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No new grants today

The Supreme Court issued orders from its October 14 conference this morning. The justices did not add any new cases to their merits docket for this term, and they did not act on a Virginia school board’s request for review of a lower court’s decision that would allow a transgender student who identifies as a boy to use the boys’ bathroom at his high school.

The justices denied review in the case of a Washington death row inmate, over a lengthy and strongly worded dissent by Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg. The inmate, Clark Elmore, was a Vietnam veteran who pleaded guilty to the 1995 rape and murder of his stepdaughter. At his trial, he was represented by an inexperienced attorney who had no prior death penalty experience and put on only a bare-bones defense at the penalty phase: Five witnesses testified for less than an hour in total, primarily about their impressions of Elmore after the murder. Elmore’s attorney decided to rely “exclusively on a remorse defense,” and he failed to investigate and present evidence about Elmore’s extensive brain injury (from, among other things, exposure to pesticides and Agent Orange), his post-traumatic stress disorder from being raped in prison, and his lack of future dangerousness. The court had relisted the case seven times before today rejecting Elmore’s petition.

In a fifteen-page dissent, Sotomayor acknowledged that Elmore’s crime was “horrific.” But, she added, “not all defendants who commit horrific crimes are sentenced to death.” Noting that the broader debate over whether the death penalty itself is constitutional “is not at issue here,” she emphasized that “whatever flaws do exist in our system can be tolerated only by remaining faithful to our Constitution’s procedural safeguards.” And, she asserted, those safeguards did not protect Elmore here, given the serious shortcomings of his attorney.

The justices did not act on Gloucester County School Board v. G.G., the case involving the transgender student. After a federal district court ordered the school board to allow the student to use the boys’ bathroom when school resumed this fall and the Fourth Circuit declined to step in, the school board asked the Supreme Court to put the lower court’s order on hold until the justices could weigh in. The justices agreed to do so, with Justice Stephen Breyer joining the court’s four more conservative justices to provide the fifth vote needed for a stay of the district court’s ruling.

The justices considered the school board’s petition for review of the case for the first time last week. The failure to act on the petition today was not entirely surprising, given the court’s general (although not uniform) practice of not granting review until it has considered a case at a minimum of two conferences. It is also possible that, if the court opted not to grant review, one or more justices could be drafting a dissent from the denial of certiorari.

The justices’ next conference is scheduled for October 28. Orders from that conference are expected on Monday, October 31.

Recommended Citation: Amy Howe, No new grants today, SCOTUSblog (Oct. 17, 2016, 11:10 AM),