UPDATED 1:14 pm. The Court has set the Voting Rights Act case, 12-96, along with a companion case, 12-81, for consideration at its private Conference on Friday. In addition, the Court has now scheduled all of the same-sex marriage cases for consideration at its November 20 Conference; that includes eight petitions dealing with the Defense of Marriage Act, one dealing with California’s “Proposition 8” ban on same-sex marriage, and one dealing with an Arizona law similar to DOMA that restricts marital benefits for state workers to opposite-sex married couples only. The following post on Monday’s orders has been expanded and updated.
The Supreme Court, fully at work while most of the rest of official Washington takes a weather day off, agreed on Monday to hear four new cases, including a plea to give convicted individuals a new chance to claim that their defense lawyers in state court failed to perform adequately. That is an issue that arose in the wake of last Term’s decision in Martinez v. Ryan. The new case on whether the Ryan precedent applies to death penalty cases in general, and to such cases in Texas in particular, is Trevino v. Thaler (11-10870).
The other granted cases involve a test of whether a convicted individual’s claim of innocence of the crime will be treated as an excuse for failing to pursue a federal habeas challenge on time (McQuiggin v. Perkins, 12-126), clarification of how the Internal Revenue Service calculates the foreign tax credit in a case involving a British “windfall tax” on utility companies (PPL Corporation v. Commissioner, 12-43), and whether misconduct by a trustee in bankruptcy has an effect on the debts to be discharged (Bullock v. BankChampaign, 11-1518).
The Court asked the U.S. Solicitor General to provide the government’s views on whether the federal Fair Housing Act of 1968 covers claims that a housing policy had a more negative impact on minority renters or buyers, even if there was no intentional discrimination. The Court had agreed to rule on that issue last Term, but that case settled without a decision. The new case is Mount Holly, N.J. v. Mount Holly Gardens Citizens in Action, Inc. (11-1507).
The Justices took no action on Monday on a major new test of the constitutionality of Section 5 of the Voting Rights Act of 1965, probably because one or more members of the Court last Friday had asked the lower courts to send in the full record of proceedings there in Shelby County v. Holder (now pending in the Supreme Court in 12-96). (As noted above in the update message, this case and a similar challenge to Section 5, in Nix v. Holder, 12-81, will be considered by the Justices at their Friday Conference this week.)
Among the cases that the Court refused on Monday to review was an attempt to put on the ballot in Oklahoma a proposed state constitutional amendment that would have declared that life begins from the moment of conception — a so-called “personhood amendment” that may have had the practical effect of outlawing all forms of abortion in that state, and to have restricted if not forbidden the use of birth-control devices or measures as well as medical procedures for women having reproductive health problems. The Oklahoma Supreme Court had ruled that the proposed amendment could not go on the ballot, because it was an unconstitutional attempt to overturn Supreme Court rulings protecting a woman’s right to seek an abortion. The Court made no comment as it denied review in Personhood Oklahoma v. Barber (12-145).
Among the cases that the Court did grant, the case of Trevino v. Thaler (11-10189) is of major importance for criminal law. The petition, by lawyers for a Texas death-row inmate, Carlos Trevino, argued that lower federal courts have denied prisoners like him the opportunity to test their convictions and death sentences in federal court on the theory that their defense lawyers were deficient during state court proceedings. In the Supreme Court’s decision last March in Martinez v. Ryan, the Court made a significant exception to the long-standing rule that a state prisoner cannot pursue a challenge in federal habeas court if the inmate failed to bring up the challenge first in state court.
In the Martinez case, the Court said that inadequate performance by a defense lawyer in state court can be used as an excuse for failing to have raised that issue in state court, at least in situations when a state did not allow such a claim until after a conviction had become final and the inmate pursued post-conviction remedies in state court. When state laws bar such a claim until the post-conviction stage, the Court ruled, the procedural bar to raising that issue in federal habeas is set aside and a habeas judge can consider the ineffectiveness claim.
Lower federal courts ruled, however, that Texas courts sometimes allow a state inmate to bring up an ineffective lawyer claim prior to a post-conviction stage, so the Martinez decision does not apply in Texas, including death-penalty cases there.