This morning the Supreme Court continued its virtual operations, releasing orders from the justices’ private conference last week. Following the Centers for Disease Control and Prevention’s guidelines for COVID-19, and in a departure from tradition, only Chief Justice John Roberts was in the justices’ conference room again last week, with the rest of the justices participating remotely by telephone. The justices added only one new case to their merits docket for next term. They did not act on the federal government’s challenge to California’s “sanctuary state” laws, which prohibit state and local law enforcement officials from cooperating with federal immigration officials – for example, by providing information about individuals in custody or transferring inmates in their custody to federal immigration authorities.

The justices agreed to take up an appeal filed by the federal government on behalf of law enforcement officials who were sued by a Michigan man whom they had tried to arrest when they mistakenly believed that he was a fugitive they were seeking. Continue reading »

We live-blogged on Monday, March 30, as the Supreme Court released orders from the March 27 conference and its opinion in CITGO Asphalt Refining Co. v. Frescati Shipping Co. SCOTUSblog is sponsored by Casetext, the most intelligent way to search the law.

Ariane de Vogue reports at CNN that “[u]ndocumented immigrants who work as health care providers are asking for their efforts fighting the coronavirus to be taken into consideration as the Supreme Court considers the Trump administration’s bid to phase out the Deferred Action for Childhood Arrivals program,” in Department of Homeland Security v. Regents of the University of California. For The New York Times, Adam Liptak reports that in a letter filed with the court on Friday, attorneys for a group of DACA recipients told the court that there are “about 27,000 young undocumented immigrants known as Dreamers who work in health care, many of them on the front lines in the fight against the coronavirus pandemic.” For USA Today, Richard Wolf talks to “DACA recipients working in the health care field in California, Florida, Texas and in the suburbs of New York City, where the coronavirus has hit hardest.” Marcia Coyle reports for The National Law Journal that “[i]t’s rare that the justices are asked to address issues that come up after arguments,” but “[t]he letter from the DACA lawyers is not the first time that new events have made their way to the justices’ attention in a pending case.” Commentary comes from the editorial board of The Boston Globe.

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On Monday, the court released orders from the March 27 conference, adding one new case, Brownback v. King, to next term’s merits docket. The justices released their opinion in CITGO Asphalt Refining Co. v. Frescati Shipping Co.

Briefly:

• At Bloomberg Environment (subscription required), Ellen Gilmer reports that “[e]nvironmentalists and tribal advocates are pushing the Supreme Court to get involved in a long-running dispute over a New Mexico power plant and adjacent coal mine.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among counsel to the petitioners in this case.]
• Sarah Tincher reports at The National Law Journal that “some fear [U.S. Forest Service v. Cowpasture River Preservation Association, involving the power of the Forest Service to grant rights of way through lands traversed by the Appalachian Trail,] could have vast implications on pipeline infrastructure and the country’s National Park System stretching far beyond the Appalachian Trail.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.]
• At Subscript Law, Mariam Morshedi “highlight[s] a number of arguments presented in the amici briefs” in Google v. Oracle America, a dispute over the copyright status of application programming interfaces. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

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This week we highlight petitions pending before the Supreme Court that address, among other things, whether the First Amendment prohibits a state from criminalizing threats to commit violence communicated in reckless disregard of the risk of placing another in fear, whether a guilty plea waives a challenge on appeal to the denial of a defendant’s Sixth Amendment right to represent himself and whether federal law preempts the application of state and local labor laws to the terms and conditions of participation in the federal au pair program.

The petitions of the week are below the jump:

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At the NCSL Blog, Lisa Soronen looks at Comcast v. National Association of African American-Owned Media, in which the court ruled unanimously that a plaintiff who sues for racial discrimination in contracting under federal law has to plead and prove that race was a but-for cause of his injury. At Vox, Ian Millhiser writes that the “consensus in Comcast signals that the liberal justices may have shifted into triage mode, accepting that some incursions on civil rights are no longer worth resisting in a Court that’s lurched hard to the right.”

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John Elwood briefly reviews Monday’s relists.

Wow. It’s been a long week. As if the coronavirus weren’t enough all on its own, there’s fresh news of other disasters. By which I mean parents everywhere realizing their wish they could spend more time with their families might actually be coming true.

My forecast last week that “we’ll be seeing opinions in some of th[e relisted cases] soon” turned out to be correct. The Supreme Court summarily reversed in Davis v. United States, 19-5421, invalidating the unique rule of the U.S. Court of Appeals for the 5th Circuit holding that factual error is categorically immune from plain error review. It took the court just two paragraphs of analysis to dispatch it. The court then GVR’d (granted, vacated and remanded) in two cases raising the same issue, Bazan v. United States, 19-6113, and Bazan v. United States, 19-6431. You aren’t having some quarantine-induced mental breakdown: Both cases involve the same defendant. Finally, the court denied review in Avery v. United States, 19-633, involving a similarly atextual rule. Section 2244(b)(1) of Title 28 creates a rule covering applications by state prisoners for habeas relief under 28 U.S.C. § 2254. Yet six courts of appeals have interpreted the statute to cover applications filed not just by state prisoners under Section 2254, but also by federal prisoners under Section 2255, which the statute does not mention. Justice Brett Kavanaugh wrote an opinion respecting denial to emphasize that “the Government now disagrees with the rulings of the six Courts of Appeals that had previously decided the issue in the Government’s favor,” and essentially warned the Justice Department to start confessing error now, writing “[i]n a future case, I would grant certiorari to resolve the circuit split.” Continue reading »

In the introduction to his eye-opening work on the Supreme Court certiorari process, “Deciding to Decide,” H.W. Perry summarizes the court’s lack of institutional transparency: “Although some rules are published, most of the internal procedures are by consensus, are unpublished, and are frequently unknown … We on the outside find out about them only when a justice happens to mention them in a speech or article.” This lack of transparency was what made the release of Justice Harry Blackmun’s papers so powerful. Granted, few justices likely grade oral arguments in the same manner as Blackmun did, but both practices unique to individual justices and those common among them are interesting to learn about for their own sake. These practices also tell us more about the decision-making process than we knew before. Nonetheless, much is still unknown about how the justices, with the help of their clerks, reach their decisions.

The focus of this post is uncovering the sources that the justices rely on in their decisions. One way to do this could be through interviews, if the justices and clerks were willing to divulge this information. In the absence of such direct sources, indirect methods help to shed light on the court’s internal processes. In one paper, for instance, I found that the court shares more language with parties’ merits briefs than it does with amicus briefs or lower court opinions, after controlling for shared language among all three sources. This hints at the possibility that the justices use parties’ briefs as roadmaps in ways that they don’t with other sources. Continue reading »

At NPR, Nina Totenberg reports that Monday’s decision in Kahler v. Kansas, in which the justices ruled that the due process clause does not require Kansas to adopt an insanity test that turns on a defendant’s ability to recognize that his crime was morally wrong, “upholds a Kansas law that essentially allows consideration of mental status only at the sentencing phase of a trial.” At Slate (via How Appealing), Carissa Byrne Hessick takes issue with the majority’s assertion that “Kansas did not abolish the insanity defense; it merely changed the defense.” At Reason’s Volokh Conspiracy blog (via How Appealing), Orin Kerr explains why, although “the majority’s basic framework seems sensible,” he “was only half-persuaded by how the Court applied its approach.”

Also at NPR, Totenberg reports that another of Monday’s opinions, in Allen v. Cooper, “a victory for states claiming immunity from copyright infringement lawsuits,” “was couched in terms of deference to precedent–namely in this case, the precedents of the last 26 years.” At PrawfsBlawg, Richard Re writes that “Allen v. Cooper offers a nice opportunity to think about whether stare decisis is really for suckers or, instead, is for everyone.”

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