Government asks justices to intervene on asylum ban

Government asks justices to intervene on asylum banLast month President Donald Trump blasted a ruling by a federal judge in San Francisco that blocked the government from enforcing a rule that would prohibit immigrants who enter the country illegally from requesting asylum. Trump criticized U.S. District Judge Jon Tigar, who issued the order, as an “Obama judge” and predicted that the government […]

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Government asks justices to intervene on asylum ban

Last month President Donald Trump blasted a ruling by a federal judge in San Francisco that blocked the government from enforcing a rule that would prohibit immigrants who enter the country illegally from requesting asylum. Trump criticized U.S. District Judge Jon Tigar, who issued the order, as an “Obama judge” and predicted that the government would “win that case in the Supreme Court of the United States.” Trump’s comments elicited a rare public rebuke from Chief Justice John Roberts, and today the federal government went to the Supreme Court, asking the justices to put Tigar’s order on hold while it appeals the ruling to the U.S. Court of Appeals for the 9th Circuit – and, if necessary, the Supreme Court.

Today’s filing, by U.S. solicitor general Noel Francisco, complained that Tigar’s ruling was “deeply flawed.” Emphasizing that the Trump administration had adopted the rule “to address an ongoing crisis at the southern border,” Francisco argued that the lawsuit should not go forward at all: The fact that immigration groups challenging the rule might lose funding as a result of the rule does not, he says, give them a legal right to sue.

But even if the organizations did have a right to sue, Francisco continued, the court should still step in because the government is likely to win on the merits of its claim, an important criterion for the justices in deciding whether to grant temporary relief. The new policy is consistent with federal immigration law, which gives the secretary of homeland security and the attorney general “broad discretion” in deciding whether to grant asylum. Here, Francisco contended, there is no dispute that the officials could consider whether an individual applicant had entered the country illegally in deciding whether to grant his asylum application. If that’s true, Francisco observed, there’s no reason why the officials can’t also conclude that everyone who enters the country illegally is ineligible to apply for asylum.

If Tigar’s order is allowed to remain in effect, Francisco added, it will frustrate “a coordinated effort by the President, the Attorney General, and the Secretary to re-establish sovereign control over the southern border, reduce illegal and dangerous border crossings, and conduct sensitive and ongoing diplomatic negotiations.” By contrast, he posited, there will be no real negative effects on immigrants, because they are already breaking the law when they cross into the United States illegally. Moreover, he suggested, they can always apply for asylum at crossing points or seek other (although less desirable) forms of protection in the United States.

Putting everything else aside, Francisco concluded, the Supreme Court should intervene because Tigar’s order sweeps too broadly, barring the government from enforcing the rule anywhere in the United States. These kinds of nationwide injunctions, Francisco asserted, are “part of a troubling pattern of single judges dictating national policy—a trend that is taking a growing ‘toll on the federal court system.’” At the very least, he told the justices, they should rule that the order only applies to the challengers’ clients who would otherwise be barred from applying for asylum.

The government’s request went to Justice Elena Kagan, who handles emergency filings from the geographic area that includes California. Soon after the request was filed, Kagan directed the challengers to file a response by noon on December 17. She could rule on the request herself, but she is more likely to refer it to the full court.

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One new grant, one dissent from the denial of review

One new grant, one dissent from the denial of reviewLast week the justices added one new case to their merits docket for the term – a relatively obscure maritime-law case. Somewhat unexpectedly, they added another new case today that will almost certainly have a much higher profile, at least in the legal world: Kisor v. Wilkie, in which the Supreme Court will consider whether […]

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One new grant, one dissent from the denial of review

Last week the justices added one new case to their merits docket for the term – a relatively obscure maritime-law case. Somewhat unexpectedly, they added another new case today that will almost certainly have a much higher profile, at least in the legal world: Kisor v. Wilkie, in which the Supreme Court will consider whether to overrule a line of cases instructing courts to defer to an agency’s interpretation of its own regulation. The court’s ruling could have significant implications for administrative law, and it could also again bring to the forefront the question of when and whether the justices should overrule their prior cases.

Today’s new grant comes in a case brought by James Kisor, a Marine who served in the Vietnam War and sought benefits for post-traumatic stress disorder. In 2006, the Department of Veterans Affairs agreed that Kisor suffers from PTSD, but it refused to give him benefits dating back to 1983, when he had first filed a claim for benefits.

The VA’s denial in Kisor’s case hinged on its interpretation of the term “relevant” in one of its regulations. On appeal, the U.S. Court of Appeals for the Federal Circuit ruled for the VA. The court of appeals acknowledged that the regulation was ambiguous, but it followed the Supreme Court’s cases – Auer v. Robbins and Bowles v. Seminole Rock & Sand Co. – instructing courts to defer to an agency’s interpretation of its own regulation unless the interpretation is plainly wrong or inconsistent with the regulation.

The Auer doctrine has been a target for conservatives and business groups for some time, on the theory that it gives federal agencies too much power. The Supreme Court has previously turned down several requests to overrule Auer and Seminole Rock, including some quite recently, but today the justices granted Kisor’s request to reconsider the doctrine. The case is likely to be argued sometime next year.

After repeatedly considering two cases in which they were asked to weigh in on whether individuals can bring a lawsuit to enforce a provision of the Medicaid Act that allows Medicaid recipients to receive medical care from any provider who is willing and qualified to provide such services, the justices announced that they will not review the cases. Gee v. Planned Parenthood and Andersen v. Planned Parenthood, which were on the list at eight and nine conferences respectively, drew significant attention because they were filed by Planned Parenthood and because of the effect that such lawsuits might have on funding for Planned Parenthood under state Medicaid programs.

The announcement that the Supreme Court would not take up the two cases drew a strong dissent from Justice Clarence Thomas, joined by Justices Samuel Alito and Neil Gorsuch. Thomas began by complaining that the courts of appeals were divided on the question presented in the case – a classic scenario in which the Supreme Court normally steps in to ensure that the same legal principle governs throughout the country. The decision not to do so, Thomas suggested, will have a negative effect not only on the 70 million Americans on Medicaid, but also on the states which could be targeted by lawsuits when they make decisions about Medicaid providers.

Thomas implied that the Supreme Court was sitting out the cases because of Planned Parenthood’s involvement, even though the issue of abortion is not directly implicated. “Some tenuous connection to a politically fraught issue,” Thomas complained, “does not justify abdicating our judicial duty.” “If anything,” he continued, “neutrally applying the law is all the more important when political issues are in the background.” “We are responsible for the confusion among the lower courts,” Thomas concluded, “and it is our job to fix it.”

The justices’ next conference is scheduled for January 4, 2019.

This post was originally published at Howe on the Court.

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A “view” from the courtroom: A nod to a late president and a retired justice

A “view” from the courtroom: A nod to a late president and a retired justiceThe courtroom is quite full this morning, but there is room for a couple of distinguished spectators. One is Jay Clayton, the chairman of the U.S. Securities and Exchange Commission, who is seated in the front row of the Supreme Court Bar section usually filled by those to be sworn in to the bar. Indeed, […]

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A “view” from the courtroom: A nod to a late president and a retired justice

The courtroom is quite full this morning, but there is room for a couple of distinguished spectators.

One is Jay Clayton, the chairman of the U.S. Securities and Exchange Commission, who is seated in the front row of the Supreme Court Bar section usually filled by those to be sworn in to the bar. Indeed, that is one reason Clayton is here, as Solicitor General Noel Francisco will introduce him and vouch that Clayton meets the necessary qualifications.

The other is that the second case for argument today is Lorenzo v. Securities and Exchange Commission, about whether the agency may bring a “fraudulent scheme” anti-fraud claim against a subordinate employee who sent emails drafted by his superior that contained false statements. Clayton is the most prominent person to be sworn into the Supreme Court Bar since last December, when then-Gov. Chris Christie of New Jersey sat in the very same seat and was sworn in before the argument in Christie v. National Collegiate Athletic Association, in which the court later, under the caption Murphy v. NCAA, invalidated a provision of the federal Professional and Amateur Sports Protection Act, and thus effectively allowed every state to legalize sports betting.

The other prominent spectator today is retired Justice Anthony Kennedy, who takes a seat in the VIP section just a few moments before court is set to begin. It is at first unclear why he might be in attendance, though the first case, Dawson v. Steager, is a challenge by a federal retiree to disparate tax treatment of his federal retirement benefits by the state of West Virginia.

When the court takes the bench at ten o’clock, Chief Justice John Roberts will supply the answer. But first, there is a brief recognition of the death of the 41st U.S. president.

“The court notes with sadness the death of former President George H.W. Bush on November 30, 2018,” Roberts says. “In observance of the National Day of Mourning, the court will not sit on Wednesday, December 5th.”

He doesn’t mention, and not that this would be the time for it, that the court has moved its one argument originally scheduled for Wednesday — Gamble v. United States, about the “separate sovereigns” exception to the double jeopardy clause — to Thursday. The court announced the change over the weekend, and the move will not only be in keeping with the National Day of Mourning, but will allow any members of the court who wish to do so to attend President Bush’s memorial service at the National Cathedral, which is scheduled to start at 11 a.m. Wednesday.

One of our favorite moments from coverage of the late president over the weekend was Justice Clarence Thomas’ recollections in an interview with CNN. Thomas, whom Bush nominated in 1991 to succeed retired Justice Thurgood Marshall, recounted his visit to the Bush family compound in Kennebunkport, Maine, and how First Lady Barbara Bush spilled the beans that Thomas was there to be offered the seat. Later in the hourlong CNN special, Thomas added his remembrance about what it was like to take a white-knuckle-inducing ride with the president in his speed boat, Fidelity.

The chief justice has one more preliminary matter this morning.

“Before we commence this morning’s business, I would like to acknowledge the presence in the courtroom of Justice Anthony M. Kennedy, and I would like to read into the records of the court an exchange of correspondence,” Roberts says.

When Kennedy appeared in the courtroom for the first time as a retired justice, on Justice Brett Kavanaugh’s first day on the bench in October, the chief justice promised that the letters would be read in court “at the appropriate time.”

“The first letter is dated today, December 3, 2018,” Roberts continues. “It is to Justice Kennedy from my colleagues and me, and it reads as follows:

Dear Tony,

Although our new term is well underway, we remain keenly aware of your absence on the bench and in our conference. From the time each of us came to know you, you have enriched our lives through your kindness, camaraderie, and generosity. We are heartened that you have maintained an active presence in the building, and we take great comfort that you remain our valued colleague here.

No one leaves Sacramento to become a prospector. But your labors since moving east have yielded a treasure of thoughtful decisions. This legacy will guide the understanding of judges, lawyers, and citizens for years to come.

Your example of ceaseless civility inspires us as we go forward with the work of the court that you have so vitally advanced. We wish you and Mary well in your much-deserved retirement, and we look forward to many more years in this new chapter of our shared friendships.

The chief justice says, “I would now like to read a letter, also dated today, written by Justice Kennedy. It reads:

Dear Chief Justice and Dear Colleagues,

Please accept this expression of our deepest appreciation for the uplifting words and sentiments in your most gracious letter. It will be treasured by our family.

This reply is not to say farewell, for it is my hope to linger here to be with all of you in the days and years to come. It is necessary, of course, to say farewell to being on the bench and in the conference room. There, for the past thirty years, it was a high honor to join with our colleagues in seeking how best to define and interpret an idea and a reality—the idea and the reality of the law.

Even if we disagreed in a particular case, we admired and respected each other as we sought to explain the law as we found it to be and to ensure that, over the course of time, the law and the freedoms it sustains will be ever more secure, ever more revered.

We first came to Washington knowing few who lived here, but the members of the court at once reached out to Mary and me with gifts of guidance, understanding, and above all, the priceless bond of friendship. It seems proper to quote from the poet and to say that for all these gifts “I can no other answer make but thanks, and thanks, and ever thanks.”

With assurances of my continued highest regards, I remain, yours sincerely,

Tony

It may not surprise anyone that the poet is a favorite of Kennedy’s — the phrase is from William Shakespeare’s “Twelfth Night.”

From there, the court moves on to its more routine business. Kennedy stays for the first argument, listening intently. But at the break between the first and second arguments, he slips out to continue his active retirement elsewhere in the building.

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Two new CVSGs – on a deadline

Two new CVSGs – on a deadlineThis morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their docket for the term, but they did ask the U.S. solicitor general to weigh in on a pair of cases involving the Clean Water Act – and in doing so took […]

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Two new CVSGs – on a deadline

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their docket for the term, but they did ask the U.S. solicitor general to weigh in on a pair of cases involving the Clean Water Act – and in doing so took the unusual step of imposing a deadline on the federal government.

The calls for the views of the federal government came in County of Maui v. Hawaii Wildlife Fund and Kinder Morgan Energy v. Upstate Forever. The Maui case centers on wells at a county-owned wastewater reclamation plant that discharges treated wastewater underground to dispose of it; the pollutants in the wastewater enter the groundwater, which eventually reaches the ocean. The U.S. Court of Appeals for the 9th Circuit ruled that such pollutants qualify as “point source” pollution, for which a Clean Water Act permit is required. The county has asked the justices to weigh in, complaining that the lower court’s decision could impose burdens on “millions of other sources, including the roughly” 6,000 similar wells and 21,000 septic systems in Hawaii.

The Kinder Morgan case arose after a crack in the company’s pipeline leaked nearly 400,000 gallons of gasoline and diesel into the surrounding soil and groundwater. Kinder Morgan fixed the leak and worked to clean up the damage, but the U.S. Court of Appeals for the 4th Circuit ruled that the Clean Water Act applied to the leak because there was a “direct hydrological connection” between the leak of the pollutants into the groundwater and navigable waters covered by the CWA.

Today the justices asked the federal government to file a brief expressing the views of the United States on the issues presented by the two cases – a fairly common move, especially in cases, like this one, that involve the interpretation of an important federal statute. What was less common, however, was the justices’ order that the solicitor general’s brief be filed by the afternoon of January 4, 2019: Normally, there is no deadline for the federal government to respond to this kind of request from the court, known as a CVSG. Although there is no way to know for sure, the deadline was likely intended to ensure that the justices could, if they decide to grant review, hear oral arguments and decide the cases by the end of the current term.

Last term, in Janus v. American Federation of State, County, and Municipal Employees, the justices held that government employees who are not members of the union that represents them cannot be required to pay a fee to cover the costs of collective bargaining. That decision overruled a case dating back to 1977. Today the justices sent a case challenging the requirement that lawyers who wish to practice in a particular state become members of (and pay dues to) that state’s bar association back to the lower court for reconsideration in light of their decision in Janus.

The case was filed by Arnold Fleck, a lawyer in North Dakota who belongs to the state’s bar association and objected to the bar association’s support for a parental-rights law that appeared on the ballot in November 2014. As Fleck’s case came to the Supreme Court, he had two arguments. First, he contended that the bar association’s requirement that he “opt out” of paying the portion of his dues that finances the association’s political speech violates the Constitution. Instead, Fleck argued, he should only have to pay those dues if he affirmatively “opts in.” The Supreme Court had already agreed to review this question once, in Friedrichs v. California Teachers Association, but it deadlocked in that case after the death of Justice Antonin Scalia in February 2016.

The second question presented by Fleck’s case was a broader one – the idea that mandatory bar dues themselves are unconstitutional. Fleck urged the court to overrule its decisions (dating back to 1961 and 1990) holding that a state can require its attorneys to join a state bar association and pay bar dues. Those decisions, Fleck contended, rested on the need to regulate the legal profession and improve legal services in the state. But that can easily be accomplished, Fleck continued, without making bar membership mandatory. Both of the questions presented in Fleck’s case, however, will apparently have to wait for another day at the Supreme Court.

Finally, the justices denied review in Animal Legal Defense Fund v. Department of Homeland Security, a challenge to decisions by the Secretary of Homeland Security waiving environmental and animal protection laws (among others) in connection with the construction of a wall along the U.S.-Mexico border. As the case came to the Supreme Court, the ALDF had asked the justices to weigh in on the constitutionality of a federal immigration law that gives the secretary power to waive those requirements when they would hinder “expeditious construction” of barriers.

The justices will meet again for another conference – the last regularly scheduled one of 2018 – on Friday, December 7.

This post was originally published at Howe on the Court.

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SCOTUS Map: November 2018

SCOTUS Map: November 2018With its newest member seated on the Supreme Court (and officially included in the latest class picture), the justices continued to project a united front, emphasizing their familial bonds and eschewing the labels of “conservative” and “liberal” altogether. “It was Justice Thomas who tells me that when he first came to the court, another justice […]

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SCOTUS Map: November 2018

With its newest member seated on the Supreme Court (and officially included in the latest class picture), the justices continued to project a united front, emphasizing their familial bonds and eschewing the labels of “conservative” and “liberal” altogether.

“It was Justice Thomas who tells me that when he first came to the court, another justice approached him and said, ‘I judge you by what you do here. Welcome,’” Justice Sonia Sotomayor recounted in a recent interview with CNN’s David Axelrod. “And I repeated that story to Justice Kavanaugh when I first greeted him here… The nine of us are now a family.” When Axelrod noted that the court will lean conservative for the rest of Sotomayor’s career, Sotomayor immediately replied: “I don’t know what that word means. ‘Conservative,’ ‘liberal,’ those are political terms. Do I suspect that I might be dissenting a bit more? Possibly.” The full segment is available here.

Despite their assertions of nonpartisanship, the justices were repeatedly questioned on the court’s dynamic going forward — in multiple instances, by bemused students and journalists outside of the United States. In a November 12 conversation at the University of Toronto, the first question that Supreme Court of Canada Justice Rosalie Silberman Abella asked Justice Elena Kagan was, “Do you like beer?” Laughter rippled through the room, and Kagan smiled before answering, “What was your second question?”

During the student question-and-answer session, the inquiries for Kagan were mostly variations on the same theme. With the presence of Justice Clarence Thomas and now Justice Brett Kavanaugh on the bench, how can the Supreme Court be considered legitimate in its treatment of women who have experienced violence? I care about the institution and my colleagues a lot, Kagan responded, so “that’s something that I’m not going to be talking about.” Should the Supreme Court be a “force for good” in divided times? Our job is to decide legal questions and not to bring together a fractured American public, Kagan asserted, though there are ways of doing that job that do not exacerbate divisions within the country. How do the justices maintain a nonpartisan image when the confirmation process is increasingly politicized? “I feel a little bit as though I’m repeating myself,” Kagan said. “Clearly, this is the question of the day, right?”

Video of the event is available online. The Globe and Mail and The Toronto Star covered the talk.

In France, Justice Stephen Breyer also faced questions about his new colleague. While at the Paris Peace Forum on November 13, he sat for an interview with France 24, which asked whether Kavanaugh’s confirmation means that the majority of the Supreme Court is now conservative. “‘Conservative’ and ‘liberal’ are terms used by the press,” Breyer responded (echoing what Sotomayor had said in her CNN interview). He doesn’t consider himself a “liberal,” Breyer explained. “Sometimes I am, and sometimes not—in a political sense. Those are political words.”

Pressed by the reporter to say whether he and Kavanaugh might disagree on social issues, Breyer answered with a hint of exasperation: “We don’t know. If we were voting as citizens, perhaps. But as judges, we’ll see… If you were in my position, and you had gone to the conference last week and the week before, you would say, we’ll see. He probably doesn’t know himself how he will decide most issues.”

Two days later, Breyer spoke at a Franco-American Fulbright Commission symposium on law as soft power in the relationship between the United States and France. In an interview with RFI, Breyer deflected once again when queried about Kavanaugh’s contentious confirmation process. “These are exactly the types of question that I cannot answer… If people do not like the way it happens, they have the choice: the choice to elect someone else, other senators.” Asked when he might retire, Breyer noted his intention to stay “until I cannot do the job.”

Sotomayor visited Harvard Law School on November 13, where she spoke to students and adjudicated the final round of Harvard Law School’s Ames Moot Court Competition. The Harvard Gazette covered Sotomayor’s afternoon conversation, during which she called Supreme Court confirmation hearings “a bit more of a charade” than in the past. Video of the moot court final is posted on YouTube.

Later that week, Sotomayor traveled to Florida to promote her new children’s book at the Miami Book Fair. C-SPAN has video of the event.

In other November news:

  • Justice Samuel Alito delivered a lecture on religious liberty at The Catholic University of America’s Columbus Law School on November 1.
  • Sotomayor returned to Mobile, Alabama, for the christening of the USNS Puerto Rico on November 10. Per Navy tradition, she broke a bottle of sparkling wine over the ship’s bow. Coverage comes from AL.com.
  • Chief Justice John Roberts presented Michigan’s 15th Judicial District Court Judge Libby Hines with the National Center for State Courts’ 2018 William H. Rehnquist Award on November 15.
  • Retired Justice Anthony Kennedy gave the keynote speech at the 2018 International Churchill Conference on November 10, which was covered by the Washington Times. Video of the speech is available on C-SPAN.
  • Kennedy expressed confidence in the court during a November 16 event at the University of Virginia School of Law’s Karsh Center for Law and Democracy. “The public will see the system works,” he predicted, according to UVAToday. “We’re the only branch of the government that gives reasons for what we do. It seems to me that the public will very soon see that the court is operating in a collegial, deliberative, thoughtful, inspiring way… Over time, and over a very short time, you will see that the system has worked and these justices are working well with their colleagues.” The Cavalier Daily and The Roanoke Times provide additional coverage. Video is posted on Bloomberg.

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In a letter, government “suggests” hold for trial in census citizenship dispute

In a letter, government “suggests” hold for trial in census citizenship disputeOn November 16, the Supreme Court announced that it would hear oral argument in February in a dispute over evidence in the challenge to the Trump administration’s decision to bring back a question about citizenship on the 2020 census. Yesterday the federal government took the unusual step of sending a letter to the Supreme Court […]

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In a letter, government “suggests” hold for trial in census citizenship dispute

On November 16, the Supreme Court announced that it would hear oral argument in February in a dispute over evidence in the challenge to the Trump administration’s decision to bring back a question about citizenship on the 2020 census. Yesterday the federal government took the unusual step of sending a letter to the Supreme Court to “suggest” that the justices put further proceedings in a trial contesting the decision on hold. The letter came after both the trial court and a federal appeals court declined to block the proceedings, with the trial court suggesting that the government’s multiple filings could warrant sanctions.

The clash has its origins in the announcement, in March of this year, by Secretary of Commerce Wilbur Ross that the 2020 census would, for the first time in over 50 years, include a question about whether individuals responding to the census are U.S. citizens. The federal government explained that the information would help the Department of Justice better enforce federal voting rights laws, but the challengers – led by New York – argue that including the question will deter undocumented immigrants and their families from completing the census, leading to an inaccurate population count.

Earlier this month U.S. District Judge Jesse Furman, who is presiding over the trial, rejected what he described as the government’s “latest and strangest effort” to stop the proceedings until the Supreme Court rules on the government’s challenge to the district court’s discovery orders as “most puzzling, if not sanctionable.” The U.S. Court of Appeals for the 2nd Circuit upheld Furman’s ruling.

In a letter addressed to Scott Harris, the clerk of the Supreme Court, rather than a brief addressed to the justices, the Trump administration suggested that the justices “may wish to reconsider staying” the next steps in the trial – in which closing arguments are scheduled for today – in light of their decision to weigh in on the dispute over the evidence. Doing so, U.S. Solicitor General Noel Francisco explained, would ensure that the Supreme Court will be able to decide the question that it agreed to review. (At the same time, Francisco acknowledged that if the trial is allowed to proceed, the government will still have a case on appeal because the Supreme Court could order the district court not to consider evidence outside the official government record and could continue to prohibit questioning of Ross.)

Particularly because of the unusual posture of the government’s request, there is no way to know when or whether the Supreme Court will act on yesterday’s letter.

This post was originally published at Howe on the Court.

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Quiet day for orders

Quiet day for ordersThe Supreme Court issued more orders this morning from the justices’ private conference last Friday. The justices had added two new cases to their merits docket for the term last week and were not expected to grant any more today – and they did not. Instead, the overwhelming majority of today’s orders denied review of […]

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Quiet day for orders

The Supreme Court issued more orders this morning from the justices’ private conference last Friday. The justices had added two new cases to their merits docket for the term last week and were not expected to grant any more today – and they did not. Instead, the overwhelming majority of today’s orders denied review of petitions asking the justices to weigh in. The justices once again did not act on several high-profile petitions, including a challenge to mandatory bar dues and a pair of cases involving whether individuals can bring a lawsuit to challenge the state’s disqualification of a Medicaid provider such as Planned Parenthood. But one criminal case on which they did act today, involving the Sixth Amendment right to confront the prosecution’s witnesses in a criminal trial, drew a dissent from the unlikely pairing of Justices Neil Gorsuch and Sonia Sotomayor.

Sotomayor joined Gorsuch’s dissent from the denial of review in Stuart v. Alabama. The defendant in the case, Vanessa Stuart (who has since changed her name to Vanessa American Horse), was charged with driving under the influence and criminally negligent homicide after she rear-ended Tiffany Howell’s car, causing Howell to strike a tree and die.

At Stuart’s trial, prosecutors introduced lab reports as evidence of Stuart’s blood alcohol level. But they did not ask the scientist who signed the lab report to testify. And that omission, Stuart contended, was inconsistent with Bullcoming v. New Mexico, in which the Supreme Court held that introducing a lab report at trial without testimony from the person who prepared the report violates the Sixth Amendment’s confrontation clause, which gives a defendant the right “to be confronted with the witnesses against him.”

The justices turned down Stuart today, over a four-page dissent from Gorsuch, who began by noting that because “cross-examination may be the greatest legal engine ever invented for the discovery of truth, the Constitution promises every person accused of a crime the right to confront his accusers.” “That promise,” Gorsuch continued, “was broken here.”

Gorsuch went on to explain that, although the state court’s errors in Stuart’s case were in his view obvious, they were also understandable, because the Supreme Court’s opinions on the confrontation clause – and in particular a 2012 case in which no rule was able to garner a majority of the votes – “have sown confusion.” He (and Sotomayor) would have granted review to clarify some of the issues surrounding cases like Stuart’s.

Although the Gorsuch-Sotomayor pairing may seem unusual at first blush, it is not necessarily surprising. Confrontation clause cases in particular have not always broken down on traditional conservative/liberal lines: As this blog’s Lyle Denniston once wrote, the late Justice Antonin Scalia was – thanks to his penchant for hewing closely to the words and original meaning of the Constitution – the Supreme Court’s “most devoted defender” of the confrontation clause, and Gorsuch appears to be following in the footsteps of Scalia, whom he replaced. Scalia and Justice Clarence Thomas (along with Sotomayor and Justice Elena Kagan) joined Justice Ruth Bader Ginsburg’s opinion for the court in favor of the defendant in Bullcoming, while Justice Stephen Breyer – whom we normally think of as part of the court’s more liberal bloc – joined Justice Anthony Kennedy’s dissenting opinion.

The justices’ next conference is scheduled for Friday, November 30.

[Disclosure: I was among the lawyers for the petitioner in Bullcoming, but I have no connection with any of the attorneys in this case.]

This post was originally published at Howe on the Court.

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Whitaker appointment dispute reaches Supreme Court

Whitaker appointment dispute reaches Supreme CourtSince the moment President Donald Trump appointed Matthew Whitaker as Acting Attorney General on Wednesday, November 7, the move has been met with significant political and legal criticism, with numerous lawyers and commentators arguing that the president lacked both statutory and constitutional authority to name Whitaker—previously chief of staff to Attorney General Jeff Sessions—as Sessions’ […]

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Whitaker appointment dispute reaches Supreme Court

Since the moment President Donald Trump appointed Matthew Whitaker as Acting Attorney General on Wednesday, November 7, the move has been met with significant political and legal criticism, with numerous lawyers and commentators arguing that the president lacked both statutory and constitutional authority to name Whitaker—previously chief of staff to Attorney General Jeff Sessions—as Sessions’ interim successor. That argument may soon receive a conclusive resolution, thanks to an unusual motion filed in the Supreme Court late on Friday afternoon.

The movant, Barry Michaels, brought suit in March of 2016 against the attorney general and another senior government official seeking to challenge the constitutionality of the federal ban on possession of firearms by convicted felons. After losing in the lower courts, Michaels filed a petition for certiorari on June 27, in which the solicitor general’s response is currently due on December 17. But in a filing late Friday afternoon, Michaels—who is represented by Florida lawyer Michael Zapin and a team of lawyers from Goldstein & Russell, P.C., led by SCOTUSblog founder Tom Goldstein—moved the justices to “substitute” the appropriate successor to Sessions, who was one of the respondents to Michaels’ petition.

As the motion explains, the court’s rules usually provide for automatic succession of government-officer parties upon the prior officeholder’s departure. But “that practice is premised on the ability of this Court to identify the correct successor, so that any judgment or Order of the Court is directed to the correct individual.” Here, however, the dispute over the validity of Whitaker’s appointment means that “the identity of the successor is both contested and has important implications for the administration of justice nationally. This Motion seeks to resolve the dispute.” Michaels’ motion argues that the dispute ought to be resolved against the validity of Whitaker’s appointment—largely on the ground that the Federal Vacancies Reform Act of 1998 does not override or otherwise displace the mandatory order of succession set forth in the Department of Justice succession statute, codified at 28 U.S.C. § 508. And even if it did, the motion argues, the appointments clause of Article II of the Constitution does not allow for officials who have not been confirmed by the Senate to exercise the functions of a principal office, like the attorney general, on a temporary basis so long as no exigency precludes another, Senate-confirmed officer from doing so.

The motion concedes that “no characteristic of this case distinguishes it from any other in which Mr. Sessions was a named party” and that no lower court has yet addressed the issue. Nevertheless, the motion urges the justices to resolve the issue now because “[t]here is a significant national interest in avoiding the prospect that every district and immigration judge in the nation could, in relatively short order, be presented with the controversy over which person to substitute as Acting Attorney General.”

The justices have repeatedly reasserted that the Supreme Court is one of “review, not of first view.” Other challenges to the validity of Whitaker’s appointment have already been brought in contexts in which the acting attorney general is more than just a named party. And the U.S. Court of Appeals for the District of Columbia Circuit has ordered supplemental briefing as part of a challenge to the validity of Special Counsel Robert Mueller’s appointment and investigation as to whether the identity of Mueller’s current supervisor bears on the matter—and, if so, who it is. This issue therefore seems likely to reach the Supreme Court eventually. But the Michaels motion asks the justices whether they really want to wait that long. If they do not, then formally identifying the proper respondent to a petition for certiorari would certainly allow them to settle the matter once and for all.

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

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Justices to weigh in on evidence in census citizenship-question dispute

Justices to weigh in on evidence in census citizenship-question disputeThe Supreme Court announced this afternoon that it would hear oral argument in February in a dispute over evidence in the challenge to the government’s decision to add a question about citizenship to the 2020 census. The order is the latest chapter at the court for the case; the justices had previously rejected the government’s […]

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Justices to weigh in on evidence in census citizenship-question dispute

The Supreme Court announced this afternoon that it would hear oral argument in February in a dispute over evidence in the challenge to the government’s decision to add a question about citizenship to the 2020 census. The order is the latest chapter at the court for the case; the justices had previously rejected the government’s request to put the trial in the case on hold, allowing the trial to go forward (now nearly to completion) earlier this month.

The events giving rise to the dispute now before the Supreme Court arose in March of this year, when Secretary of Commerce Wilbur Ross announced that the 2020 census would include a question about citizenship, intended to help the Department of Justice enforce federal voting-rights laws. A group of states (led by New York), cities and counties challenged that decision; they argued that including such a question would skew the results of the census, because it would deter households with undocumented immigrants from responding.

As part of their case, the challengers wanted to gather evidence from outside the official records considered by Ross in making his decision – including by questioning both Ross and John Gore, the acting head of the Department of Justice’s civil rights division, about why the question was added. In October, the government asked the Supreme Court to intervene in the evidentiary dispute, arguing that there was no need to probe into the two officials’ mental states when the government had provided thousands of pages of documents explaining Ross’ decision.

The Supreme Court gave the government a partial victory on October 22, blocking the challengers from questioning Ross but allowing Gore’s deposition and other fact-finding to go forward. One week later, the justices refused to put the trial in the case, which was scheduled to begin on November 5, on hold while they ruled on the government’s petition for mandamus. That petition asked the justices to issue an order directing the trial court to exclude fact-finding beyond the official records, including Gore’s deposition, and make its decision based only on the official records.

The government’s petition suggested that, in the alternative, the justices could grant review of the appeals court’s decision denying relief, and that is what the Supreme Court did today. The justices ordered an expedited briefing schedule that will allow the case to be argued on February 19, 2019.

The justices also agreed to review Cochise Consultancy v. United States ex rel. Hunt, a case involving the statute of limitations for the False Claims Act. Congress passed the False Claims Act to combat fraud in government contracting; under the act, lawsuits can be filed either by the government or by a private party, known as a relator, who acts on behalf of the government and can collect up to 30 percent of the money recovered through the lawsuit. As a general rule, an FCA case must be filed within six years of the alleged fraud, but the law contains an exception for cases in which the fraud is not discovered right away: In those cases, the lawsuit must be filed within three years of the date when “facts material to the right of action are known or reasonably should have been known by” the responsible government official – but in any event no more than 10 years after the fraud. The question that the justices agreed to decide today is whether a relator can rely on the exception to file a lawsuit after the six-year statute of limitations has run in cases in which the government is not involved.

This post was originally published at Howe on the Court.

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Court adds two new cases to merits docket

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

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Court adds two new cases to merits docket

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

This post was originally published at Howe on the Court.

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