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Today’s order list includes a summary opinion, several statements regarding cert denials and a CVSG

In other news at the court, the justices today issued a summary opinion in the case of a Nevada death-row inmate who alleged that the judge in his state trial was biased. The justices had relisted the case of Michael Rippo, who was convicted and sentenced to death for two 1992 murders, five times before releasing today’s unsigned, three-page ruling. The judge in Rippo’s trial was the subject of a federal bribery investigation. The prosecutor indicated (falsely) that the district attorney’s office was not involved in the investigation, while the judge himself indicated that he did not know about any state law enforcement involvement in the investigation. But during post-conviction proceedings, Rippo provided evidence that the district attorney and state law enforcement were in fact both involved in the federal criminal investigation and conducting an investigation of their own.

The Nevada Supreme Court rejected Rippo’s argument that the trial judge’s failure to recuse himself violated Rippo’s right to due process, explaining that Rippo’s allegations did not “support the assertion that the trial judge was actually biased.” But that, the U.S. Supreme Court ruled today, was the “wrong legal standard.” Even if a judge is not biased, the court reasoned, he must still recuse himself when the likelihood of actual bias “is too high to be constitutionally tolerable.” The justices therefore sent the case back to the state courts for them to reconsider Rippo’s claims under the correct standard.

The justices did not add any new cases to their docket for next term. But two justices issued a flurry of public statements regarding the court’s denial of review in three cases. Justice Clarence Thomas wrote a separate opinion regarding the court’s announcement that it would not review a Texas civil forfeiture case, in which the state seized over $200,000 stored in a safe that was being transported in a rental car that was stopped for speeding. The trial court concluded (and an appeals court affirmed) that the state had shown that it was more likely than not that the money came from drug sales or would be used in such sales. Lisa Leonard, the owner of the money, argued in the Supreme Court that the Constitution requires the state to meet a higher bar and provide clear and convincing evidence that the money came from drug sales. Thomas agreed that this was an “important question,” but he also agreed that the Supreme Court properly declined to review it in this case because Leonard had raised her due process argument for the first time in the Supreme Court.

Thomas dissented from the denial of review in a challenge to the scope of Congress’ authority to regulate foreign commerce. The issue arose in the case of Damion Baston, a Jamaican man who was convicted of sex trafficking by forcing women into prostitution around the world. The victim in this case was coerced into prostitution for Baston in the United States, the United Arab Emirates and her home country of Australia. Baston challenged the U.S. government’s efforts to force him to pay restitution to the victim for prostitution that occurred in Australia, on the ground that the foreign commerce clause – which gives Congress power to regulate commerce with foreign countries – does not extend to ordering a foreign defendant to pay restitution to a foreign victim for conduct that occurred entirely overseas. While acknowledging that the facts of Baston’s case “are not sympathetic,” Thomas contended that the “principle involved” in his case is “fundamental.” Thomas urged the court to “clarify the scope of Congress’ power under the Foreign Commerce Clause to regulate extraterritorially” to avoid what in his opinion would otherwise be an extraordinarily expansive view: “Congress would be able not only to criminalize prostitution in Australia, but also to regulate working conditions in factories in China, pollution from power-plants in India, or agricultural methods on farms in France.” “I am confident,” Thomas concluded, that “whatever the correct interpretation of the foreign commerce power may be, it does not confer upon Congress a virtually plenary power over global economic activity.”

Justice Sonia Sotomayor concurred in the denial of review in a Florida man’s challenge to his conviction for threatening to “blow up this whole [expletive] world.” Robert Perez, Sotomayor explained at the outset of her concurrence, “is serving more than 15 years in a Florida prison for what may have been nothing more than a drunken joke”: After drinking at the beach with his friends, Perez went to a liquor store to buy more alcohol. After a store employee overheard Perez refer to a “Molly cocktail” – his name for their drink of choice – and asked whether Perez was talking about a “Molotov cocktail,” Perez later told another employee that he in fact had “one Molotov cocktail” that he could use to “blow the whole place up.” Perez was charged with violating a Florida law that makes it a felony to threaten to “discharge any destructive device with intent to” harm someone or someone’s property. Perez’s jury was instructed that it had to find both a threat and an intent to make that threat; “intent” was in turn defined as “the stated intent to do bodily harm to any person or damage to the property of any person.” Perez was convicted and, as a repeat offender, sentenced to 15 years in prison.

Sotomayor pointed out that the instructions given to the jury allowed it to “convict Perez based on what he ‘stated’ alone.” Perez argued unsuccessfully in the lower courts that criminal statutes should normally be construed as requiring proof of intent. But Sotomayor saw another problem, suggesting that Perez’s conviction raises “serious First Amendment concerns worthy of” Supreme Court review. But “because the lower courts did not reach the First Amendment question,” she concluded, she “reluctantly” agreed with the decision to deny review.

Finally, the justices asked the federal government to file a brief conveying its views on Loomis v. Wisconsin, a case that arose when Eric Loomis was charged with serving as a driver in a drive-by shooting and eventually pleaded guilty to attempting to flee a traffic officer. Loomis’ presentence report included a risk assessment to which both the state and the trial court referred at the sentencing hearing. The trial court sentenced Loomis to six years in prison and five years of supervision, telling him that the risk assessment had identified him as a “high risk to the community.” The court declined to order probation because of “the seriousness of the crime and because” Loomis’ “history” and “history on supervision, and the risk assessment tools that have been utilized, suggest that” Loomis was at an “extremely high risk to re-offend.” Loomis argues that the trial court’s reliance on the risk assessment violated his constitutional right to due process. There is no deadline for the federal government to file its brief.

Recommended Citation: Amy Howe, Today’s order list includes a summary opinion, several statements regarding cert denials and a CVSG, SCOTUSblog (Mar. 6, 2017, 4:57 PM),