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Today’s orders

For the second week in a row, the Supreme Court did not add any new cases to its merits docket for next term. The dearth of new grants is likely attributable to the fact that Justice Neil Gorsuch – who did not participate at all in last week’s conference – only participated in a handful of the orders issued today.

Even if the court did not grant certiorari in any cases, however, today’s order list was nonetheless full of news. First, the justices did not act on one of the most closely watched cases on their current cert docket: Masterpiece Cakeshop v. Colorado Civil Rights Commission, the challenge by a Colorado “cake artist” with religious objections to creating a cake for a same-sex wedding. At this point, there is no way to know why the case has been relisted several times without any action from the justices, although two of the more likely possibilities are that one or more justices could be dissenting from the denial of review or that the justices are waiting for Gorsuch to weigh in.

The justices turned aside, without comment, renewed requests by death row inmates in Alabama and Arkansas to review their cases. In February, the justices had denied review in the cases of Thomas Arthur and Stacey Johnson, whose challenges arose from the lethal injection protocols in their respective states. Justice Sonia Sotomayor, joined by Justice Stephen Breyer, dissented from the February denials, but today the court denied the two inmates’ petitions for rehearing without comment.

Breyer did file a statement respecting the denial of review in the case of an Arizona death row inmate, Joe Clarence Smith, who was sentenced to death 40 years ago and has been incarcerated, mostly in solitary confinement, ever since. “What legitimate purpose,” Breyer asked, “does it serve to hold any human being in solitary confinement for 40 years awaiting execution?” “The facts and circumstances of Smith’s case,” Breyer continued, reinforce his “conclusion that this Court should hear oral argument as to whether capital punishment as currently practiced is consistent with the Constitution’s prohibition of cruel and unusual punishment.”

Justices Samuel Alito and Sonia Sotomayor both filed opinions regarding the court’s announcement that it would not review Salazar-Limon v. City of Houston, an excessive-force claim by a man who was shot and seriously injured by a police officer during a traffic stop. The police officer contended that he shot at Salazar-Limon only after Salazar-Limon turned and reached for his waistband, which the officer interpreted as an effort to pull out a gun. Based on the police officer’s testimony, a federal district court granted him qualified immunity, and the court of appeals affirmed.

Joined by Justice Ruth Bader Ginsburg, Sotomayor dissented from the denial of certiorari. Because Salazar-Limon’s case “turns in large part on what Salazar-Limon did just before he was shot,” Sotomayor explained, “it should be obvious that the parties’ competing accounts of the event preclude” the lower court from entering a judgment for the police officer based solely on the record, without a trial. What’s more, Sotomayor complained, the court has not treated the victims of police misconduct as well as it has treated the officers: “We have not hesitated to summarily reverse courts for wrongly denying the protection of qualified immunity in cases involving the use of force,” she observed, but “we rarely intervene where courts wrongly afford officers the benefit of qualified immunity in these same cases.”

Justice Clarence Thomas joined Alito’s opinion concurring in the denial of review. Alito agreed that Salazaro-Limon’s case was “undeniably … tragic,” and that “we have no way of determining what actually happened in Houston on the night Salazar-Limon was shot.” But, he emphasized, “regardless of whether the petitioner is an officer or an alleged victim of police misconduct, we rarely grant review where the thrust of the claim is that a lower court simply erred in applying a settled rule of law to the facts of a particular case.”

The justices’ next conference is scheduled for Friday, April 28. The orders from that conference are expected to follow on Monday, May 1, at 9:30 a.m.

Recommended Citation: Amy Howe, Today’s orders, SCOTUSblog (Apr. 24, 2017, 12:47 PM),