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Sotomayor blocks Ohio prisoner release plan for now

Last week the Supreme Court rejected a request by the federal government to temporarily block an order that could have required the release or transfer of over 800 inmates from a federal prison in Ohio where nine inmates have died from COVID-19. But the court’s ruling suggested that it was largely based on procedural grounds, because the government had not appealed the lower court’s most recent order. On Monday the government returned to the Supreme Court. This time the government asked the justices to put both the original April 22 order by the district court requiring the inmates’ transfer and the May 19 order enforcing the April 22 order on hold while it appeals those orders. In a brief order tonight, Justice Sonia Sotomayor – who handles emergency appeals from the area that includes Ohio – put both orders on hold.

The case before the court was filed in April by inmates at a low-security federal prison in Elkton, Ohio, who argued that they face a high risk of being infected with COVID-19 because they live in such close quarters that it is impossible to practice social distancing. One in five prisoners, the inmates note, currently have COVID-19. On April 22, the district court ordered the Bureau of Prisons to evaluate elderly and high-risk inmates for transfer out of the Elkton facility, either through some form of early release (such as home confinement) or by moving them to another facility.

A few weeks later, the inmates asked the district court to enforce the order, telling the court that none of the 837 inmates identified as elderly or high-risk had been released or moved yet. On May 19, the district court issued a new order. Concluding that prison officials had been “thumbing their nose at their authority to authorize home confinement,” the district court instructed prison officials to “make full use of the home confinement authority” and to reevaluate whether inmates were eligible for home confinement without using certain criteria – such as the length of time remaining on an inmate’s sentence – as a categorical bar.

The government came to the Supreme Court on May 20, asking the justices to freeze the district court’s April 22 order while it appealed to the U.S. Court of Appeals for the 6th Circuit. But in a one-page order on May 26, the justices turned the government down. The court emphasized that the government had only asked it to stay the district court’s April 22 order, even though the May 19 order enforced the April 22 order and put “additional measures” in place. However, the court indicated, the government could return to seek a new stay “if circumstances warrant.” Three justices – Justices Clarence Thomas, Samuel Alito and Neil Gorsuch – noted that they would have granted the government’s request.

On Monday the government filed a new request, this time asking the justices to block both the April 22 and the May 19 orders while it appeals to the 6th Circuit and, if necessary, the Supreme Court. Citing its “extensive efforts to combat COVID-19 at Elkton” and stressing that courts should not second-guess those efforts, the federal government explained that the BOP had approved 51 more inmates for home confinement, as well as one more inmate for compassionate release; the other at-risk inmates will be transferred to other federal facilities after they have been quarantined for 14 days. The “wide-scale inmate transfers ordered by the district court as a means to combat the COVID-19 pandemic are highly disruptive of sound prison administration,” the government argued, while the court’s requirement that the BOP reevaluate inmates’ eligibility for home confinement “imposes additional harms to public safety” by creating “a substantial risk that inmates might be released into home confinement only to offend again.” Unless the Supreme Court puts the district court’s orders on hold, the government warned, “irreparable” harm will result – and that harm is unnecessary, because the situation at Elkton is rapidly improving.

The inmates urged the justices to stay out of the dispute again. The district court’s orders, the inmates told the court, give the BOP substantial discretion to decide whether an at-risk inmate should be released or instead transferred to another facility. But that discretion, the inmates emphasized, “does not extend to violating the Constitution, or slow walking a remedy.” The district court simply responded to this “fact-bound dispute, specific to a single prison afflicted by one of the nation’s worst COVID-19 prison outbreaks,” with “an appropriate balance of speed and thoughtfulness.” The government’s request to put the district court’s rulings on hold, the inmates protested, boils down to an appeal from the government “to place its own administrative burdens over the lives and health of those it concedes are medically vulnerable to a deadly disease.”

In a reply brief filed earlier today, the government told the justices that it expected to begin transferring the first group of 128 inmates to other facilities tomorrow, even before oral argument in the U.S. Court of Appeals for the 6th Circuit, which is also scheduled for tomorrow. So although the court of appeals “has stated that it expects to issue a decision soon after” tomorrow’s oral argument, the government urged the court to stay the district court’s ruling until its appeals in the 6th Circuit “and, if necessary,” proceedings in the Supreme Court have been resolved.

In a short order signed only by Sotomayor tonight, the April 22 and May 19 orders were put on hold “pending the disposition of the Government’s appeal in the United States Court of Appeals for the Sixth Circuit and further order of the undersigned or of the Court.” The order means that the 6th Circuit’s ruling, standing alone, will not change anything; the stay will be lifted – and the district court’s orders reinstated – only if and when either Sotomayor or the full court says so.

This post was originally published at Howe on the Court.

The post Sotomayor blocks Ohio prisoner release plan for now appeared first on SCOTUSblog.

Ask the authors: The long and winding road from shortlisted to selected for female Supreme Court nominees

The following is a series of questions posed by Ronald Collins to Renee Knake Jefferson and Hannah Brenner Johnson in connection with their new book, “Shortlisted: Women in the Shadows of the Supreme Court” (New York University Press, 2020), which tells the untold stories of women that presidents considered as justices for the Supreme Court in the decades before Sandra Day O’Connor’s confirmation.

Renee Knake Jefferson is a professor of law and the Joanne and Larry Doherty Chair in Legal Ethics and Director of Law Center Outcomes and Assessments at the University of Houston Law Center. She is an author of two casebooks: “Professional Responsibility: A Contemporary Approach” (2020) and “Legal Ethics for the Real World: Building Skills Through Case Study” (2018).

Hannah Brenner Johnson is Vice Dean for Academic and Student Affairs and an associate professor of law at California Western School of Law. Her research interests include gender-based violence and gender inequality in the legal profession.

Johnson and Jefferson are also the authors of “Gender, Power, Law & Leadership” (2019).

Welcome, Renee and Hannah, and thank you both for taking the time to participate in this question-and-answer for our readers. And congratulations on the publication of your latest book.

* * * 

Question: Yours is a collaborative effort. Tell us about that and how the two of you work.

Jefferson & Johnson: We have a longstanding friendship and collaborative working relationship that extends over the course of the last decade to the time when we both taught at Michigan State University College of Law. Our first research project grew out of personal hallway conversations and emails that we exchanged in the year between Justice Sonia Sotomayor’s nomination and confirmation to the Supreme Court in August of 2009 and Justice Elena Kagan’s nomination and confirmation in 2010.

We were both shocked by some of the media coverage of these two incredibly qualified women as they were being vetted for a position on the nation’s highest court (things like commentary on their sexuality, appearance and marital status). These conversations led us to create an empirical research project and, in its wake, solidified our relationship as both co-authors and friends. It also provided opportunity for our children to develop their own friendships as we spent time writing together and traveling to present our scholarship at conferences, often with the kids in tow.

In those early years we also co-directed the Frank J. Kelley Institute of Ethics at Michigan State and planned a number of conferences, including a symposium that addressed gender inequality in the legal profession. And of course we began working on the shortlisted project. We’ve stayed committed to this work, and our collaboration has continued even after moving across the country to join the faculties at different law schools. Our writing process may be different from how others engage in collaborations; we have long enjoyed sharing drafts of our work and editing each other’s words early on in the process. This was intimidating the very first time we started writing together, as the sharing of preliminary unedited drafts requires a certain vulnerability; but we learned that we could trust each other.

We believe this practice leads to a more uniform voice for all of our work. Often, when we look back at our work, it is impossible for either of us to remember who wrote what. True to our practice, we took the same approach in answering the questions for this Q&A!


Question: Your book takes a close look at the stories of women who were considered – but not selected – for a seat on the U.S. Supreme Court. In the last chapter you offer eight strategies “for counteracting the biases and prejudices that endure” against professional women in largely male-dominated fields. Is that your target audience?

Jefferson & Johnson: Our target audience is fairly broad but yes, it definitely includes women who are navigating their professional paths. We are also trying to reach those who occupy positions of power and have the ability to help move women from shortlisted to selected. It is important to note that while some of the strategies we identify may be useful on an individual basis, we are perhaps even more interested in encouraging more systemic or structural change. Much of the book, though, will appeal to anyone interested in the history of this country or the Supreme Court selection process.

We also wrote the book with our children in mind as the audience, though when we started our youngest couldn’t even read yet! But we knew our daughters and sons would grow up in a world in which gender inequality endures. We wanted them to be inspired by the histories of these trailblazing women and to equip them with strategies for the work that remains. So, needless to say, our target audience is quite broad. And it’s been a particular joy to see our now-teenaged children reading the book.


Question: This book has its empirical roots in a study the two of you conducted about gendered portrayals of Supreme Court nominees. Tell us about that.

Jefferson & Johnson: As we mentioned, our first interaction with each other involved our shared outrage surrounding the media’s sexist coverage of Supreme Court nominees. We channeled this energy into a research study that explored how the media portrayed nominees to the Supreme Court as far back as President Richard Nixon’s efforts to fill the vacancies that ultimately went to William Rehnquist and Lewis Powell.

This project involved the systematic evaluation of over 4,000 newspaper articles published in the New York Times and Washington Post. We read and coded every single article for a series of variables that ranged from the sex of the reporter to whether the article mentioned the nominee’s appearance, sexuality, parental status and more. We surmised that the way Supreme Court nominees were being discussed in mainstream media would reveal the experience of women leaders generally and provide insight into the barriers and obstacles that impede their advancement into positions of leadership and power.

The study exposed a pattern of gendered portrayals of the female nominees. It also uncovered long-forgotten presidential shortlists, one of which included two women a decade before O’Connor became the first woman to join the Supreme Court. We immediately wondered, were other women considered? Who was the first president to include a woman on his shortlist? This book shares what we discovered as we searched for answers.


Question: On October 14, 1971, there was an unsigned piece in the New York Times on potential Supreme Court nominees Nixon was then considering. Share with us how that fits into your experience in writing “Shortlisted.”

Jefferson & Johnson: It was in the midst of our Supreme Court media study that we stumbled upon that article. We were shocked to learn that Nixon had shortlisted Sylvia Bacon, a judge from Washington, D.C., and Mildred Lillie, a judge from California, as he was faced with two vacancies on the court. We had never heard of these women and were unaware that any women had been considered for the court before O’Connor. We were shocked at the way Lillie was described by the author as having “maintained a bathing beauty figure.” It was absurd that an individual considered as a nominee for the nation’s highest court would be critiqued based on her appearance in a swimsuit. We also were struck by the author’s reference to her childless status.

Although we understood that this commentary was consistent with the pervasive sexism of that era (and the findings of our media study), we were more curious about the notion that other women had been shortlisted before O’Connor. And so began our journey through presidential papers, news accounts and private archives. We learned that indeed, nine women had been shortlisted but never selected for the Supreme Court, dating back as far as the 1930s.


Question: You acknowledge your indebtedness to Professor Christine Nemacheck. What was her work and how did it influence yours?

Jefferson & Johnson: Unlike for other positions in government, there is no unified system of selecting—or shortlisting—individuals to serve on the Supreme Court. In fact, the Supreme Court judicial selection process is well known by scholars to be one of the most difficult to study. Presidents have not kept uniform records of whom they considered for the court. President Donald Trump was the first to make public his shortlist, which was prominent in his campaign and officially posted on the White House website after his election.

Nemacheck is a political scientist who has researched Supreme Court nominees and, as a starting place, we relied on her excellent book, “Strategic Selection: Presidential Nomination of Supreme Court Justices From Herbert Hoover Through George W. Bush,” to discern who, exactly, may have appeared on presidential shortlists. However, we departed from Nemacheck’s method in two places. We identified Florence Ellinwood Allen, and not Soia Mentschikoff, as the first woman to be shortlisted, and added Sylvia Bacon to the list. Through this project we developed a profound appreciation for historians and scholars like Nemacheck, as it can be incredibly challenging to piece together accurate reflections of the past. We discovered competing accounts of history and tried to point these out to our readers.

We included a note about this process in the book’s appendix, and call for other scholars to continue this effort to better account for untold and/or long-forgotten aspects of our history, especially women’s history.


Question: A number of women are profiled in your book. How do these women fit into what you refer to as “collective storying telling”? Tell us more about what you mean by that and your call for systemic change.

Jefferson & Johnson: In addition to the nine shortlisted before O’Connor, we also include three women who appeared on President Ronald Reagan’s subsequent shortlists and the five women who went on to be nominated. Each of the women profiled in our book could be the subject of an entire research study. They are all incredibly gifted, accomplished, complex women who have blazed uncharted paths into positions of leadership and power. Some have previously been studied, though only two of the women shortlisted before O’Connor have been the subject of books. We believe that one of the most powerful aspects of this project is the collective story that we tell about this cohort of women who were qualified to serve on the Supreme Court, but never selected.

We have written about common themes that unite them, but in many respects they could not be more different from one another. They represent, collectively, the importance of diverse representation on the Supreme Court and beyond. In telling their stories in this way, we uncovered a phenomenon we did not set out to find—what we define as a nominee who is “qualified for a position but not selected from a list that creates the appearance of diversity but preserves the status quo.”

This concept of being “shortlisted” helps explain why it took so long for a woman to make it onto the court, and we think that it also helps explain why women are not reflected in numbers equal to men in all positions of leadership and power. It’s not the only explanation, but it is one structural source of continued inequality. If one only looks at an individual woman’s story, it’s hard to see this phenomenon. But looking at their stories together? It is impossible to ignore it.


Question: There are some notable female appellate judges who were never formally shortlisted but were informally considered and whose names circulated in the press. Can you tell us a little bit about those women and their fates?

Jefferson & Johnson: Our list of shortlisted women in the book includes only the women for whom we could find actual documentation of being formally considered by a president. But, absolutely, as you suggest, there were a number of other exceptionally qualified women whose names were circulated in the media and also sent to presidents for consideration, including Chief Judge Alice Batchelder of the U.S. Court of Appeals for the 6th Circuit, Priscilla Owen of the U.S. Court of Appeals for the 5th Circuit, Shirley Hufstedler of the U.S. Court of Appeals for the 9th Circuit and Patricia Wald of the U.S. Court of Appeals for the District of Columbia Circuit, just to name a few. President Jimmy Carter was widely known to have considered Hufstedler as his first choice for the court, but of course he never had a vacancy to fill.


Question: Share with us how your example of Carter, who never nominated anyone to the Supreme Court, and Judge Amalya Kearse, who was never nominated to that court, illustrates one of the strategies for change recommended in your book’s last chapter.

Jefferson & Johnson: One of our overarching recommendations in this book is to encourage systemic transformation, not just change at the individual level. Carter exemplified this approach when he issued an executive order that established judicial nominating commissions for the federal circuit courts in 1977. Thirteen panels were created representing regions across the country, with a specific mandate that each include men, women and minorities. The panels were directed to nominate candidates who had actively championed diversity. Thus, the panels asked:

  • “How have you worked to further civil rights, women’s rights, or the rights of other disadvantaged groups on a national, state or local level?”
  • “How many women attorneys and minority attorneys does your office or law firm include?”
  • “How many women partners?”
  • “Minority partners?”
  • “What do you think the most crucial legal problems of women and minorities will be over the next few years?”
  • “How should these problems be remedied?”

Panel members included Kearse, who at the time was still practicing law at Hughes, Hubbard & Reed in New York. She would later go on to be selected by one of those commissions, and she was confirmed to the U.S. Court of Appeals for the 2nd Circuit on June 25, 1979.

Carter understood that one of the most powerful roles of a president is the appointment of judges, who last long beyond the president’s term. By the end of his presidency, Carter had appointed and the Senate had confirmed 41 women, more than all presidents before him combined.


Question: You write of the “potential harms of being shortlisted.” As you see it, is it better or worse to be shortlisted, and why?

Jefferson & Johnson: Well, it’s best to be both shortlisted and selected. Our concern is that a shortlist can manipulate the public into believing that its creator has placed no gender or race barriers to a coveted position even though the ultimate aim was always to preserve the status quo. Of course, one needs to be on the shortlist to be selected. It is a necessary and important first step toward being chosen. It is an honor. But, when the shortlisting of women and minorities is a hollow gesture, it demeans not only the individual, but society’s belief that merit should override gendered and racial prejudices.

The message that is sent by systemic shortlisting may deter others from putting themselves forward. The dearth of women and minorities on the Supreme Court and in other positions of leadership and power signals that these opportunities are just not available and not worth enduring the often grueling scrutiny that comes from being on the shortlist.


Question: Before the 2016 election, then-candidate Trump publicly announced his shortlist of possible candidates for the Supreme Court.

On the one hand, you seem skeptical of this: Such lists, you write, lend “the auspices of diversity and equality to the nomination process but ultimately preserv[e] the status quo.” On the other hand, you argue that “[s]unlight is needed on the shortlists … [and we] need accurate data and transparency about who is shortlisted, not just for the Supreme Court, but across professions and in all positions of leadership and power.”

Can you say a bit more about your thinking on this matter?

Jefferson & Johnson: We think that these sentiments are both true. We absolutely need transparency surrounding who makes it onto the shortlist, as this practice is revelatory and may in fact encourage those who are doing the selecting to be more inclusive. Such transparency allows us to better understand what is actually happening and whether shortlisted women and minorities are mere window dressing or actual legitimate candidates. It also allows us to examine who ascends. We also acknowledge that even transparency only goes so far.

It is worth noting that the current president’s shortlists have thus far resulted in the appointment of more men, and fewer minorities, to the federal bench than his recent predecessors from both parties. By contrast, presumptive Democratic presidential nominee, Joe Biden, has committed to select both his vice president and a Supreme Court justice, should he have the opportunity to fill a vacancy, from all-female shortlists.


Question: Although duly appreciative of the achievements of the four “waves of feminism,” you nonetheless take exception to “a common omission in each wave of women’s rights since [its] early gathering [in Seneca Falls]”: the consideration of minority women. Would you elaborate?

Jefferson & Johnson: The voices of women of color have frequently been left out of the feminist movement. Most of the grievances expressed by the women at Seneca Falls were focused on white middle class women. Many of the activists in the suffrage movement were willing to exclude their black sisters out of concern that race would impede their ability to gain the right to vote. “Women” has not been synonymous with the experience of all women, and too often feminism has failed to acknowledge the many layers of our intersectional identities.


Question: The late Judge Cornelia Kennedy was nominated to a federal district court in 1970 by Nixon, and later elevated in 1979 by Carter to serve on the 6th Circuit. Presidents Gerald Ford and Reagan both considered her for the Supreme Court. Yet nothing ever came of it. Why?

Please also tell our readers how Kennedy changed one of the Supreme Court’s long-standing traditions.

Jefferson & Johnson: It’s hard to know exactly why Kennedy was never selected. She seems to have come closer than anyone else in our study. When Reagan was deciding between Kennedy and O’Connor, longevity on the court was likely a factor: Kennedy was six years older than O’Connor. This was Kennedy’s partial explanation. But we also suspect that politics and lobbying behind the scenes impacted Reagan’s decision.

Our nation’s history has many examples of physical structures mirroring social policy. “Colored” and “whites-only” train depots; men-only clubs; the forced relocation of Japanese American citizens during World War II. Similarly, many physical structures in place when shortlisted women were considered assumed that men were singularly qualified to occupy positions of leadership. For example, there was no private bathroom for O’Connor when she joined the Supreme Court. But that was not the only structural impediment that needed attention.

Historically, Supreme Court justices were referred to as “Mr. Justice” both on the bench and on the nameplates on their office doors. Kennedy found herself participating in a law school moot court competition with Justice John Paul Stevens. The student participants repeatedly referred to Kennedy as “Madam Justice.” Kennedy became irritated with this reference and questioned the need for the gendered honorific rather than simply the word “Justice.” This interlude sparked something in Stevens, who took the message back to Washington and, long story short, convinced the justices that it was time to remove the honorific “Mr.” from their chamber doors as well as from their references to each other.


Question: As you note in chapter three, Chief Justice Warren Burger played a role in helping to get O’Connor on the court. Among other things, while O’Connor was still a state appellate judge, Burger placed her on several national and international judicial panels in order to give her greater national visibility. Plus, it helped that on the eve of her nomination she published an article in the William and Mary Law Review on the relationship between federal and state courts. All of this points to a circuitous route to securing a seat on the court. How does that figure into your strategic calculus for someone hoping to secure a nomination to the Supreme Court?

Jefferson & Johnson: In addition to qualifications, connections matter both in the creation of a shortlist and in elevation from it. Some routes are direct; some are circuitous; but none should bar selection based on an immutable characteristic like gender. Thus, we admire Mentschikoff’s professional and personal relationship with Karl Llewellyn, who undoubtedly opened doors. But without her commanding intellect and her principal role as reporter to the American Law Institute on its Uniform Commercial Code publication, she would never have been considered for a position on the Supreme Court.

To be sure, securing a seat on the Supreme Court requires certain credentials, along with a bit of luck and the right timing. We don’t mean to suggest in any way that the strategies of the women profiled in our book or the recommendations we make in the final chapter offer a sure-fire path to the bench. But there are lessons to be learned for securing leadership roles, not only on the court but also well beyond it.


Question: In addition to the aspirational side of your book, I sense that there may be a kind of realist mindset at work. For example, you counsel that women “[c]hoose personal partners – whether in friendship or in romance – who value one’s professional life and allow for the possibility of non-traditional relationships.”

Are you saying that the personal is political?

Jefferson & Johnson: We gleaned a lot from our exploration of the personal lives of the shortlisted women and how their personal lives affected their successful professional trajectories. Relationships matter in the attainment of positions of leadership and power. All of the women on our shortlist relied on their academic, family, personal and/or public ties to achieve success. This was also true of the more than 100 men who preceded O’Connor. The difference is that the men’s attributes, combined with their personal and political relationships, secured seats on the highest court in the land.

Our message is that women, like their male counterparts, should not shy away from nurturing relationships that advance their ascension to pinnacles of power. Our personal, intimate lives can have a direct bearing on what we do professionally. And, whether we like it or not, politics often plays a role in what we can do at home and at work.


Question: Now that “Shortlisted” is out, what are your plans? For example, have you given any thought to doing a study (see here also) of female lawyers who have argued before the Supreme Court?

Jefferson & Johnson: Right now we are reveling in the birth of this book, although many of our plans are casualties of the coronavirus. We had several book talks scheduled that have been postponed or transitioned to Zoom sessions. But yes, we are intrigued by the examples of women arguing before the Supreme Court, by the dozens of women who have led their state courts as chief justice and by the continuing suppression of minority women in these roles. And our readers, like you, have given us much food for thought. Stay tuned!


Question: You close your book with this: “When President Obama greeted Justice Ginsburg at Justice Kagan’s swearing in, he asked, ‘Are you happy that I brought you two women?’ She replied, ‘Yes, but I’ll be happier when you bring me five more.’”

Why stop at eight?

Jefferson & Johnson: Great question! A court that reflects the diversity of our profession and the people it serves is an important goal. We should also work hard to resist the concept of a monolithic “woman’s voice.” Looking at the court’s rich history, we don’t attach one viewpoint or singular identity to the male justices or to the two African American justices who have served.

We would absolutely like to see an increasingly diverse court filled with women and minority justices whose perspectives on the law are informed by differences in geography, education, race, gender, ethnicity, life experience and more.

We wish Presidents Herbert Hoover or Franklin Roosevelt had been bold enough to nominate Florence Allen in the 1930s. Imagine how a decision like that would have changed the course of her story, and of history.

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Thursday round-up


  • At AP, Jessica Gresko reports that “when a justice is truly steamed to be on a decision’s losing side, the strongest form of protest is reading a summary of the dissent aloud in court”; because the pandemic is keeping the court off the bench this year, dissenters in controversial cases “might have to find a new way to show” their displeasure.
  • Steve Vladeck has this blog’s analysis of Monday’s decision in Banister v. Davis, in which the court held that a prisoner’s motion to alter or amend a judgment under Federal Rule of Civil Procedure 59(e) should not be treated as a second or successive petition for habeas corpus.
  • At Final Decisions, Bryan Lammon discusses Monday’s opinion in Nasrallah v. Barr, which held that courts can review a noncitizen’s factual challenge to a denial of an application to defer removal under the Convention Against Torture, and which “marks the fifth and final appellate-jurisdiction case for this Supreme Court term.”
  • At Alternatives to the High Cost of Litigation (subscription required), Richard Faulkner and Philip Loree discuss “the second trip to the U.S. Supreme Court for Archer and White Sales Inc. v. Henry Schein Inc., on a petition for certiorari regarding whether an arbitration agreement unmistakably delegates to the arbitrator disputes about whether the parties agreed to arbitrate in the first place.”

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

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Relist Watch

John Elwood reviews Monday’s relists.

Even as the world grows more topsy-turvy by the minute, the Supreme Court’s relists this week are heavily a status quo affair. The gun cases are still there. The qualified immunity cases are still there. And the two ancient serial relists Andrus v. Texas and United States v. California inexplicably shuffle back for yet another curtain call this week, a trip they’ve been making almost weekly since November 2019 and January 2020, respectively.

If we needed any further proof that we’re living in a dystopian future, even the relists this week reflect the basic fact of life Beyond Thunderdome: Two cases enter, one case leaves. The one case leaving is Jarchow v. State Bar of Wisconsin, 19-831, which involved a First Amendment challenge to mandatory bar membership and dues. The court denied review, but Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented to say that the court’s recent First Amendment jurisprudence has undercut the legal basis for upholding mandatory bar membership.

Now on to the two cases entering. The first is Niz-Chavez v. Barr, 19-863. The attorney general can cancel removal of a nonpermanent resident who has 10 years of continuous presence in the United States, and of a permanent resident who has seven years of continuous residence here. Under the “stop-time rule,” the government can end those periods of continuous residence by serving “a notice to appear,” which provides “written notice … specifying” specific information related to the initiation of a removal proceeding. This case presents the question whether a notice sufficient to trigger the stop-time rule must itself include all the requisite information, or whether the government can furnish that information over the course of many documents and on the timetable of its choosing. The government’s brief in opposition includes those words every petitioner loves to read: “[A] circuit conflict currently exists on the question presented.” Regrettably for Agusto Niz-Chavez, that concession is followed by the statements that “the circuits may resolve that conflict” and “the question presented is not outcome-determinative.” Those reflect an advocacy challenge for petitioners. But once the government concedes a circuit split, it is often possible to discredit government claims that the split will resolve itself and that the case is not a good vehicle for addressing the conflict.

The second new case is a bit unusual, in that the Supreme Court has already denied certiorari. Hanks v. United States, 19-7732, is on rehearing of the court’s decision not to grant review. The original petition involved whether 18 U.S.C. § 924(c)(1), which criminalizes the use of a firearm during a “crime of violence” (here, a bank robbery), can be violated by unintentionally intimidating a victim through verbal demands or the passing of a demand note rather than the use or threatened use of physical force. After the court denied review, Jerad Hanks sought rehearing, arguing that the Supreme Court had requested that the government file a response to his co-defendant’s petition raising similar claims, so the court should consider the cases together. Now the court appears to be doing exactly that with the co-defendant’s case, which was already set to be considered at this Thursday’s conference.

That’s all for this week. Until next week, stay safe!

New Relists

Niz-Chavez v. Barr, 19-863
Issue: Whether, to serve notice in accordance with 8 U.S.C. § 1229(a) and trigger the stop-time rule, the government must serve a specific document that includes all the information identified in Section 1229(a), or whether the government can serve that information over the course of as many documents and as much time as it chooses.
(relisted after the May 28 conference)

Hanks v. United States, 19-7732
Issues: (1) Whether 18 U.S.C. § 924(c)(1), which criminalizes the use of a firearm during a “crime of violence” – in this case, the federal bank-robbery statute, 18 U.S.C. § 2113 –may be violated by unintentionally intimidating a victim through verbal demands or the passing of a demand note rather than the use or threatened use of physical force, and whether the definition of the term “crime of violence” cabined in 18 U.S.C. § 924(c)(3)(A) is unconstitutionally vague on its face and unconstitutionally vague under the rule of lenity; and (2) whether there is currently a conflict among the U.S. courts of appeals and an ambiguity in the law regarding the federal statutory definition of the term “crime of violence,” and a conflict between the holdings of some circuits, specifically the U.S. Court of Appeals for the 11th Circuit, and the Supreme Court’s previous holdings regarding the constitutional viability of the current definition of the term “crime of violence” in Section 924(c) and related federal statutes.
(relisted after the May 28 conference)

Returning Relists

Andrus v. Texas, 18-9674
Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced in Strickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated “no prejudice” analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsel’s ineffective representation.
(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21 and May 28 conferences)

United States v. California, 19-532
Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.
(relisted after the January 10, January 17, March 6, March 20, March 27, April 3, April 17, April 24, May 1, May 15, May 21 and May 28 conferences)

Mance v. Barr, 18-663
Issue: Whether prohibiting interstate handgun sales, facially or as applied to consumers whose home jurisdictions authorize such transactions, violates the Second Amendment and the equal protection component of the Fifth Amendment’s due process clause.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Rogers v. Grewal, 18-824
Issues: (1) Whether the Second Amendment protects the right to carry a firearm outside the home for self-defense; and (2) whether the government may deny categorically the exercise of the right to carry a firearm outside the home to typical law-abiding citizens by conditioning the exercise of the right on a showing of a special need to carry a firearm.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Pena v. Horan, 18-843
Issue: Whether California’s Unsafe Handgun Act violates the Second Amendment by banning handguns of the kind in common use for traditional lawful purposes.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Gould v. Lipson, 18-1272
Issues: (1) Whether the Second Amendment protects the right to carry a firearm outside the home for self-defense and (2) whether the government may deny categorically the exercise of the right to carry a firearm outside the home to typical law-abiding citizens by conditioning the exercise of the right on a showing of a special need to carry a firearm.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Cheeseman v. Polillo, 19-27
Issue: Whether states can limit the ability to bear handguns outside the home to only those found to have a sufficiently heightened “need” for self-protection.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Ciolek v. New Jersey, 19-114
Issue: Whether the legislative requirement of “justifiable need,” which, as defined, does not include general self-defense, for a permit to carry a handgun in public violates the Second Amendment.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Worman v. Healey, 19-404
Issue: Whether Massachusetts’ ban on the possession of firearms and ammunition magazines for lawful purposes unconstitutionally infringes the individual right to keep and bear arms under the Second Amendment.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Malpasso v. Pallozzi, 19-423
Issue: In a challenge to Maryland’s handgun carry-permit scheme, whether the Second Amendment protects the right to carry handguns outside the home for self-defense.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Culp v. Raoul, 19-487
Issue: Whether the Second Amendment right to keep and bear arms requires Illinois to allow qualified nonresidents to apply for an Illinois concealed-carry license.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Wilson v. Cook County, 19-704
Issues: (1) Whether the Second Amendment allows a local government to prohibit law-abiding residents from possessing and protecting themselves and their families with a class of rifles and ammunition magazines that are “in common use at [this] time” and are not “dangerous and unusual”; and (2) whether the U.S. Court of Appeals for the 7th Circuit’s method of analyzing Second Amendment issues – a three-part test that asks whether a regulation bans (a) weapons that were common at the time of ratification or (b) those that have some reasonable relationship to the preservation or efficiency of a well-regulated militia and (c) whether law-abiding citizens retain adequate means of self-defense – is consistent with the Supreme Court’s holding in District of Columbia v. Heller.
(relisted after the May 1, May 15, May 21 and May 28 conferences)

Brennan v. Dawson, 18-913
Issue: Whether a police officer may reasonably rely on a narrow exception to a specific and clearly established right to shield him from civil liability when his conduct far exceeds the limits of that exception.
(relisted after the May 21 and May 28 conferences)

Dawson v. Brennan, 18-1078
Issue: Whether the U.S. Court of Appeals for the 6th Circuit misapplied the Supreme Court’s authority and created a conflict among the U.S. courts of appeals by holding that a law enforcement officer violates the Fourth Amendment by entering the rear curtilage of a home in attempting to gain the resident’s compliance with his probation condition.
(relisted after the May 21 and May 28 conferences)

Baxter v. Bracey, 18-1287
Issues: (1) Whether binding authority holding that a police officer violates the Fourth Amendment when he uses a police dog to apprehend a suspect who has surrendered by lying down on the ground “clearly establish[es]” that it is likewise unconstitutional to use a police dog on a suspect who has surrendered by sitting on the ground with his hands up; and (2) whether the judge-made doctrine of qualified immunity, which cannot be justified by reference to the text of 42 U.S.C. § 1983 or the relevant common law background, and which has been shown not to serve its intended policy goals, should be narrowed or abolished.
(relisted after the May 21 and May 28 conferences)

Anderson v. City of Minneapolis, Minnesota, 19-656
Issues: (1) Whether the burden of persuasion in qualified immunity cases should be, in part or entirely, on the plaintiff, as held by the U.S. Court of Appeals for the 8th Circuit in this case and by the U.S. Courts of Appeals for the 4th, 5th, 6th, 7th, 10th and 11th Circuits, or whether it should be placed on the defendant, as held by the U.S. Courts of Appeals for the 1st, 2nd, 3rd, 9th and District of Columbia Circuits; (2) whether, under the state-created-danger doctrine, due process is violated when first responders fail to provide any treatment to a person suffering from severe hypothermia, and instead erroneously declare him dead; and (3) whether the 8th Circuit erred in dismissing this state-created-danger case on qualified immunity grounds.
(relisted after the May 21 and May 28 conferences)

Zadeh v. Robinson, 19-676
Issue: Whether the Supreme Court should recalibrate or reverse the doctrine of qualified immunity.
(relisted after the May 21 and May 28 conferences)

Corbitt v. Vickers, 19-679
Issues: (1) Whether qualified immunity is an affirmative defense (placing the burden on the defendant to raise and prove it) or a pleading requirement (placing the burden on a plaintiff to plead its absence); and (2) whether the Supreme Court should recalibrate or reverse the doctrine of qualified immunity.
(relisted after the May 21 and May 28 conferences)

Hunter v. Cole, 19-753
Issues: (1) Whether, if the barrel of a gun is not yet pointed directly at an officer, clearly established federal law prohibits police officers from firing to stop a person armed with a firearm from moving a deadly weapon toward an officer if the officer has not both shouted a warning and waited to determine whether the imminent threat to life has subsided after the warning; and (2) whether a police officer who inaccurately reports his perceptions of events during a dynamic shooting encounter violates clearly established rights under the 14th Amendment.
(relisted after the May 21 and May 28 conferences)

West v. Winfield, 19-899
Issue: Whether an officer who has consent to “get inside” a house but instead destroys it from the outside is entitled to qualified immunity in the absence of precisely factually on-point case law.
(relisted after the May 21 and May 28 conferences)

Mason v. Faul, 19-7790
Issues: (1) Whether a finding of “objectively unreasonable excessive force” can be squared with a finding of qualified immunity under the facts and circumstances of this case, including whether determinations of the trial court, as affirmed by the U.S. Court of Appeals for the 5th Circuit, resulted in an incorrect analysis of the qualified immunity issue; and (2) whether the 5th Circuit’s determination can be reconciled with other courts’.
(relisted after the May 21 and May 28 conferences)

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Opinion analysis: Justices reaffirm distinction between first and second habeas petitions

One of the most significant changes to federal post-conviction habeas review that Congress adopted in 1996 in the Antiterrorism and Effective Death Penalty Act was the dramatic curtailment of second-or-successive habeas suits by which state and federal prisoners can challenge their confinement. But when a prisoner moves to amend a district court judgment denying his first federal habeas petition, is that still part of the first proceeding, or is that the second bite at the apple that Congress all but eliminated 24 years ago? In its 7-2 ruling on Monday in Banister v. Davis, the Supreme Court held that it is the former—and that a motion to alter or amend a judgment under Rule 59(e) of the Federal Rules of Civil Procedure is part of the underlying proceeding for purposes of AEDPA. Although the ruling is not likely to stand as one of the term’s more significant decisions, the opposite result—for which Justices Clarence Thomas and Samuel Alito argued in dissent—could have had sweeping ramifications.

As I noted in previewing the oral argument, Gregory Dean Banister is a Texas prisoner who, through a federal habeas petition filed pro se, or without the assistance of counsel, principally sought to challenge the ineffective assistance of his trial counsel. After the district court ruled against him, Banister filed a timely motion to amend the judgment under Rule 59(e), raising no new claims but instead disputing the district court’s analysis of his ineffective-assistance claims. The district court denied the motion on the merits, but the U.S. Court of Appeals for the 5th Circuit held that it could not even issue a certificate of appealability because the statute of limitations had expired—based on its conclusion that the clock ran from when the district court denied Banister’s habeas petition, not its later ruling denying his Rule 59(e) motion. This was so, the court of appeals concluded, because the Rule 59(e) motion was properly understood as a second-or-successive petition—a filing that doesn’t suspend the one-year statute of limitations.

Writing for the majority, Justice Elena Kagan disagreed. Noting that “second or successive” is a “‘term of art,’” she wrote that a Rule 59(e) motion to amend the judgment of a first habeas petition is not properly understood as second or successive in light of both historical precedents and AEDPA’s statutory purpose. She explained that there is only one pre-AEDPA precedent in which a federal court appeared to treat a Rule 59(e) motion as an “abuse of the writ,” and that “[i]n every other case, courts resolved Rule 59(e) motions on the merits—and without any comment about repetitive litigation,” reinforcing the view that a motion to amend the judgment is “part and parcel” of the original proceeding, rather than a new, distinct matter. As for statutory purpose, not only did Congress in 1996 not change the definition of “second or successive,” but the broader goals of AEDPA—making habeas proceedings more efficient and eliminating the need for successive applications—are only advanced by allowing motions to amend district court judgments. Kagan concluded that “[s]uch a motion does not enable a prisoner to abuse the habeas process by stringing out his claims over the years. It instead gives the court a brief chance to fix mistakes before its (single) judgment on a (single) habeas application becomes final and thereby triggers the time for appeal.”

In dissent, Alito, joined by Thomas, argued that the majority’s analysis rests almost entirely on labels—and that, had Banister simply styled his Rule 59(e) motion differently, it would have been barred either by AEDPA itself or by the Supreme Court’s 2005 ruling in Gonzalez v. Crosby, which held that motions to seek relief from a federal court’s judgment in a first habeas petition under Rule 60(b) are second-or-successive petitions. For Alito, “[i]f a Rule 59(e) motion asserts a habeas claim, the motion functions as a second or successive habeas petition and should be treated as such.”

In response, Kagan played up the differences between the two rules. In her words:

A Rule 60(b) motion—often distant in time and scope and always giving rise to a separate appeal—attacks an already completed judgment. Its availability threatens serial habeas litigation; indeed, without rules suppressing abuse, a prisoner could bring such a motion endlessly. By contrast, a Rule 59(e) motion is a one-time effort to bring alleged errors in a just-issued decision to a habeas court’s attention, before taking a single appeal. It is a limited continuation of the original proceeding—indeed, a part of producing the final judgment granting or denying habeas relief.

The result, at least for now, is that Banister can again seek a certificate of appealability from the 5th Circuit—which, if it denies such a request, would at least have to do so on the merits. But the opinion is far more important for what it doesn’t do, because a ruling for Texas would have radically circumscribed the ability of state and federal prisoners to bring Rule 59(e) motions—let alone to pursue appeals from the denials of those motions.

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Wednesday round-up

This blog’s analysis of Monday’s decision in GE Energy Power Conversion v. Outokumpu Stainless, holding that, under an international convention governing the enforcement of foreign arbitral awards, a business that did not sign an arbitration agreement can still compel arbitration based on equitable estoppel, comes from Ronald Mann. At Courthouse News Service, Tim Ryan reports that “[t]he tangled arbitration dispute concerns several U.S. and foreign countries and the requirements of the so-called New York Convention, an international pact that requires the United States and 159 other countries to enforce arbitration agreements struck between companies in other member states.” Russ Bleemer and other discuss the decision in a video at CPR Speaks.

At Dorf on Law, Michael Dorf wonders why the dissenters to the court’s order late last week in South Bay United Pentecostal Church v. Newsom, denying a California church’s request that it block enforcement of the governor’s restrictions on attendance at religious services, “perceive modest favoritism for (Christian) religion as discrimination against it.” At The American Prospect, Paul Starr observes that Chief Justice John Roberts, who voted to deny the request, “has often been said to be concerned about the institutional authority of the Supreme Court.[:] Perhaps in this case he recognized that the Court could jeopardize that authority by blocking precautionary public-health measures and contributing to the spread of the pandemic.”

In an op-ed for USA Today, Patrick Jaicomo and Anya Bidwell urge the court to “reconsider the doctrine of qualified immunity,” which shields police officers from liability for official actions that do not violate clearly established law, by reviewing one of the pending cert petitions involving the doctrine, and to “revoke the license to lawless conduct it granted government officials in 1982.” At BuzzFeed.News (via How Appealing), Zoe Tillman notes that “[n]one of the cases waiting for action before the Supreme Court involve police encounters with demonstrators, but the same qualified immunity principles apply when protesters take law enforcement to court.”


  • In op-ed for The New York Times, Leah Litman and Tonja Jacobi maintain that during the recent telephonic arguments at the Supreme Court, for which the chief justice served as timekeeper, Roberts’ “uneven application of the rules was … gendered and ideological, as interruptions have been in previous courts.”
  • At Reuters’ On the Case blog, (via How Appealing), Alison Frankel writes that the “Supreme Court has given its blessing, at least for now, to a tactic that the U.S. Chamber of Commerce has described as ‘a road map marked with an easy-to-follow path’ for California consumers to evade mandatory arbitration with corporations.”

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

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Event announcement: Supreme Court Draws to a Big Close

This Thursday, June 4, at 1:30 p.m. EDT, the Committee for Justice will host a panel to discuss a number of high-profile cases still awaiting decision this term at the Supreme Court. Panelists John Malcolm of the Heritage Foundation, Amy Howe of Howe on the Court, and John Eastman of Chapman University Law will preview big decisions pending on abortion, DACA, religious school funding, LGBTQ discrimination, and more. Committee for Justice President Curt Levey will moderate.

Click here for more information and to register.

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Opinion analysis: Justices reject limitations on enforcement of arbitration agreements by nonsignatory businesses

GE Energy Power Conversion France SAS v Outokumpu Stainless USA is a bit different from the typical Supreme Court arbitration case. Most of those cases involve a predispute arbitration agreement between a consumer and a business, in which a lower court has found some reason to allow the consumer to evade arbitration and the Supreme Court considers whether the Federal Arbitration Act justifies compelling arbitration. This case, by contrast, involves a dispute between two businesses over an international contract. The relevant body of law for that dispute is the Convention on the Recognition and Enforcement of Foreign Arbitral Awards, commonly known as the New York Convention. That treaty (to which the United States and about 160 other nations are signatories) obligates nations to enforce arbitration agreements between businesses of member states.

The specific question before the court was whether it is consistent with the obligations of the United States under the New York Convention for federal courts to apply traditional doctrines of equitable estoppel that permit the enforcement of an arbitration agreement by a business that did not sign the agreement.

The factual background starts with contracts between the predecessor of respondent Outokumpu Stainless USA (the U.S. subsidiary of a large Finnish stainless-steel producer) and F. L. Industries (an affiliate of a French engineering group) to construct steel mills at a plant in Alabama. When motors failed at the Alabama facility, F. L. Industries disclaimed responsibility, arguing that any fault lay with its subcontractor, petitioner GE Energy Power Conversion France (a French subsidiary of General Electric that had built and installed the motors). Outokumpu and its insurers responded by suing GE France in Alabama. Because Outokumpu had agreed to arbitrate any disputes with F. L. Industries, GE France argued that the common law doctrine of equitable estoppel should compel Outokumpu and its insurers to present their claims in arbitration, even though GE France had not signed the contracts that contained the arbitration agreement.

The equitable estoppel doctrine is notoriously malleable, so the court of appeals might have held that GE France’s role in performing the original contracts on behalf of F. L. Industries, the French company that signed the contracts, should allow GE France to claim the benefit of the arbitration clause. Instead, however, the court of appeals held that the New York Convention categorically prohibits application of any doctrine that would permit a nonsignatory to a cross-border commercial arbitration agreement to use the Convention to compel arbitration. On that narrow question, the justices unanimously reversed the court of appeals.

Writing for the court, Justice Clarence Thomas explained that the New York Convention “focuses almost entirely on arbitral awards” and “contains only three provisions, each one sentence long,” that “addres[s] arbitration agreements.” Those three sentences, Thomas explained, obligate courts to “recognize” written arbitration agreements, including arbitral clauses in longer contracts, and then refer the parties to those agreements to arbitration upon request.

With so little of the New York Convention focused on the problem of arbitration agreements, it was easy for Thomas to conclude that the “text of the New York Convention does not address whether nonsignatories may enforce arbitration agreements [because t]he Convention is simply silent on the issue.” Thomas pointed out that the Convention’s only substantive statement that relates to agreements requires courts to “refer the parties to arbitration.” For him, that “provision, however, does not restrict contracting states from applying domestic law to refer parties to arbitration in other circumstances.” Rephrasing, he explained: “[The Convention] provides that arbitration agreements must be enforced in certain circumstances, but it does not prevent the application of domestic laws that are more generous in enforcing arbitration agreements.”

Turning from the text, Thomas next considered whether three aspects of the Convention’s history and context shed any light on the question before the court. The first is the negotiation and drafting history of the treaty, an “interpretive aid” that federal courts often have employed. For Thomas, that history “shows only that the drafters sought to impose baseline [enforcement] requirements on contracting states,” not “that the Convention sought to prevent contracting states from applying domestic law that permits nonsignatories to enforce arbitration agreements.”

Second, he turned to the “post-ratification understanding” of other countries, noting that the Supreme Court previously has looked to the decisions of other nations’ courts when interpreting treaties. On that point, Thomas noted that “numerous contracting states permit enforcement of arbitration agreements by entities who did not sign an agreement” and that “at least one contracting state” had adopted legislation to that effect. Thomas acknowledged that the post-ratification materials are “not without their faults,” in part because they “occurred decades after the finalization of the New York Convention’s text in 1958,” which “diminishes the value of these sources as evidence of the original shared understanding of the treaty’s meaning.” But the weakness of the materials did not change his view that “any weight” at all given to those materials tended to “confir[m] our understanding.”

Third and finally, Thomas turned to the question whether the lower courts should have given “great weight” to the amicus brief filed by the United States. Thomas disposed of that point quickly, noting that because the court’s “textual analysis aligns with the Executive’s … there is no need to determine whether the Executive’s understanding is entitled to ‘weight’ or ‘deference.’”

The opinion closed by emphasizing that the lower courts are free on remand to consider whether any estoppel doctrine in fact would permit GE France to enforce the arbitration agreement. That closing passage might hold the key to the unanimity of the decision. I noted in my post on the argument that the justices seemed divided about the propriety of enforcing arbitration here, with Chief Justice John Roberts and Justice Ruth Bader Ginsburg quite dubious about GE France’s estoppel claim and Justice Sonia Sotomayor quite receptive to it. By leaving that question to the lower courts and deciding the case on the narrow basis that the Convention permits the application of estoppel doctrines (whatever those might say), Thomas seems to have brought all nine votes together.

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Tuesday round-up

Yesterday the court stepped up its opinion output for the term considerably, releasing decisions in five cases. In Financial Oversight Board for Puerto Rico v. Aurelius Investment, LLC, the justices unanimously upheld the structure of Puerto Rico’s Financial Oversight and Management Board, ruling that the board’s members do not have to be appointed by the president and confirmed by the Senate because its duties are primarily local. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. For USA Today, Richard Wolf and Kristine Phillips report that the decision “enables Puerto Rico to continue its slow progress under a financial oversight and management board named in 2016 as part of a federal law but later challenged by investors.” John Kruzel reports at The Hill that “[a] ruling against the board would have created more fiscal turmoil for Puerto Rico as it continues to recover from a financial crisis that began in 2014 and proved to be the worst in its history.” For The Wall Street Journal (subscription required), Jess Bravin and Andrew Scurria report that “[l]urking behind the decision—and made explicit in a concurring opinion by Justice Sonia Sotomayor—was the broader question of Puerto Rico’s political status.” Additional coverage comes from Pamela King at Greenwire (subscription required) and Mark Walsh at Education Week’s School Law Blog. At Slate, Kyla Eastling, Danny Li and Neil Weare regret that the court declined the opportunity to overrule “the Insular Cases, a series of controversial decisions from the era of Plessy v. Ferguson that … has justified denying basic constitutional rights and protections to the nearly 4 million Americans living in Puerto Rico and other U.S. territories.”

In Nasrallah v. Barr, the court ruled 7-2 that courts can review an immigrant’s factual challenge to a denial of an application to stay deportation under the Convention Against Torture. Jennifer Chacon has this blog’s argument analysis. In Banister v. Davis, another 7-2 decision, the court held that a prisoner’s motion under Federal Rule of Civil Procedure 59(e), which sets out the procedures for a motion to alter or amend a judgment, should not be treated as a second or successive petition for habeas corpus. At Crime & Consequences, Kent Scheidegger laments that in Banister the court “took a small step further down a road it has already traveled too far–bogging down federal habeas corpus cases by making them more like regular civil litigation in federal courts.”

In GE Energy Power Conversion v. Outokumpu Stainless, the court held 9-0 that, under an international convention governing the enforcement of foreign arbitral awards, a business that did not sign an arbitration agreement can still compel arbitration based on equitable estoppel. At the CPR Institute blog, Russ Bleemer writes that the court saw “no conflict between key international arbitration enforcement law implemented by the Federal Arbitration Act and state laws.” And in Thole v. U.S. Bank, the court held 5-4 that a participant in a defined-benefit pension fund that meets minimum-funding criteria cannot sue the fund managers when he has not actually suffered any financial injury. Dana Muir analyzes the opinion for this blog. For The Wall Street Journal (subscription required), Brent Kendall and Jess Bravin report that “the court ruled … along ideological lines that participants in U.S. Bancorp’s retirement plan couldn’t proceed with a putative class-action lawsuit alleging the bank’s pension managers violated their legal duties by making poor investment decisions.”

The justices also released orders yesterday from last week’s conference. They did not add any new cases to their merits docket, and they declined to review Jarchow v. State Bar of Wisconsin, a First Amendment challenge to Wisconsin’s mandatory bar membership and dues system. This blog’s coverage comes from Amy Howe, in a post that first appeared at Howe on the Court. At The Washington Free Beacon, Kevin Daley reports that Jarchow was “one of several petitions pending before the justices that follow the 2018 decision that struck down mandatory government union dues on First Amendment grounds.” At the Cato Institute’s Unlawful Shield blog, Jay Schweikert writes that several pending cert petitions involving qualified immunity, which shields police officers from liability for official actions that do not violate clearly established law, offer the justices “a critical opportunity now to take the first steps toward correcting the legal and moral perversities” of the doctrine.

At The National Law Review, Evan Seeman looks at the court’s order late last week in South Bay United Pentecostal Church v. Newsom, denying a California church’s request that the court block enforcement of the governor’s restrictions on attendance at religious services. At Fox News (via How Appealing), Ronn Blitzer writes that the 5-4 order, in which Chief Justice John Roberts wrote an opinion explaining his decision to deny relief, shows that “Roberts continues to position himself as the high court’s swing vote — siding with both his conservative and liberal colleagues in close decisions.” At National Review (via How Appealing), Carrie Severino argues that “Roberts blatantly mischaracterizes the issue[:] The test of discrimination isn’t whether any comparable secular activity is treated as badly as religious activity, it is whether any comparable secular activity is treated better than religious activity.”


  • In an op-ed at the Chicago Daily Law Bulletin, Daniel Cotter predicts a busy June for the Supreme Court.
  • At The World and Everything in It (podcast), Mary Reichard discusses two oral arguments in cases involving President Donald Trump’s efforts to shield his financial records, including his tax returns, from subpoenas issued to his accountant and lenders by a New York grand jury and three congressional committees.

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

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Opinion analysis: Federal courts can review factual findings of a Convention Against Torture claim raised as a defense to crime-based removal

In a narrow, textualist decision, the Supreme Court today agreed with Nidal Khalid Nasrallah that a federal court of appeals has jurisdiction to review, albeit deferentially, the factual basis of the Board of Immigration Appeals’ denial of his claim that he qualifies for protection under the Convention Against Torture.

Nasrallah sought the United States’ protection under CAT, which prohibits removal of a noncitizen to a country where the noncitizen likely would be tortured. An immigration judge found that Nasrallah qualified for deferral of removal under CAT because he likely would be tortured if returned to his native country of Lebanon. Nasrallah remained eligible for this form of relief even though the immigration judge also found that he had committed an offense that qualified as a crime involving moral turpitude, rendering him otherwise removable. The Board of Immigration Appeals agreed with the immigration judge’s finding that Nasrallah had committed a crime involving moral turpitude, but disagreed that he qualified for deferral of removal under CAT. When Nasrallah appealed to the U.S. Court of Appeals for the 11th Circuit, that court determined that it lacked jurisdiction to hear his appeal because 8 U.S.C. § 1252(a)(2)(C) prohibits courts from reviewing questions of fact in “any final order of removal against” a noncitizen “removable by reason of having committed” certain criminal offenses.

Nasrallah maintained that the federal court of appeals did have jurisdiction to review his claim because 8 U.S.C. § Section 1252(a)(4) allows for judicial review of “any cause or claim under the United Nations Convention Against Torture.” In an opinion authored by Justice Brett Kavanaugh, and joined by Chief Justice John Roberts as well as Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, Elena Kagan and Neil Gorsuch, the court held that “the court of appeals should review factual challenges to the CAT order deferentially.”

The decision will alter the legal landscape for two reasons. First, the courts of appeals have split on this question, with most courts embracing the government’s more restrictive interpretation of the relevant statute. Aside from the U.S. Courts of Appeals for the 7th and 9th Circuits, all other circuit courts have sided with the government’s contention that factual review of a CAT claim is barred by Sections 1252(a)(2)(C) and (D). So the opinion will change practices in most courts of appeals, though whether it will change outcomes in individual cases under the deferential standard of review remains to be seen. Second, the decision may imply the availability of judicial review for factual claims in cases involving other forms of relief from removal – most notably, statutory withholding of removal under 8 U.S.C. § 1231(b)(3)(A).

As Kavanaugh’s opinion makes clear, all parties agreed that Section 1252(a)(1) authorizes noncitizens to obtain direct “review of a final order of removal” in a court of appeals. The parties also agreed that all challenges to the “final order of removal” had to be consolidated in a single petition for review under Section 1252(b)(9). At the same time, the Foreign Affairs Reform and Restructuring Act of 1998 provides for judicial review of CAT claims “as part of the review of a final order of removal pursuant to section 242 of the Immigration and Nationality Act (8 U. S. C. § 1252).” The majority opinion also notes that under the REAL ID Act of 2005, codified at 8 U.S.C. §1252(a)(4), “CAT orders … may not be reviewed in district courts, even via habeas corpus, and may be reviewed only in the courts of appeals.”

Although the resulting statutory text appears to contemplate federal appellate review of the factual findings of a CAT claim, the government argued that such review is constrained in cases like Nasrallah’s, in which the final order of removal is based on criminal conduct covered by Section 1252(a)(2)(C). In such cases, courts of appeals may review constitutional or legal challenges to a final order of removal, but not factual challenges to that order. The government argued that this bar to judicial review of factual challenges applied to Nasrallah’s CAT claim as well as other aspects of his removal order.

The Supreme Court disagreed. Kavanaugh’s opinion reasons:

A CAT order leaves a final removal order in place. It simply defers the order’s execution. It does not prevent the government from executing the removal order when country conditions change or prohibit removal to a third country. Nor does the CAT order merge into the final order of removal for purposes of judicial review. Kavanaugh writes, “[f]or purposes of this statute, final orders of removal encompass only the rulings made by the immigration judge or Board of Immigration Appeals that affect the validity of the final order of removal.”

After interpreting CAT relief as separate from, although reviewed with, the underlying removal order, the majority concludes that the appropriate standard of review for challenges to the factual findings on a CAT claim is the substantial-evidence standard: “The agency’s ‘findings of fact are conclusive unless any reasonable adjudicator would be compelled to conclude to the contrary.’”

In concluding that factual CAT claims are reviewable by courts of appeals, the court addresses five arguments raised by the government in support of its position. First, it rejects the government’s reliance on the broad definition of “final orders of deportation” articulated in Foti v. INS, noting that Foti was decided before Congress substantially revised the definition and content of final removal orders in 1996. Second, the court rejects the government’s claim that, because Section 1252(b) only allows for review of “final orders of removal,” placing review of a CAT claim outside the jurisdictional limits of the statute would deprive the appellate courts of any power to review CAT decisions. The majority notes that both FARRA and the REAL ID Act expressly provide for judicial review of CAT claims. Third, the court dismisses the government’s argument that congressional intent favors streamlining judicial review of removal orders for noncitizens convicted of crimes, requiring a different result. The court finds such an interpretation of congressional intent contrary to the statute, and reasons that even if Congress wanted to streamline review of straightforward questions regarding noncitizens’ previously litigated criminal conduct, such reasoning would not apply to CAT claims, which have never been reviewed by any court. Fourth, the court disagrees with the government’s claim that a decision in Nasrallah’s favor would “unduly delay removal proceedings,” because the review of CAT claims does not add any new layers of review. The court also points to the government’s failure to inform the court of “any significant problems stemming from” the review of factual determinations in CAT claims in the two circuits that already allow it.

Finally, the court rejects the government’s “slippery slope” argument that allowing review of factual findings in CAT claims might also require such review for a variety of claims for relief. Addressing this concern, the court concludes that “another jurisdiction-stripping provision, §1252(a)(2)(B), states that a noncitizen may not bring a factual challenge to orders denying discretionary relief, including cancellation of removal, voluntary departure, adjustment of status, certain inadmissibility waivers, and other determinations ‘made discretionary by statute.’” Such determinations are therefore not affected by this decision. The court also adds in a footnote that its decision does not mean that CAT claims raised in expedited removal proceedings are entitled to judicial review, because those claims are governed by distinct statutory provisions. The dissent argues that nevertheless, these limits do not confine the effects of today’s decision to the CAT context.

Justice Clarence Thomas dissented, joined by Justice Samuel Alito. Pursuing a line of reasoning articulated by Alito during oral argument, Thomas looks to the “zipper clause,” 8 U.S.C. § 1252(b)(9), which states that “all questions of law and fact … arising from any action taken or proceeding brought to remove an alien … shall be available only in judicial review of a final order under this section.” Thomas reasons that this applies to the CAT claims “arising from” the relevant removal proceedings. Under this interpretation, CAT claims are limited by the bars on factual review set forth in Sections 1252(a)(2)(C) and(D).

Returning to slippery slope concerns, Thomas’ opinion notes that the court’s reasoning regarding CAT claims applies equally well to statutory claims for withholding of removal, which are available if “the alien’s life or freedom would be threatened … because of the alien’s race, religion, nationality, membership in a particular social group, or political opinion.” Like CAT relief, statutory withholding leaves the underlying removal order in place and simply prevents the removal of the noncitizen unless and until other conditions are satisfied. Thomas notes that this is a “frequently sought form of relief.” He therefore predicts that this decision will bring about a “sea change” in immigration law because courts of appeals will now be able to review factual challenges to denials of statutory withholding of removal.

Interestingly, the majority opinion does not refute this possibility. “That question,” Kavanaugh writes, “is not presented in this case, and we therefore leave its resolution for another day.” Ultimately, then, this decision allows for federal appellate court review of administrative factual findings in CAT claims, but it also may invite such challenges in statutory withholding of removal claims.

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Opinion analysis: Supreme Court protects defined-benefit plan fiduciaries from lawsuits

In a 5-4 decision, the Supreme Court held in Thole v. U.S. Bank that participants and beneficiaries in defined-benefit plans do not have the legal right, known as standing, to assert fiduciary breach claims, at least in the absence of catastrophic plan and sponsor failure. James Thole and Sherry Smith, retirees from U.S. Bank, alleged that plan fiduciaries breached their duties of loyalty and care, which caused the plan to lose more than $748 million. After the district court held that Thole and Smith had Article III standing to sue the fiduciaries, U.S. Bank made a substantial contribution to the plan, which increased the plan’s assets above the statutory minimum. The U.S. Court of Appeals for the 8th Circuit held that Thole and Smith lacked standing because they had received all the benefits to which they were entitled.

Justice Brett Kavanaugh, in a relatively short opinion joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito and Neil Gorsuch, agreed with the court of appeals that Thole and Smith lack Article III standing. The majority held that Thole and Smith do not have a sufficient stake in the outcome of the lawsuit because, win or lose, they would receive the same amount of monthly pension benefits from the plan.

First, the majority opinion distinguished defined-benefit plans, such as the one at issue, from defined-contribution plans and grantor trusts. In defined-contribution plans, participants and beneficiaries are entitled to the funds they accumulate in their plan accounts. The majority wrote that the rights in a defined-benefit plan are “more in the nature of … contract” rights than the trust-based equitable or property rights that flow from defined-contribution plans and grantor trusts. Therefore, Thole and Smith did not have any equitable or property interests in the U.S. Bank plan.

Second, the majority determined that Thole and Smith do not have standing as representatives of the plan itself because they have not suffered any injury in fact. Nor have Thole and Smith received any assignment of the plan’s potential fiduciary claims.

Third, Thole and Smith had pointed to language in the Employee Retirement Income Security Act that explicitly provides a cause of action for participants and beneficiaries, in addition to the Secretary of Labor or a fiduciary, to bring a claim for fiduciary breach. Here the majority looked to precedent establishing that the grant of a statutory right is not alone sufficient to establish Article III standing. A concrete injury is required. Because Thole and Smith have not suffered any financial injury, they do not meet that requirement. In a footnote, the majority recognized that the current case does not involve an alleged breach of the duty to provide plan information.

Finally, the majority rejected Thole and Smith’s contention that plaintiffs and beneficiaries need to be able to bring fiduciary breach claims because otherwise there would be insufficient constraints on fiduciary misconduct. According to the majority, employers and shareholders have an interest in ensuring fiduciary loyalty and prudence because, in defined-benefit plans, employers are obligated to make up for any deficit in plan funding. The Department of Labor has both the power and the incentive to enforce ERISA’s fiduciary obligations. The majority left open the question, raised in amicus briefs, whether standing would exist when “the mismanagement of the plan was so egregious that it substantially increased the risk that the plan and the employer would fail and be unable to pay the participants’ future pension benefits.”

Thomas, joined by Gorsuch, concurred in the outcome and in the majority’s application of the court’s precedent. The concurrence, however, raised an argument that Thomas has made dating back at least to his 1995 dissent (joined by Justices Sandra Day O’Connor and Antonin Scalia) in Varity Corp v. Howe. His view, repeated in subsequent cases addressing the scope of ERISA remedies, is that the Supreme Court’s heavy reliance on the common law of trusts in ERISA cases is misplaced.

Justice Sonia Sotomayor authored a lengthy dissent, which Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined. The dissent disagreed with the majority’s decision to distinguish the rights of defined-benefit plan participants and beneficiaries from the rights of those entitled to benefits from defined-contribution plans or grantor trusts. ERISA requires that plan assets be held in trust. If, as the majority held, plan participants and beneficiaries are not entitled to the “equitable title in the plan’s assets, then no one would” hold that title. The dissent found the majority’s distinctions between defined-benefit trusts and grantor trusts unpersuasive. Most notably, the majority made much of the fact that employers must ensure that plans are funded sufficiently to pay full benefits. The dissent pointed out that traditional trust law recognizes that one need not hold the residual risk in order to possess an equitable interest in the trust.

The dissent also chided the majority for implying that a financial injury is necessary to establish Article III standing. The majority emphasized that Thole and Smith had received all of the pension benefits to which they are entitled and will continue to receive their benefits whether they win or lose the case. But, as noted above, the majority took pains in a footnote to distinguish this case from one alleging a failure to provide plan information. The dissent pointed out that it is well established in trust law that trust beneficiaries have standing to bring claims for a breach of loyalty even in the absence of any loss to the trust. Further, monetary injury is not required for standing. The dissent would find that participants in a plan have a right to loyal and prudent fiduciaries.

Even assuming that the majority were correct to characterize the defined-benefit plan as primarily contractual, the dissent went on to raise two contract-based arguments for standing. First, the plan document, which the majority did not analyze, creates a trust. Second, even under a contract analysis, Thole and Smith should have standing to bring a breach of contract claim for the fiduciaries’ alleged actions.

Finally, the dissent argued that Thole and Smith have standing as representatives of the plan. A plan cannot act on its own; like a corporation, it requires a person to act on its behalf. ERISA explicitly provides that a fiduciary, the Secretary of Labor, or participants and beneficiaries may assert a claim for fiduciary breach. In the circumstances of this case, the fiduciaries are unlikely to bring a claim against themselves, and the federal government in its amicus brief stated that the Secretary of Labor cannot ensure compliance by all ERISA fiduciaries. The dissent argued that the court’s existing precedent on representational standing supports standing for Thole and Smith in this suit. For example, trust law permits a beneficiary to sue as a trust representative when the trustee will not or cannot bring the claim.

Today’s decision illustrates the tension often seen in ERISA cases. The dissent emphasizes the protective purposes of the statute and worries that the risk of fiduciary misbehavior could imperil the benefits of the approximately 35 million people who have defined-benefit plans. In contrast, the majority views rights to defined-benefit plan pensions as largely contractual. In their view, participants and beneficiaries who receive their full benefits do not suffer any cognizable injury from fiduciary breaches that affect the plan’s assets.

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Justices will not review challenge to mandatory bar dues

This morning the Supreme Court issued orders from the justices’ private conference last Thursday. The justices did not add any new cases to their merits docket for the fall. They did not act on the group of cases challenging federal and state gun restrictions or the group of cases asking the justices to reconsider immunity for government officials (including police officers) accused of violating the constitutional rights of others.

The justices declined to review a challenge to the constitutionality of laws requiring lawyers who want to practice law in a state to join the state’s bar association and pay dues. The lawsuit was filed by two Wisconsin lawyers who argue that compelling them to do so violates the First Amendment.

Two years ago, in Janus v. American Federation of State, County, and Municipal Employees, the Supreme Court ruled that government employees who are represented by a union but do not belong to that union cannot be required to pay a fee to cover the costs of contract negotiations. The decision in Janus overruled the Supreme Court’s earlier decision in Abood v. Detroit Board of Education. In the wake of the Janus decision, Adam Jarchow and Michael Dean went to federal court in Wisconsin. Jarchow and Dean are licensed attorneys in Wisconsin but they disagree with the Wisconsin bar association’s advocacy on issues like the death penalty, immigration law, the free exercise of religion and campaign finance, and they object to having to join the bar association and support it with their dues. They argued that Janus “knocked the legs out from under” the Supreme Court’s prior rulings upholding compulsory bar membership and dues. The lower courts turned them down, on the ground that only the Supreme Court can overturn its earlier cases; Jarchow and Dean then went to the Supreme Court last winter, asking the justices to take up their case.

Justice Clarence Thomas, joined by Justice Neil Gorsuch, dissented from today’s denial of review, writing that he would “grant certiorari to address this important question.” The court’s “decision to overrule Abood,” Thomas argued, “casts significant doubt on” the court’s prior ruling involving bar dues, Keller v. State Bar of California. As a result, he concluded, “we should reexamine whether” Keller “is sound precedent.”

The justices’ next conference is scheduled for Thursday, June 4. We expect orders from that conference on Monday, June 8, at 9:30 a.m.

This post was originally published at Howe on the Court.

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Opinion analysis: After a long wait, a unanimous court upholds Puerto Rico oversight board

In 2016, Congress passed the Puerto Rico Oversight, Management, and Economic Stability Act (PROMESA). The law created a seven-member board tasked with bringing financial stability back to the island. But when the board began proceedings in federal court to restructure Puerto Rico’s massive debt, a hedge fund that had invested in distressed Puerto Rico bonds and a local labor union went to court to challenge the method by which the board’s members had been appointed. They argued that under the Constitution’s appointments clause, the board members should have been nominated by the president and confirmed by the Senate. Because they were not, the challengers contended, the board’s actions could not be valid.

Today the Supreme Court unanimously rejected that argument. In an opinion by Justice Stephen Breyer, the court agreed that the appointments clause applies to all “Officers of the United States,” including high-level officials whose duties relate to Puerto Rico. But, the court continued, the clause’s use of the phrase “of the United States” indicates that the drafters of the Constitution intended to distinguish between federal officials, on the one hand, and officials exercising state or local power, on the other. Moreover, the court noted, two provisions of the Constitution give Congress authority to legislate for the District of Columbia and U.S. territories; both the text and structure of the Constitution and history indicate that when Congress has created local offices using this power, those officials have been regarded as exercising local government power, rather than federal power. “Indeed,” the court observed, “to read Appointments Clause constraints as binding Puerto Rican officials with primarily local duties would work havoc with Puerto Rico’s (federally ratified) democratic methods for selecting many of its officials.” Therefore, the court concluded, the appointments clause “does not restrict the appointment of local officers that Congress vests with primarily local duties.”

The next question for the court, then, was whether members of the oversight board have “primarily local powers and duties.” The answer, the court said, is yes. Although the board has “broad investigatory powers,” the court reasoned, those powers “are backed by Puerto Rican, not federal, law.” The board’s other powers – developing Puerto Rico’s budget and issuing new debt – are also “quintessentially local.” And the board’s power to initiate bankruptcy proceedings, the court explained, is an authority that it has “on behalf of, and in the interests of, Puerto Rico” – even if those proceedings may have nationwide consequences.

The court explained that the cases on which the lower court relied in determining that the board members’ appointments violated the appointments clause all involved duties “that were indisputably federal or national in nature” – involving members of the Federal Election Commission and federal judges on tax courts, for example. Although the law creating the board and its duties is a federal law, the court emphasized, it is also important to look at the nature of the board members’ duties – that is, “whether they are primarily local versus primarily federal.” Otherwise, the court cautioned, courts could interfere with democratic elections or local appointment processes in the District of Columbia or U.S. territories, such as the election of the mayor of Washington or the governor of Guam.

Because it concluded that the board members were not required to be nominated by the president and confirmed by the Senate, the court explained, it did not need to consider whether the “de facto officer” doctrine, which blesses an official’s actions even when his appointment is later determined to be invalid, applies to the board’s decisions. It also declined to weigh in on the request to overrule the “Insular Cases,” a series of cases dating back to the early 20th century in which the court ruled that U.S. territories do not automatically receive all of the protections of the Constitution.

Justice Clarence Thomas filed an opinion in which he agreed with the court’s conclusion that the board members’ appointment did not violate the Constitution, but he rejected what he described as the “ill-defined path that the Court takes to reach this result.” Instead, he argued, the court should look simply to the meaning of the phrase “Officers of the United States”: Officials, like the board members, who are performing territorial duties do not fall within this definition.

Thomas criticized the court’s “amorphous” test to distinguish between “officers with ‘primarily local versus primarily federal’ duties,” noting that the court “fails to provide any explanation for what makes an officer’s duties ‘primarily local.’” Moreover, he added, the court’s focus on whether an officer’s duties are “primarily local” creates a loophole for Congress to circumvent the appointments clause “by supplementing an officer’s federal duties with sufficient” local duties.

Justice Sonia Sotomayor, whose parents were both born in Puerto Rico, also agreed with the court’s judgment but wrote separately to emphasize the extent to which “Puerto Rico, like a State, is an autonomous political entity.” Despite that autonomous status, she continued, the board has “wide-ranging, veto-free authority over Puerto Rico,” with Puerto Rico’s governor limited to a nonvoting role on the board. As a result, she concluded, the court’s ruling “seems anomalous”: The board exists “in a twilight zone of accountability, neither selected by Puerto Rico itself nor subject to the strictures of the Appointments Clause.” Sotomayor wrote that she is “skeptical that the Constitution countenances this freewheeling exercise of control over a population that the Federal Government has explicitly agreed to recognize as operating under a government of their own choosing,” but – stressing that “these issues are not properly presented in these cases” – she “reluctantly” concurred in the court’s judgment.

Today’s ruling sends the case back to the lower court for further proceedings, but it is a decisive victory for the board and a defeat for the hedge fund and labor union that had challenged the appointments.

This post was originally published at Howe on the Court.

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Live blog of orders and opinions (Update: Completed)

We live-blogged on Monday, June 1, as the court released orders from the May 28 conference and opinions in Thole v. U.S. Bank, Nasrallah v. Barr, Banister v. Davis, Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment and GE Energy Power Conversion France v. Outokumpu Stainless USA. SCOTUSblog is sponsored by Casetext, the most intelligent way to search the law.

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Monday round-up

As Amy Howe reports for this blog, on Friday “the Supreme Court declined to intervene in challenges by churches in southern California and the Chicago area to stay-at-home orders issued as a result of the COVID-19 crisis”: “[T]he justices were closely divided in the California case, [South Bay United Pentacostal Church v. Newsom], with Chief Justice John Roberts casting the deciding vote and writing a late-night opinion to explain his decision to deny relief.” At Education Week’s School Law Blog, Mark Walsh reports that “Roberts’ concurrence [in South Bay], only for himself, … emphasizes the gravity of the coronavirus pandemic.” For The Washington Post (subscription required), Robert Barnes reports that “[t]he … deeply divided order … still provides a guide for lower courts balancing government rules intended to preserve public health with parishioners’ constitutional religious rights.” At Vox, Ian Millhiser suggests that “Roberts’s vote in South Bay United suggests, at the very least, he recognizes that the Court must not afford so much special solicitude to religious conservatives that it endangers public health.” The editorial board of The Wall Street Journal (subscription required) finds it “disappointing to see the Chief late Friday join his liberal colleagues to uphold California’s discrimination against places of worship.”


  • At The Economist’s Espresso blog, Steven Mazie notes that “today a legal tussle over whether the House Judiciary Committee may see portions of the [Mueller] report that were redacted before its release in April 2019 comes to a head”: “[O]n May 8th the Supreme Court temporarily blocked the disclosure, allowing the Department of Justice a chance to request that the court take another look.”
  • At the ImmigrationProf Blog, Kevin Johnson and others weigh in on Department of Homeland Security v. Regents of the University of California, a challenge to the government’s decision to terminate the DACA program, which allowed immigrants brought to this country illegally as children to apply for protection from deportation; they argue that “[t]he Supreme Court should require the Department of Homeland Security to undertake [a] searching analysis of facts and policy impacts, and honestly proceed, playing by the rules.”
  • At the Duke Center for Firearms Law’s Second Thoughts blog, Robert Lieder says “the constitutionality of restrictions on the public carry of firearms, whether open or concealed … is ripe for resolution”; he urges the court to review one of the pending cases from New Jersey that raises the issue, noting that New Jersey’s “justifiable need standard … is close to a blanket ban.”
  • The editorial board of The New York Times writes that “pleas from liberals and conservatives to narrow the doctrine of qualified immunity, and to make it easier to hold police and other officials accountable for obvious civil rights violations, have grown to a crescendo”; “[t]he Supreme Court is considering more than a dozen cases to hear next term that could do just that.”

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

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This week at the court

On Monday, the justices are expected to release orders from the May 28 conference at 9:30 a.m. There is a possibility of opinions at 10 a.m.

On Thursday, the justices will hold their June 4 conference.

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Court declines to lift restrictions on crowds at church services (UPDATED)

Last night the Supreme Court declined to intervene in challenges by churches in southern California and the Chicago area to stay-at-home orders issued as a result of the COVID-19 crisis. The churches had asked the justices earlier this week to lift restrictions on crowds in time for them to hold services on Sunday, when Christians celebrate the holy day of Pentecost. But the justices turned them down. The court issued only a terse order in the Illinois case that referred to the new guidance issued by the state earlier this week. But the justices were closely divided in the California case, with Chief Justice John Roberts casting the deciding vote and writing a late-night opinion to explain his decision to deny relief.

The California case was filed on Tuesday by the South Bay United Pentecostal Church, which is located in Chula Vista, California – just south of San Diego. The church argued that the reopening plan outlined by California Governor Gavin Newsom and San Diego County discriminated against houses of worship by keeping them closed while allowing retail stores, offices, restaurants and schools to open. The church asked the justices to issue an order that would allow it to hold services this Sunday, May 31.

On Wednesday, two Romanian-American Christian churches in the Chicago area asked the justices to issue a similar order for them. The churches in that case argued that Illinois’ stay-at-home and reopening plan, which imposed a 10-person limit on worship services, violated the Constitution.

California (along with San Diego County) and Illinois urged the justices to deny the churches’ requests. They began by explaining that indoor worship services are different from retail stores or businesses because people are more likely to gather in close proximity for longer periods of time. Moreover, they added, the singing and speaking at worship services “increases the danger” that people who are infected with the COVID-19 virus will “project respiratory droplets that contain the virus,” passing the infection on to others. Indeed, they noted, there have been several examples of significant COVID-19 outbreaks linked to worship services.

But in any event, California and Illinois continued, there was no need for the justices to intervene because the restrictions had been lifted. In California, the San Diego County Health Department issued an order (following new guidance from the state) on May 26 that allows churches in the county, including South Bay, to hold services, as long as they limit attendance to 25 percent of their building capacity or a maximum of 100 people and practice social distancing. Although the church argues that it is also harmed by the new guidance, because its building seats 600 and its attendance is normally somewhere between 200 and 300, the state emphasized that the church had not asked for an order blocking the enforcement of the new guidance in the lower courts. Moreover, the state observed, the church could add more services if it wants to ensure that everyone can attend.

In Illinois, the order banning gatherings with more than 10 people expires on May 29; “after that date religious gatherings will no longer be subject to mandatory restrictions.” Any concerns about whether the state will limit the size of worship services after May 29 are, Illinois told the justices, merely “speculative.”

At approximately 6:30 p.m. ET, the justices turned down the request from the Illinois churches without any public dissents. In a brief two-paragraph order, the court noted that the state’s public health department had “issued new guidance on May 28,” and it added that last night’s order did not bar the churches from returning to the court “if circumstances warrant.”

The justices did not act on the California case until nearly midnight on Friday. Justices Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh indicated that they would have granted the church’s request; Kavanaugh also wrote a dissent from the denial of the church’s request.

Roberts wrote a short opinion to express his agreement with (and to explain) the denial of the church’s request. He began by noting that COVID-19 “has killed thousands of people in California and more than 100,000 nationwide,” but there is “no known cure, no effective treatment, and no vaccine.” Moreover, he added, people “may be infected but asymptomatic” and therefore can infect others unknowingly. The California order at the heart of this case, he observed, temporarily restricts the number of people who can gather in public “to address this extraordinary health emergency.”

The relief that the church had asked for – an order blocking the state from enforcing the restrictions on gatherings – faces a high bar, Roberts explained. And in his view, the church could not meet that bar. The restrictions appear to be constitutional: The state has limited the size of similar, non-religious gatherings like plays, concerts and sporting events. Although the state treats activities like grocery stores and banks differently, Roberts continued, those activities are in fact different, because they do not involve large groups of people coming together in close proximity for extended periods of time. “The precise question of when restrictions on particular social activities should be lifted during the pandemic,” Roberts reasoned, “is a dynamic and fact-intensive matter subject to reasonable disagreement.” It is also a question the Constitution has primarily delegated to politicians, which courts should normally not second-guess. “That is especially true,” Roberts explained, in a case like this one, in which the church is seeking emergency relief “while local officials are actively shaping their response to changing facts on the ground.” The idea that it is so clear that the restrictions are unconstitutional that the Supreme Court should step in, Roberts concluded, “seems quite improbable.”

In a three-page dissent joined by Thomas and Gorsuch, Kavanaugh argued that the restrictions on attendance imposed on the church do violate the Constitution. In his view, the businesses that are not subject to the restrictions – which, he noted, include malls, pet groomers, hair salons and marijuana dispensaries – are comparable to gatherings at houses of worship, and California has not shown a good reason for treating houses of worship differently. Because the church “would suffer irreparable harm from not being able to hold services on Pentecost Sunday in a way that comparable secular businesses and persons can conduct their activities,” Kavanaugh would have granted the church’s request for relief.

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