This afternoon the Supreme Court issued orders from the justices’ private conference. The justices added six new cases, for a total of five hours of oral argument, to their merits docket for the term, and they ordered reargument in a case that was argued before Justice Brett Kavanaugh joined the court. In a separate order, the justices also rejected the government’s request to delay the trial in a dispute over a question regarding citizenship on the 2020 census.

Perhaps the biggest news of the day was the justices’ announcement that they would once again wade into the thorny questions surrounding religious-themed monuments on public land. In 2005, the Supreme Court rejected a challenge to a Ten Commandments monument on the grounds of the Texas state capitol, with Justice Stephen Breyer concluding that, although the monument bore a religious message, it was part of a display that relayed a secular message and had not been challenged in the 40 years that it had stood on the capitol grounds.

The monument in today’s cases is the “peace cross,” erected 93 years ago in the Washington, D.C., suburbs to commemorate local soldiers who died in World War I. A nonprofit called the American Humanist Association and several area residents filed a lawsuit in 2014. They argued that, because it is in the form of a cross, the monument endorses Christianity – which, they said, is a violation of the Constitution’s establishment clause, which bars the government from favoring one religion over another. A federal appeals court ruled for the challengers, but now the justices will review that ruling.

The court’s decision, which is likely to come next year, could affect not only the “peace cross” but also other similar monuments, including at Arlington National Cemetery. The justices could also try to provide more clarity on how courts should deal with claims under the establishment clause: Justice Clarence Thomas has written recently that the Supreme Court’s establishment clause cases are “in disarray,” and a federal appeals court in Atlanta described them as a “hot mess” even as it concluded that the presence of a cross in a Pensacola, Florida, park violates the Constitution. More broadly, the addition of the two cases (which will be consolidated for one hour of oral argument) to the court’s docket transforms what had been a relatively sleepy term into one that is likely to draw a good deal of public interest.

The Social Security Administration’s “Appeals Council” reviews appeals from administrative decisions by individuals seeking disability benefits. The question that the justices agreed to review today in Smith v. Berryhill is whether, if the Appeals Council decides that an appeal was filed too late, that ruling is a “final decision” that courts can review.

The case began when Ricky Lee Smith’s application for supplemental-security-income benefits was denied. Smith says that his lawyer asked the Appeals Council to review the denial within the 60-day window to appeal, but the Appeals Council said that the appeal never arrived, and the council dismissed his case because it was not filed on time. When Smith went to federal court, the district court dismissed his case because there was no final decision for it to review, and the U.S. Court of Appeals for the 6th Circuit affirmed.

Smith asked the Supreme Court to weigh in, and the federal government agreed that review is warranted. The government explained that it had “reexamined the question” presented by Smith’s case and “concluded that its prior position was incorrect”; if necessary, the government continued, the justices should appoint another attorney to defend the 6th Circuit’s decision. If the justices opt to follow the government’s suggestion, that order could come in the next few weeks.

The question that the justices agreed to decide in Gray v. Wilkie is a fairly technical legal one, arising out of a federal law intended to help veterans who served in Vietnam – some more than 50 years ago.

In 1991, Congress passed the Agent Orange Act to make it easier for veterans who were injured by the toxic herbicide in Vietnam to obtain disability benefits. Under the law, veterans could establish the necessary link between their disabilities and military service required to obtain benefits as long as they served in the “Republic of Vietnam” during a 13-year period and developed any one of several diseases linked to Agent Orange.

In 2016, the Department of Veterans Affairs made changes to its interpretation of the Agent Orange Act by revising the manual in which it publishes its policies and procedures for resolving claims for benefits. According to the manual, only veterans who set foot on Vietnamese soil or served in the country’s “inland waterways” would be able to meet the requirements of the Agent Orange Act. The manual defined “inland waterways” to exclude members of the U.S. Navy who – like petitioner Robert Gray – had served in Vietnam’s ports, harbors and bays.

Gray challenged the VA’s interpretation in the manual, relying on a federal law that gives the U.S. Court of Appeals for the Federal Circuit authority to review challenges to rules and policies issued by the VA before the rules are actually enforced. The rationale behind that law was to allow veterans to challenge the VA’s actions without, Gray explained having to “first litigate such challenges through the notoriously backlogged and inefficient VA disability claims process.” But the Federal Circuit ruled that it lacked the power to review Gray’s challenge because the interpretation appeared in the manual and was not binding on the board that decides veterans-benefit claims.

Gray asked the Supreme Court to revisit the lower court’s ruling, telling the justices that if allowed to stand it will impose “significant hardship” on veterans, and today the justices agreed to do so.

The justices also agreed to review the case of Jason Mont, who was sentenced to seven years in prison on federal drug charges, followed by five years of supervised release. When Mont had approximately one year left on supervised release, his probation officer told the district court that Mont had violated the terms of his supervised release and had also been indicted on state drug charges.

In June 2016, approximately six months before his supervised release was scheduled to end, Mont was taken into custody and held at a local jail until March 21, 2017, when he was sentenced in state court to six years in prison, with credit for the 10 months that he spent in state custody.

At a hearing on his supervised release, Mont argued that the federal district court no longer had the power to consider violations of his supervised release because his supervised release had expired in early March 2017. The district court rejected that argument and sentenced him to 42 months in prison; the court of appeals upheld that ruling.

Mont then went to the Supreme Court, which today agreed to decide whether a period of supervised release for one offense is paused under federal law while in inmate is held in custody awaiting trial, when that pretrial time in custody is later credited toward the inmate’s sentence for another offense.

In Flowers v. Mississippi, the justices will once again review the case of Curtis Flowers, who was sentenced to death for an infamous quadruple murder at a furniture store in Winona, Mississippi. Flowers was tried six times. During the first four trials, prosecutor Doug Evans was twice found to have violated the constitutional ban on racial discrimination in selecting jurors: He had struck all 10 of the potential African-American jurors, while he used all of his strikes to remove African Americans from the jury pool in the third and fourth trials. Flowers’ fifth trial deadlocked, but at his sixth trial, Evans allowed the first African-American juror to be seated but then struck the remaining five African-American jurors.

The Mississippi Supreme Court rejected Flowers’ challenge to Evans’ jury selection, but the U.S. Supreme Court ordered the state supreme court to reconsider that ruling in light of the Supreme Court’s 2016 decision in Foster v. Chatman, in which the court held that the defendant in a capital case had shown intentional discrimination in the selection of jurors. When the case went back to the Mississippi Supreme Court, that court again upheld the ruling for the state, reasoning that Evans’ past discrimination did not affect its analysis. Flowers then returned to the justices, asking them to weigh in on whether the Mississippi Supreme Court was correct. The justices agreed to review Flowers’ case, although they ordered Flowers and the state to brief a slightly different question than the one that Flowers had suggested: whether the Mississippi Supreme Court had properly applied the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, holding that it is unconstitutional to strike potential jurors based on their race, to Flowers’ case.

The justices also ordered additional briefing and reargument in Knick v. Township of Scott, a property-rights case that was argued on October 3, before Kavanaugh joined the court on October 9. There is no way to know for sure, but presumably the eight members of the court who did hear oral argument in the case were deadlocked, leading to today’s order. The first round of briefs will be due in late November, with reply briefs to follow in late December, setting the case up for a second argument in 2019.

In a separate order issued this afternoon, the justices also turned down the federal government’s request to delay a trial in a dispute over the return of a question regarding citizenship status to the census. The order means that the trial, scheduled to begin on Monday, will go ahead. In earlier orders, the justices had blocked the plaintiffs challenging the question – who argue that the question will discourage immigrants from responding to the census, leading to an inaccurate count – from questioning Secretary of Commerce Wilbur Ross about his decision to reinstate the question, but they had allowed the plaintiffs to question John Gore, a senior official in the Department of Justice, and to conduct other fact-finding in advance of the trial. Justices Clarence Thomas, Samuel Alito and Neil Gorsuch all indicated that they would have granted the government’s request.

The justices are expected to issue additional orders from today’s conference on Monday at 9:30 a.m.

Posted in Knick v. Township of Scott, Pennsylvania, Smith v. Berryhill, Maryland-National Capital Park and Planning Commission v. American Humanist Association, The American Legion v. American Humanist Association, Flowers v. Mississippi, Mont v. U.S., Gray v. Wilkie, Emergency appeals and applications to the Supreme Court, Featured, Merits Cases, What's Happening Now

Recommended Citation: Amy Howe, Busy afternoon at the Supreme Court: Six grants and one reargument order, but no stay in census dispute, SCOTUSblog (Nov. 2, 2018, 6:49 PM), http://www.scotusblog.com/2018/11/busy-afternoon-at-the-supreme-court-six-grants-and-one-reargument-order-but-no-stay-in-census-dispute/