, formerly known as Lee v. Tam. Our first contribution is by Caleb Trotter.

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Petitions to watch | Conference of June 8

Petitions to watch | Conference of June 8In its conference of June 8, 2017, the court will consider petitions involving issues such as whether the U.S. Court of Appeals for the 6th Circuit properly held, on its own initiative, that the respondent could overcome his procedural default under Sawyer v. Whitley’s actual-innocence exception, and whether the 6th Circuit properly held that judicial […]

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Petitions to watch | Conference of June 8

In its conference of June 8, 2017, the court will consider petitions involving issues such as whether the U.S. Court of Appeals for the 6th Circuit properly held, on its own initiative, that the respondent could overcome his procedural default under Sawyer v. Whitley’s actual-innocence exception, and whether the 6th Circuit properly held that judicial reweighing cannot cure errors at the weighing stage of a capital trial by extending Ring v. Arizona’s standards from the eligibility phase into that weighing phase; and whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

16-1116

Issues: (1) Whether the U.S. Court of Appeals for the 6th Circuit properly held, on its own initiative, that the respondent could overcome his procedural default under Sawyer v. Whitley’s actual-innocence exception; and (2) whether the 6th Circuit properly held that judicial reweighing cannot cure errors at the weighing stage of a capital trial by extending Ring v. Arizona‘s standards from the eligibility phase into that weighing phase.

16-673

Issues: (1) Whether a federal official may retroactively ratify an ultra vires government action when: (a) no federal official was authorized to perform the act at the time it was initially undertaken; (b) the purported ratification does not include an examination of any facts related to the act performed; or (c) the ratification purports to encompass not only the initial act but also federal court rulings entered in response to the act; and (2) whether federal courts possess subject-matter jurisdiction under Article III of the Constitution to hear a case filed at the behest of an individual who, from the time suit was filed until judgment was entered, lacked authority to vindicate the executive branch’s interest in seeing that the law is obeyed.

16-1177

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred under the Antiterrorism and Effective Death Penalty Act in holding that the Virginia Supreme Court’s decision in Angel v. Commonwealth was an objectively unreasonable application of Graham v. Florida, thereby creating a split with Virginia courts over the validity of Virginia’s parole regulations, and a split with other jurisdictions over whether parole eligibility at age 60 constitutes a life-without-parole sentence.

16-712

Issues: (1) Whether inter partes review, an adversarial process used by the Patent and Trademark Office (PTO) to analyze the validity of existing patents, violates the Constitution by extinguishing private property rights through a non-Article III forum without a jury; (2) whether the amendment process implemented by the PTO in inter partes review conflicts with Cuozzo Speed Technologies, LLC v. Lee and congressional direction; and (3) whether the “broadest reasonable interpretation” of patent claims, upheld in Cuozzo for use in inter partes review, requires the application of traditional claim construction principles, including disclaimer by disparagement of prior art and reading claims in light of the patent’s specification.

16-166

Issues: (1) Whether the district court erred in holding that a lack of discernible standards prevented it from striking down as a partisan gerrymander a districting plan when the plan’s architect freely admitted it was a partisan gerrymander designed to elect as many Republicans as mathematically possible; (2) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the 14th Amendment when the plan was designed to secure “partisan advantage” for Republicans; and (3) whether the district court erred in holding that it could not, on the record before it, strike down a districting plan under the First Amendment when the plan was designed to impose burdens on Democratic voters because of their political beliefs. In addition, on May 26, the Supreme Court ordered the parties to brief the following issues: (1) Do the appellants have standing to challenge the remedial map as a partisan gerrymander? (2) Is the district court’s order denying the appellants’ objections to the remedial map appealable under 28 U. S. C. § 1253?

16-992

Issue: Whether a state violates the 14th Amendment by denying married same-sex couples the same right afforded to married opposite-sex couples under state law to have the name of the birth mother’s spouse entered as the second parent on their child’s birth certificate.

16-111

Issue: Whether applying Colorado’s public accommodations law to compel the petitioner to create expression that violates his sincerely held religious beliefs about marriage violates the free speech or free exercise clauses of the First Amendment.

16-847

Issue: Whether the petitioners are entitled to relief from the longstanding federal statute prohibiting felons from possessing firearms, 18 U.S.C. § 922(g)(1), based on their as-applied Second Amendment claim that their criminal offenses and other particular circumstances do not warrant a firearms disqualification.

16-983

Issue: Whether, as used in 18 U.S.C. § 921(a)(20)(B), the term “punishable by a term of imprisonment of two years or less” means “capable of being punished by a term of imprisonment of two years or less,” or “subject to a term of imprisonment of two years or less.”

16-894

Issue: Whether the Second Amendment entitles ordinary, law-abiding citizens to carry handguns outside the home for self-defense in some manner, including concealed carry when open carry is forbidden by state law.

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Arkansas executes fourth inmate in one week

Arkansas executes fourth inmate in one weekWithout any recorded dissents, the Supreme Court last night declined to block the execution of Kenneth Williams. Williams was the fourth inmate executed in Arkansas in a week; the state had sought to execute eight inmates over a span of 11 days so that it could carry out the executions before one of the drugs […]

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Arkansas executes fourth inmate in one week

Without any recorded dissents, the Supreme Court last night declined to block the execution of Kenneth Williams. Williams was the fourth inmate executed in Arkansas in a week; the state had sought to execute eight inmates over a span of 11 days so that it could carry out the executions before one of the drugs in its lethal injection protocol expired, but four other inmates had their executions stayed. The 38-year-old Williams had been serving a life sentence without parole for the 1998 murder of Dominique Herd when he escaped from prison and murdered Cecil Boren, who lived near the prison. Williams stole Boren’s truck; driving the truck while trying to evade capture, Williams struck and killed another driver, Michael Greenwood. Williams was sentenced to death in 2000.

In filings yesterday at the Supreme Court, Williams argued that his execution should be put on hold to allow him to demonstrate that he is intellectually disabled and therefore cannot be put to death. But the justices were unwilling to step in. They issued orders denying Williams’ request for relief shortly after 11 p.m. EDT, the state began to administer the lethal injection a little less than an hour later, and Williams was pronounced dead at 11:05 p.m. CDT.

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Petition of the day

Petition of the dayThe petition of the day is: McKnight v. Peterson 16-1003 Issues: (1) Whether, viewing the facts from the petitioner’s perspective, he acted reasonably, under the Fourth Amendment, in firing in self defense, when an officer in his situation would believe that the suspect was armed, was suspected of a violent crime, refused to show his concealed hand, […]

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Petition of the day

The petition of the day is:

16-1003

Issues: (1) Whether, viewing the facts from the petitioner’s perspective, he acted reasonably, under the Fourth Amendment, in firing in self defense, when an officer in his situation would believe that the suspect was armed, was suspected of a violent crime, refused to show his concealed hand, refused commands, and came at the officer; and (2) whether the petitioner was entitled to qualified immunity, when existing precedent did not clearly establish that the use of deadly force was unlawful under the particular situation faced by the officer, and the U.S. Court of Appeals for the 9th Circuit’s analysis contravened the U.S. Supreme Court’s explicit directions.

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Court denies stay to Arkansas inmate (UPDATED 8:55 pm)

Court denies stay to Arkansas inmate (UPDATED 8:55 pm)[Note: This post was updated to report on the execution of Jack Jones and to add additional information about the case of Marcel Williams, including the court’s denial of his application for a stay of execution.] Less than 12 hours after a Texas death row inmate found apparently sympathetic ears for his plea that he […]

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Court denies stay to Arkansas inmate (UPDATED 8:55 pm)

[Note: This post was updated to report on the execution of Jack Jones and to add additional information about the case of Marcel Williams, including the court’s denial of his application for a stay of execution.]

Less than 12 hours after a Texas death row inmate found apparently sympathetic ears for his plea that he was entitled to have assistance from his own psychiatrist at his trial, the Supreme Court turned down a request by an Arkansas inmate to put his execution, one of two scheduled for tonight at a prison in southeast Arkansas, on hold.

Inmate Jack Jones was scheduled to die at 7 pm local time for the brutal robbery, rape and strangulation of Mary Phillips. Jones argued that subjecting him to the state’s lethal injection protocol would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from diabetes and hypertension and has taken several medications for his chronic pain. The net effect of these chronic conditions, he contended, is that “he is likely to be either not rendered unconscious and thus suffer a painful death,” or he will “be left alive but brain damaged.” Justice Sonia Sotomayor was the only justice to dissent publicly from the court’s denial of a stay. Jones was pronounced dead at 7:20 pm local time.

Jones’ execution was one of eight originally scheduled over an 11-day period. The state had wanted to carry out all of the executions before the end of the month, when one of the three drugs that it uses in its lethal injection protocol is set to expire. Some of those inmates obtained stays of their executions, but the Supreme Court last week rejected a broader challenge by a group of inmates, including Jones, to the state’s protocol. On Friday morning, one of the eight inmates, Ledell Lee, was executed.

Another inmate, Marcel Williams, was scheduled to be executed at 8:15 pm local time tonight. Williams had also asked the Supreme Court to step in, but the justices denied his request as well, less than 30 minutes before his execution was scheduled to begin. Sotomayor was the only justice to publicly dissent from that order as well. Williams was sentenced to death for the 1994 kidnapping, rape, and murder of Stacy Errickson, a 22-year-old mother and military spouse.

Like Jones, Williams suffered from a variety of chronic health conditions, including diabetes, hypertension, morbid obesity, and sleep apnea. He too argued that executing him using the state’s lethal injection protocol would violate the Eighth Amendment; a physician who examined him attested that, if the current protocol is employed, “it is unlikely that the State will succeed in killing him.” The “more likely result,” the physician said, “will be that he is left with disabling, irreversible injuries.”

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