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And then there were nine – the remaining decisions

The justices are expected to take the bench tomorrow at 10 a.m. to issue opinions in argued cases. There are nine decisions still outstanding, involving everything from cross-border shootings and property rights to the death penalty and public funding for playgrounds at religious preschools. Here is a brief summary of each of those nine cases, organized by the sitting in which they were argued.

December sitting (November 28 to December 7)

Jennings v. Rodriguez: The question before the Supreme Court in this case is whether immigrants who are detained have a right to a bond hearing – that is, a chance to appear in front of an immigration judge and seek their release after making payments to ensure that they will appear at later proceedings in the case. The named plaintiff in the class action is Alejandro Rodriguez, who was held for more than three years without a hearing. The U.S. Court of Appeals for the 9th Circuit ruled that immigration judges must give immigrants who have been detained bond hearings at least every six months; at the hearing, the immigration judge must order an immigrant’s release unless the government can show convincingly that the immigrant is either a flight risk or a danger to public safety.

When the case was argued on November 30, Kevin Johnson reported that the justices “appeared deeply divided.” The decision is likely to be written by either Chief Justice John Roberts or Justice Samuel Alito, because neither justice has written an opinion from the December sitting yet. (The justices try very hard to divide up the opinion-writing workload evenly, not only over the course of the term but also from sitting to sitting, which has the added benefit of allowing us to predict who might be writing the opinion with some degree of certainty.)

January sitting (January 9 to 18)

Sessions v. Dimaya: When someone who is not a citizen of the United States is convicted of a crime, he can be deported from the country if his crime was an “aggravated felony.” Under the Immigration and Nationality Act, an “aggravated felony” is defined to include a “crime of violence,” which is in turn defined as any felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” In 2015, the court ruled that the so-called “residual clause” in the Armed Career Criminal Act’s definition of “violent felony” – which was similar, although not identical, to the definition of a “crime of violence” – was so ambiguous that it violates the Constitution’s bar on vague criminal laws. The question is whether the same is true for the INA’s definition of a “crime of violence.”

 Justice Clarence Thomas is the only justice who has not yet written an opinion from the January sitting, so he is almost certainly writing this one. Thomas did not ask any questions at the January 17 oral argument, and he agreed with the result – but not the reasoning – in the court’s earlier ruling on the ACCA. In his separate opinion in that case, he indicated that he would have resolved the case based on the statute, rather than finding that the provision at issue violated the Constitution. He explained that he “would be wary of holding the residual clause to be unconstitutionally vague” because, in his view, “the vagueness doctrine shares an uncomfortably similar history with substantive due process, a judicially created doctrine lacking any basis in the Constitution.”

February sitting (February 21 to March 1)

Hernandez v. Mesa: In this case, the justices will decide what standard courts should use to determine whether the Fourth Amendment applies outside the United States. The case was brought by the family of Sergio Hernandez, a 15-year-old who was shot and killed by a U.S. Border Patrol agent, Jesus Mesa, as Hernandez played in a culvert on the Mexican side of the U.S.-Mexico border. The family’s lawsuit alleged (among other things) that the agent’s conduct violated the Fourth Amendment’s bar against excessive deadly force, but the lower court ruled that the protections of the Fourth Amendment do not extend to Mexican citizens like Hernandez, who lacked any real connection to the United States and who was in Mexico when he was shot. The justices also are considering two other questions: whether Mesa can be sued if he did not know at the time of the shooting that Hernandez was not a U.S. citizen; and whether Hernandez’s parents can rely on a 1971 case, Bivens v. Six Unknown Federal Narcotics Agents, which held that a violation of the Fourth Amendment by federal government officials could give rise to a lawsuit for damages.

Two justices have not yet written any opinions from the February sitting: Alito and Justice Stephen Breyer. In a decision issued on Monday, the court – in an opinion by Justice Anthony Kennedy – ruled that Middle-Eastern men who were detained after the September 11 attacks could not rely on Bivens to sue high-level Department of Justice officials. Because Alito joined Kennedy’s opinion on Monday, and he had expressed concern at the February 21 argument about the family’s failure to provide what he regarded as a workable rule for determining when Bivens suits should be allowed, an Alito opinion would likely bode well for Mesa and poorly for Hernandez’s family.

By contrast, Breyer took the rare step of dissenting from the bench on Monday to explain that he would have allowed the Bivens claims in those cases to go forward. And at the oral argument in this case, he suggested that the availability of a Bivens claim should be presumed unless there are special factors weighing against one. On the other hand, Breyer (like Alito) also pressed the lawyer for Hernandez’s family to articulate a clear and rational rule. So although a Breyer opinion would be better news for the Hernandez’s family than for Mesa, a favorable outcome would be far from certain for them.

March sitting (March 20 to 29)

Murr v. Wisconsin: This important property-rights case was filed by four siblings who received two adjoining lots on a river in Wisconsin from their parents, who had bought one lot and built a home on it and then purchased the second lot as an investment. The siblings wanted to sell the second lot and use the money to renovate the home on the first lot. But a local zoning ordinance, passed after their parents had purchased the lots, blocked them from doing so on the ground that the two lots had been “merged” into one lot because they were contiguous and had the same owners, even though they were both deeded and taxed separately. The siblings argued that this ordinance imposed an unconstitutional taking on them. But the state appeals court disagreed and ruled that the two parcels should be considered as one; if the parcels are viewed together, the siblings were not deprived of all of the value of their land – a requirement for a taking. The Supreme Court has said that, to determine whether a regulation is a taking, you look at the regulation’s effect on the “parcel as a whole.” The question that the justices will decide in this case, in essence, is what constitutes the parcel?

The siblings argue that the parcel is only the second lot, because courts should look at the lot lines that are on record. The two lots, they say, “were purchased at different times, for different purposes, and have never been considered as a single economic unit or jointly developed.” The state countered that courts should take into account the entire body of the state’s property laws and the owner’s reasonable expectations, which in this case would require the court to look at both parcels together. In its brief in the case, the federal government proposed case-by-case analysis – which in this case, it argued, favors treating the two parcels as one.

 The justices agreed to review this case well over a year ago, before the death of Justice Antonin Scalia. But the court did not schedule it for oral argument until March 2017, by which point Justice Neil Gorsuch had been nominated but not yet confirmed. At the March 20 argument, the eight-member court appeared closely divided; as is so often the case, the outcome could hinge on Kennedy’s vote.

Lee v. United States: This is yet another installment in the series of “crimmigration” cases – that is, cases at the intersection of criminal law and immigration –  at the court this term. It features a scenario familiar in immigration law: A noncitizen gets into trouble with the law and then receives poor legal advice, jeopardizing his stay in the United States.

The immigrant in this case, Jae Lee, came to the U.S. from South Korea in 1982 and went on to become a successful businessman. But in 2009, he was charged with possession of ecstasy with intent to distribute. After seeing the evidence against Lee, Lee’s attorney recommended a guilty plea, in the hope of receiving a shorter sentence. But, and despite assurances to the contrary from Lee’s attorney, Lee’s guilty plea actually led to his permanent and mandatory deportation. Lee tried to vacate his conviction, arguing that he had been deprived of his constitutional right to have adequate assistance from his attorney. The government agreed that Lee could satisfy the first prong of the test to determine whether an attorney’s representation violated the Constitution: The attorney had provided deficient advice when he told Lee that a guilty plea would not expose him to deportation. But the lower courts ruled that Lee could not show, as required by the second prong of the test, that he was prejudiced by that bad advice, because the evidence of his guilt was so overwhelming that he would have been convicted and deported anyway.

Kennedy has not yet written for March, so at least one of these two remaining decisions will almost certainly be his.

April sitting (April 17 to 26)

Perry v. Merit Systems Protection Board:Under federal law, a federal employee who is fired or demoted can go to the Merit Systems Protection Board and, if necessary, appeal the board’s decision to the U.S. Court of Appeals for the Federal Circuit. However, the Federal Circuit’s review of that ruling is fairly limited. But if a federal employee contends that he was fired or demoted as a result of discrimination (known as a “mixed” case), he can seek a civil administrative proceeding before the Equal Employment Opportunity Commission, followed by a lawsuit in an appropriate district court and an appeal to a regional federal court of appeals. But the employee also has another option: He can go to the MSPB. The question before the court is whether the board’s decision in these “mixed” cases should be reviewed in a federal district court or a federal court of appeals.

California Public Employees’ Retirement System v. ANZ Securities, Inc.: In this case, the justices are considering questions related to the timeliness of individual securities fraud actions that are related to securities-fraud class actions – specifically, whether the filing of a would-be class action satisfies the statute of limitations for members of that class, or whether an individual class member would have to file his own complaint before the statute of limitations runs out. This is a key question whenever a class member decides that he wants to “opt out” of the class action and file a separate complaint. In this case, for example, CalPERS opted out of a settlement in a class action against underwriters of Lehman Brothers securities; although the class-action complaint had been filed on time, the U.S. Court of Appeals for the 2nd Circuit held that CalPERS’ individual complaint, which it filed after it opted out of the settlement, was too late. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the petitioner in this case.]

Trinity Lutheran Church of Columbia, Inc. v. Comer: In 2012, Trinity Lutheran Church applied for a state program that reimburses nonprofits for the purchase and installation of rubber playground surfaces made from recycled tires. Missouri’s Department of Natural Resources, which administers the playground program, ranked Trinity Lutheran’s application fifth out of the 44 that were submitted but nonetheless denied the church’s application, citing a provision of the state constitution which prohibits money from the state treasury from going “directly or indirectly, in aid of any church, sect, or denomination of religion.”

The church went to court, arguing that the denial of its application violates the Constitution by discriminating against religious institutions. The state countered that the church members are free to exercise their religion, but the state does not have to pay for it. The state prevailed in the lower courts, but the Supreme Court agreed to weigh in last year, before Scalia’s death. The case remained on hold until April 2017, when the justices finally heard oral argument. At the oral argument, only Justices Ruth Bader Ginsburg and Sonia Sotomayor seemed to be squarely on the state’s side, with Justices Elena Kagan and Breyer perhaps leaning toward the church, making the delay in scheduling the case even harder to understand.

Davila v. Davis: In 2012, the Supreme Court considered a case in which a defendant alleged that the lawyer who represented him in his state post-conviction proceedings provided inadequate assistance when he failed to properly raise the defendant’s claim of ineffective representation at his trial. In that case, Martinez v. Ryan, the court ruled that a defendant who receives inadequate representation from his lawyer in his post-conviction challenges is excused from having to present his underlying ineffective assistance claim adequately, so that a federal court can consider the merits of his original claim of ineffective assistance at trial. In this case, the question before the court is whether the same is true when the underlying ineffective assistance claim arises from the defendant’s appeal, rather than from the trial itself.

There are four opinions still outstanding from April. Chief Justice John Roberts has not yet written for April, but it’s hard to know which one or how many of the four remaining decisions he will write.

Recommended Citation: Amy Howe, And then there were nine – the remaining decisions, SCOTUSblog (Jun. 22, 2017, 8:40 PM),