This morning the Supreme Court issued orders from last week’s private conference. The justices added three new cases to their merits docket for the next term, but – like last week – the most interesting development may have come in a death penalty case in which the court denied review. A week ago, it was Justice Sonia Sotomayor, joined by Justice Stephen Breyer, who filed a dissent from the denial of certiorari in a challenge to Alabama’s lethal-injection protocol. Today, Breyer wrote alone in noting that he would have granted review in the case of a Louisiana death row inmate who challenged the constitutionality of the death penalty more broadly.

The Breyer dissent came in the case of Marcus Dante Reed, who was convicted and sentenced to death for the 2010 murder of three brothers who, Reed apparently believed, had stolen his Xbox360. In his appeal to the Supreme Court, Reed’s lawyers focused less on the particulars of his case than on the argument that the death penalty itself violates the Constitution’s ban on cruel and unusual punishment because, among other things, it is both rare and unfairly applied. But the justices are apparently not ready to tackle that question. Emphasizing that Reed received the death penalty in “a county that in recent history has apparently sentenced more people to death per capita than any other county in the United States,” Breyer expressed concern about what he described as the “arbitrary role that geography plays in the imposition of the death penalty.” When combined with “the other serious problems that” he had discussed in earlier cases, that arbitrariness has led him “to conclude that the Court should consider the basic question of the death penalty’s constitutionality,” Breyer explained.

Although Justice Ruth Bader Ginsburg had joined Breyer in questioning the constitutionality of the death penalty nearly two years ago, in a dissent from the court’s ruling upholding Oklahoma’s lethal-injection protocol, Breyer wrote alone today. There is no way to know why Ginsburg did not join today’s dissent, or whether she or any of the other justices share his views. But the other justices’ silence, especially combined with the prospect that President Donald Trump’s nominee to the Supreme Court, Judge Neil Gorsuch, could be confirmed by the end of the current term, suggests that the rest of the court is unlikely to follow Breyer in voting to take up the question anytime soon.

Two of the cases that the court did agree to review today involve somewhat esoteric, but nevertheless important, questions of civil procedure. In Artis v. District of Columbia, the justices agreed to review the case of a Washington, D.C., woman who worked as an inspector for the city’s health department and filed an employment discrimination case against the city. The merits of those claims are not before the court; rather, the case centers on the operation of the federal law that allows (but does not require) federal courts to consider state-law claims related to the plaintiff’s federal claims. The law tolls – that is, puts on hold – the statute of limitations for the state-law claims while the case is pending in federal court and then gives the plaintiff an additional 30 days in which to bring the state-law claims after the federal-court case is dismissed.

Artis, the employee, argues that courts should follow what is known as a “suspension” approach to determining whether a plaintiff’s state-law claims are timely: The plaintiff gets whatever time remained on the statute of limitations when the federal law suit was filed, plus an additional 30 days. The city, by contrast, argues that the statute of limitations continues to run for the state-law claims; if the limitations period expires while the case is in federal court, the plaintiff simply gets a “grace period” of 30 days to file her state-law claims. Now the Supreme Court will decide which rule applies.

In Hamer v. Neighborhood Housing Services of Chicago, the question before the justices arises out of another employment discrimination case, this time brought by a Chicago woman who alleges that she was the victim of age discrimination. A federal district court ruled in favor of Charmaine Hamer’s former employer but gave Hamer an extension of 60 days to file an appeal. Hamer filed her appeal within that time, but the U.S. Court of Appeals for the 7th Circuit nevertheless ruled that it did not have the power to hear her case because the federal rule governing extensions for appeals only allows a district court to extend the filing deadline by 30 days. The justices will now determine whether that ruling is correct; Hamer counters that the rule’s 30-day limit does not deprive the appeals court of power to hear her case – particularly when, as here, the district court granted her a 60-day extension and her employer did not object.

The third case that the justices agreed to hear today was that of Marion Wilson, who was sentenced to death for the 1997 murder of a Georgia man. After Wilson’s direct appeals were over, he went to a state trial court seeking post-conviction relief. The state court rejected his bid, and the Georgia Supreme Court affirmed that ruling in a one-sentence order. When Wilson sought relief in federal court, he was also unsuccessful. The question now before the Supreme Court is what state-court rulings federal habeas courts should review in considering an inmate’s case. Here, although the U.S. Court of Appeals for the 11th Circuit affirmed the federal district court’s denial of relief, it did not defer to the state trial court but instead relied on the Georgia Supreme Court’s decision, which it regarded as the last ruling “on the merits.”

Wilson asked the 11th Circuit to hear his case en banc, arguing that the panel’s ruling conflicted with Supreme Court decisions holding that federal courts should “look through” a summary ruling, like the Georgia Supreme Court’s ruling in his case, at the last substantive state court decision to determine the bases for that ruling. By a vote of 6-5, the full court of appeals rejected that argument. In an unorthodox move, the cover of Wilson’s petition for review includes a quote from a dissenting judge predicting “that the Supreme Court will decide the issue differently from the en banc majority”: We will likely know sometime next year whether that prediction proves to be true.

The justices issued a one-sentence order of their own today in the case of Independence Institute, a Colorado nonprofit that “conducts research and educates the public concerning various aspects of public policy, including taxation, education, health care, and criminal justice.” The institute wanted to run an ad in support of a bill that would give federal judges discretion when sentencing non-violent offenders. But because the ad mentioned the name of one sitting senator who was up for re-election soon, it would qualify as an “electioneering communication.” That designation would in turn trigger a requirement for the group to file reports with the Federal Election Commission that would, among other things, disclose the group’s major donors. The Independence Institute objected to the disclosure requirement, arguing that it violates the First Amendment.

The specific provision that the group was challenging channels lawsuits to a three-judge court of the U.S. District Court for the District of Columbia. The district court ruled in favor of the FEC. The Independence Institute then went to the Supreme Court, which has the discretion to choose most of its merits docket but has mandatory jurisdiction over appeals from three-judge district courts like the one at issue in this case. The justices could have ordered additional briefing and oral argument, but instead they opted to affirm the district court’s ruling without any discussion or noted dissents.

Posted in Artis v. District of Columbia, Hamer v. Neighborhood Housing Services of Chicago, Independence Institute v. Federal Election Commission, Reed v. Louisiana, Wilson v. Sellers, Featured

Recommended Citation: Amy Howe, Three new cases, a Breyer dissent and a summary affirmance, SCOTUSblog (Feb. 27, 2017, 4:01 PM), http://www.scotusblog.com/2017/02/three-new-cases-breyer-dissent-summary-affirmance/