Editor's Note :

Editor's Note :

Our first interim Stat Pack for October Term 2016, prepared by Kedar Bhatia, is available at this link.

Petition of the day

By on Jun 27, 2017 at 10:22 pm

The petition of the day is:


Issues: (1) Whether the dormant commerce clause requires a State that imposes a fairly apportioned use tax to also credit sales taxes paid to other States; and (2) whether the dormant commerce clause requires a State that does not impose county or municipal use taxes to provide a credit for sales taxes paid to other States’ counties or municipalities.

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park and the author of  Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.”

On June 26, the Supreme Court ordered reargument in the case of Jennings v. Rodriguez, which involves an individual who was held in immigration detention for more than three years without a bond hearing. The question before the court was whether detained immigrants have a right to a bond hearing. The U.S. Court of Appeals for the 9th Circuit concluded that detained immigrants must be given bond hearings at least every six months. Kevin Johnson has summarized the case in detail here. The decision by the Supreme Court to postpone Jennings is a disappointment, because it delays the uncertainty over fundamental questions about liberty and due process.

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Menu of today’s content

By on Jun 27, 2017 at 5:02 pm

Today we continue our symposium on the court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer. Today’s contributions come from Erwin Chemerinsky, Hillary Byrnes and Fred Yarger. These and other contributions are available at this link.

Today we also began a symposium on October Term 2016’s death-penalty decisions. Today’s contributions come from Dominic Draye, Austin Sarat, Brian Stull and Brianne Gorod. These and future contributions are available at this link.

Additionally, this morning Amy Howe covered the court’s final orders of the term, and Steve Vladeck analyzed the court’s opinion in Davila v. Davis.

Posted in Everything Else

Brianne Gorod is Chief Counsel at the Constitutional Accountability Center. She filed an amicus brief in support of defendant Duane Buck in Buck v. Davis.

With the election of Donald Trump as president and the addition of his Supreme Court nominee Justice Neil Gorsuch to the bench, there’s no question: The conservative court is back. But even with this very conservative Supreme Court, there can still occasionally be progressive victories, at least for now. This year’s death penalty cases provide a key example: There were a number of progressive wins, but only by the narrowest of margins. In this area, as in so many others, Justice Anthony Kennedy’s vote is often key.

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Brian Stull is a senior staff attorney with the Capital Punishment Project of the American Civil Liberties Union. He filed an amicus brief in support of Bobby Moore in Moore v. Texas.

As Justice Stephen Breyer forecasted two terms ago in Glossip v. Gross, the Supreme Court has continued its project of “patch[ing] up the death penalty’s legal wounds one at a time.” This term, it granted relief in three death-penalty cases, two from the nation’s leading executioner, Texas, and one from the leader in death-row prisoners per capita, Alabama. And it denied relief in a third Texas case (Davila v. Davis). As these cases show, the states’ applications of the death penalty have exposed individuals to execution who should have been protected because of their intellectual disability (Moore v. Texas), who were denied access to adequate tools of the defense (McWilliams v. Dunn), and whose verdicts were infected by racial prejudice (Buck v. Davis). The decisions granting relief are to be celebrated, but they address only the symptoms, not the underlying problem, recognized more than 40 years ago in Furman v. Georgia: Administration of the death penalty is inescapably arbitrary.

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Austin Sarat is the William Nelson Cromwell Professor of Jurisprudence and Political Science and Associate Dean of the Faculty at Amherst College.

The past year was, in many ways, a disappointing one for those seeking to end the death penalty in America. They lost at the ballot box and in the selection of a new Supreme Court justice, and they failed yet again to get the court to take up a wholesale challenge to capital punishment. Through it all, Justice Stephen Breyer persisted in making the case that the death penalty violates the Eighth Amendment and “the evolving standards of decency that mark the progress of a maturing society.” His efforts had no greater payoff during the 2016 term than they have had in the past, but they helped to memorialize the many miscarriages of justice associated with the death penalty’s continued use and lay the groundwork for a future court to end capital punishment.

He made those efforts during a time of a gradual withering of America’s death penalty. This withering is evidenced by the fact that fewer and fewer death sentences are being imposed in fewer and fewer places across the country. At the same time, similar trends are occurring with regard to actual executions. Moreover, while a majority of the American public continues to support the death penalty, the number of people favoring it is lower than it has been since the 1970s.

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Dominic Draye is the solicitor general of Arizona, which filed a brief for 16 states in support of the respondents in Moore v. Texas.

In 1952, the Supreme Court took up the case of a soldier who deserted his unit during World War II. As punishment, the soldier lost his citizenship. His challenge to that sanction under the Eighth Amendment’s ban on cruel and unusual punishment launched the current chapter in Eighth Amendment jurisprudence: “The Amendment must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.”

As always, the wake is wider than the vessel. For decades, the Supreme Court and courts around the country have labored to identify the “evolving standards of decency” that classify one punishment as cruel and unusual while permitting another. This project is necessarily vexing, as the standards themselves are defined by their evolution – at least until the Supreme Court acknowledges a standard and thereby prevents any social reconsideration. Moreover, assuming that the amendment’s meaning should change over time, the Constitution does not identify reference points by which courts might gauge society’s standards of decency.

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In one of the last decisions of its October 2016 term, a sharply divided Supreme Court yesterday ruled against a Texas prisoner facing a death sentence, declining to extend its 2012 ruling in Martinez v. Ryan. Instead, for a 5-4 majority, Justice Clarence Thomas concluded in Davila v. Davis that when a state prisoner fails in a state post-conviction proceeding to challenge the effectiveness of his direct-appeal lawyer, he may not raise that claim in a federal habeas petition – even if his failure was caused by ineffective assistance of his post-conviction counsel. Whereas Martinez (and its sequel, Trevino v. Thaler) had held that such “nested” ineffectiveness-of-counsel claims can be pursued in federal habeas petitions, the Supreme Court’s decision in Davila v. Davis limits Martinez and Trevino to circumstances in which the underlying ineffectiveness claim goes to the prisoner’s trial lawyer, not to any deficiencies by the counsel handling his direct appeal. And although the issue in Davila is narrow and technical, the case may come to serve as a broader flashpoint in the ongoing debate over the proper role and scope of collateral post-conviction review.

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Today’s orders

By on Jun 27, 2017 at 12:15 pm

Yesterday the justices of the Supreme Court released several decisions in cases that were argued on the merits and announced that they would add several new cases – including, most notably, the litigation over the president’s “travel ban” – to their docket for next term. The justices did not take the bench today, but they did release a new set of orders from yesterday’s conference. This morning’s order list sent four cases back to the state courts for them to take another look in light of yesterday’s decision in Trinity Lutheran Church v. Comer, in which the justices ruled that Missouri’s exclusion of a church from a state program intended to provide funding for recycled playground surfaces violated the Constitution. The justices also added six new cases, for a total of five hours of argument, to their docket for the next term.

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Fred Yarger is the solicitor general of Colorado. He filed an amicus brief for the state in support of the church in Trinity Lutheran v. Comer.

Although it represents a significant victory for religious liberty, Trinity Lutheran Church of Columbia, Inc. v. Comer does not appear to alter fundamentally how the First Amendment will be understood and applied in cases involving claims of religious freedom. Instead, it reflects broad consensus from the Supreme Court, but only on the answer to a narrow question: Can an organization be excluded from a generally available public benefit program solely because of its religious character? At oral argument, that question was put in plainer language. Justice Stephen Breyer, for example, asked it this way: “does the Constitution of the United States permit a state or a city to say, we give everybody in this city police protection, but not churches?”

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