Opinion analysis: Justices uphold arbitration exemption for transportation workers in rare victory for arbitration opponents

Opinion analysis: Justices uphold arbitration exemption for transportation workers in rare victory for arbitration opponentsArbitration month at the Supreme Court continued this morning with the unanimous decision in New Prime Inc. v. Oliveira – following by a single week the unanimous decision in Henry Schein v. Archer & White Sales. New Prime, though, is anything but business as usual: Justice Neil Gorsuch’s opinion for a unanimous court rejects a […]

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Opinion analysis: Justices uphold arbitration exemption for transportation workers in rare victory for arbitration opponents

Arbitration month at the Supreme Court continued this morning with the unanimous decision in New Prime Inc. v. Oliveira – following by a single week the unanimous decision in Henry Schein v. Archer & White Sales. New Prime, though, is anything but business as usual: Justice Neil Gorsuch’s opinion for a unanimous court rejects a claim for arbitration for the first time in a string of more than a dozen of the Supreme Court’s cases stretching back more than a decade. Indeed, I doubt the court has rejected such a claim in any previous decision since the turn of the millennium.

Justice Gorsuch with opinion in New Prime Inc. v. Oliveira, and Justice Thomas with opinion in Stokeling v. U.S.

New Prime involves an exception to the rule in the Federal Arbitration Act that obligates courts to enforce arbitration agreements that involve interstate commerce. Specifically, under the “transportation” exclusion in Section 1 of the act, “nothing” in the act applies to “contracts of employment of … seamen, railroad employees, or any other class of workers engaged in foreign or interstate commerce.” In this case, all agree that the truck drivers (including respondent Dominic Oliveira) driving trucks for petitioner New Prime are “workers engaged in foreign or interstate commerce.”

The question for the court is whether the lower courts should have sent this dispute to arbitration even though the drivers might work for New Prime as independent contractors rather than as employees. New Prime argued in the lower courts that the exception for “contracts of employment” applies only when the workers are employees; because New Prime endeavors to structure its relations with its drivers so that they are independent contractors rather than employees, New Prime argued that the act should apply notwithstanding the transportation exclusion.

The first question Gorsuch addresses is whether the lower courts should have been considering the exclusion at all. New Prime argues that because its contracts delegate questions of arbitrability to the arbitrator, the lower courts should have allowed the arbitrator to consider the application of the exception in the first instance. That argument should be familiar to readers of this blog – it was the central topic of the decision last week in Henry Schein. As I explained in my discussion of that opinion, the Henry Schein court unanimously reaffirmed the rule that courts must enforce a contract that delegates “gateway” questions about arbitrability to the arbitrator; the specific holding in Henry Schein was that a court must send a case to an arbitrator even if the claim for arbitration strikes the court as wholly groundless.

In this case, however, the Supreme Court is calling for judicial assessment of the objection to arbitration. Gorsuch explains that the provisions of the act obligating courts to stay litigation and compel arbitration (Sections 3 and 4) apply only if the dispute is one to which the act applies under Sections 1 and 2. Because the act “warns that ‘nothing’ in the Act ‘shall apply’ to ‘contracts of employment’” in the transportation sector, “a court should decide for itself whether § 1’s ‘contracts of employment’ exclusion applies before ordering arbitration.” For Gorsuch, “a court must first know whether the contract itself falls within or beyond the boundaries of §§ 1 and 2” before it can “invoke its statutory powers under §§ 3 and 4.” In sum, even if the contract is “crystal clear and require[s] arbitration of every question under the sun, … that does not necessarily mean the Act authorizes a court to stay litigation and send the parties to an arbitral forum.”

It may be, as Gorsuch remarks, that “[n]othing in” that analysis “should come as a surprise.” We would expect, though, perhaps a few words explaining the distinction between this case and the unanimous decision in Henry Schein a week earlier. It’s not difficult to articulate a distinction. The most obvious difference is that the arbitrability dispute in Henry Schein involved interpretation of the contractual agreement, while the arbitrability dispute in New Prime involves the court’s statutory authority. Indeed, Chief Justice John Roberts suggested such a distinction in the oral argument in New Prime (apparently referring back to the Henry Schein argument that the court had heard a few weeks before it heard New Prime).

But what is to explain the absence from the New Prime opinion of any reference to Henry Schein? It might have something to do with the timing of the two opinions. Because New Prime was argued earlier (in October rather than November), it would be natural for Gorsuch’s opinion to omit any reference to Henry Schein – Gorsuch well might have circulated his opinion in New Prime before Justice Brett Kavanaugh circulated his opinion in Henry Schein. But New Prime has a brief concurring opinion from Justice Ruth Bader Ginsburg (more on that below); if the drafting of that concurrence delayed the release of New Prime beyond the release of Henry Schein it is easy to see that Gorsuch might not have thought it worth the effort to go back and amend his opinion to discuss the now earlier-decided Henry Schein matter. The natural person to call for a discussion would have been Kavanaugh (the author of Henry Schein), but he did not participate in New Prime.

In any event, having determined that the scope of the transportation exclusion is a question for the court, Gorsuch turned to that question. For him, the “key to the case” (foreshadowed by his trenchant comments on that subject at the oral argument) is that the statutory reference to “contracts of employment” must bear the meaning that phrase had “at the time Congress enacted the statute” (quoting his own opinion last term in Wisconsin Central Ltd. v. United States). “After all,” he explains, “if judges could freely invest old statutory terms with new meanings, we would risk amending legislation outside the ‘single, finely wrought and exhaustively considered, procedure’ the Constitution commands” (quoting Immigration and Naturalization Service v. Chadha).

Gorsuch notes New Prime’s central argument – that modern usage limits the term “employee” to the traditional “relationship between master and servant” that is antithetical to the independent-contractor relationship New Prime has tried to craft with Oliveira and the other drivers. Gorsuch rejects that argument, though, based on his conclusion that “at the time of the Act’s adoption in 1925 … most people … would have understood § 1 to exclude not only agreements between employers and employees but also agreements that require independent contractors to perform work.” Among other things, he cites dictionaries indicating that “employment” was not “then a term of art,” but rather “more or less … a synonym for ‘work,’” routinely applied “whether or not the common law criteria for a master-servant relationship happened to be satisfied.” In the same way, detailed footnotes support the view that the same usage pervaded the Supreme “Court’s early 20th-century cases …, [m]any state court cases, … a variety of federal statutes, … [a]nd state statutes too.”

Gorsuch suggests that New Prime’s contrary arguments largely rest on an effort “to shift the debate from the term ‘contracts of employment’ to the word ‘employee.’” Acknowledging an “extended etymological debate” between the parties on exactly when “the words ‘employee’ and ‘independent contractor’ … assumed [their modern] distinct meanings,” as well as “the common root and … intertwined history” of “‘employee’ and ‘employment,’” Gorsuch emphasizes that “[t]he only question in this case concerns the meaning of the term ‘contracts of employment’ in 1925,” a topic he already has examined.

Finally, Gorsuch notes that New Prime, in his view “[u]nable to squeeze more from the statute’s text, … is left to appeal to its policy.” Not surprisingly, he does not deny the vigor of the court’s embrace of a “liberal federal policy favoring arbitration agreements.” In this case, though, the text seems clear enough to persuade all of the justices to reject the claim for arbitration. With a characteristic rhetorical flourish, Gorsuch comments that “[i]f courts felt free to pave over bumpy statutory texts in the name of more expeditiously advancing a policy goal, we would risk failing to take account of legislative compromises essential to a law’s passage.”

Notably, although Ginsburg joined Gorsuch’s entire opinion, she offered a brief concurring opinion summarizing circumstances in which “Congress … may design legislation to govern changing times and circumstances,” suggesting that a rigorous adherence to the meaning of the text at the time of its enactment often might thwart rather than execute congressional intent.

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Past cases linked to in this post:

INS v. Chadha, 462 U.S. 919 (1983)
Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067 (2018)

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Argument analysis: When is the government not really the government for immunity from tort liability?

Argument analysis: When is the government not really the government for immunity from tort liability?In Thacker v. Tennessee Valley Authority, the government contends (and the lower courts agreed) that the TVA should be immune from tort liability to shield executive policy-making, even when the TVA is engaged in arguably commercial activity. The petitioner, Gary Thacker, argues that an entirely different analysis applies to the TVA, which Congress has made […]

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Argument analysis: When is the government not really the government for immunity from tort liability?

In Thacker v. Tennessee Valley Authority, the government contends (and the lower courts agreed) that the TVA should be immune from tort liability to shield executive policy-making, even when the TVA is engaged in arguably commercial activity. The petitioner, Gary Thacker, argues that an entirely different analysis applies to the TVA, which Congress has made broadly subject to suit without expressly preserving policy immunity.

Ann O’Connell Adams, assistant to the U.S. solicitor general (Art Lien)

Thacker was boating along the Tennessee River, just when TVA employees accidentally dropped a power line into the water, striking Thacker in the head and killing his companion. Through an unadorned sue-and-be-sued clause, Congress made the TVA subject to suit in tort and contract. Citing the Supreme Court’s 1940 decision in Federal Housing Administration v. Burr, Thacker contends that the TVA, as a federally chartered corporation that markets electrical power, has been “launched … into the commercial world.” Thus, under Burr, the TVA may escape liability only if the lawsuit presents a “grave interference with the performance of a governmental function.”

For its part, the government insists that, even though the TVA is specifically excluded from the Federal Tort Claims Act, which governs other federal government tort suits, the FTCA’s discretionary function exception should be judicially implied here. Under 28 U.S.C. § 2680(a) of the FTCA, the United States is protected from tort liability based on a federal employee’s exercise or failure to exercise a “discretionary function or duty … whether or not the discretion involved be abused.” The government argues that, as a matter of constitutional separation of powers, the discretionary function exception prevents “judicial second-guessing” of any decision that is susceptible to policy analysis, including TVA choices about safety measures.

As Justice Sonia Sotomayor stated at the beginning of Monday’s oral argument, the TVA surely would be entitled to policy immunity for “core government activity.” The question is where to draw a line between protecting the TVA from tort liability when it is engaged in quintessential government functions and holding the TVA accountable for negligence when it acts in a manner similar to other commercial enterprises. While counsel for both sides sometimes approached a categorical answer — that immunity is always or is never available to the TVA — the justices experimented with different tests and proposed varying dividing lines.

Arguing on behalf of Thacker, Franklin Rouse resisted any suggestion that the Federal Tort Claims Act’s discretionary function exception should be read into — or provide any analytical guidance for — the statute that authorizes the TVA to sue and be sued. Rouse contended that, under the Burr test, immunity is granted only when liability imposes a “grave interference” with the TVA’s governmental role — “a different inquiry in kind” from the FTCA’s discretionary function exception.

Franklin Taylor Rouse for petitioners (Art Lien)

Justice Samuel Alito described the TVA as a “hybrid entity,” which “does some things that are purely governmental, and it does some things that are pretty much purely commercial.” For the commercial activities, Alito suggested, it is hard to justify exempting the TVA “from tort liability for every discretionary business decision.” But when the TVA engages in governmental activities, then the “regime” should be the same as that under the FTCA. Justice Elena Kagan similarly offered “a discretionary function light,” under which the TVA would be denied immunity for its “commercial functions,” for which it would be “treated just like any other corporate entity.”

Although Rouse agreed with Alito and Kagan on the outcome, he denied that there is a “line for these entities between commercial and governmental.” Even when acting in a governmental capacity, the TVA remains subject to liability absent a showing of grave interference with its functions.

Chief Justice John Roberts asked whether the TVA would be immune when managing flood control if, by allowing more water through the dam, downstream farms would be damaged, while by keeping water back, upstream farms might be harmed. Rouse argued that the TVA remained subject to liability for flood-control activities under the general statutory authorization for suit against the TVA.

Justice Brett Kavanaugh restated Rouse’s argument as asking the Supreme Court “to simply hold that the right test is Burr, instead of the discretionary function exception.” Rouse allowed that Thacker could “live with that,” noting that the lower courts had bypassed the Burr grave interference test.

Justice Stephen Breyer appeared unsettled by a case-by-case grave-interference test, rather than adhering to “the well-worked-out body of discretionary exception law under the FTCA.” At a later point in the argument, Breyer suggested that the Burr test for a sued-and-be-sued entity like the TVA could be “the equivalent” of the discretionary function exception under the FTCA. Although initially accepting Breyer’s statement, Rouse soon came back to his central point that, although the FTCA discretionary function test and the Burr grave-interference test “may reach the same conclusion,” they are nonetheless “different.”

Arguing for the TVA, Assistant to the Solicitor General Ann O’Connell Adams began with the heart of the government’s case. She contended that discretionary function immunity is “grounded in constitutional separation of powers principles.” For that reason, the TVA enjoys that protection, even absent express statutory provision.

But Adams found no takers on the court for this line of argument. Roberts complained that he could not follow the separation of powers argument. Adams explained that separation of powers was implicated because the courts otherwise would be “second-guessing the discretionary decisions of the Executive Branch.”

Justice Neil Gorsuch picked up the chief justice’s thread by asking whether the government was saying that Congress could not “waive even the executive’s immunity on discretionary functions.” Adams agreed that Congress could do so. But she protested that the general sue-and-be-sued clause for the TVA did not say so, and she asserted that Congress “understood that discretionary-function immunity would survive.” Unpersuaded, Gorsuch said that when the “government wishes to compete in private industry and the commercial world,” we should expect it to “make it clear that it wishes to retain its immunity a little bit more clearly than enacting a statute that says the entity may be sued.”

Sotomayor and Kagan focused on whether the government’s reading means that the TVA’s tort liability would be identical to that for other federal agencies under the FTCA, even though the TVA is expressly taken out of the FTCA. Adams said, “[i]n terms of discretionary decision-making, yes.” But she pointed out there are other procedural requirements in the FTCA that are not imposed against those suing the TVA. Kagan asked Adams for examples of negligence suits that could be brought with respect to “the TVA’s actual operations in running a power company.” Adams acknowledged that she could not provide examples from case law to illustrate such a difference between FTCA liability and TVA liability.

Kavanaugh brought the conversation back to Burr, contending that for sue-and-be-sued entities like the TVA, Burr “sets up what seems to me on its face to be a higher bar or a … narrower exception than the discretionary-function exception because it uses terms like ‘grave interference’ with governmental function.” Adams responded that denying the TVA a discretionary function exception would constitute a grave interference with governmental function. Not satisfied, Kavanaugh again referred to the “high bar” set in Burr and asked whether a “broad discretionary-function exception” is truly necessary “to avoid grave interference with the performance of a governmental function.” Adams stood by her contention that the Burr interference test leads right back to discretionary function immunity for the TVA. She explained that the facts of a particular case may take it outside of immunity under the tests for application of the discretionary function exception — but the Supreme Court declined to accept review on the application question.

Speaking briefly on rebuttal, Rouse characterized the government’s argument as “trying to smuggle in the discretionary function analysis” under the Burr test and constitutional separation of powers. He reiterated his central argument that the FTCA’s discretionary function analysis simply does not apply to the TVA because it was broadly made subject to suit by Congress.

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Past case linked to in this post: F.H.A. v. Burr, 309 U.S. 242 (1940)

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Argument analysis: Quiescent bench dubious about broad fee awards in copyright cases

Argument analysis: Quiescent bench dubious about broad fee awards in copyright casesThe week’s second argument, Rimini Street v. Oracle USA, has the justices considering the scope of fees available to a prevailing party in litigation under the federal Copyright Act. Sitting for the second week without Justice Ruth Bader Ginsburg, the bench was remarkably quiescent. To the extent the justices evinced any strong interest in the […]

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Argument analysis: Quiescent bench dubious about broad fee awards in copyright cases

The week’s second argument, Rimini Street v. Oracle USA, has the justices considering the scope of fees available to a prevailing party in litigation under the federal Copyright Act. Sitting for the second week without Justice Ruth Bader Ginsburg, the bench was remarkably quiescent. To the extent the justices evinced any strong interest in the case, they seemed skeptical about allowing broad fee awards.

The case calls for a reading of Section 505 of the Copyright Act, which defines the recovery of a prevailing party under the act. That provision states: “In any civil action under [the Copyright Act], the court in its discretion may allow the recovery of full costs by or against any party…. [T]he court may also award a reasonable attorney’s fee to the prevailing party as part of the costs.” The problems in understanding that language arise from a general provision in 28 U.S.C. § 1920, which defines a relatively narrow set of “taxable costs” customarily awarded to the prevailing party in federal court. The question for the court here is whether the “costs” described in Section 505 are the narrow set of costs that are taxable under Section 1920 or instead a broader set of costs that would come closer to compensating a party for all of its litigation costs. In this case, for example, the lower court relied on Section 505 to award more than $12 million of nontaxable costs.

The backdrop of the case also involves the so-called “American rule,” under which even a prevailing party ordinarily bears the bulk of its litigation costs, including attorney’s fees. The universal practice in federal courts is to limit any broader recovery, beyond the narrow costs taxable under Section 1920, to cases in which Congress explicitly has authorized a broader award. The issue in this case is whether the language in Section 505 authorizing an award of “full” costs is enough to justify courts in going beyond that standard to award nontaxable costs.

The questioning was remarkably desultory, particularly during the presentation of Mark Perry, who appeared on behalf of the defendant, Rimini, to seek reversal of the broad award of costs. For the most part, the justices blandly asked counsel to respond to the arguments of the other side. Only two of the justices spoke with sufficient incisiveness to suggest a strong perspective on the case.

On the textual question, Justice Elena Kagan was particularly unreceptive to the argument of Paul Clement, representing Oracle and thus seeking to defend the broad award of costs. After Clement agreed with Kagan that the sole basis for the argument was the insertion of the word “full” as a modifier of costs, she retorted, “So we decided a case earlier this year on the basis of the legal proposition that adjectives modify nouns.” Presumably she was referring to the opinion of Chief Justice John Roberts for a unanimous Court in Weyerhauser Co. v US Fish & Wildlife Service. Interpreting a reference to “critical habitat” in that case, Roberts explained:

According to the ordinary understanding of how adjectives work, “critical habitat” must also be “habitat.” Adjectives modify nouns—they pick out a subset of a category that possesses a certain quality. It follows that “critical habitat” is the subset of “habitat” that is “critical” to the conservation of an endangered species.

Applied here, Kagan suggested, that analysis should “kill you…. In other words, ‘full’ can only modify costs as defined in 1920.” Continuing to press the point, she explained:

You said, if [the statute] just said costs, we would all understand that it was the term of art [referring to costs taxable under Section 1920]. And then you say that by adding the word “full,” … you want to use the word “full” to suggest that it’s not the 1920 costs we’re talking about at all. It’s some different kind of costs.

Justice Sonia Sotomayor was similarly unreceptive, though for more practical reasons. For her, the problem with Clement’s reading of Section 505 was that it was “so open-ended that I don’t have a way for judges to exercise their discretion in a reasonable manner.” Ridiculing the likely consequences, she suggested that courts commonly would authorize awards to cover the costs of “the babysitter for the witness who has to come to court” or even “experts like a body language reader.”

Although it probably sheds little light on the likely outcome, I should mention what strikes me as the most interesting part of the argument, an interchange between Perry and Sotomayor early in the argument. Perry was trying to make the point that Clement’s argument would fly in the face of traditional practice in copyright cases, which until this recent dispute arose had not involved an award of nontaxable costs. At one point, he asserted that “[f]rom 1831 to 1976, there are 858 copyright cases awarding costs. Not one case has ever awarded any cost not on a statutory schedule under either state law or federal law.” Sotomayor called him on the assertion, apparently not set out in Perry’s brief: “Could you point me to where in your brief or an amici accounted for those 800 cases?” Perry, clearly armed for the point, explained that “[w]e [had] pointed out in the reply brief that my friends on the other side and all of their amici had not cited a single case on their point. And to confirm that we were right, I went through and had my team read every single one of them.”

I have little reason to think the justices will regard Rimini Street as one of their weightier matters. My strong impression from the argument is that we should expect a consensus limiting the permissible costs to the traditional “taxed” costs set out in Section 1920, and that we should expect an early opinion explaining that result.

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No action on blockbuster cases

No action on blockbuster casesThis morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not […]

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No action on blockbuster cases

This morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not do: The justices did not act on a long list of high-profile cases that they considered last week, involving everything from abortion to the Trump administration’s ban on service in the military by most transgender people.

The justices asked the U.S. solicitor general to weigh in on three cases, two of which are related. Alabama Department of Revenue v. CSX Transportation and CSX Transportation v. Alabama Department of Revenue are the latest chapter in a long-running battle over taxes that the state levies on diesel fuel for railroads – but not barges. The Supreme Court has already reviewed the case twice, in 2010 and again in 2015. In Toshiba Corp. v. Automotive Industries Pension Fund, the solicitor general will provide the government’s views on the reach of federal securities laws when a securities-fraud claim is based on a transaction in the United States but otherwise generally involves foreign conduct.

The justices sent the case of Kentucky death-row inmate Larry White – who was convicted in 2006 and sentenced to death for the 1983 sexual assault and murder of Pamela Armstrong, a young mother of five – back to the state court for reconsideration. The Armstrong case was cold until 2004, but when it was reopened police learned that White had been a suspect during the original investigation and had later been convicted of killing two other women around the same time and in the same place as Armstrong. Police were eventually able to link White to the crime through DNA that they obtained from a cigar that fell on the ground when police pulled over a car in which White was a passenger and patted him down.

After the Kentucky Supreme Court upheld his conviction and sentence, White asked the U.S. Supreme Court to review two questions. The first was whether he should have been allowed to present evidence of his intellectual disability beyond his score of 76 on one IQ test; the second was whether the traffic stop from which officers obtained the DNA evidence was unconstitutional (so that the evidence cannot be admitted against White) because the officers never followed through with their investigation of the traffic violation that triggered the stop.

Today the justices sent the case back to the Kentucky Supreme Court, ordering the state court to take another look at White’s case in light of the U.S. Supreme Court’s 2017 ruling in Moore v. Texas, in which the justices threw out a Texas death-row inmate’s sentence on the ground that the state court had used the wrong standards to conclude that the inmate was not intellectually disabled. Justice Samuel Alito dissented from the court’s decision to send the case back, in a brief opinion that was joined by Justices Clarence Thomas and Neil Gorsuch. Referring to an earlier opinion as well as one by the late Justice Antonin Scalia, Alito stressed that because the U.S. Supreme Court’s decision in Moore predated the Kentucky Supreme Court’s decision by “almost five months,” it is not an “intervening factor” that, in his view, would justify sending the case back: He would have simply denied review.

The justices also denied review in the case of Barry Michaels, who had challenged the federal ban on gun possession by convicted felons. When Michaels filed his petition for review in June, the lead respondent in the case was Jeff Sessions, then the attorney general of the United States. As law professor Steve Vladeck explained in November, Michaels later filed a motion seeking to have deputy attorney general Rod Rosenstein, rather than Matthew Whitaker, whom the president has named as the acting attorney general, substituted for Sessions, on the ground that the federal law governing vacancies in the executive branch does not trump another law outlining the order of succession for officials in the Department of Justice. Today the justices denied both the motion to substitute and the petition for review without comment.

The cases on which the justices did not act today include a challenge to the exclusion of churches from public funds for historic preservation; a challenge to an Indiana law that requires fetal remains to be cremated or buried and bars abortions based on the race, sex or disability of the fetus; a challenge to a New York City law restricting the transport of guns outside the city limits; a trio of cases asking the justices to weigh in on whether federal employment-discrimination laws protect LGBTQ employees; a challenge to the Trump administration’s decision to end DACA, a program that allowed undocumented immigrants who came to the United States as children to apply for temporary protection from deportation; and a challenge to the effective ban on transgender service members. The justices will likely consider these cases again at their conference on Friday, January 18, and could announce new grants from that conference as early as Friday afternoon. After that, the justices’ next conference is not until Friday, February 15, at which point any new cases would normally be scheduled for oral argument in the fall.

This post was originally published at Howe on the Court.

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

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Past case linked to in this post: Moore v. Texas, 137 S. Ct. 1039 (2017)

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Eight new grants, Ginsburg recovery from surgery “on track”

Eight new grants, Ginsburg recovery from surgery “on track”One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg […]

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Eight new grants, Ginsburg recovery from surgery “on track”

One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg would not require any further treatment. Ginsburg’s recovery from surgery is “on track,” Supreme Court spokeswoman Kathleen Arberg said in a statement, although the justice will miss next week’s oral argument, participating in the cases by reading the briefs and transcripts of oral arguments, as she did this week.

Meanwhile, the justices issued orders from their private conference today, adding eight new cases to their merits docket. The issues in the cases included everything from the constitutionality of a Wisconsin law that allows law enforcement to draw blood from an unconscious motorist to when the statute of limitations begins to run for federal civil rights claims based on the fabrication of evidence in criminal proceedings. The list of grants did not, however, include some of the high-profile cases that the justices considered this morning, involving issues such as abortion, gun rights, the Trump administration’s decision to end the “Deferred Action for Childhood Arrivals” program, the ban on transgender servicemembers in the military and whether federal employment discrimination laws protect LGBTQ employees.

In Rehaif v. United States, the justices agreed to decide whether, when the government prosecutes a noncitizen who is in the United States illegally for violating a federal law prohibiting him from having guns or ammunition, the government must show that the defendant knew he was in the country illegally, or whether it is enough to show that the defendant knew he had the guns or ammunition.

The question arose in the case of Hamid Mohamed Ahmed Ali Rehaif, a citizen of the United Arab Emirates, who came to the United States on a student visa but was dismissed from school – and, as a result, was no longer in the country legally. Several months later, Rehaif was arrested and charged with having ammunition in his hotel room; he was convicted and sentenced to 18 months in prison. The U.S. Court of Appeals for the 11th Circuit upheld Rehaif’s sentence, rejecting his argument that he could only be convicted if he knew that he was in the country illegally.

In Mitchell v. Wisconsin, the justices will rule on the constitutionality of a state law allowing law-enforcement officials to draw blood from unconscious drivers without a warrant. The petitioner in the case, Gerald Mitchell, was arrested for driving while intoxicated. A preliminary breath test indicated that Mitchell had a blood-alcohol concentration of 0.24; when police took Mitchell to the hospital because he had passed out, a blood test revealed a blood-alcohol concentration of 0.222.

When Mitchell went to court, he argued that the blood-test results should not be admitted because police had not gotten a warrant before drawing the blood – a violation, he said, of the Fourth Amendment. After the Wisconsin Supreme Court upheld the blood test, Mitchell asked the U.S. Supreme Court to weigh in. The fact that Wisconsin law authorized the blood test, on the theory that Mitchell had consented to the test by getting behind the wheel, does not make the law constitutional, he contended.

McDonough v. Smith is the first of two granted cases today filed by former acting solicitor general Neal Katyal. The question in McDonough is when the statute of limitations begins to run for a federal civil rights claims alleging that prosecutors fabricated evidence in a criminal proceeding – when the defendant is cleared of wrongdoing, or when he should have known that the evidence was fabricated? The question arises in the case of Edward McDonough, a former election official in New York, who was indicted on 74 felony counts alleging that he had been involved in the forgery of absentee-ballot applications and absentee ballots. McDonough was acquitted in 2012 and filed a lawsuit less than three years later. But a federal trial court concluded that his lawsuit came too late, because the statute of limitations for his fabrication-of-evidence claim begin to run long before he was acquitted, when he knew or should have known that the evidence was manufactured. A federal appeals court upheld that ruling, and today the Supreme Court agreed to weigh in.

Fort Bend County v. Davis is Katyal’s second grant today. Before filing a lawsuit under Title VII of the Civil Rights Act of 1964, an employee who alleges that she has been the victim of employment discrimination must first go to the federal Equal Employment Opportunity Commission. The question that the justices agreed to review today is whether federal courts have the power to review Title VII claims if the employee did not file a charge with the EEOC, or whether Title VII’s requirement that a plaintiff go to the EEOC first is instead what is known as a “claim-processing rule” – a rule requiring someone to take specific steps, often to promote order – that can be waived or forfeited.

In Food Marketing Institute v. Argus Leader Media, the justices will consider the meaning of the term “confidential” in the Freedom of Information Act, which protects from disclosure all “confidential” private-sector “commercial or financial information” in the government’s possession, In particular, the justices will decide whether the government should withhold any commercial or financial information that is not publicly disseminated, or whether the entity opposing disclosure of information must show that the disclosure would likely cause substantial competitive harm.

The case arose when a South Dakota newspaper, the Argus Leader, tried to get data about the federal food stamp program. The U.S. Department of Agriculture, which runs the program, refused to turn over data about food stamp sales at specific stores, but the district court ordered it to release the data, concluding that any harm to the stores was “speculative at best.” The Food Marketing Institute entered the case to appeal that ruling after USDA declined to do so, and the U.S. Court of Appeals for the 8th Circuit affirmed.

In another of today’s grants, Quarles v. United States, the justices will decide a case involving the timing of the intent required to commit burglary for purposes of a “violent felony” under Armed Career Criminal Act: Do prosecutors need to prove that the defendant intended to commit a crime when he first entered the building where the burglary occurred, or is it enough that the defendant decided to commit the burglary at some point while he was in the building?

In Parker Drilling Management Services v. Newton, the justices will decide whether California’s overtime and wage laws apply to drilling rigs on the outer continental shelf under the Outer Continental Shelf Lands Act.

And in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the justices will decide whether the Constitution’s due process clause bars a state from taxing trusts when beneficiaries of the trust are in-state residents. Urging the Supreme Court to take the case, the state stressed that over “$120 billion of our nation’s income flows through trusts,” making them a “vital source of tax revenue for the states.”

More orders from today’s conference are expected on Monday, January 14, at 9:30 a.m. The justices will meet again for their next conference on Friday, January 18, and could add more cases to their merits docket that day. After that, the justices’ next regularly scheduled conference is not until Friday, February 15.

This post was originally published at Howe on the Court.

[Disclosure: The law firm of Vinson & Elkins, LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Quarles and is also among the counsel on an amicus brief in support of the petitioner in Food Marketing Institute and Parker Drilling, but the author of this post is not affiliated with the firm.]

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Eight new grants, Ginsburg recovery from surgery “on track”

Eight new grants, Ginsburg recovery from surgery “on track”One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg […]

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Eight new grants, Ginsburg recovery from surgery “on track”

One day after Politico reported that White House officials were preparing for the possible “death or departure” of Justice Ruth Bader Ginsburg, who had surgery in late December to remove two cancerous growths from her lungs, the Supreme Court announced today that there was no evidence of any other cancer, and that the 85-year-old Ginsburg would not require any further treatment. Ginsburg’s recovery from surgery is “on track,” Supreme Court spokeswoman Kathleen Arberg said in a statement, although the justice will miss next week’s oral argument, participating in the cases by reading the briefs and transcripts of oral arguments, as she did this week.

Meanwhile, the justices issued orders from their private conference today, adding eight new cases to their merits docket. The issues in the cases included everything from the constitutionality of a Wisconsin law that allows law enforcement to draw blood from an unconscious motorist to when the statute of limitations begins to run for federal civil rights claims based on the fabrication of evidence in criminal proceedings. The list of grants did not, however, include some of the high-profile cases that the justices considered this morning, involving issues such as abortion, gun rights, the Trump administration’s decision to end the “Deferred Action for Childhood Arrivals” program, the ban on transgender servicemembers in the military and whether federal employment discrimination laws protect LGBTQ employees.

In Rehaif v. United States, the justices agreed to decide whether, when the government prosecutes a noncitizen who is in the United States illegally for violating a federal law prohibiting him from having guns or ammunition, the government must show that the defendant knew he was in the country illegally, or whether it is enough to show that the defendant knew he had the guns or ammunition.

The question arose in the case of Hamid Mohamed Ahmed Ali Rehaif, a citizen of the United Arab Emirates, who came to the United States on a student visa but was dismissed from school – and, as a result, was no longer in the country legally. Several months later, Rehaif was arrested and charged with having ammunition in his hotel room; he was convicted and sentenced to 18 months in prison. The U.S. Court of Appeals for the 11th Circuit upheld Rehaif’s sentence, rejecting his argument that he could only be convicted if he knew that he was in the country illegally.

In Mitchell v. Wisconsin, the justices will rule on the constitutionality of a state law allowing law-enforcement officials to draw blood from unconscious drivers without a warrant. The petitioner in the case, Gerald Mitchell, was arrested for driving while intoxicated. A preliminary breath test indicated that Mitchell had a blood-alcohol concentration of 0.24; when police took Mitchell to the hospital because he had passed out, a blood test revealed a blood-alcohol concentration of 0.222.

When Mitchell went to court, he argued that the blood-test results should not be admitted because police had not gotten a warrant before drawing the blood – a violation, he said, of the Fourth Amendment. After the Wisconsin Supreme Court upheld the blood test, Mitchell asked the U.S. Supreme Court to weigh in. The fact that Wisconsin law authorized the blood test, on the theory that Mitchell had consented to the test by getting behind the wheel, does not make the law constitutional, he contended.

McDonough v. Smith is the first of two granted cases today filed by former acting solicitor general Neal Katyal. The question in McDonough is when the statute of limitations begins to run for a federal civil rights claims alleging that prosecutors fabricated evidence in a criminal proceeding – when the defendant is cleared of wrongdoing, or when he should have known that the evidence was fabricated? The question arises in the case of Edward McDonough, a former election official in New York, who was indicted on 74 felony counts alleging that he had been involved in the forgery of absentee-ballot applications and absentee ballots. McDonough was acquitted in 2012 and filed a lawsuit less than three years later. But a federal trial court concluded that his lawsuit came too late, because the statute of limitations for his fabrication-of-evidence claim begin to run long before he was acquitted, when he knew or should have known that the evidence was manufactured. A federal appeals court upheld that ruling, and today the Supreme Court agreed to weigh in.

Fort Bend County v. Davis is Katyal’s second grant today. Before filing a lawsuit under Title VII of the Civil Rights Act of 1964, an employee who alleges that she has been the victim of employment discrimination must first go to the federal Equal Employment Opportunity Commission. The question that the justices agreed to review today is whether federal courts have the power to review Title VII claims if the employee did not file a charge with the EEOC, or whether Title VII’s requirement that a plaintiff go to the EEOC first is instead what is known as a “claim-processing rule” – a rule requiring someone to take specific steps, often to promote order – that can be waived or forfeited.

In Food Marketing Institute v. Argus Leader Media, the justices will consider the meaning of the term “confidential” in the Freedom of Information Act, which protects from disclosure all “confidential” private-sector “commercial or financial information” in the government’s possession, In particular, the justices will decide whether the government should withhold any commercial or financial information that is not publicly disseminated, or whether the entity opposing disclosure of information must show that the disclosure would likely cause substantial competitive harm.

The case arose when a South Dakota newspaper, the Argus Leader, tried to get data about the federal food stamp program. The U.S. Department of Agriculture, which runs the program, refused to turn over data about food stamp sales at specific stores, but the district court ordered it to release the data, concluding that any harm to the stores was “speculative at best.” The Food Marketing Institute entered the case to appeal that ruling after USDA declined to do so, and the U.S. Court of Appeals for the 8th Circuit affirmed.

In another of today’s grants, Quarles v. United States, the justices will decide a case involving the timing of the intent required to commit burglary for purposes of a “violent felony” under Armed Career Criminal Act: Do prosecutors need to prove that the defendant intended to commit a crime when he first entered the building where the burglary occurred, or is it enough that the defendant decided to commit the burglary at some point while he was in the building?

In Parker Drilling Management Services v. Newton, the justices will decide whether California’s overtime and wage laws apply to drilling rigs on the outer continental shelf under the Outer Continental Shelf Lands Act.

And in North Carolina Department of Revenue v. Kimberley Rice Kaestner 1992 Family Trust, the justices will decide whether the Constitution’s due process clause bars a state from taxing trusts when beneficiaries of the trust are in-state residents. Urging the Supreme Court to take the case, the state stressed that over “$120 billion of our nation’s income flows through trusts,” making them a “vital source of tax revenue for the states.”

More orders from today’s conference are expected on Monday, January 14, at 9:30 a.m. The justices will meet again for their next conference on Friday, January 18, and could add more cases to their merits docket that day. After that, the justices’ next regularly scheduled conference is not until Friday, February 15.

This post was originally published at Howe on the Court.

[Disclosure: The law firm of Vinson & Elkins, LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in Quarles and is also among the counsel on an amicus brief in support of the petitioner in Food Marketing Institute and Parker Drilling, but the author of this post is not affiliated with the firm.]

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Book review: “Ruth Bader Ginsburg”: The evolution of a justice

Book review: “Ruth Bader Ginsburg”: The evolution of a justiceOne might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and […]

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Book review: “Ruth Bader Ginsburg”: The evolution of a justice

One might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and a recent feature film, “On the Basis of Sex,” which focuses on the first sex-discrimination case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,” by Jane Sherron De Hart, a retired professor of history at the University of California, Santa Barbara. This book began as a research project examining Ginsburg’s early career as a women’s-rights litigator at the American Civil Liberties Union, and it expanded into a full-length biography (540 pages of text and 110 pages of footnotes).

Ginsburg spoke at length to the author during the early, limited part of the project, but she curtailed her cooperation later, likely because an authorized biography was (and remains) in the works. Whether because of De Hart’s own initial interest or the benefits of consultation with Ginsburg, the book is strongest when it focuses on Ginsburg’s early life and her work before her appointment to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. Readers will meet straight-A student and Brooklyn baton-twirler “Kiki” Bader, whose mother Celia died of cancer two days before Kiki’s high-school graduation. They will shake their heads at the notion that Ginsburg, although graduating at the top of her class from Columbia Law School, was offered a clerkship with a federal judge only after her law professor Gerald Gunther offered to substitute another (presumably male) candidate if Ginsburg did not pan out. And they will be touched by Ginsburg’s enduring partnership with her husband, Marty, who, as Ginsburg has said, “believed in me more than I believed in myself.”

Some of De Hart’s most valuable insights come in her account of how Ginsburg, who, in an effort “not [to] be considered confrontational,” responded to Harvard Law School Dean Erwin Griswold’s query about why she was occupying a place in the first-year class that could have gone to a man by saying it was important for her to “understand her husband’s work,” came to espouse women’s rights so whole-heartedly. De Hart traces some through lines that help explain how Ginsburg developed the ideas of equality that informed her determination to secure equal treatment for women under the law. Notable among these was a fortuitous sojourn in Sweden to research Swedish civil procedure. Ginsburg was struck by “the greater gender equality Swedes enjoyed” and by Swedish theorists’ and social scientists’ contention that “culturally constructed roles – stereotypical assumptions about the proper role of men and women – imposed constraints on both sexes that penalized individuals and impoverished society.”

Ginsburg’s experiences in Sweden, coupled with the sexism she had experienced and the influence of feminist writers like Simone de Beauvoir, prompted her to helm the ACLU’s new Women’s Rights Project. Her analytical tenacity, single-minded focus on work, meticulous planning, and uncompromisingly high standards enabled her to devise and carry out her goals successfully. De Hart offers detailed accounts of the series of cases through which Ginsburg succeeded in persuading the Supreme Court to raise the standard of review for laws that treated men and women differently based on damaging stereotypes about gender roles. She observes, as have others before her, that Ginsburg’s incremental approach – building in small steps on early cases with sympathetic plaintiffs, often men – was modeled on Justice Thurgood Marshall’s strategy of combating racial discrimination as a litigator for the NAACP. But she also highlights the pitfalls of equating gender discrimination with racial discrimination, particularly as an increasingly conservative Supreme Court began to insist on a “color blind” approach to the Constitution that subjected affirmative action programs to strict scrutiny.

Readers familiar with the pop-culture trope of Ginsburg as a fearless champion of liberal ideals may be surprised by De Hart’s reminder that the justice’s nomination was almost forestalled by her criticism of Roe v. Wade, which she publicly suggested may have done abortion rights a disservice by, among other things, leapfrogging legislative change and prompting a powerful political backlash. De Hart exposes the rifts within the feminist movement that led President Bill Clinton to respond, when Ginsburg’s name was first floated, that “the women are against her.”

De Hart’s account of Ginsburg’s years on the Supreme Court, though detailed and methodical, is less compelling, perhaps because De Hart had to rely on oral argument transcripts and opinions instead of interviews and the contemporaneous documents of the justices, most of which are not publicly available. Also evident in this section of the book is De Hart’s unhappiness with the conservative bent of the current Supreme Court. Although this ideological stance is not surprising given the clear respect for Ginsburg’s work that led De Hart to write this book, the author’s stridency sometimes detracts from her analysis.

These criticisms aside, De Hart offers the reader a comprehensive tour of Ginsburg’s Supreme Court career. She catalogs the justice’s occasional victories, like United States v. Virginia, in which Ginsburg wrote a majority opinion striking down the Virginia Military Institute’s male-only admission policy, and her more frequent setbacks. Those setbacks spurred Ginsburg to write the strong dissents that inspired her pop-culture persona, the “Notorious RBG.” Court-watchers humorously compared her scathing critique of the conservative majority’s decision in a landmark voting-rights case to Biggie Smalls’ biting rap lyrics. The rest is history – and shelves full of RBG merchandise.

A central question in the book is how a tiny, soft-spoken civil-procedure maven memorably described by Justice Harry Blackmun after an oral argument as a “very precise female” became a progressive icon. To some degree, this apparent contradiction simply reflects the differing facets of the justice’s personality: She is a detail-oriented workaholic who is moved to tears by grand opera, an ambitious achiever who delights in friends and family, and a rule-follower willing to rewrite the rules to correct injustice. In another sense, Ginsburg’s perceived evolution from “a woman for whom the word ‘moderate’ dangled from her wrist like an ID bracelet” to the inspiration for a Kickstarter-funded action figure is a function of the increasing conservatism of the Supreme Court. Yesterday’s New Deal moderate is today’s left-wing dissenter. In the immortal words of Norma Desmond in “Sunset Boulevard” – whom Ginsburg otherwise resembles only in her fondness for wearing turbans – “I am big. It’s the pictures that got small.”

The author of this book review clerked for Ginsburg from 1989-1990 on the U.S. Court of Appeals for the District of Columbia Circuit and testified before the Senate Judiciary Committee in support of Ginsburg’s nomination to the Supreme Court in 1993.

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Book review: “Ruth Bader Ginsburg”: The evolution of a justice

Book review: “Ruth Bader Ginsburg”: The evolution of a justiceOne might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and […]

The post Book review: “Ruth Bader Ginsburg”: The evolution of a justice appeared first on SCOTUSblog.

Book review: “Ruth Bader Ginsburg”: The evolution of a justice

One might think that the market for treatments of the life and legacy of Justice Ruth Bader Ginsburg would be saturated by now. The past three years alone have seen the release of a carefully curated collection of the justice’s writings, “My Own Words,” a surprise hit documentary about her life and career, “RBG,” and a recent feature film, “On the Basis of Sex,” which focuses on the first sex-discrimination case Ginsburg argued in federal court. Now comes “Ruth Bader Ginsburg: A Life,” by Jane Sherron De Hart, a retired professor of history at the University of California, Santa Barbara. This book began as a research project examining Ginsburg’s early career as a women’s-rights litigator at the American Civil Liberties Union, and it expanded into a full-length biography (540 pages of text and 110 pages of footnotes).

Ginsburg spoke at length to the author during the early, limited part of the project, but she curtailed her cooperation later, likely because an authorized biography was (and remains) in the works. Whether because of De Hart’s own initial interest or the benefits of consultation with Ginsburg, the book is strongest when it focuses on Ginsburg’s early life and her work before her appointment to the U.S. Court of Appeals for the District of Columbia Circuit in 1980. Readers will meet straight-A student and Brooklyn baton-twirler “Kiki” Bader, whose mother Celia died of cancer two days before Kiki’s high-school graduation. They will shake their heads at the notion that Ginsburg, although graduating at the top of her class from Columbia Law School, was offered a clerkship with a federal judge only after her law professor Gerald Gunther offered to substitute another (presumably male) candidate if Ginsburg did not pan out. And they will be touched by Ginsburg’s enduring partnership with her husband, Marty, who, as Ginsburg has said, “believed in me more than I believed in myself.”

Some of De Hart’s most valuable insights come in her account of how Ginsburg, who, in an effort “not [to] be considered confrontational,” responded to Harvard Law School Dean Erwin Griswold’s query about why she was occupying a place in the first-year class that could have gone to a man by saying it was important for her to “understand her husband’s work,” came to espouse women’s rights so whole-heartedly. De Hart traces some through lines that help explain how Ginsburg developed the ideas of equality that informed her determination to secure equal treatment for women under the law. Notable among these was a fortuitous sojourn in Sweden to research Swedish civil procedure. Ginsburg was struck by “the greater gender equality Swedes enjoyed” and by Swedish theorists’ and social scientists’ contention that “culturally constructed roles – stereotypical assumptions about the proper role of men and women – imposed constraints on both sexes that penalized individuals and impoverished society.”

Ginsburg’s experiences in Sweden, coupled with the sexism she had experienced and the influence of feminist writers like Simone de Beauvoir, prompted her to helm the ACLU’s new Women’s Rights Project. Her analytical tenacity, single-minded focus on work, meticulous planning, and uncompromisingly high standards enabled her to devise and carry out her goals successfully. De Hart offers detailed accounts of the series of cases through which Ginsburg succeeded in persuading the Supreme Court to raise the standard of review for laws that treated men and women differently based on damaging stereotypes about gender roles. She observes, as have others before her, that Ginsburg’s incremental approach – building in small steps on early cases with sympathetic plaintiffs, often men – was modeled on Justice Thurgood Marshall’s strategy of combating racial discrimination as a litigator for the NAACP. But she also highlights the pitfalls of equating gender discrimination with racial discrimination, particularly as an increasingly conservative Supreme Court began to insist on a “color blind” approach to the Constitution that subjected affirmative action programs to strict scrutiny.

Readers familiar with the pop-culture trope of Ginsburg as a fearless champion of liberal ideals may be surprised by De Hart’s reminder that the justice’s nomination was almost forestalled by her criticism of Roe v. Wade, which she publicly suggested may have done abortion rights a disservice by, among other things, leapfrogging legislative change and prompting a powerful political backlash. De Hart exposes the rifts within the feminist movement that led President Bill Clinton to respond, when Ginsburg’s name was first floated, that “the women are against her.”

De Hart’s account of Ginsburg’s years on the Supreme Court, though detailed and methodical, is less compelling, perhaps because De Hart had to rely on oral argument transcripts and opinions instead of interviews and the contemporaneous documents of the justices, most of which are not publicly available. Also evident in this section of the book is De Hart’s unhappiness with the conservative bent of the current Supreme Court. Although this ideological stance is not surprising given the clear respect for Ginsburg’s work that led De Hart to write this book, the author’s stridency sometimes detracts from her analysis.

These criticisms aside, De Hart offers the reader a comprehensive tour of Ginsburg’s Supreme Court career. She catalogs the justice’s occasional victories, like United States v. Virginia, in which Ginsburg wrote a majority opinion striking down the Virginia Military Institute’s male-only admission policy, and her more frequent setbacks. Those setbacks spurred Ginsburg to write the strong dissents that inspired her pop-culture persona, the “Notorious RBG.” Court-watchers humorously compared her scathing critique of the conservative majority’s decision in a landmark voting-rights case to Biggie Smalls’ biting rap lyrics. The rest is history – and shelves full of RBG merchandise.

A central question in the book is how a tiny, soft-spoken civil-procedure maven memorably described by Justice Harry Blackmun after an oral argument as a “very precise female” became a progressive icon. To some degree, this apparent contradiction simply reflects the differing facets of the justice’s personality: She is a detail-oriented workaholic who is moved to tears by grand opera, an ambitious achiever who delights in friends and family, and a rule-follower willing to rewrite the rules to correct injustice. In another sense, Ginsburg’s perceived evolution from “a woman for whom the word ‘moderate’ dangled from her wrist like an ID bracelet” to the inspiration for a Kickstarter-funded action figure is a function of the increasing conservatism of the Supreme Court. Yesterday’s New Deal moderate is today’s left-wing dissenter. In the immortal words of Norma Desmond in “Sunset Boulevard” – whom Ginsburg otherwise resembles only in her fondness for wearing turbans – “I am big. It’s the pictures that got small.”

The author of this book review clerked for Ginsburg from 1989-1990 on the U.S. Court of Appeals for the District of Columbia Circuit and testified before the Senate Judiciary Committee in support of Ginsburg’s nomination to the Supreme Court in 1993.

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Relist Watch Returns

Relist Watch ReturnsJohn Elwood reviews the first relists of 2019. Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still lazily finishing off […]

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Relist Watch Returns

John Elwood reviews the first relists of 2019.

Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still lazily finishing off their fruit baskets. On January 4, the court gave plenary review to the Maryland and North Carolina political-gerrymandering cases and set them for expedited briefing so they could be heard in the March sitting. And at the same time, the justices granted certiorari to review four cases – none of them relisted – that will likely be the first cases on the court’s April argument calendar. The court also got busy with all the serial relists identified in our last installment. True to the statistics, none of those repeated relists led to grants, just summary vacaturs and dissents from denial of cert.

A full April calendar would probably consist of around 12 cases, which means the court is looking for something in the neighborhood of eight more cases to round out the last of the October Term 2018 arguments. Some cases considered at the court’s January 18 conference could squeeze in to the tail end of the April argument sitting by shaving a few days off the 30 days petitioners ordinarily would have to file reply briefs. But this Friday’s conference is where the court is likely to decide on the bulk of the April sitting.

Luckily for law nerds everywhere, the court has plenty to work with – the court has relisted a whopping 19 new cases this week, joining the seven returning relists. This is such a high-traffic area that I’ll have to be a little summary in describing the cases.

There are a ton of important cases at this conference. But there’s no question which of the relists have gotten the most attention – and which hold out the most promise of helping to make October Term 2018 noteworthy. Bostock v. Clayton County, Georgia, 17-1618, and Altitude Express Inc. v. Zarda, 17-1623, raise the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964. R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107, raises the related question of whether that prohibition includes a person’s gender identity so as to protect people from discrimination based on their transgender status.

You have your choice of hot-button issues after that. Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483, involves the constitutionality of an Indiana law prohibiting abortions performed solely because of the race, sex or disability of the fetus, and also requiring facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation, rather than as medical waste. The U.S. Court of Appeals for the 7th Circuit enjoined those laws by a 2-1 vote. The appeals court voted for rehearing en banc, but then reinstated the panel decision when one judge who had voted for rehearing recused himself, leaving the court equally divided.

New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280, is similarly high-profile. That case involves a challenge to the constitutionality of New York City’s law that regulates where a handgun owner can carry their handgun. It limits them to possessing their gun at the address listed on their handgun license, with the sole exception of transporting the gun “directly to and from” one of approximately seven “authorized small arms range/shooting club[s], unloaded, in a locked container, the ammunition to be carried separately.” The challengers, represented by former Solicitor General Paul Clement, argue that the transport restrictions violate the Second Amendment, the commerce clause and the constitutional right to travel, noting that the restrictions would even prevent a handgun owner from transporting their gun to a second home outside the city for purposes of protecting themselves within the home. We’ll see whether this becomes the first gun-rights case the court takes up in many years or whether the Second Amendment remains (in Justice Clarence Thomas’ words) “a disfavored right in this Court.”

Sexual orientation/gender identity, abortion and guns – I have this nagging feeling that we haven’t quite hit every divisive topic yet. Oh yes, we still need religion. Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364, and The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365, will take care of that. Those cases involve Morris County, New Jersey’s preservation grants for historic buildings. A state court interpreted the New Jersey state constitution to forbid using public funds to repair or restore churches, however historic they are. The court rejected the argument that the First Amendment prohibits excluding houses of worship from generally available preservation funds earmarked for repairing or restoring historic buildings. Morris County’s Board of Chosen Freeholders and a group of affected churches seek to revisit that ruling. The ubiquitous Erwin Chemerinsky, dean of Berkeley Law School, has made time to represent respondents the Freedom from Religion Foundation.

The hits just keep coming. Aaron Schock was a political wunderkind in Illinois politics, becoming at 19 the youngest person serving on a school board in Illinois, at 23 the youngest person ever to serve in the Illinois General Assembly, and at 27 the youngest member of Congress and the first-ever member born in the 1980s. Schock resigned from Congress in 2015 amidst press allegations of spending and financial-disclosure irregularities, and in 2016 was charged with misuse of government funds and related charges. Schock moved to dismiss the indictment on the ground that the charges were based on supposed violations of ambiguous House of Representatives rules, which he argued violated the Constitution’s rulemaking clause and the speech-or-debate clause. The district court rejected the motion. On appeal, the 7th Circuit ruled that it lacked jurisdiction to review an interlocutory appeal of a rulemaking clause claim; although the court acknowledged it had jurisdiction over an interlocutory appeal of Schock’s speech-or-debate-clause claim, the court rejected that argument on the merits. In Schock v. United States, 18-406, the former congressman argues that the 7th Circuit erred.

We have a couple more juicy constitutional issues. Ramos v. Louisiana, 18-5924, presents the question whether the 14th Amendment incorporates the Sixth Amendment guarantee of a unanimous verdict in criminal cases. In Apodaca v. Oregon, the Supreme Court concluded that the Sixth Amendment required that juries convict by a unanimous vote, but concluded that this requirement does not apply to the states; accordingly, a state criminal defendant may lawfully be convicted based on (for example) a 9-3 vote. As Professor Eugene Volokh has explained, “Apodaca was a 4-1-4 decision, in which both of the groups of 4 Justices took the view that the rule should be the same for federal and state trials. Only one Justice, Lewis Powell, believed that the rule should differ; but since he was the swing vote, his position became the law.” In October Term 2010, Volokh asked the court to overrule Apodaca. Back then, the Supreme Court denied the petition without even relisting it. We’ll know soon whether Evangelisto Ramos has any more luck. Given Justice Neil Gorsuch’s reaction during the recent argument in Timbs v. Indiana to the idea that portions of the Bill of Rights would not be incorporated against the states (“Really? Come on, General.”), he might.

That brings us to Mitchell v. Wisconsin, 18-6210. Wisconsin has enacted an “implied consent” law that provides that “[a]ny person who … drives or operates a motor vehicle upon the public highways of this state … is deemed to have given consent to one or more tests of his or her breath, blood or urine” for purposes of determining the presence of alcohol or controlled substances in their system. The same law also provides that “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent,” which as a practical matter allows the state to draw an unconscious person’s blood if the police have probable cause to suspect drunk driving. Petitioner Gerald Mitchell argues that by allowing warrantless blood draws, the statute violates the Fourth Amendment’s warrant requirement.

Quarles v. United States, 17-778, United States v. Herrold, 17-1445, Secord v. United States, 17-7224, Ferguson v. United States, 17-7496, and Moore v. United States, 17-8153, all present the same issue. The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a mandatory 15-year prison term upon any convicted felon who unlawfully possesses a firearm and who has three or more prior convictions for any “violent felony,” which includes any felony burglary conviction. In Taylor v. United States, the Supreme Court held that Section 924(e) uses the term “burglary” in its generic sense, to cover any crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” All four cases ask whether Taylor’s definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure. (Herrold v. United States, 17-9127, is a conditional cross-petition that raises related issues.)

The government has conceded that there is a split and acquiesced in Supreme Court review of Quarles, which it said was a better vehicle than Secord, Ferguson and Moore. This seems like a good time for a [Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in that case]. Later, the government filed its own petition in Herrold, and said that perhaps that was the vehicle the court should take, or it should take both that and Quarles. The court is widely believed to be experiencing a bit of “ACCA fatigue” because of the large number of cases it has decided in recent years involving that statute. Perhaps for that reason, it held these cases pending the decision in United States v. Stitt in the hopes that Stitt (involving whether burglary of a structure or vehicle adapted or customarily used for overnight accommodation was “generic burglary”) would shed light upon them. It didn’t. We’ll know soon whether the court will look into the meaning of ACCA once again.

I’m going to have to get a bit summary here if we’re going to finish this post before the court starts issuing grants. McDonough v. Smith, 18-485, involves the statute of limitations for a claim under 42 U.S.C. § 1983 based on fabrication of evidence in criminal proceedings; it asks whether the statute begins to run when criminal proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held in Edward McDonough’s case. North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, 18-457, asks whether the due process clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency. Lastly, Parker Drilling Management Services, Ltd. v. Newton, 18-389, involves whether California state overtime and wage laws apply to drilling rigs in the ocean on the outer continental shelf under the Outer Continental Shelf Lands Act. [Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in that case as well.]

Phew. That’s all for this week. Thanks again to Ben Moss for making the heroic effort of compiling all these relists.

 

New Relists

Quarles v. United States, 17-778

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.

(relisted after the January 4 conference)

 

United States v. Herrold, 17-1445

Issue: Whether a state offense that criminalizes continued unpermitted presence in a dwelling following the formation of intent to commit a crime has “the basic elements of unlawful … remaining in … a building or structure, with intent to commit a crime,” thereby qualifying as “burglary” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the January 4 conference)

 

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

(relisted after the January 4 conference)

 

Altitude Express Inc. v. Zarda, 17-1623

Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation.

(relisted after the January 4 conference)

 

Secord v. United States, 17-7224

Issue: Whether — when, for the purposes of the Armed Career Criminal Act, generic burglary occurs when a defendant unlawfully enters a building or unlawfully remains in the building, with the intent to commit a crime — the requisite intent to commit a crime must exist when the defendant enters or decides to remain in the building, or whether the intent may be formed at any time while the defendant is present in the building.

(relisted after the January 4 conference)

 

Ferguson v. United States, 17-7496

Issue: Whether the Taylor v. United States definition of generic burglary in the Armed Career Criminal Act extends to burglary statutes that do not require an intent to commit a further crime at the time of entry, as held by the U.S. Court of Appeals for the 4th Circuit and the court below, or whether it only encompasses burglary statutes that require such intent at the time of entry, as held by the U.S. Courts of Appeals for the 5th and 8th Circuits.

(relisted after the January 4 conference)

 

Moore v. United States, 17-8153

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or initial unlawful remaining, as two circuits hold, or whether, as the court below and three other circuits hold, it is enough that the defendant formed the intent to commit a crime at any time while unlawfully “remaining in” the building or structure.

(relisted after the January 4 conference)

 

Herrold v. United States, 17-9127

Issues: (1) Whether the Texas burglary statute — which states that a person commits burglary of a “habitation” if the target of the burglary is “a structure or vehicle that is adapted for the overnight accommodation of persons” — is a generic burglary statute for the purposes of the Armed Career Criminal Act; and (2) whether — if both of petitioner’s prior burglary convictions are deemed “generic burglaries” and therefore violent felonies under the ACCA, in conflict with the majorities in the U.S. Courts of Appeals for the 4th, 5th, 6th, 7th, 8th, 9th and 11th Circuits — the ACCA gave petitioner fair notice that both of his burglary convictions were “violent felonies.”

(relisted after the January 4 conference)

 

R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

(relisted after the January 4 conference)

 

New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280

Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

(relisted after the January 4 conference)

 

Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

(relisted after the January 4 conference)

 

The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

(relisted after the January 4 conference)

 

Parker Drilling Management Services, Ltd. v. Newton, 18-389

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether, under the Outer Continental Shelf Lands Act, state law is borrowed as the applicable federal law only when there is a gap in the coverage of federal law, as the U.S. Court of Appeals for the 5th Circuit has held, or whenever state law pertains to the subject matter of a lawsuit and is not pre-empted by inconsistent federal law, as the U.S. Court of Appeals for the 9th Circuit has held.

(relisted after the January 4 conference)

 

Schock v. United States, 18-406

Issues: (1) Whether a member of the legislative branch may immediately appeal from the denial of his motion to dismiss an indictment on the ground that it violates the separation of powers protected by the Constitution’s rulemaking clause; (2) whether such a claim is immediately appealable by virtue of the collateral order doctrine where it invokes a claim of non-justiciability and separation of powers immunity and as a result cannot be redressed after a trial; (3) whether there is a pendant appellate jurisdiction doctrine to hear such a claim because of its relationship with an immediately appealable speech or debate clause claim, or whether that doctrine is categorically unavailable in criminal cases; and (4) whether the speech and debate clause provides a legislator with immunity from criminal charges that are founded in part on the content of internal House of Representatives communications concerning the interpretation, application or administration of Rules of the Proceedings.

(relisted after the January 4 conference)

 

North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, 18-457

Issue: Whether the due process clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency.

(relisted after the January 4 conference)

 

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4 conference)

 

McDonough v. Smith, 18-485

Issue: Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held below.

(relisted after the January 4 conference)

 

Ramos v. Louisiana, 18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

(relisted after the January 4 conference)

 

Mitchell v. Wisconsin, 18-6210

Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

(relisted after the January 4 conference)

 

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16, November 30, December 7 and January 4 conferences)

 

White v. Kentucky, 17-9467

Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.

(relisted after the November 30, December 7 and January 4 conferences)

 

Rehaif v. United States, 17-9560

Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

(relisted after the November 30, December 7 and January 4 conferences)

 

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7 and January 4 conferences)

 

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7 and January 4 conferences)

 

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(relisted after the December 7 and January 4 conferences)

 

Moore v. Texas, 18-443.

Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

(relisted after the December 7 and January 4 conferences)

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Relist Watch Returns

Relist Watch ReturnsJohn Elwood reviews the first relists of 2019. Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still lazily finishing off […]

The post Relist Watch Returns appeared first on SCOTUSblog.

Relist Watch Returns

John Elwood reviews the first relists of 2019.

Happy New Year and welcome back! Most of D.C. started 2019 nice and slow, enjoying offices (and roads) made quiet by vacations, both planned and unexpected. But not the Supremes. They jumped in with both feet, when most of the lawyering class was still lazily finishing off their fruit baskets. On January 4, the court gave plenary review to the Maryland and North Carolina political-gerrymandering cases and set them for expedited briefing so they could be heard in the March sitting. And at the same time, the justices granted certiorari to review four cases – none of them relisted – that will likely be the first cases on the court’s April argument calendar. The court also got busy with all the serial relists identified in our last installment. True to the statistics, none of those repeated relists led to grants, just summary vacaturs and dissents from denial of cert.

A full April calendar would probably consist of around 12 cases, which means the court is looking for something in the neighborhood of eight more cases to round out the last of the October Term 2018 arguments. Some cases considered at the court’s January 18 conference could squeeze in to the tail end of the April argument sitting by shaving a few days off the 30 days petitioners ordinarily would have to file reply briefs. But this Friday’s conference is where the court is likely to decide on the bulk of the April sitting.

Luckily for law nerds everywhere, the court has plenty to work with – the court has relisted a whopping 19 new cases this week, joining the seven returning relists. This is such a high-traffic area that I’ll have to be a little summary in describing the cases.

There are a ton of important cases at this conference. But there’s no question which of the relists have gotten the most attention – and which hold out the most promise of helping to make October Term 2018 noteworthy. Bostock v. Clayton County, Georgia, 17-1618, and Altitude Express Inc. v. Zarda, 17-1623, raise the question of whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964. R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107, raises the related question of whether that prohibition includes a person’s gender identity so as to protect people from discrimination based on their transgender status.

You have your choice of hot-button issues after that. Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483, involves the constitutionality of an Indiana law prohibiting abortions performed solely because of the race, sex or disability of the fetus, and also requiring facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation, rather than as medical waste. The U.S. Court of Appeals for the 7th Circuit enjoined those laws by a 2-1 vote. The appeals court voted for rehearing en banc, but then reinstated the panel decision when one judge who had voted for rehearing recused himself, leaving the court equally divided.

New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280, is similarly high-profile. That case involves a challenge to the constitutionality of New York City’s law that regulates where a handgun owner can carry their handgun. It limits them to possessing their gun at the address listed on their handgun license, with the sole exception of transporting the gun “directly to and from” one of approximately seven “authorized small arms range/shooting club[s], unloaded, in a locked container, the ammunition to be carried separately.” The challengers, represented by former Solicitor General Paul Clement, argue that the transport restrictions violate the Second Amendment, the commerce clause and the constitutional right to travel, noting that the restrictions would even prevent a handgun owner from transporting their gun to a second home outside the city for purposes of protecting themselves within the home. We’ll see whether this becomes the first gun-rights case the court takes up in many years or whether the Second Amendment remains (in Justice Clarence Thomas’ words) “a disfavored right in this Court.”

Sexual orientation/gender identity, abortion and guns – I have this nagging feeling that we haven’t quite hit every divisive topic yet. Oh yes, we still need religion. Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364, and The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365, will take care of that. Those cases involve Morris County, New Jersey’s preservation grants for historic buildings. A state court interpreted the New Jersey state constitution to forbid using public funds to repair or restore churches, however historic they are. The court rejected the argument that the First Amendment prohibits excluding houses of worship from generally available preservation funds earmarked for repairing or restoring historic buildings. Morris County’s Board of Chosen Freeholders and a group of affected churches seek to revisit that ruling. The ubiquitous Erwin Chemerinsky, dean of Berkeley Law School, has made time to represent respondents the Freedom from Religion Foundation.

The hits just keep coming. Aaron Schock was a political wunderkind in Illinois politics, becoming at 19 the youngest person serving on a school board in Illinois, at 23 the youngest person ever to serve in the Illinois General Assembly, and at 27 the youngest member of Congress and the first-ever member born in the 1980s. Schock resigned from Congress in 2015 amidst press allegations of spending and financial-disclosure irregularities, and in 2016 was charged with misuse of government funds and related charges. Schock moved to dismiss the indictment on the ground that the charges were based on supposed violations of ambiguous House of Representatives rules, which he argued violated the Constitution’s rulemaking clause and the speech-or-debate clause. The district court rejected the motion. On appeal, the 7th Circuit ruled that it lacked jurisdiction to review an interlocutory appeal of a rulemaking clause claim; although the court acknowledged it had jurisdiction over an interlocutory appeal of Schock’s speech-or-debate-clause claim, the court rejected that argument on the merits. In Schock v. United States, 18-406, the former congressman argues that the 7th Circuit erred.

We have a couple more juicy constitutional issues. Ramos v. Louisiana, 18-5924, presents the question whether the 14th Amendment incorporates the Sixth Amendment guarantee of a unanimous verdict in criminal cases. In Apodaca v. Oregon, the Supreme Court concluded that the Sixth Amendment required that juries convict by a unanimous vote, but concluded that this requirement does not apply to the states; accordingly, a state criminal defendant may lawfully be convicted based on (for example) a 9-3 vote. As Professor Eugene Volokh has explained, “Apodaca was a 4-1-4 decision, in which both of the groups of 4 Justices took the view that the rule should be the same for federal and state trials. Only one Justice, Lewis Powell, believed that the rule should differ; but since he was the swing vote, his position became the law.” In October Term 2010, Volokh asked the court to overrule Apodaca. Back then, the Supreme Court denied the petition without even relisting it. We’ll know soon whether Evangelisto Ramos has any more luck. Given Justice Neil Gorsuch’s reaction during the recent argument in Timbs v. Indiana to the idea that portions of the Bill of Rights would not be incorporated against the states (“Really? Come on, General.”), he might.

That brings us to Mitchell v. Wisconsin, 18-6210. Wisconsin has enacted an “implied consent” law that provides that “[a]ny person who … drives or operates a motor vehicle upon the public highways of this state … is deemed to have given consent to one or more tests of his or her breath, blood or urine” for purposes of determining the presence of alcohol or controlled substances in their system. The same law also provides that “[a] person who is unconscious or otherwise not capable of withdrawing consent is presumed not to have withdrawn consent,” which as a practical matter allows the state to draw an unconscious person’s blood if the police have probable cause to suspect drunk driving. Petitioner Gerald Mitchell argues that by allowing warrantless blood draws, the statute violates the Fourth Amendment’s warrant requirement.

Quarles v. United States, 17-778, United States v. Herrold, 17-1445, Secord v. United States, 17-7224, Ferguson v. United States, 17-7496, and Moore v. United States, 17-8153, all present the same issue. The Armed Career Criminal Act, 18 U.S.C. § 924(e), imposes a mandatory 15-year prison term upon any convicted felon who unlawfully possesses a firearm and who has three or more prior convictions for any “violent felony,” which includes any felony burglary conviction. In Taylor v. United States, the Supreme Court held that Section 924(e) uses the term “burglary” in its generic sense, to cover any crime “having the basic elements of unlawful or unprivileged entry into, or remaining in, a building or structure, with intent to commit a crime.” All four cases ask whether Taylor’s definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure. (Herrold v. United States, 17-9127, is a conditional cross-petition that raises related issues.)

The government has conceded that there is a split and acquiesced in Supreme Court review of Quarles, which it said was a better vehicle than Secord, Ferguson and Moore. This seems like a good time for a [Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in that case]. Later, the government filed its own petition in Herrold, and said that perhaps that was the vehicle the court should take, or it should take both that and Quarles. The court is widely believed to be experiencing a bit of “ACCA fatigue” because of the large number of cases it has decided in recent years involving that statute. Perhaps for that reason, it held these cases pending the decision in United States v. Stitt in the hopes that Stitt (involving whether burglary of a structure or vehicle adapted or customarily used for overnight accommodation was “generic burglary”) would shed light upon them. It didn’t. We’ll know soon whether the court will look into the meaning of ACCA once again.

I’m going to have to get a bit summary here if we’re going to finish this post before the court starts issuing grants. McDonough v. Smith, 18-485, involves the statute of limitations for a claim under 42 U.S.C. § 1983 based on fabrication of evidence in criminal proceedings; it asks whether the statute begins to run when criminal proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held in Edward McDonough’s case. North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, 18-457, asks whether the due process clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency. Lastly, Parker Drilling Management Services, Ltd. v. Newton, 18-389, involves whether California state overtime and wage laws apply to drilling rigs in the ocean on the outer continental shelf under the Outer Continental Shelf Lands Act. [Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in that case as well.]

Phew. That’s all for this week. Thanks again to Ben Moss for making the heroic effort of compiling all these relists.

 

New Relists

Quarles v. United States, 17-778

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or first unlawful remaining, as two circuits hold; or whether it is enough that the defendant formed the intent to commit a crime at any time while “remaining in” the building or structure, as the court below and three other circuits hold.

(relisted after the January 4 conference)

 

United States v. Herrold, 17-1445

Issue: Whether a state offense that criminalizes continued unpermitted presence in a dwelling following the formation of intent to commit a crime has “the basic elements of unlawful … remaining in … a building or structure, with intent to commit a crime,” thereby qualifying as “burglary” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(ii).

(relisted after the January 4 conference)

 

Bostock v. Clayton County, Georgia, 17-1618

Issue: Whether discrimination against an employee because of sexual orientation constitutes prohibited employment discrimination “because of … sex” within the meaning of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2.

(relisted after the January 4 conference)

 

Altitude Express Inc. v. Zarda, 17-1623

Issue: Whether the prohibition in Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1), against employment discrimination “because of … sex” encompasses discrimination based on an individual’s sexual orientation.

(relisted after the January 4 conference)

 

Secord v. United States, 17-7224

Issue: Whether — when, for the purposes of the Armed Career Criminal Act, generic burglary occurs when a defendant unlawfully enters a building or unlawfully remains in the building, with the intent to commit a crime — the requisite intent to commit a crime must exist when the defendant enters or decides to remain in the building, or whether the intent may be formed at any time while the defendant is present in the building.

(relisted after the January 4 conference)

 

Ferguson v. United States, 17-7496

Issue: Whether the Taylor v. United States definition of generic burglary in the Armed Career Criminal Act extends to burglary statutes that do not require an intent to commit a further crime at the time of entry, as held by the U.S. Court of Appeals for the 4th Circuit and the court below, or whether it only encompasses burglary statutes that require such intent at the time of entry, as held by the U.S. Courts of Appeals for the 5th and 8th Circuits.

(relisted after the January 4 conference)

 

Moore v. United States, 17-8153

Issue: Whether Taylor v. United States’ definition of generic burglary requires proof that intent to commit a crime was present at the time of unlawful entry or initial unlawful remaining, as two circuits hold, or whether, as the court below and three other circuits hold, it is enough that the defendant formed the intent to commit a crime at any time while unlawfully “remaining in” the building or structure.

(relisted after the January 4 conference)

 

Herrold v. United States, 17-9127

Issues: (1) Whether the Texas burglary statute — which states that a person commits burglary of a “habitation” if the target of the burglary is “a structure or vehicle that is adapted for the overnight accommodation of persons” — is a generic burglary statute for the purposes of the Armed Career Criminal Act; and (2) whether — if both of petitioner’s prior burglary convictions are deemed “generic burglaries” and therefore violent felonies under the ACCA, in conflict with the majorities in the U.S. Courts of Appeals for the 4th, 5th, 6th, 7th, 8th, 9th and 11th Circuits — the ACCA gave petitioner fair notice that both of his burglary convictions were “violent felonies.”

(relisted after the January 4 conference)

 

R.G. and G.R. Harris Funeral Homes Inc v. Equal Employment Opportunity Commission, 18-107

Issues: (1) Whether the word “sex” in Title VII’s prohibition on discrimination “because of … sex,” 42 U.S.C. § 2000e-2(a)(1), meant “gender identity” and included “transgender status” when Congress enacted Title VII in 1964; and (2) whether Price Waterhouse v. Hopkins prohibits employers from applying sex-specific policies according to their employees’ sex rather than their gender identity.

(relisted after the January 4 conference)

 

New York State Rifle & Pistol Association, Inc. v. City of New York, New York, 18-280

Issue: Whether New York City’s ban on transporting a licensed, locked and unloaded handgun to a home or shooting range outside city limits is consistent with the Second Amendment, the commerce clause and the constitutional right to travel.

(relisted after the January 4 conference)

 

Morris County Board of Chosen Freeholders v. Freedom from Religion Foundation, 18-364

Issues: (1) Whether using generally available historic preservation funds to repair or restore a house of worship constitutes a “religious use” that falls outside the scope of Trinity Lutheran Church of Columbia Inc. v. Comer; and (2) whether the categorial exclusion of all active houses of worship from historic preservation grants violates Trinity Lutheran and the First Amendment as an exclusion based on religious status.

(relisted after the January 4 conference)

 

The Presbyterian Church in Morristown v. Freedom from Religion Foundation, 18-365

Issue: Whether the categorical exclusion of active houses of worship from a competitive government grant program advancing the secular interest of historic preservation violates the free exercise clause of the Constitution of the United States.

(relisted after the January 4 conference)

 

Parker Drilling Management Services, Ltd. v. Newton, 18-389

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether, under the Outer Continental Shelf Lands Act, state law is borrowed as the applicable federal law only when there is a gap in the coverage of federal law, as the U.S. Court of Appeals for the 5th Circuit has held, or whenever state law pertains to the subject matter of a lawsuit and is not pre-empted by inconsistent federal law, as the U.S. Court of Appeals for the 9th Circuit has held.

(relisted after the January 4 conference)

 

Schock v. United States, 18-406

Issues: (1) Whether a member of the legislative branch may immediately appeal from the denial of his motion to dismiss an indictment on the ground that it violates the separation of powers protected by the Constitution’s rulemaking clause; (2) whether such a claim is immediately appealable by virtue of the collateral order doctrine where it invokes a claim of non-justiciability and separation of powers immunity and as a result cannot be redressed after a trial; (3) whether there is a pendant appellate jurisdiction doctrine to hear such a claim because of its relationship with an immediately appealable speech or debate clause claim, or whether that doctrine is categorically unavailable in criminal cases; and (4) whether the speech and debate clause provides a legislator with immunity from criminal charges that are founded in part on the content of internal House of Representatives communications concerning the interpretation, application or administration of Rules of the Proceedings.

(relisted after the January 4 conference)

 

North Carolina Department of Revenue v. The Kimberley Rice Kaestner 1992 Family Trust, 18-457

Issue: Whether the due process clause prohibits states from taxing trusts based on trust beneficiaries’ in-state residency.

(relisted after the January 4 conference)

 

Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-483

Issues: (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

(relisted after the January 4 conference)

 

McDonough v. Smith, 18-485

Issue: Whether the statute of limitations for a Section 1983 claim based on fabrication of evidence in criminal proceedings begins to run when those proceedings terminate in the defendant’s favor, as the majority of circuits have held, or whether it begins to run when the defendant becomes aware of the tainted evidence and its improper use, as the U.S. Court of Appeals for the 2nd Circuit held below.

(relisted after the January 4 conference)

 

Ramos v. Louisiana, 18-5924

Issue: Whether the 14th Amendment fully incorporates the Sixth Amendment guarantee of a unanimous verdict.

(relisted after the January 4 conference)

 

Mitchell v. Wisconsin, 18-6210

Issue: Whether a statute authorizing a blood draw from an unconscious motorist provides an exception to the Fourth Amendment warrant requirement.

(relisted after the January 4 conference)

 

Returning Relists

Wood v. Oklahoma, 17-6891

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)

 

Jones v. Oklahoma, 17-6943

Issues: (1) Whether a complex statistical study that indicates a risk that racial considerations enter into Oklahoma’s capital-sentencing determinations proves that the petitioner’s death sentence is unconstitutional under the Sixth, Eighth and 14th Amendments to the U.S. Constitution; and (2) whether Oklahoma’s capital post-conviction statute, Okla. Stat. Ann. tit. 22 § 1089(D)(8)(b), and the Oklahoma Court of Criminal Appeals’ application of the statute in this case deny the petitioner an adequate corrective process for the hearing and determination of his newly available federal constitutional claim in violation of his rights under the 14th Amendment’s due process and equal protection clauses.

(relisted after the May 17 conference; rescheduled before the March 2, March 16, March 23, March 29, April 13, April 20, April 27, May 10, May 24, May 31, June 7, June 14, June 21, September 24, October 5, October 12, October 26, November 2, November 9, November 16, November 30, December 7, January 4 and January 11 conferences)

 

Kennedy v. Bremerton School District, 18-12

Disclosure: Vinson & Elkins LLP, whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case.

Issue: Whether public-school teachers and coaches retain any First Amendment rights when at work and “in the general presence of” students.

(relisted after the October 12, October 26, November 2, November 9, November 16, November 30, December 7 and January 4 conferences)

 

White v. Kentucky, 17-9467

Issues: (1) Whether the Kentucky Supreme Court violated the Eighth Amendment, as interpreted in Hall v. Florida and Moore v. Texas, when it denied the petitioner the opportunity to present evidence supporting the “conjunctive and interrelated” assessment for intellectual and adaptive functioning, ignoring an IQ score of 73 presented to the trial court, ignoring a possible Flynn effect and refusing to look past White’s other IQ score of 76 adjusted for standard error of measurement; and (2) whether it violates the Fourth Amendment when officers abandon their duty to address a traffic violation that justified a pretextual stop in order to investigate a passenger.

(relisted after the November 30, December 7 and January 4 conferences)

 

Rehair v. United States, 17-9560

Issues: Whether the “knowingly” provision of 18 U.S.C. § 924(a)(2) applies to both the possession and status elements of a § 922(g) crime, or whether it applies only to the possession element.

(relisted after the November 30, December 7 and January 4 conferences)

 

Newton v. Indiana, 17-1511

Issues: (1) Whether Miller v. Alabama applies to discretionary sentences of life without parole imposed for juvenile offenses, as 16 states have held, or whether it is limited to mandatory sentences of life without parole, as 10 others have found; and (2) whether an evidentiary hearing is required to assess whether juveniles sentenced before Miller are irreparably corrupt.

(rescheduled before the September 24 and November 30 conferences; relisted after the December 7 and January 4 conferences)

 

Mathena v. Malvo, 18-217

Issue: Whether the U.S. Court of Appeals for the 4th Circuit erred in concluding—in direct conflict with Virginia’s highest court and other courts—that a decision of the Supreme Court, Montgomery v. Louisiana, addressing whether a new constitutional rule announced in an earlier decision, Miller v. Alabama, applies retroactively on collateral review may properly be interpreted as modifying and substantively expanding the very rule whose retroactivity was in question.

(relisted after the December 7 and January 4 conferences)

 

Yovino v. Rizo, 18-272

Issues: (1) Whether—when the Equal Pay Act permits employers to pay men and women different wages for the same work “where such payment is made pursuant to (i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex,” 29 U.S.C. § 206(d)(1)—a prior salary is a “factor other than sex”; and (2) whether deceased judges may continue to participate in the determination of cases after their deaths.

(relisted after the December 7 and January 4 conferences)

 

Moore v. Texas, 18-443.

Issues: (1) Whether the Eighth Amendment and the Supreme Court’s decision in Moore v. Texas prohibit relying on nonclinical criteria and lay stereotypes, rather than current medical standards, to determine whether a capital defendant is intellectually disabled; and (2) whether it violates the Eighth Amendment to proceed with an execution when the prosecutor and the defendant both agree that the defendant is intellectually disabled and may not be executed.

(relisted after the December 7 and January 4 conferences)

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