Recently in U.S. Supreme Court Category

U.S. Asks SCOTUS For Travel Ban Stay

| No Comments
Back in September, the 90-day travel ban on immigration from six particularly problematic countries expired, and in October the Supreme Court dismissed the challenges to the ban as moot.  See posts of September 24, September 26, October 10 and October 24. As envisioned in the original executive order, the short-term ban was replaced by a more detailed, considered rule based on the ability and willingness of the countries at issue (a somewhat different set from the prior six) to provide the information needed to vet those seeking entry.

Despite the marked differences in the orders, a U.S. District Judge in Hawaii granted a temporary restraining order against enforcement of the key section except as to Venezuela and North Korea. A single district judge, it seems, is now better suited than the Department of Homeland Security to determine if the means chosen by DHS, in consultation with the Departments of State and Defense, is a good fit to the end to be achieved on a matter of national security and foreign relations. Or at least he thinks he is.

The government consented to the conversion of the TRO to a preliminary injunction to make it appealable. The Ninth Circuit stayed the injunction, with the major exception of "foreign nationals who have a credible claim of a bona fide relationship with a person or entity in the United States." That is a hole you can drive a truck through (a truck loaded with explosives), so the government has asked the Supreme Court for a complete stay.

SCOTUS Takes No New Criminal Cases

| 1 Comment
The U.S. Supreme Court issued an order list today, taking up three civil cases but no criminal cases.

Update:  One of the three civil cases is somewhat crime-related.  Amy Howe describes Lozman v. City of Riviera Beach:

In Lozman's first visit to the Supreme Court, the justices ruled that Lozman's floating home was not a "vessel" for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.

The charges against Lozman were quickly dropped, but that didn't end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman's retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.
Another interesting case, National Institute of Family and Life Advocates v. Becerra, No. 16-1140, also involves free speech.  Here is the opening paragraph of the Ninth Circuit's opinion:

USCA9 Chastised on AEDPA, Yet Again

| No Comments
The U.S. Supreme Court issued its first two decisions of the October 2017 Term today.  As usual this early in the term, they are "per curiam" decisions reversing a lower federal court without setting the case for a new stage of briefing and oral argument and with an opinion "by the court" with no justice identified as the author.

Bill noted one of the opinions, in an Alabama capital case, earlier today.

The second case, Kernan v. Cuero, No. 16-1468, is yet another case of the Ninth Circuit failing to respect the limits Congress put on its authority to second-guess state court decisions in the Antiterrorism and Effective Death Penalty Act of 1996.

The SCOTUS Lineup on the Death Penalty

The Supreme Court today announced a unanimous per curiam opinion in Dunn v. Madison.  I'll repeat the Heritage Foundation's summary of the case:

[T]he Court reversed a decision of the Eleventh Circuit in an Antiterrorism and Effective Death Penalty Act (AEDPA) case. AEDPA provides that a state prisoner is entitled to federal habeas relief only if the state trial court's adjudication of the prisoner's claim "was contrary to, or involved an unreasonable application of, clearly established Federal law." In this case, an Alabama trial court sentenced Vernon Madison to death for murdering a police officer. Awaiting execution, Madison suffered several strokes and petitioned for habeas, asserting that he had become incompetent to be executed. Experts testified that although Madison could not remember the "sequence of events from the offense to his arrest to the trial or any of those details," he did understand he was "tried and imprisoned for murder and that Alabama will put him to death as punishment for that crime." The district court denied Madison's petition but the Eleventh Circuit reversed. Today, the Supreme Court reversed, holding that no Supreme Court precedent has "'clearly established' that a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment as applied in his case."


Ginsburg, joined by Breyer and Sotomayor concurred, writing that while AEDPA precludes consideration of the question in this case, the question of "whether a State may administer the death penalty to a person whose disability leaves him without memory of him commission of a capital offense" "warrant[s] full airing." Breyer also concurred, writing separately to (once again) call into question the "unconscionably long periods of time that prisoners often spend on death row awaiting execution."


No New SCOTUS Cases

| No Comments
The U.S. Supreme Court released a regular Monday orders list today.  No new cases were taken up, and no cases we are watching were turned down.

The Court heard oral argument this morning in two habeas corpus cases, Ayestes v. Davis (Texas) and Wilson v. Sellers (Georgia).  The new court reporter has not been as quick posting the transcripts as the prior one, prompting considerable grumbling from the commentariat.  We will see if they improve.

Scalia Speaks

| No Comments
The late Justice Scalia's son Christopher has edited a collection of his speeches, with a foreword by Justice Ginsburg.  Ronald Collins has a review at SCOTUSblog.

Aloha, Hawaii Travel Ban / Refugee Case

| No Comments
On October 10, I noted the U.S. Supreme Court's order declaring the 90-day travel ban case moot, vacating the Fourth Circuit's decision, and remanding the case with directions to dismiss it.  At the time I made this prediction:

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.
That was not one of my bolder predictions.  It was more like shooting fish in a barrel.  Today, sure enough, the Court issued this order:

United States District Judge Richard Seeborg does not give a damn what the United States Supreme Court says; he is going to ensure no one is executed in California regardless of controlling precedent.

In Glossip v. Gross (2015), the Supreme Court set out the requirements for a death row inmate to obtain a preliminary injunction in a method-of-execution civil suit.  One of the elements is that he must "establish a likelihood of success on the merits."  (Slip opinion p. 11.)  To establish that in a method-of-execution suit, the high court ruled (p. 13):

"requires petitioners to establish a likelihood that they can establish both that [the state's] lethal injection protocol creates a demonstrated risk of severe pain and that the risk is substantial when compared to the known and available alternatives."

Years ago, before Glossip, a California murderer named Michael Morales blocked his execution by arguing that the three-drug protocol then in effect would likely violate the Eighth Amendment.  Since then, the other murderers whose judgments have been upheld all the way through the review process have piled in.  They have also been granted stays on nothing more than a showing that they are similarly situated to Morales.

But the intervention/stay orders issued last April 18 and today are post-Glossip orders.  Don't they require the showing that the Supreme Court says is required?  Of course.  And what does Judge Seeborg say about the Glossip requirement?

Justice, Finally, for a Fallen Officer

| No Comments
Montgomery Police Corporal Anderson Gordon III was murdered in the line of duty 20 years ago last month. His Officer Down Memorial Page is here.

As noted yesterday, the U.S. Supreme Court vacated a stay that had been entered by a district court in blatant disregard of the legal requirements for a stay.  Justice Thomas later entered a brief stay himself to allow the full court to consider a subsequent petition.  Justice Thomas seems to use his temporary stay authority as Circuit Justice more often than the others.  Upon consideration, the full court denied relief and vacated that stay, and the execution proceeded.

WSFA in Montgomery has this story on the execution.

Warrants for Data Stored Abroad

| No Comments
Jennifer Daskal has this op-ed in the NYT:

In 2013, United States agents served a warrant on Microsoft seeking the emails of a suspect in a drug case. Microsoft balked at the request, saying that the data was stored on a server in Ireland and out of the reach of United States law enforcement. To access the data, the United States would need to make a request to the Irish government through diplomatic channels -- a slow and burdensome process. The government fought back, arguing that the Washington State-based company could access the emails from the United States, without ever stepping foot in Ireland, and was required to comply.

Monday, the Supreme Court agreed to hear the case this term. Its decision -- which will come after two lower courts sided with the government and the Second Circuit reversed -- will determine the extent to which United States law enforcement can access data held abroad. Microsoft will argue that the data is outside domestic law enforcement's direct reach. The government will make the case that its warrant authority covers data held anywhere, so long as it can be accessed by a company operating from within the United States.

Both of these positions have troubling implications. What is needed is a solution that falls between these two extremes. Because the courts can't provide this, Congress needs to step in.
In principle, I agree that Congress should decide this issue.  As a matter of practical politics, though, good luck with that.  There are lots of issues in criminal justice that the legislative authority should decide but doesn't.  Their focus is elsewhere and the issues are sometimes tough, so the honorable representatives are just as happy to punt the ball the courts.

Might this issue be different?  Maybe, because it involves large and influential companies.  We will see.
The U.S. Supreme Court has issued the following order in Trump v. IRAP, No. 16-1436, the Fourth Circuit case challenging the 90-day ban on travel from six countries where the U.S. was unable to properly vet admittees (bold-face added):

We granted certiorari in this case to resolve a challenge to "the temporary suspension of entry of aliens abroad under Section 2(c) of Executive Order No. 13,780." Because that provision of the Order "expired by its own terms" on September 24, 2017, the appeal no longer presents a "live case or controversy." Burke v. Barnes, 479 U. S. 361, 363 (1987). Following our established practice in such cases, the judgment is therefore vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit with instructions to dismiss as moot the challenge to Executive Order No. 13,780. United States v. Munsingwear, Inc., 340 U. S. 36, 39 (1950). We express no view on the merits.

Justice Sotomayor dissents from the order vacating the judgment below and would dismiss the writ of certiorari as improvidently granted.
The portion I have bold-faced means that the obnoxious Fourth Circuit opinion is wiped out as precedent.  CJLF's brief in the case, which urged precisely this result, is here.  At the time of the main briefing, we were the only ones calling for this, although in a supplemental letter brief in response to the Court's request the Solicitor General came around.

The companion Hawaii case from the Ninth Circuit addresses two other provisions in addition to the 90-day ban.  A provision limiting the number of refugees in the fiscal year just ended became moot on October 1.  A 120-day provision will become moot 120 days from the day the Supreme Court partially lifted the stay on it, which will be later this month.  I expect a similar disposition of that case at that time.

A month ago, the U.S. Court of Appeals for the Eleventh Circuit revived a suit over Alabama's substitution of midazolam for pentobarbital as the first drug of its three-drug execution method.  USCA11 said that the plaintiffs had adequately pleaded the elements required by Glossip v. Gross, including the availability of an alternative.  They alleged that sodium thiopental is available, taking us full circle to the original three-drug method.  The case is Burton v. Commissioner, No. 17-11536.  Burton's is the "lead" case, but there are a total of twelve, including the case of Jeffery Borden.

But an allegation sufficient to state a cause of action and a demonstrated possibility of success on the merits sufficient for a preliminary injunction are two different things.  Thiopental is, in fact, not currently available.  Last Friday, the Eleventh Circuit decided to enjoin the execution of Borden anyway, under the All Writs Act.  Citing its own precedent, the court said that the usual requirement of a likelihood of success on the merits does not apply to the All Writs Act.

So you can stop the execution of a judgment that is already very long overdue just by alleging a "fact" that is patently false?

The Supreme Court today vacated the injunction in Dunn v. Borden, No. 17A360.  The vote was apparently 6-3:  "Justice Ginsburg, Justice Breyer, and Justice Sotomayor would deny the application to vacate the injunction."  No opinions are on the Court's website as of this writing.

Borden's execution date is tomorrow.

Hurricane Extensions

| No Comments
The U.S. Supreme Court today issued a bit of disaster relief for litigants in Puerto Rico and the U.S. Virgin Islands:

IT IS ORDERED that the deadline to file a petition for a writ of certiorari in a case arising from the state or federal courts of Puerto Rico or the Virgin Islands and due on or after the date of this order is extended to November 20, 2017, to the extent that the extension is within the Court's authority to order. See 28 U.S.C. ยง 2101(c) (limiting available extensions to 60 days from due date for petitions for writs of certiorari in civil cases).

Um, exactly how many state courts are there in Puerto Rico and the Virgin Islands?

First Monday in October

| No Comments
The U.S. Supreme Court opens its new term on a particularly somber First Monday, with a horrific crime in Las Vegas in everyone's thoughts.  The long orders list from the Long Conference is here with few surprises.  The Court turned down Florida murderer Cary Lambrix, who should have been executed many years ago, on his request to review the Eleventh Circuit's decision in his case.  He has another petition to review a Florida Supreme Court decision pending. 

Regrettably, the Court also turned down Florida's petition in Florida v. Franklin, No. 16-1170, the state's latest attempt to get the high court to review the Florida Supreme Court's excessively expansive interpretation of Hurst v. Florida.  The split with neighboring Alabama remains unresolved.

Sheriff Joe's now-moot mandamus petition is denied, of course.

Anthony Elonis, who tried to excuse his blood-curdling threats on Facebook as merely imitating his favorite rap "artist," was denied a second trip to SCOTUS.  The primary post on the earlier decision is here.  Type "Elonis" in the search box for many others.

Short List from the Long Conference

| No Comments
Today the U.S. Supreme Court announced the short list of cases it decided to take up during its end-of-summer Long Conference on Monday.  The long list of cases not taken up (meaning the lower court decision stands) will be announced when the Court opens its new term on the First Monday in October.

Criminal cases include several Fourth and Fifth Amendment claims, one on the "plain error" standard of review on appeal, and one on military commissions.

Monthly Archives