This morning at 9:30 am the justices released orders from last week’s private conference. I covered some of the highlights from those orders in an earlier post, but today’s orders also included an unusually high number of separate opinions regarding the cases in which the court acted – including three by the court’s newest justice, Neil Gorsuch.

Gorsuch dissented from the court’s denial of review in Mathis v. Shulkin, in which the justices had been asked to review a rule created by the U.S. Court of Appeals for the Federal Circuit to use in cases involving disabled veterans who are seeking compensation for disabilities that they suffered while they were serving in the armed forces. The Federal Circuit applies a presumption that the medical professionals whom the Department of Veterans Affairs uses to evaluate these disabled veterans are competent to provide their opinions on any medical issues, which – veterans argue – then imposes a difficult burden on disabled veterans to show that the examiners are not in fact competent.

In a brief but sometimes folksy opinion that speaks directly to the reader at one point (“Now, you might wonder if our intervention is needed to remedy the problem.”), Gorsuch noted that judges on the Federal Circuit had voiced concerns about the presumption, which “may well mean the presumption’s days are numbered.” “But,” Gorsuch continued, “I would not wait in hope. The issue is of much significance to many today and, respectfully, it is worthy of this Court’s attention.”

Justice Sonia Sotomayor had her own statement – not a dissent – regarding the denial of review in the veterans’ case. She agreed with Gorsuch that the presumption “is questionable,” but in her view, this was not an appropriate case in which to take up the question because Mathis had not asked the VA for the credentials of his examiner. “Full review,” she explained, “would require a petition arising from a case in which the VA denied a veteran benefits after declining to provide the medical examiner’s credentials. Until such a petition presents itself,” she concluded, “staying our hand allows the Federal Circuit and the VA to continue their dialogue over whether the current system for adjudicating veterans’ disability claims can be squared with the VA’s statutory obligations to assist veterans in the development of their disability claims.”

In Bay Point Properties v. Mississippi Transportation Commission, Gorsuch (joined by Justice Clarence Thomas) issued a statement regarding the court’s denial of review in a case involving the Constitution’s just-compensation clause, which bars the government from taking private land for a public use “without just compensation.” Gorsuch suggested that the Mississippi Supreme Court’s decision allowing states to limit compensation when it “negotiates an easement limited to one purpose but later uses the land for an entirely different purpose” conflicts with the decision of a federal court of appeals and “seems difficult to square with the teachings of this Court’s cases holding that legislatures generally cannot limit the compensation due under” the Constitution’s takings clause. In light of the “general importance” of the question presented in the case, Gorsuch asserted, the court should grant review of the issue “at its next opportunity.”

Gorsuch concurred in the court’s disposition of Hicks v. United States, in which inmate Marcus Hicks argued that he should have his 20-year sentence reduced because, even though he committed his crime before the enactment of a federal sentencing law that would have given him a lower sentence, he was sentenced after the law went into effect. The federal government agreed that Hicks’ sentence was too long, and it asked the Supreme Court to send the case back to the U.S. Court of Appeals for the 5th Circuit for it to consider whether Hicks can meet the other criteria necessary to revise his sentence when he had failed to argue in that court that the sentence was too long. The justices agreed to do so today.

Gorsuch explained that he could not “think of a good reason to say no” to Hicks’ request. The court, he reasoned, routinely sends cases back to the lower court “not only when we are certain that curing the error will yield a different outcome, but also in cases where we think there’s a reasonable probability that will happen” – which is precisely the case here. Gorsuch acknowledged that the Supreme Court is not required “to rove about looking for errors to correct in every case in this large country,” and he agreed with the late Justice Antonin Scalia, whom he succeeded, that the court should be cautious before stepping into cases like this. But in this case, he concluded, “the lone peril” “seems to me the possibility that we might permit the government to deny someone his liberty longer than the law permits only because we refuse to correct an obvious judicial error.”

Chief Justice John Roberts dissented from the court’s decision in Hicks, joined by Thomas. Roberts emphasized that despite the government’s concession that Hicks received the wrong sentence, only two of the four criteria to have Hicks’ sentence reduced had been met. Using some folksy language of his own, Roberts pushed back against Gorsuch’s suggestion that the court should nonetheless send the case back to the lower court because “the outcome on remand is a no-brainer.” “But without a determination from this Court that the judgment below was wrong or at least a concession from the Government to that effect, we should not, in my view, vacate the Fifth Circuit’s judgment.”

Finally, Roberts – joined by Thomas, Gorsuch, and Justice Samuel Alito – dissented from the court’s decision to send the case of Johnson v. Alabama back to the state court for it to reconsider the case. Toforest Johnson, the inmate in the case, was convicted of murder and sentenced to death based on the testimony of a witness who said that she had heard Johnson confess to the crime during a phone call. Many years later, Johnson sought to vacate his conviction on the ground that prosecutors had failed to tell him that the witness had been paid for her testimony – in violation of their obligations under Brady v. Maryland, in which the Supreme Court held that prosecutors must provide defense attorneys with evidence favorable to the defendant. A state court rejected his request, relying on a state-law rule that Brady does not apply to evidence that would impeach a witness.

In its brief opposing review, the state urged the Supreme Court to vacate the lower court’s ruling and send Johnson’s case back so that the Alabama Court of Criminal Appeals could reconsider it in light of a 2013 Alabama Supreme Court ruling that rejected the criminal court’s interpretation of the state-law rule. That is what the Supreme Court did today, but Roberts and his three colleagues disagreed with that disposition of the case. Roberts reasoned that the state courts were aware of the 2013 ruling but still “declined to upset the decision below.” Emphasizing that the question before the Supreme Court “concerns state collateral review—purely a creature of state law that need not be provided at all”—Roberts concluded that, no matter what “one’s view on the propriety of our practice of vacating judgments based on positions of the parties, the Court’s decision to vacate this state court judgment is truly extraordinary.”

The justices also invited the acting solicitor general to file briefs expressing the views of the United States in four new cases:

There is no deadline for the federal government to file its briefs in response to today’s invitations.

Posted in Sokolow v. Palestine Liberation Organization, Samsung Electronics Co., Ltd. v. Apple Inc., Brewer v. Arizona Dream Act Coalition, Animal Science Products v. Hebei Welcome Pharmaceutical Co. Ltd., Mathis v. Shulkin, Bay Point Properties v. Mississippi Transportation Commission, Featured

Recommended Citation: Amy Howe, Today’s orders (part 2), SCOTUSblog (Jun. 26, 2017, 9:56 PM), http://www.scotusblog.com/2017/06/todays-orders-part-2/