The Supreme Court heard oral argument on Monday morning in a case that will determine the scope of transparency under the Freedom of Information Act’s key “deliberative process” privilege. U.S. Fish and Wildlife Service v. Sierra Club presents the question of whether the privilege allows the government to withhold documents prepared as part of a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, “the services”) and the Environmental Protection Agency. This was the first case argued before the court since Justice Amy Coney Barrett took the bench.

Sanjay Narayan phones in to argue for Sierra Club (Art Lien)

FOIA promotes transparency in government decision-making by providing the public with a right to access federal records. There are, however, nine categories of records that FOIA exempts from disclosure. Under exemption 5, records that are “inter-agency or intra-agency memorandums or letters that would not be available by law to a party other than an agency in litigation with the agency” are protected from disclosure. The Supreme Court has interpreted this exemption as protecting records that would be privileged against discovery in civil litigation, including those that fall under the deliberative process privilege. This privilege protects “documents reflecting advisory opinions, recommendations and deliberations comprising part of a process by which governmental decisions and policies are formulated.” For this privilege to apply, documents must be “predecisional” and “deliberative.” Continue reading »

The Supreme Court heard oral argument on Tuesday on what states must do before imposing a sentence of life without the possibility of parole for defendants who were under the age of 18 when they committed their crimes. After nearly an hour and half of oral argument by telephone, it was not clear how the justices would resolve the case. Several justices seemed to believe that what a Mississippi judge had done in the case of Brett Jones, who was convicted of the 2004 stabbing death of his grandfather, was enough. Other justices voiced broader concerns with the case, while still others suggested that Jones should challenge his sentence through an entirely different path. Continue reading »

John Elwood reviews Monday’s relists.

It’s a time of heightened tension. Everyone is on pins and needles. On the first Tuesday after the first Monday in November, all of America wants to know one thing: What cases were relisted after the Supreme Court’s last October conference?

If you read last week’s installment, you already know every issue the court will be reconsidering at this Friday’s conference. But that is not to say that this was a status quo week. A lot happened in relists in the past few days. Continue reading »

The Supreme Court heard telephonic argument on Monday in Salinas v. U.S. Railroad Retirement Board. The case presents a narrow question about the Railroad Retirement Act and the Railroad Unemployment Insurance Act, two federal statutes that govern pensions, unemployment benefits and sickness benefits for the nation’s railworkers. The question is: When the agency responsible for administering those statutes denies benefits to a claimant, and then later refuses to reopen its denial, is that refusal subject to judicial review?

Sarah Harris argues for Manfredo Salinas, with photos of her co-counsel nearby (Art Lien)

Continue reading »

Election Day is finally here. For the past two months, SCOTUSblog, in partnership with Election Law at Ohio State, has been tracking major election-related litigation in the lower courts, with a focus on cases that have the most potential to reach the Supreme Court. The justices have already resolved some of those cases, but others remain live controversies with the potential to become pivotal if post-election legal challenges occur. For all the latest developments on important cases, follow our 2020 Election Litigation Tracker.

Meanwhile, as voters across the nation elect members of the other two branches, the Supreme Court continues its regular work, with oral arguments Tuesday in a pair of criminal cases. In Jones v. Mississippi, the court will, for the third time in a decade, take up the issue of life sentences without parole for juveniles (our case preview is here). And in Borden v. United States, the court will consider whether reckless crimes trigger enhanced penalties under the Armed Career Criminal Act (our case preview is here). Continue reading »

This article is the final entry in a symposium previewing Fulton v. City of Philadelphia.

Lisa Soronen is executive director of the State and Local Legal Center, which filed an amicus brief in support of Philadelphia.

When the Supreme Court agreed to hear Fulton v. City of Philadelphia, local governments across the country let out a collective groan when they read the second question presented. How could the Supreme Court decide whether to “revisit” (read: overturn) the 1990 decision Employment Division v. Smith in such a controversial case?

Your average American will hear a nontechnical description of the issue in this case (may the city of Philadelphia require Catholic Social Services to follow the city’s nondiscrimination ordinance and place foster kids with same-sex couples) and make up their minds before even learning what Smith is about. More to the point, how will the justices not be so distracted by the facts of this case to give Smith thoughtful, thorough consideration?

Local governments want the court to ignore the soundbites and focus on the mundane in this case. If the court overturns Smith, local governments will face significant litigation over religious accommodations in many, if not most, areas of everyday operations. Continue reading »

The Supreme Court ruled in 2012 in Miller v. Alabama that mandatory life-without-parole sentences are unconstitutional for defendants who were under the age of 18 when they committed their crimes. Four years later, in Montgomery v. Louisiana, the court made clear that Miller’s ban on mandatory life-without-parole sentences applies retroactively to convictions that had become final before Miller was decided. After Miller and Montgomery, state courts can sentence individual juveniles to life without the possibility of parole as long as the sentence is not a mandatory penalty under state law. On Tuesday, the justices will hear oral argument in a case that asks them to decide what their rulings in Miller and Montgomery require states to do before imposing that sentence. A Mississippi man contends that the sentencer must find that the juvenile is incapable of rehabilitation, while the state counters that it is enough that the sentencer considered the juvenile’s youth.

The question comes to the court in the case of Brett Jones, who was 15 years old in 2004, when he stabbed his grandfather to death during an argument about Jones’ girlfriend. Jones was convicted by a jury and sentenced to life in prison without any possibility of parole. Continue reading »

The Armed Career Criminal Act of 1984, 18 U.S.C. 924(e)(2)(B)(i), imposes a mandatory minimum sentence of 15 years to life for people convicted of possessing a firearm after being convicted of three prior violent felonies. In its “elements clause” or “force clause,” the ACCA defines a “violent felony” as any felony that “has as an element the use, attempted use, or threatened use of physical force against the person of another.” In Borden v. United States, which will be argued on Tuesday, the Supreme Court will determine whether a felony offense involving recklessness satisfies the “use of physical force” element under the ACCA. The government argues in the affirmative. Charles Borden contends otherwise. Continue reading »

The Supreme Court issued orders on Monday from the justices’ private conference last week. Although Justice Amy Coney Barrett joined the court last week, she did not participate in the conference; a statement from a Supreme Court spokeswoman indicated that Barrett sat out the conference to give her more time to prepare for oral arguments. The justices vacated two rulings by the U.S. Court of Appeals for the 5th Circuit, one involving qualified immunity for prison officials who held an inmate naked in cells covered in human waste for several days and another involving whether a police officer injured at a “Black Lives Matter” protest can sue the organizer of the protest. (Those decisions are covered in separate posts here and here.)

The justices invited the acting solicitor general to file a brief expressing the views of the United States in Cummings v. Premier Rehab Keller. At issue in the case is whether the compensatory damages available under Title VI of the Civil Rights Act, which prohibits recipients of federal funds from discriminating based on race, sex or disability, include compensation for emotional distress. There is no deadline for the acting solicitor general to file his brief. Continue reading »

In their orders on Monday, the justices struck down a ruling by the U.S. Court of Appeals for the 5th Circuit that had blocked a Texas inmate’s lawsuit against prison officials. The inmate, Trent Taylor, was forced to spend six days naked in cells that contained feces from previous occupants and overflowing sewage. Taylor alleged that prison officials’ conduct violated the Eighth Amendment’s ban on cruel and unusual punishment, but the 5th Circuit, invoking a doctrine known as qualified immunity, ruled that the officials could not be sued because it was not “clearly established” that their conduct violated Taylor’s constitutional rights. Taylor went to the Supreme Court in April, asking the justices to clarify what it means for a constitutional violation to be clearly established. Continue reading »