Last week the court released its calendar for the April sitting, the final two-week session in which the justices are scheduled to hear oral arguments during the 2016-2017 term. With a full calendar (and then some) for April, and three cases that were granted in January carried over to the fall, it was not altogether surprising that the justices granted only one new case when they returned from their winter recess today. That case, Class v. United States, raises an interesting question about a criminal defendant’s right to appeal after he has pleaded guilty. But perhaps the most noteworthy development on today’s order list was a lengthy and impassioned dissent, by Justice Sonia Sotomayor, from the court’s decision not to review a challenge to Alabama’s lethal-injection protocol.
At today’s oral argument in Hernández v. Mesa, the latest chapter in a Mexican family’s effort to hold a U.S. Border Patrol agent liable for the fatal shooting, on Mexican soil, of their 15-year-old son, some of the justices appeared “sympathetic,” as Justice Stephen Breyer put it, to the family’s plight. But at the same time, even the justices who might be predisposed to support the family struggled to articulate a rule that would allow the family’s lawsuit to go forward without also permitting a wide variety of other – perhaps less sympathetic – cases, and they seemed frustrated by the family’s inability to identify such a rule. In the end, though, it’s not clear that the rule will matter, if the justices don’t agree that the Border Patrol agent can be sued in federal court at all.
It has now been more than 12 years since the Supreme Court’s landmark opinion in United States v. Booker recast the federal sentencing guidelines as “effectively advisory.” In subsequent cases, the court has clarified and reiterated the breadth of district-judge sentencing discretion within an advisory-guideline system. But on February 28, the court will confront whether mandatory statutory gun-sentencing provisions may limit a district court’s post-Booker sentencing discretion. In Dean v. United States, the justices will decide whether a trial judge, when sentencing a defendant convicted of firearms offenses under 18 U.S.C. § 924(c) that carry lengthy consecutive mandatory-minimum terms, may significantly reduce the sentence for underlying predicate offenses because of the severity of the mandated consecutive sentences.
Like many federal defendants, petitioner Levon Dean is not a particularly sympathetic character. In April 2013, Dean (along with various others, including his brother) robbed alleged drug dealers of drugs and other property in Sioux City, Iowa. In each of these robberies, Dean and his brother utilized a modified .22-caliber semiautomatic Mossberg rifle to threaten, intimidate and batter their victims.
Over the last few years, the Supreme Court has decided a number of criminal-removal cases. Next week, the justices will hear oral argument in another one, Esquivel-Quintana v. Sessions, which stems from the government’s effort to remove a lawful permanent resident for a “sex crime.”
The facts of the case sound like an episode of “Law and Order SVU.” In 2000, Juan Esquivel-Quintana’s parents lawfully brought him to the United States and settled in Sacramento, California. When he was 20 years old, Esquivel-Quintana had consensual sex with his 16-year-old girlfriend. He later pleaded no contest to violating California Penal Code § 261.5(c), which criminalizes sex with a person “under the age of 18 years” when the age difference between the parties is more than three years. Esquivel-Quintana was sentenced to 90 days in jail and five years’ probation. After his release from jail, he moved from California to Michigan, a state in which the conduct underlying his criminal conviction would not have been a crime.
Today the court returns from its February break to hear oral argument in two cases. First up is Hernández v. Mesa, a case that stems from the cross-border shooting of a Mexican teenager by a U.S. Border Patrol agent. Amy Howe previewed the case for this blog. Another preview comes from Laurel Hopkins and Eugene Temchenko at Cornell University Law School’s Legal Information Institute. The George Washington Law Review’s On the Docket also previews Hernández, along with all the cases in the February sitting. In USA Today, Richard Wolf reports on Hernández, remarking on its possible effect on already fraught “U.S.-Mexico relations.” Additional coverage comes from Mark Sherman for the Associated Press, who observes that the “legal issues are different, but the Supreme Court case resembles the court battle over President Donald Trump’s ban on travelers from seven majority Muslim nations in at least one sense”: “Courts examining both issues are weighing whether foreigners can have their day in U.S. courts.” David Gans in The New Republic argues that Hernández offers the court “an important opportunity to reaffirm its core constitutional role of keeping the political branches in check, vindicating individual rights, and ensuring that no one is above the law,” and predicts that this “Supreme Court case will come down, as so many do, to Justice Anthony Kennedy.”
The petition of the day is:
Issue: Whether the U.S. Court of Appeals for the 11th Circuit erred in this case by holding that it had no jurisdiction to review the denial of a motion to reopen by the Board of Immigration Appeals, where the review sought was limited to assessing the legal framework upon which the sua sponte request was made.
The court issued orders from its February 17 conference on Monday. It granted certiorari in Class v. United States. The court also heard oral argument in two cases. There is a possibility of opinions on Wednesday at 10 a.m. The court will also hear oral argument on Wednesday in Kindred Nursing Centers Limited Partnership v. Clark. The calendar for the February sitting is available on the court’s website. On Friday the justices will meet for their February 24 conference; our list of “petitions to watch” for that conference will be available soon.
The petition of the day is:
Issue: Whether the safe harbor of Section 546(e) of the Bankruptcy Code prohibits avoidance of a transfer made by or to a financial institution, without regard to whether the institution has a beneficial interest in the property transferred, consistent with decisions from the U.S. Courts of Appeals for the 2nd, 3rd, 6th, 8th, and 10th Circuits, but contrary to the decisions from the U.S. Courts of Appeals for the 7th and 11th Circuits.
Yesterday the Senate Judiciary Committee announced that the confirmation hearing for Judge Neil Gorsuch will begin on March 20, creating at least the possibility that, if confirmed, Gorsuch could join the court’s current eight justices in time for the April sitting, which begins on April 17. Today the justices released the calendar for the April sitting, during which the court will hear 13 arguments – including an important religious liberty case that had been granted in January 2016, nearly one month before the February 13, 2016, death of Justice Antonin Scalia, whom Gorsuch would succeed on the court.
The justices agreed to review Trinity Lutheran Church v. Pauley on January 15, 2016. Under the court’s normal procedures, the case – in which a Missouri church is arguing that its exclusion from a state program that provides funds to nonprofits to resurface their playgrounds with rubber from recycled tires violates the Constitution – would have been argued in either April or fall of 2016. But the case (along with Murr v. Wisconsin and Microsoft v. Baker, two others granted that day) remained conspicuously absent from oral argument calendars through the end of 2016 and into the beginning of 2017. Although there is no way to know with certainty what accounted for the delay, one possibility was that the justices were hoping to avoid a 4-4 tie, in the absence of a ninth justice. On February 3, three days after President Donald Trump announced the Gorsuch nomination, the court released its March calendar, which included Murr and Microsoft but not Trinity Lutheran.