No new grants, but four CVSGs

No new grants, but four CVSGsThis morning the Supreme Court issued orders from last week’s private conference. The justices did not add any new cases to their merits docket for their next term, which begins in October, but they did ask the U.S. solicitor general to weigh in on four cases. Two of the cases in which the U.S. solicitor […]

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No new grants, but four CVSGs

This morning the Supreme Court issued orders from last week’s private conference. The justices did not add any new cases to their merits docket for their next term, which begins in October, but they did ask the U.S. solicitor general to weigh in on four cases.

Two of the cases in which the U.S. solicitor general has been asked to file briefs expressing the views of the United States are original actions – that is, lawsuits filed first in the Supreme Court – challenging state laws that seek to regulate the treatment of farm animals. The first case, Missouri v. California, asks the justices to invalidate a California law that requires farms raising egg-laying hens to ensure that the hens can move around freely. Telling the court that California’s regulation of eggs has “inflated egg prices for every egg consumer in the Nation,” 13 states argue that the law is trumped by federal laws and violates the Constitution’s commerce clause, which prohibits states from enacting laws that are intended to discriminate against citizens of other states or that place an unnecessary burden on interstate commerce. In the second case, Indiana v. Massachusetts, another group of 13 states (which closely resembles, but is not identical to, the group of state plaintiffs in the Missouri case) challenges efforts by Massachusetts to impose similar restrictions by barring sales in Massachusetts of eggs, pork and veal from animals that were “confined in a cruel manner.”

The justices also asked the federal government to file briefs in two other cases. In Kansas v. Garcia, the state has asked the Supreme Court to review a ruling by the Kansas Supreme Court that reversed Ramiro Garcia’s conviction for identity theft for using someone else’s Social Security number, on the ground that the state prosecution was pre-empted by the federal Immigration Reform and Control Act. And in Gilead Sciences v. United States ex rel. Campie, the company – which markets HIV treatments – asked the justices to review a ruling by the U.S. Court of Appeals for the 9th Circuit. The case involves a claim that Gilead Sciences falsely represented that the products it sold to the government complied with Food and Drug Administration regulations; Gilead Sciences contends that the court of appeals should not have allowed the case to go forward when the government paid for the products even though it knew that some of the FDA’s requirements were violated. That payment, Gilead Sciences argues, created a presumption that the requirements were not material, and the plaintiffs did not include any allegations to overcome that presumption. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondent in Gilead Sciences. The author of this post is not affiliated with the firm.] There is no deadline for the government to file its briefs in these four cases.

The justices rejected a request by former Illinois governor Rod Blagojevich, who is serving a 14-year sentence for his conviction on corruption charges, to review his case. Blagojevich had asked the court to clarify whether, in corruption cases, the government must prove that the defendant made an explicit promise in exchange for a campaign contribution, or whether it must instead prove only that the defendant knew that the payment was made in exchange for his acts. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case. The author of this post is not affiliated with the firm.]

The justices once again did not act in Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the D.C. Circuit that cleared the way for a pregnant teenager to obtain an abortion. The justices will meet again on April 20 for their next conference, with orders from that conference expected on Monday, April 23.

This post was originally published at Howe on the Court.

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Event announcement: Livestream of Justice Breyer speaking at 6 p.m. at Tufts University

Event announcement: Livestream of Justice Breyer speaking at 6 p.m. at Tufts UniversityToday at 6 p.m., Justice Stephen Breyer will speak at Tufts University as part of the university’s Tisch College Distinguished Speaker Series. A livestream is available on the Tufts website at this link.

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Event announcement: Livestream of Justice Breyer speaking at 6 p.m. at Tufts University

Today at 6 p.m., Justice Stephen Breyer will speak at Tufts University as part of the university’s Tisch College Distinguished Speaker Series. A livestream is available on the Tufts website at this link.

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Justices grant one new case, summarily reverse in excessive-force case

Justices grant one new case, summarily reverse in excessive-force caseThe Supreme Court added one new case to its merits docket for next term, bringing the total number of cases slated for oral argument in the fall to eight. The grant came in Stokeling v. United States, in which the justices will once again interpret a provision of the Armed Career Criminal Act, which imposes […]

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Justices grant one new case, summarily reverse in excessive-force case

The Supreme Court added one new case to its merits docket for next term, bringing the total number of cases slated for oral argument in the fall to eight. The grant came in Stokeling v. United States, in which the justices will once again interpret a provision of the Armed Career Criminal Act, which imposes longer sentences for repeat offenders who commit crimes with guns and have been convicted of either violent felonies or serious drug crimes. The defendant in the case, Denard Stokeling, pleaded guilty in 2016 to charges that he was a felon in possession of a gun and ammunition. Stokeling had been convicted twice for robbery in Florida, where state law includes overcoming “victim resistance” as an element of robbery, but state courts have interpreted the offense as requiring only slight force to overcome such resistance. Stokeling argues that these two Florida robbery convictions do not count as “violent felonies” for purposes of an enhanced sentence under the ACCA because the convictions did not require the use of violent force. The justices will now consider whether he is correct.

In Kisela v. Hughes, the justices overturned – without briefing or oral argument – the ruling of the U.S. Court of Appeals for the 9th Circuit in favor of Amy Hughes, whom police corporal Andrew Kisela shot and wounded in 2010. Kisela had responded to reports that Hughes was in the street with a large knife “screaming and crying very loud”; when he arrived, he saw Hughes approaching another woman. After Hughes ignored orders to drop the knife and continued to move toward the woman, Kisela fired at Hughes. The shots struck Hughes several times, although her injuries were not life-threatening.

Hughes filed a lawsuit against Kisela, alleging that the shooting violated her federal civil rights. A federal district judge ruled for Kisela, but the 9th Circuit reversed. Today, in an unsigned opinion, the Supreme Court reversed the 9th Circuit’s ruling. The opinion explained that, even if Kisela had violated the Fourth Amendment by using deadly force against Hughes (which the ruling described as “a proposition that is not at all evident”), Kisela still could not be sued because any rights that he might have violated were not clearly established – a key factor in whether government officials enjoy immunity from lawsuits.

The court rebuked the 9th Circuit, stressing that it had “repeatedly told courts—and the Ninth Circuit in particular—not to define clearly established law at a high level of generality.” This is especially important in excessive-force cases, the court continued, because otherwise police officers in the field will have trouble figuring out what they can or cannot do. Therefore, the court observed, police officers “cannot be said to have violated a clearly established right unless the right’s contours were sufficiently definite that any reasonable official in the defendant’s shoes would have understood that he was violating it.” But, the court added, the 9th Circuit “failed to implement” that standard “in a correct way.” Indeed, the court suggested, although the 9th Circuit’s opinion in this case indicated that a case arising out of the FBI stand-off at Ruby Ridge in 1992 “clearly established that the shooting here was unconstitutional,” the panel’s reliance on the Ruby Ridge case “does not pass the straight-face test” because “a reasonable police officer could miss the connection between the situation confronting the sniper at Ruby Ridge” – who “shot a man in the back while the man was retreating to a cabin” – and “the situation confronting Kisela in Hughes’ front yard.”

Justice Sonia Sotomayor dissented from today’s summary reversal, in a 15-page opinion joined by Justice Ruth Bader Ginsburg. Sotomayor recounted the facts of the case, positing that if the story “sounds unreasonable, that is because it was. And yet,” she complained, “the Court today insulates that conduct from liability,” “effectively treating qualified immunity as an absolute shield.” In particular, she lamented, the court’s ruling “ultimately rests on a faulty premise”: that the cases on which the 9th Circuit relied “are not identical to this one.” But the Supreme Court, she argued, has never ruled that the “clearly established law” standard is met only when the plaintiff can point to a case with identical facts. “It is enough,” Sotomayor contended, “that governing law places the constitutionality of the officer’s conduct beyond debate” – as Kisela’s was here. But at a minimum, Sotomayor added, there is enough dispute about the facts and the law in Kisela’s case that the court should not have reversed without the benefit of briefing or oral argument on the merits.

The majority opinion may have contained a strong rebuke of the 9th Circuit, but Sotomayor’s dissent concluded with an equally forceful reprimand for her colleagues. She asserted that today’s ruling “is not just wrong on the law; it also sends an alarming signal to law enforcement officers and the public” that officers “can shoot first and think later, and it tells the public that palpably unreasonable conduct will go unpunished.”

Sotomayor had more strong words in her solo dissent from the court’s denial of review in two Florida capital cases. The inmates in the cases, Jesse Guardado and Steven Cozzie, had argued that their death sentences were unconstitutional, but the Supreme Court declined to step in. Sotomayor complained that the Florida Supreme Court had – as it had in two earlier cases – “failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences” after the Supreme Court’s 2016 decision holding that the state’s death-penalty-sentencing scheme violates the Constitution. In a somewhat unusual footnote, Sotomayor quoted from a 19th-century essay by the French author André Gide: “’Everything has been said already; but as no one listens, we must always begin again.’”

The Supreme Court also declined to intervene today in a lawsuit brought against the Palestinian Liberation Organization by victims of terrorist attacks in and around Jerusalem. The victims won a judgment of over $600 million, but the court of appeals threw the case out, holding that the courts lacked jurisdiction over the PLO and the Palestinian Authority, the Palestinian self-governing body. The federal government recommended that review be denied, and today the justices announced that they would follow that recommendation, which means that the lower court’s ruling in favor of the PLO and PA will stand.

The justices once again did not act on Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The justices will not meet for their private conference this week, which means that we are not likely to hear any announcements on this case or others until 9:30 am on Monday, April 16.

This post was originally published at Howe on the Court.

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A “view” from the courtroom: Judicial restraint

A “view” from the courtroom: Judicial restraintThe first case for argument in the Supreme Court this morning has a very interesting underlying issue: whether a policy of shackling all criminal defendants at pretrial appearances in a federal district court is constitutional. But as United States v. Sanchez-Gomez comes before the justices, the questions presented are more procedural in nature, including whether […]

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A “view” from the courtroom: Judicial restraint

The first case for argument in the Supreme Court this morning has a very interesting underlying issue: whether a policy of shackling all criminal defendants at pretrial appearances in a federal district court is constitutional.

But as United States v. Sanchez-Gomez comes before the justices, the questions presented are more procedural in nature, including whether the U.S. Court of Appeals for the 9th Circuit had the authority to review the “interlocutory” appeal of a group of detainees after the federal district court upheld the U.S. Marshals Service restraint policy in the Southern District of California, which is based in San Diego.

A reporter colleague says before the argument that he doubts that the word “shackling” will even come up. This reminds me of the 2015 case of Kimble v. Marvel Entertainment LLC, an intellectual-property dispute over a Spiderman toy in which the superhero was not mentioned even once during a legally dense oral argument (though Spiderman did make a playful cameo in Justice Elena Kagan’s eventual opinion in the case).

Spiderman will not be mentioned once during today’s argument in Sanchez-Gomez, either. But it doesn’t take long for the justices to at least touch on the underlying issue of the shackling policy.

“It seems to me there may well be a legal violation in shackling people, particularly people with disabilities and so forth, and that doesn’t have anything to do with the trial,” Justice Anthony Kennedy says to Allon Kedem, an assistant to the U.S. solicitor general who is arguing, among other things, that the shackled detainees could have challenged the practice as part of an appeal of their criminal convictions.

Allon Kedem, assistant to the U.S. solicitor general (Art Lien)

To be clear, the so-called five-point-shackling policy, which involves handcuffs, leg irons, and chains, is used only in pretrial proceedings, not in a jury trial. As Justice Stephen Breyer put it in his 2005 opinion in Deck v. Missouri: “The law has long forbidden routine use of visible shackles during the guilt phase; it permits a state to shackle a criminal defendant only in the presence of a special need.” (Deck went on to hold that the Constitution bars the use of visible shackles in the penalty phase of a capital trial, absent a special interest.)

The challengers contend they have a due process right to appear unshackled before a judge. But here they are defending their victory in the 9th Circuit, which held both that it could hear the appeal because the challengers essentially brought a class action-like claim covering a widespread policy and that their claims were not moot even though the four had resolved their criminal cases.

Kedem is facing off this morning against Reuben Cahn, the head of the federal defenders’ office in San Diego. Cahn is representing the challengers, who include an Iraq war veteran charged with making an interstate threat, a woman charged with a drug offense, and two aliens charged with immigration-related offenses.

Watching Kedem, who is essentially acting as a federal appellate prosecutor today, go up against Cahn, a federal public defender,reminds us of “For the People,” the new ABC legal drama that premiered this month from “Grey’s Anatomy” and “Scandal” producer Shonda Rhimes.

The network promotes the show this way: “Talented young lawyers work on opposite sides of the law handling the most high-profile and high-stakes federal cases in the country. In the new Shondaland series, these young lawyers will be put to the test both personally and professionally as their lives intersect in and out of America’s most prestigious trial court.”

That court is the U.S. District Court for the Southern District of New York, in Manhattan, which ABC says is “a.k.a. the ‘Mother Court’.” Those talented young lawyers are new hires in the U.S. attorney’s office, on one side, and the federal defender’s office, on the other.

Of course, neither Kedem nor Cahn quite qualifies as a fresh-faced “new hire.” Kedem is a former Kennedy and Kagan clerk who has argued multiple cases as an assistant to the solicitor general. Cahn has been the executive director of the Federal Defenders of San Diego since 2005 and has argued before the Supreme Court at least once before, in a 2011 case.

The justices and their cadres of four TV writers — er, law clerks — have come up with some tough questions for each side.

Breyer asks Kedem about an “absolutely hypothetical” courtroom security policy in which “people will come in bound and gagged in body armor, hung upside down. Okay, you’re saying even if that’s so, that person in this country has no way of challenging that order?”

Kedem says that would be an abuse of discretion and challengers to such an extreme policy could get a writ of mandamus striking it down. But he pushes back on Breyer’s premise, pointing out that the standard use of restraints is “a practice in roughly half of the U.S. Marshal field offices. Other field offices use leg restraints at initial hearings. So I don’t want to accept the premise that this is something truly exceptional.”

If Kedem comes across as the strait-laced, able Washington lawyer for the prosecution, Cahn has a bit of a Southern California vibe in his voice and manner.

“We believe the courtroom really is a sacred space,” he says, sometimes sticking his hand in his pocket and swaying back slightly from the lectern. “We believe judges control that space and assure that individuals come before the court with dignity and with autonomy and with their liberty interest protected, and that there was a well-established right at common law that, under this court’s precedent, is incorporated in the Due Process Clause to appear before courts free of bonds.”

Cahn mentions the notorious Newgate prison in London, where for centuries detainees faced “terrible conditions, shackled hand and foot, and without question, their bonds would be struck off for their arraignments.”

Chief Justice John Roberts tells Cahn there is a “countervailing interest.”

“Which, of course, is the safety of those in the courtroom and the safety of the judges,” Roberts says. “And your scenario of the person coming in from Newgate, I understand, that’s one individual. Here, according to the record from the marshals, you have many situations where there are a lot of people and the idea that [judges are] going to undertake an individualized determination in every case is just something that they don’t have the resources or time for.”

For a case in which the justices specifically declined to take up the constitutional question of whether the shackling at issue violates the Constitution, the argument over the procedural questions provides a pretty good hour of drama.

Unlike during a television show such as “For the People,” there is no time-editing to propel us to the outcome of the case. For that, we’ll have to tune in sometime later this season, probably in June, at 10 a.m. Eastern time/9 a.m. Central. Check your local listings.

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No new grants today

No new grants todayThis morning the Supreme Court issued orders from the justices’ private conference last week. The court did not add any new cases to its merits docket for next term, nor did it call for the views of the U.S. solicitor general in any cases. Today’s order list may have been most noteworthy for what it did not […]

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No new grants today

This morning the Supreme Court issued orders from the justices’ private conference last week. The court did not add any new cases to its merits docket for next term, nor did it call for the views of the U.S. solicitor general in any cases.

Today’s order list may have been most noteworthy for what it did not contain: an order in Azar v. Garza, in which the federal government has asked the Supreme Court to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant undocumented teenager to obtain an abortion. The justices considered the case at several conferences earlier this year before asking the lower courts to send them the record in the case in late February. Since receiving the record, the justices have considered the case at two more conferences without acting on it. Although there is no way to know for sure at this point, the request for the lower-court record could mean that someone on the court is writing something regarding the case – either a summary reversal or (perhaps more likely) a dissent from the denial of review.

The justices will meet again for another private conference on Thursday, March 29. We would expect orders from that conference on Monday, April 2, at 9:30 a.m.

This post was originally published at Howe on the Court.

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A “view” from the courtroom: Just another (snowy) workday here

A “view” from the courtroom: Just another (snowy) workday hereIn the pre-dawn hours this morning, the website of the Office of Personnel Management delivered the news about whether an impending snowstorm in the Washington area would close executive-branch agencies. “FEDERAL OFFICES in the Washington, DC area are CLOSED,” the notice said. But anyone who has been paying attention knows that the OPM does not […]

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A “view” from the courtroom: Just another (snowy) workday here

In the pre-dawn hours this morning, the website of the Office of Personnel Management delivered the news about whether an impending snowstorm in the Washington area would close executive-branch agencies.

“FEDERAL OFFICES in the Washington, DC area are CLOSED,” the notice said.

But anyone who has been paying attention knows that the OPM does not rule the Supreme Court’s decision on whether to open on a day such as this. And, indeed, with opinions and one oral argument scheduled, the court decides to carry on.

“The Supreme Court building is open to the public from 9 a.m. to 4:30 p.m.,” the court’s website announces matter-of-factly, mentioning the one oral argument and that the court “may announce opinions,” with no particular acknowledgment of the weather.

Indeed, inside the court building, one would be hard-pressed to see how this was anything but a normal day when the justices are in public session. Breakfast is being served in the cafeteria. Spectators are lined up to enter the courtroom. Reporters are gathering in the press room.

The last time the court opened on schedule on a day when snow shut the rest of the federal government was on January 25, 2016, a few days after a blizzard had socked the city. The court took the bench to deliver four opinions before an audience of exactly two spectators in the public gallery and a handful of lawyers in the bar section.

Today, the bar section is about half full and the public seating is nearly full. There are quite a few high-school students here, including a group from the Roeper School in Bloomfield Hills, Mich. Your correspondent is invited to speak to the visiting students from that school each year, which some years does not fall on a day when the court is in public session.

Today, teacher Matt Vallus has taken up my suggestion that the severe weather may make it easier for the group to get into the oral argument. Most of the 10 or so students and two teachers do make it in, which is heartening since the spectator line outside was longer than what might be expected on such a snowy day. (On the other hand, most museums and other attractions in the capital are closed.)

As the justices take the bench at 10 a.m., the snow visible through the windows to the courtyards on each side of the courtroom seems to be getting heavier by the minute.

Justice Samuel Alito delivers a summary of his opinion in Ayestas v. Davis, in which the court unanimously revives a Texas death-row inmate’s request for funding for investigative services necessary to prove his claim for federal habeas relief. Justice Sonia Sotomayor has filed a concurring opinion, joined by Justice Ruth Bader Ginsburg.

The second opinion comes from Justice Stephen Breyer in Marinello v. United States, which interprets a clause in the Internal Revenue Code and holds that to convict a defendant under the “Omnibus Clause,” the government must prove the defendant was aware of a pending tax-related proceeding, such as an investigation or audit, or could foresee such a proceeding.

The audience perks up a bit when Breyer suggests that under the government’s theory being rejected today, a taxi passenger or restaurant customer who pays the fare or leaves a tip in cash at the request of the driver or waiter might be at risk of prosecution for a federal felony.

“So could paying a babysitter $41 per week in cash for a year without withholding taxes,” Breyer says as he looks out at an audience of likely taxi passengers, diners and parents interested in a night on the town.

Justice Clarence Thomas has filed a dissent, joined by Alito.

Those who have battled the snow to reach the court today are next treated to a lively argument in Upper Skagit Indian Tribe v. Lundgren, which presents the somewhat daunting question of whether a court’s exercise of “in rem” jurisdiction overcomes the jurisdictional bar of tribal sovereign immunity when the tribe has not waived immunity and Congress has not unequivocally abrogated it.

The case involves a roughly one-acre strip of land in Washington state, which the Lundgren family contends they acquired by adverse possession from a larger tract of land later acquired by the Upper Skagit tribe. The family filed a quiet-title action against the tribe, which asserted a defense of sovereign immunity that was rejected by the Washington Supreme Court.

Just a few minutes into the argument, three rather loud electronic chimes go off, a sound we haven’t heard in the courtroom before. Sotomayor, who battles diabetes, is soon handing a device that looks like it may be her blood glucose monitor to a marshal’s aide. The aide soon returns and gives something to Sotomayor, perhaps medicine or a piece of candy to balance out her blood sugar.

The argument continues with some references that the high school students present may or may not be studying in their history classes.

“This is the Alexander Hamilton quote from the Federalist Papers: ‘It is inherent in the nature of sovereignty not to be amenable to suit without consent,’” says Ann O’Connell, an assistant to the U.S. solicitor general, who is arguing in support of the tribe with a quote from “The Federalist No. 81.”

Breyer goes back further than “The Federalist Papers” to counter O’Connell with Cornelius van Bynkershoek and his classic 1744 work, “De Foro Legatorum,” which argued that at least since the 18th century, it has been “established that property which a prince has purchased for himself in the dominions of another … shall be treated just like the property of private individuals and shall be subject in equal degree to burdens and taxes.”

Breyer cites some other scholars from the briefs, and seeks to sum up his view that the tribe does not have sovereign immunity from the suit with this: “So, if you were to have a quiz—‘what was the law of sovereign immunity in 1760?’—you know, I guess you’d have to say the law is that [if] the prince buys a department store in Iowa, I’m sorry, he’s just like another Iowan.”

The argument continues with the justices much less testy with each other than they were on Tuesday, during National Institute of Family and Life Advocates v. Becerra. Maybe it’s the snow.

When the argument concludes, Chief Justice John Roberts sees no need to thank the court’s employees for any special efforts to ensure the opening of court this morning, as he did two years ago.

After all, despite closures elsewhere around town, it’s just a regular day here at the Supreme Court.

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Justices block Missouri execution

Justices block Missouri executionOver the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight. Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper […]

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Justices block Missouri execution

Over the objection of four justices, the Supreme Court tonight blocked Missouri from executing Russell Bucklew, who was scheduled to die tonight. Bucklew was convicted for the 1996 murder of Michael Sanders, who was living at the time with Bucklew’s former girlfriend, Stephanie Ray. Bucklew kidnapped and raped Ray, and he wounded a state trooper during the shootout that preceded his capture.

Bucklew argues that allowing the state to execute him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from a rare disease that has caused “unstable, blood-filled tumors to grow in his head, neck, and throat.” If Bucklew has trouble breathing when the execution begins, he contends, the tumor in his throat could rupture, filling his mouth and airway with blood. As a result, he tells the justices, his “execution will very likely be gruesome and painful far beyond the pain inherent in the process of an ordinary lethal injection.”

The U.S. Court of Appeals for the 8th Circuit rejected Bucklew’s challenge to the constitutionality of his execution, holding that he had not shown that his suggested alternative method of execution – lethal gas – would significantly reduce the likelihood that he would suffer unnecessarily.

Last week Bucklew filed a petition asking the Supreme Court to review that ruling, which he described as resting on “3 distinct misreadings and dangerous extensions of this Court’s” earlier decisions on lethal injection. The state filed a brief opposing review, and Bucklew has filed his reply, but the case has not yet been scheduled for consideration at one of the justices’ private conferences. Tonight’s order staves off Bucklew’s execution to allow them to consider his petition. If the justices deny the petition, the stay will automatically end and the state can go forward with his execution; if they grant it, the stay will continue until the justices rule on the merits of his case.

An inmate seeking a stay of execution needs five votes in his favor. With four justices (Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch) indicating that they would have denied Bucklew’s request, those votes presumably came from Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan.

This post was originally published at Howe on the Court.

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Justices won’t block new congressional maps in Pennsylvania

Justices won’t block new congressional maps in PennsylvaniaOne day before the filing deadline for the primary election, the Supreme Court rejected a request by Republican lawmakers in Pennsylvania to block a remedial plan adopted by the Pennsylvania Supreme Court from going into effect. The ruling means that the state’s 2018 congressional elections will likely go forward under the new maps, which could […]

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Justices won’t block new congressional maps in Pennsylvania

One day before the filing deadline for the primary election, the Supreme Court rejected a request by Republican lawmakers in Pennsylvania to block a remedial plan adopted by the Pennsylvania Supreme Court from going into effect. The ruling means that the state’s 2018 congressional elections will likely go forward under the new maps, which could allow Democrats to pick up three or four more of the state’s 18 seats in the House of Representatives – which could in turn increase Democrats’ chances of taking back the House.

This was the second trip for Republican lawmakers to the Supreme Court in the last two months. In early February, they asked the justices to block a ruling by the Pennsylvania Supreme Court so that they could appeal the state court’s finding that the map violated the Pennsylvania constitution because it was the product of partisan gerrymandering – that is, the Republican-controlled state legislature had drawn it to obtain an advantage over Democrats. Justice Samuel Alito, who handles emergency appeals from the geographic region that includes Pennsylvania, denied that request on February 5 without even referring it to the full Supreme Court – a move that suggests that he did not regard the case as a particularly meritorious one.

The redistricting dispute then returned to Pennsylvania, where the state supreme court adopted a remedial plan. The Republican lawmakers urged the justices to step in, telling them (among other things) that the state supreme court had violated the Constitution’s elections clause, which gives state legislatures the authority to regulate federal congressional elections. This time Alito referred the request to the full court, but the justices did not act for nearly three weeks; when they finally did take action this afternoon, they issued only a terse one-sentence order, without any recorded dissents. There is no way to know why the court waited so long to rule on the lawmakers’ request, although at least one election law expert has speculated that the justices were waiting for a three-judge district court in Pennsylvania to act on a challenge to the new plan, which it did this afternoon.

This post was originally published at Howe on the Court.

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Justices decline to weigh in on constitutionality of death penalty

Justices decline to weigh in on constitutionality of death penaltySeven months after an Arizona inmate asked the Supreme Court to review the constitutionality of the death penalty itself, the court today declined to do so. The order denying certiorari in the case of Abel Hidalgo, who shot and killed two men as part of a murder-for-hire scheme in 2000, was accompanied by a 10-page […]

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Justices decline to weigh in on constitutionality of death penalty

Seven months after an Arizona inmate asked the Supreme Court to review the constitutionality of the death penalty itself, the court today declined to do so. The order denying certiorari in the case of Abel Hidalgo, who shot and killed two men as part of a murder-for-hire scheme in 2000, was accompanied by a 10-page statement by Justice Stephen Breyer, who was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. But Breyer’s statement focused on the second question raised by Hidalgo, who argued that the scheme that Arizona used to sentence him to death does not, as the Supreme Court has required, “genuinely narrow the class of persons eligible for the death penalty.”

Although 99 percent of first-degree murders in Arizona are eligible for the death penalty, Hidalgo contended, the Arizona Supreme Court ruled that the state’s scheme does not violate the Constitution because the necessary narrowing can be achieved in other ways – specifically, through the discretion given to prosecutors and the individual aggravating factors themselves. Breyer agreed with Hidalgo that “the Arizona Supreme Court misapplied our precedent,” but he nonetheless approved of the U.S. Supreme Court’s decision to deny review. Breyer explained that Hidalgo’s evidence regarding eligibility for the death penalty in Arizona was “unrebutted” and even “points to a possible constitutional problem.” But, he continued, because Hidalgo was not allowed to develop this evidence at a hearing in the lower court, the record now before the justices “is limited and largely unexamined by experts and the courts below in the first instance.” If another defendant develops empirical evidence on this question in the future, he concluded, that case will be “better suited for certiorari.”

The ruling in Hidalgo’s case was not the only significant denial of review among today’s orders. The justices also turned down Garco Construction, Inc. v. Secretary of the Army, a case arising out of a dispute between the federal government and a subcontractor on an Air Force housing project in Montana. Although it sounds relatively esoteric, the legal issue at the heart of the case is quite significant in administrative law: whether the Supreme Court’s decisions in Bowles v. Seminole Rock & Sand Co. and Auer v. Robbins should be overruled. As this blog’s John Elwood has explained, those cases “stand for the proposition that courts must defer to an agency’s interpretation of its own ambiguous regulation unless that interpretation is plainly erroneous or inconsistent with the regulation.” The court’s decision in Auer is just a little over two decades old, but it has been the target of considerable criticism in recent years – including from the late Justice Antonin Scalia, the author of the ruling. Critics argue that the doctrine grants too much latitude to agencies, giving them the opportunity to become both the drafter and arbiter of their rules, and provides them with an incentive to issue regulations that are deliberately vague. Moreover, the critics add, the doctrine means that individuals or entities who are subject to regulations may not have enough notice about what they are or are not allowed to do.

Justice Clarence Thomas dissented from today’s denial of review, joined by the court’s newest justice, Neil Gorsuch. In a three-and-a-half-page opinion, Thomas argued that such deference to agencies is “constitutionally suspect” and “on its last gasp.” Garco’s case, he continued, “would have been an ideal case to reconsider” the doctrine. But because the Supreme Court “has passed up another opportunity to remedy ‘precisely the accumulation of governmental powers that the Framers warned against,’” Thomas “respectfully” dissented.

The justices once again did not act on Azar v. Garza, in which the federal government has asked them to nullify a ruling by the U.S. Court of Appeals for the District of Columbia Circuit that cleared the way for a pregnant teenager to obtain an abortion. The court considered the case at several conferences before asking the lower courts to send it the record in the case in late February. The justices could of course still grant the government’s petition for review, but the more likely scenario at this point – particularly given the request for the record – is that a justice is writing an opinion regarding the denial of review.

The justices today added one new case to their merits docket for the 2018 term: Nielsen v. Preap, which asks what happens to a noncitizen who is released from criminal custody but not immediately taken into custody by immigration officials. The case had been on hold since late September, waiting for the justices to rule on another immigration case argued in early October. The justices issued that ruling late last month, holding in Jennings v. Rodriguez that the Immigration and Nationality Act does not give noncitizens who have been detained the right to periodic bond hearings.

The ruling in Jennings cleared the way for the justices to once again consider the government’s petition in Preap, which centers on the interpretation of a federal law that instructs the Department of Homeland Security to take noncitizens who are convicted of certain crimes into custody and hold them until proceedings to deport them can be conducted. The first paragraph of the provision contains a list of the kinds of offenses that subject a noncitizen to immigration detention. That list is followed by a clause indicating that the noncitizen should be taken into immigration custody when he is released from prison. The second paragraph of the provision creates a narrow exemption from immigration custody – involving witness protection – that is not at play in this case.

The Board of Immigration Appeals, which handles appeals from immigration courts, has interpreted the law to describe which noncitizens convicted of crimes should be held by DHS after they are released from criminal custody. The law does not mean, the BIA says, that a noncitizen who is convicted of one of the offenses described in the first paragraph is exempt from mandatory detention if DHS does not pick him up immediately after he is released from prison. But a group of noncitizens have read the law differently, arguing that the mandatory detention provision applies only to noncitizens whom DHS takes into custody upon their release from prison.

After the U.S. Court of Appeals for the 9th Circuit agreed with the noncitizens, the federal government asked the Supreme Court to weigh in. In its petition for certiorari, the government contended that the appeals court’s ruling “has created a circuit conflict on an important and recurring issue of federal law.” Indeed, the government noted, even the 9th Circuit acknowledged that four other federal appeals courts had reached a contrary interpretation. And, the government adds, the 9th Circuit’s decision is wrong: Even if the law is ambiguous – about which the government is skeptical – the 9th Circuit should have deferred to the BIA’s interpretation.

The noncitizens urged the justices not to intervene at this point, but today the justices rejected that plea and announced that they would take the case, which will likely be argued in the fall.

The justices also asked the U.S. solicitor general to file a brief providing the federal government’s views in Pioneer Centres Holding v. Alerus Financial, a case involving the interpretation of the Employee Retirement Income Security Act. There is no deadline for the solicitor general to file his brief.

The justices will meet again for another private conference on Friday.

This post was originally published at Howe on the Court

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SCOTUS Map: February and March 2018

SCOTUS Map: February and March 2018Justice Ruth Bader Ginsburg, who turned 85 yesterday, kept her calendar full during the Supreme Court’s February break, notching five events in a single week. She visited NYU Law’s Center for Diversity, Inclusion, and Belonging on February 5, New York Law School on February 6, Columbia University on February 11, and the University of Pennsylvania […]

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SCOTUS Map: February and March 2018

Justice Ruth Bader Ginsburg, who turned 85 yesterday, kept her calendar full during the Supreme Court’s February break, notching five events in a single week. She visited NYU Law’s Center for Diversity, Inclusion, and Belonging on February 5, New York Law School on February 6, Columbia University on February 11, and the University of Pennsylvania and the National Constitution Center on February 12. Ginsburg also received the Pro Bono Institute’s inaugural Esther F. Lardent Award on February 22. Video of all six of Ginsburg’s appearances is available online (NYU, New York Law School, Columbia, Penn, NCC, Pro Bono Institute). Media coverage of her events comes from the New York Law Journal, New York Law School Community News, CNN, Penn Current and The Atlantic.

At NYU, Ginsburg disagreed with the idea that she has consciously altered the way she speaks at oral argument so as to minimize the chances of being interrupted. A 2017 study on interruptions at the Supreme Court posited that the four female justices changed their speech patterns over their years on the bench to omit polite, prefatory statements, such as “May I ask.” In her case, however, Ginsburg clarified that “I adopted the ‘May I ask’ many years after I became a justice. It was from observing my colleague John Paul Stevens, who asked very challenging questions but always began in such a gentle way. The only effort I make is to keep my questions as short as possible, so I don’t eat into counsel’s time.” At the same time, Ginsburg mused, “I do think that article has gotten a lot of publicity, and let’s see if it does affect my colleagues. I think it well may.”

The second-busiest justice in February was Justice Sonia Sotomayor, with a grand total of two events. On February 6, Sotomayor participated in a Q&A session at Emory Law. According to the Associated Press, the justice urged students to take part in the democratic process and speak up about the issues they believe in. “I believe with all my heart that unless we become engaged in our country and become active participants in making a difference in the world we’re in, that we will be nothing but bystanders otherwise, and nobody should live their life being a bystander.” Video is available here.

The following day, Sotomayor made an appearance at Brown University. In response to a student question about the top challenges young women today face, Sotomayor said, “The challenges have remained the same from when I was growing up to when you were growing up.” For example, she noted, the gender pay gap persists: “If you look at the statistics, women doing the same work still earn less than men. You can’t fight the facts. The measures have been studied over and over again, and pay equality is still one of the biggest issues our nation faces.” The Providence Journal, Associated Press and News from Brown covered the event. Footage of Sotomayor’s talk can be viewed online.

On February 7, Justice Neil Gorsuch spoke at the National Defense University as part of the President’s Lecture Series.

While some justices draw energy from their off-bench engagements, embracing and cultivating their public image, others approach that aspect of the job with more stoicism than excitement. At the Library of Congress on February 15, Justice Clarence Thomas told the audience that his least favorite part of being on the court was “the loss of anonymity.” “I don’t like the public part, but that’s part of the deal; I’m not going to complain about it. Those of you who are introverts—you know what I’m talking about,” Thomas said, before expressing exasperation with the “myth-making around the court and who we are.” “There’s the real world, and there’s the myth of that world. We don’t have the time, the energy, or the ink—or the bits or bytes, or whatever they call that—to engage in that narrative battle. We have work to do.” Andrew Hamm covered the event for this blog. Video is available on the Library of Congress’ YouTube account.

On February 26, Justice Anthony Kennedy presided over the Shakespeare Theatre Company’s mock trial of Hamlet.

At the University of Virginia on March 1, an audience member asked Justice Stephen Breyer about the impact that legal blogging has on his job as a judge. Breyer stated that he “normally does not read blogs,” though he admitted that once, after he had written an opinion in a patent case, “by stupidity, since it was highly technical, I became curious what the patent lawyer blogs were saying.” Breyer then threw his hands up at the memory of what he found. “Well, I mean—abortion? Death penalty? You name it! Nothing could have been as terrible as what I just wrote! There we are. I don’t read them too often and I don’t think they’ve changed life too much.”

Breyer also ruminated on the role of luck and reason in his career. Asked to describe a time where he came across a proverbial fork in the road and how he handled that choice, Breyer recalled advice he once received from a law school dean, when he was considering moving to the west coast to teach:

When you make a decision like that, you only know three percent of what you need to know in order to make a sensible decision, and you’re never going to know more. So if you keep your decisions within the realm of reasonableness—that is, don’t become a trapeze artist, unless you have a particular talent for that—there’s no way to know, okay? So you decide. And I usually think that means: lighten up when you make the decisions you are going to have to make.

And then what happens is you decide, and the world wraps itself around you. And there’ll be some good aspects and there’ll be some bad ones … if you’re very unlucky they’re mostly bad, and if you’re very lucky they’re mostly good. And I’ll tell you, to be on the Supreme Court, to be a federal judge, lightning has to strike, and we all know that. To be on the Supreme Court, it has to strike twice in the same place, and we all know that. You can control a little bit—the best you can pat yourself on the back for is, you can say, well, I was on the corner when the bus came by. And that means, you did a reasonably good job … maybe somebody will notice and you will get a better job. And maybe they won’t. But if they don’t, at least you’ll have the satisfaction of having done that well.

The Roanoke Times, UVA Today and NBC29 covered the appearance. Video of the full event is available on YouTube.

Also in March:

  • Sotomayor spoke at the 2018 NASPA Conference for student affairs administrators in higher education on March 3 in Philadelphia. Coverage comes from Al Dia, Univision and Slate.
  • On March 6, Sotomayor gave remarks at an event dedicating the NYU Annual Survey of American Law’s 75th Volume to Chief Judge Robert A. Katzmann of the U.S. Court of Appeals for the 2nd Circuit. The New York Law Journal has a recap (subscription required).
  • At a Supreme Court Historical Society National Heritage Lecture on March 6, Justice Elena Kagan reflected on her experiences as a clerk for Justice Thurgood Marshall. Jon Levitan covered the event for this blog.
  • In his keynote speech at the Federalist Society’s National Student Symposium, Thomas warned the audience to resist cynicism. “I don’t think we can have a society where we are consistently cynical or negative the way that we are,” Thomas said, according to the Washington Times. “At some point, if you’re going to have a country, you’ve got to have something to be for.”
  • Chief Justice John Roberts addresses the 2018 Judicial Conference of the U.S. Court of Appeals for the Federal Circuit in Washington, D.C., today.

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