This morning the justices issued orders from last week’s private conference. They added two new cases to their merits docket for the term and denied review in a group of capital cases from Florida, with the latter spurring three separate (and sometimes strongly worded) opinions.

The justices will once again return to the subject of racial gerrymandering, in a case from Virginia challenging the districting plan drawn in 2011 for the state’s House of Delegates. In 2017, the Supreme Court ruled that a three-judge district court had applied the wrong legal standard when it upheld 12 districts against claims that they were the product of racial gerrymandering. The justices sent the case back to the lower court, ordering it to take another look at 11 of those districts – and, in particular, whether race was the primary factor used to draw the districts. (The justices upheld the 12th district.)

Applying the standard outlined by the Supreme Court, the lower court concluded that race was indeed the primary factor driving the district boundaries. Because the legislature also had not shown that it needed to use the same population targets in each of the “vastly dissimilar” districts at issue to comply with federal voting rights laws, the lower court continued, the districts violate the Constitution.

The Virginia House of Delegates and Kirkland Cox, the speaker of the House of Delegates, appealed to the Supreme Court, which announced today that it would review their appeal. (Redistricting cases are among a narrow set of cases with an automatic right to appeal to the Supreme Court.)

The Virginia board of elections and department of elections and several state officials filed a separate brief, represented by Virginia’s solicitor general, Toby Heytens. Heytens urged the justices to dismiss the legislature’s appeal, telling them that the House of Delegates and Cox lack a legal right to appeal because Virginia’s attorney general is responsible for representing the state in cases like this one. The fact that Mark Herring, Virginia’s attorney general, has declined to appeal the lower court’s decision to the Supreme Court does not, Heytens contended, allow the legislators to do so instead.

This morning the justices announced that they would review the district court’s decision, but they also ordered the parties to address the question broached by Heytens — whether the legislature and Cox have a legal right to bring their appeal — in their briefs.

The events giving rise to PDR Network v. Carlton & Harris Chiropractic, which was granted today, took place in 2013, when people apparently still sent faxes. The petitioner in the case, PDR, sent Carlton & Harris, a West Virginia chiropractor, a fax offering the company a free copy of the Physicians Desk Reference. Carlton & Harris declined the offer and instead sued PDR in federal court, alleging that PDR had violated the Telephone Consumer Protection Act, a federal law that allows consumers to sue (and recover money from) senders of unsolicited fax advertisements.

PDR asked the court to dismiss the case, arguing that the fax was not an unsolicited advertisement because it was offering the desk reference for free. Carlton & Harris countered that the fax was indeed an unsolicited advertisement because a 2006 order by the Federal Communications Commission interpreted the term to include faxes that offer goods and services at no cost to the recipient.

The district court agreed with PDR, but the U.S. Court of Appeals for the 4th Circuit reversed. PDR then went to the Supreme Court, asking the justices to weigh in, and today they agreed to consider whether the Hobbs Act – which provides a mechanism for courts to review some agency orders – required the district court to accept the FCC’s legal interpretation of the TCPA.

The justices also denied review in a group of capital cases from Florida, all challenging the application of the Supreme Court’s 2015 decision in Hurst v. Florida, striking down Florida’s sentencing scheme for death-penalty cases. Under that system, the jury rendered an “advisory” sentence but the judge independently weighed the factors for and against a death sentence before entering a sentence. In Hurst, the justices concluded that this system violated the Sixth Amendment, which guarantees the right to a trial by jury, because a jury, rather than a judge, must find the facts necessary to impose a death sentence.

After the U.S. Supreme Court’s decision in Hurst, the Florida Supreme Court rejected challenges by inmates in cases in which the jury had unanimously recommended death. The state court reasoned that any error under Hurst was harmless because the jury would have found, beyond a reasonable doubt, all of the requirements necessary to impose the death penalty.

Several inmates came to the U.S. Supreme Court, urging the justices to overturn the Florida Supreme Court’s ruling. They contended that the state court’s decision is inconsistent with Caldwell v. Mississippi, in which the Supreme Court held that a death sentence is not valid when the jury believes that it is not ultimately responsible for determining whether a death sentence is appropriate.

Today’s announcement that the Supreme Court would not review the cases led to separate opinions from three justices. Justice Stephen Breyer filed an opinion “respecting” the denial – that is, he neither agreed nor disagreed, but simply wrote separately to comment on it. Breyer observed that the cases present several issues relating to the death penalty, including one that Breyer has “previously described as a serious flaw in the death penalty system: the unconscionably long delays that capital defendants must endure as they await execution.” More broadly, Breyer continued, a death sentence should reflect a jury’s conclusion that death is “proper retribution” for the crime, but jurors might not have voted for a death sentence if they had known that it would take so long to carry out the execution and that the sentence would be flawed in so many other ways. As he has written before, Breyer concluded that the “flaws in the current practice of capital punishment could often cast serious doubt on the death sentences imposed in these and other capital cases,” but he suggested that “it would be wiser to reconsider the root cause of the problem—the constitutionality of the death penalty itself.”

Justice Clarence Thomas wrote to express his agreement with the decision to deny review, in an opinion that began with a graphic account of the crime committed by inmate Michael Reynolds and continued with descriptions of the crimes committed by other inmates in a footnote. Thomas rebutted Breyer’s arguments, point by point, before concluding that, in his view, the “only thing ‘cruel and unusual’” in Reynolds’ case was his “brutal murder of three innocent victims.”

Justice Sonia Sotomayor dissented from the denial of review, in an opinion that began by acknowledging that the inmates whose petitions were rejected today “have been convicted of gruesome crimes. Their victims, and the families and communities of those victims, have suffered.” But, Sotomayor explained, she was “also mindful that it is this Court’s duty to ensure that all defendants, even those who have committed the most heinous crimes, receive a sentence that is the result of a fair process.”

The justices will meet again for their next conference on Friday, November 16.

This post was originally published at Howe on the Court.

Posted in PDR Network, LLC v. Carlton & Harris Chiropractic Inc., Virginia House of Delegates v. Bethune-Hill, Reynolds v. Florida, Featured, What's Happening Now

Recommended Citation: Amy Howe, Court adds two new cases to merits docket, SCOTUSblog (Nov. 13, 2018, 12:16 PM), http://www.scotusblog.com/2018/11/court-adds-two-new-cases-to-merits-docket/