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Government prayer cases passed up (FINAL UPDATE)

FINAL UPDATE: 1:18 p.m.


Avoiding a handful of new constitutional controversies, the Supreme Court on Tuesday refused to hear pleas by government and public school officials for a right to say prayers or invocations before their public meetings, new cases on the power of public school districts to punish students for Internet comments they make on computers away from school, a new case on the legal immunity of members of Congress to public corruption charges, and a  new request to expand the Second Amendment right to have a gun — the fourth such request turned aside this Term.  The Court sent two cases to the U.S. Solicitor General for comments on whether the cases should be reviewed.

One added new controversy — testing the constitutionality of using race to help decide who gets admitted to a public university or college — was not acted upon Tuesday.  It appears likely that the Justices will examine that case at this week’s private Conference on Friday. (UPDATE: The Texas case is definitely set for the Friday Conference.)   In the new redistricting case from West Virginia, Chief Justice John G. Roberts, Jr., asked for a response by 3:30 p.m. today to a request by state officials to temporarily block a lower court decision that struck down the new election districts for the three seats the state has in the U.S. House of Representatives. (UPDATE: That response has now been filed; see post just above.)  Tuesday’s orders made no mention of action by the Justices on the three redistricting cases from Texas, heard on January 9.

In denying review of cases, the Court followed its usual practice of making no comment — at least when no Justices dissent from denial and publicly say so.   The Court already has abundant controversy before it this Term, but no one outside the Court can say whether that made a difference in the orders announced this morning.

Among other actions, the Court announced that it had appointed Linda Maslow as its staff librarian.  She has been an assistant librarian for research services, and succeeds Judith Gaskell, who retired last September.  A press release about the appointment is here.

The two cases on which the Court sought the federal government’s views were EM Ltd., et al., v. Republic of Argentina, et al. (docket 11-604), testing the immunity of a foreign government’s central bank to an attempt in U.S. courts to seize assets of the bank, and Los Angeles County Flood Control District v. Natural Resources Defense Council, Inc., et al. (11-460), on whether the federal Clean Water Act applies to the flow of pollutants into waterways by way of local governments’ storm water drainage systems.   There is no deadline for the Solicitor General to respond, and that usually takes a few months, at least.  (Justice Sonia Sotomayor is not taking part in the EM Ltd. case, which reached the Court from the Second Circuit Court, where she previously served as a Circuit Judge.)

In one of the Court’s orders Tuesday, it assured that there will be individuals who oppose the new health care law’s insurance purchase mandate to take part in the Court’s review of the constitutionality of that provision.   The Court approved the addition of two small businessmen, Dana L. Grimes, who runs a contracting company in Greenwich, N.Y., and David Klemencic, who has a flooring business in Ellenboro, W.Va., as parties in the challenge filed by an organization to which they belong — the National Federation of Independent Business.  An issue over whether any individual had “standing” to contest the insurance mandate had arisen since one of the individuals previously involved, Florida businesswoman Mary Brown of Panama City, has filed for bankruptcy, and the other individual also involved — Kaj Alhburg of Port Angeles, Wash. — was taking part over the federal government’s protest.  That part of the new Affordable Care Act challenge can now go forward unimpeded by a procedural obstacle.

There was a new indication in the orders list that Justice Elena Kagan may not participate in at least some of the new round of cases challenging ongoing detention at the U.S. military prison at Guantanamo Bay, Cuba.  An order involving a routine procedural issue in a petition by detainee Maher Al Falesteny noted that Justice Kagan had not taken part.  If she remained out of other new cases, that could reduce the prospect that the Justices will review them, because of the potential outcome of a 4-4 split among the Justices taking part.  The D.C. Circuit Court’s handling of Guantanamo cases over more than three years has produced a wave of new challenges by the prisoners’ counsel.

The fact that so many new cases raising major issues were passed up on Tuesday probably was only a coincidence.  The Court generally does not control the pace at which new cases are considered for potential review.  It just happened that last week’s Conference considered an unusually large array of major disputes.   Here, in brief summary, are the cases and the issues that the Court declined to hear:

1. Prayers at government meetings

The Court declined to hear Forsyth County, N.C., v. Joyner, et al. (11-546), involving prayers with repeated references to Jesus Christ and to Christian themes at the twice-a-month public meetings of that county’s main governing body, the Board of Commissioners, and Indian River School District, et al., v. Doe, et al. (11-569), involving a regular practice of a school board in Selbyville, Del., of opening its monthly meetings with one of its members reciting a religious invocation.  The Fourth Circuit Court, in the Forsyth County case, and the Third Circuit, in the Delaware case, found the religious practices to be unconstitutional.

2. Off-campus speech rights of public school students

The Court’s denial of review came in two cases, involving three separate incidents in which public school students were disciplined for having used home computers to post, on the social networking site,, sometimes obscene depictions of school officials or classmates.  The cases had been closely watched for indications about the Court’s current view about school regulation of off-campus student speech, and about the new habit of youngsters to use the Internet to engage in what critics call “cyberbullying.”   The case of Kowalski v. Berkeley County Public Schools (11-461) involved a student at a high school in Inwood, W.Va., who posted a crude portrayal of a female classmate.  The Fourth Circuit Court upheld the disciplinary action.

The case of Blue Mountain School District v. Snyder, et al. (11-502) involved completely separate incidents of punishment of students for off-campus actions: an eighth grader identified only as “J.S.” in Orwigsburg, Pa., and a high school senior, Justin Layshock, in Hermitage, Pa.  In both cases, a school principal was the target of the smutty entries on MySpace pages.   In separate rulings, the en banc Third Circuit Court found the discipline to have interfered with the students’ free-speech rights, because it found the students’ actions had not disrupted school activities.

3. Public corruption and members of Congress

By denying review of a pre-trial petition by former Arizona Rep. Richard G. Renzi, the Court cleared the way for prosecution to go forward on 48 charges of public corruption, based upon allegations that he used his position as a member of a House committee dealing with federal land policy to arrange a purchaser of land from a former associate of his, who owed Renzi money.  The ex-lawmaker’s appeal sought to block the trial with the claim that all of the evidence against him was obtained from his legislative activity, and thus violated his rights under the Constitution’s Speech or Debate Clause.  The petition involved a separate issue on which lower courts are divided — the application of that Clause to protect lawmakers from being forced to disclose information about the legislative activity to prosecutors.  The Justice Department conceded that the conflict existed on that issue, but argued that Renzi’s case did not properly present it.  The case was Renzi v. U.S. (11-557).

4. Second Amendment rights to a gun

Continuing to decline to spell out further how far the personal right to have a gun reaches, under the Second Amendment, the Court turned down a plea by a Napa County, Calif., hunter for the Court to rule that states may not restrict an individual’s possession of a gun if that is based on a prior criminal conviction for a minor crime that is punished only as a misdemeanor.  The petition by Rick Charles Delacy (Delacy v. California, 11-290) argued that the Supreme Court’s 2008 decision in District of Columbia v. Heller, for the first time recognizing personal gun rights under the Second Amendment, only allowed withdrawal of such a right if a person was convicted of a prior felony.  Delacy had been convicted of simple battery under California state law, and then lost his right to any gun for ten years under California law, because of that conviction.

Among business-related cases that the Justices declined to hear, perhaps the most significant was a petition by the restaurant chain, Applebee’s, seeking clarification of when employers may take an offset to their duty to pay minimum wages, when a worker does jobs that involved several duties, only some of which produce tips.  The so-called “tip credit” allows employers to reduce the amount of minimum wage they will pay to a worker if that worker regularly receives tips that he or she gets to keep, if the cash pay and the minimum wage equal what the minimum wage itself would require.  The issue in Applebee’s v. Fast, et al. (11-425) was the validity of a Labor Department policy of denying any “tip credit” for any worker who sometimes gets tips but spends more than 20 percent of work time doing chores that do not produce tips but are related to duties that do.

Among criminal cases that the Court declined to hear was an appeal by Philadelphia prosecutors seeking to reinstate the death penalty for Joseph J. Kindler for the brutal 1983 slaying of a witness who was due to testify against him in a burglary case.   The victim was lured out of his apartment by Kindler and two associates, beaten badly with a baseball bat, shocked with a cattle prod, stuffed into the trunk of a car, driven to a river and held under water until he drowned, with a cinder block tied to his neck.  After the trial, the Pennsylvania Supreme Court ruled that a person who fled after being prosecuted would forfeit all rights to appeal their conviction and punishment.  Kindler broke out of prison, fled to Canada, was recaptured, and then broke out of prison a second time.

Prosecutors had taken the case to the Supreme Court once before.  In December 2009, in the case of Beard v. Kindler (08-992), the Court — in a federal habeas case — ordered the Third Circuit Court to reconsider a ruling that the state bar to appeal rights had not been firmly established and consistently applied, so it was not an adequate basis for nullifying the appeal rights.  After the case returned to the Third Circuit, that court again ruled that the state law ground was not an adequate bar.  That is the result the Justices refused on Tuesday to review.  The Court’s order noted that Justice Kagan had not taken part.

The Court is expected to issue one or more opinions in argued cases beginning at 10 a.m. Wednesday.





Recommended Citation: Lyle Denniston, Government prayer cases passed up (FINAL UPDATE), SCOTUSblog (Jan. 17, 2012, 10:14 AM),