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Court grants review in three new cases

Sonia Sotomayor speaking

This morning the justices issued orders from last week’s conference. They added three new cases to their merits docket for the term, including two high-profile First Amendment cases, and they denied review in an Alabama death-penalty case, over a lengthy dissent by Justice Sonia Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan.

In the first of today’s grants, National Institute of Family and Life Advocates v. Becerra, the justices agreed to weigh in on a challenge by “crisis pregnancy centers” – nonprofits that try to steer pregnant women away from having abortions – to a California law that requires the centers to convey specific messages. The law mandates that nonprofits that are licensed to provide medical services post notices to inform their patients that free or low-cost abortions are available and to provide the telephone number of the state agency that can put the patients in touch with providers of those abortions. The groups that are not licensed to provide medical services – but try to support pregnant women by supplying them with diapers and formula, for example – must include disclaimers in their advertisements to make clear – in up to 13 languages – that their services do not include medical help.

The nonprofits went to court, arguing that California’s law violates the First Amendment, both by requiring them to convey the messages and, because the requirements do not apply to clinics that perform abortions, by targeting them because they discourage women from seeking abortions. A federal district court rejected their arguments, and the U.S. Court of Appeals for the 9th Circuit affirmed. The nonprofits went to the Supreme Court last spring, hoping that it would agree to rule on their case. After asking the lower court to send the record in the case – a sure sign that at least one justice is looking at the case closely — today the court granted review to decide whether the disclosures required by the California law violate the First Amendment’s free speech clause; it declined to decide whether the disclosures run afoul of another part of the First Amendment that bars the government from prohibiting the free exercise of religion.

With today’s grant in his lawsuit against Riviera Beach, Florida, Fane Lozman – whose eponymous website describes him as a “persistent and tenacious underdog who fought against the government seizure of 2200 homes and businesses” – joins Carol Ann Bond and Encino Motorcars in the pantheon of recent repeat litigants on the merits at the Supreme Court. But unlike Bond’s and Encino’s, Lozman’s latest case involves an entirely different set of legal issues from those presented in his first case, even though his opponent is the same.

In Lozman’s first visit to the Supreme Court, the justices ruled that Lozman’s floating home was not a “vessel” for purposes of federal maritime jurisdiction. His second case, however, arises from his November 2006 arrest at a city council meeting, after he refused to stop talking about local government corruption when a councilmember directed him to do so.

The charges against Lozman were quickly dropped, but that didn’t end the matter. Lozman filed a lawsuit in federal district court, alleging that he had been arrested in retaliation for his criticism of the government and for a lawsuit that he had filed against the city. The U.S. Court of Appeals for the 11th Circuit ruled, however, that Lozman’s retaliatory-arrest claim could not succeed because the jury found that the police had probable cause to arrest him. Now the Supreme Court will decide whether that ruling is correct.

Under Minnesota law, voters may not wear political badges, buttons, or other apparel to polling places, even if the items being worn do not refer to either a candidate or an issue. In Minnesota Voters Alliance v. Mansky, the justices today agreed to decide whether this ban violates the First Amendment’s guarantee of free speech.

The case arose in November 2010 when Andrew Cilek, the alliance’s executive director, was prevented from voting at his local polling place because he was wearing a Tea Party T-shirt and a button that promoted efforts to require a photo ID to vote. After the election was over, the group – which describes itself as a “nonpartisan political organization focusing primarily on election integrity, research, voter education and advocacy” – filed a lawsuit to challenge the law. After the lower courts rejected the group’s claim, the group asked the Supreme Court to weigh in. It argued that the decision by the U.S. Court of Appeals for the 8th Circuit “effectively chills the free speech rights of millions of voters across the country by threatening criminal prosecution or civil penalties for voters who wear logoed t-shirts, caps, jackets, buttons, and other apparel in state-declared speech-free zones.”

In Reeves v. Alabama, the justices declined to wade into the question of when an attorney’s representation of a criminal defendant is so inadequate that it violates the defendant’s Sixth Amendment right to have help from an attorney, and how courts should make that determination. In Strickland v. Washington, the Supreme Court outlined a standard for courts to use to decide whether an attorney was constitutionally ineffective: (1) the attorney’s performance must be deficient; and (2) the defendant must have been prejudiced by that deficient performance – that is, he must show a reasonable probability that, if the attorney had not been deficient, the result would have been different.

In 1997, Matthew Reeves was on trial in Alabama for capital murder for the death of Willie Johnson in a robbery. Reeves contends that, although his court-appointed attorneys were aware that he could have an intellectual disability, and although the trial court had granted the attorneys’ request for funds to pay for an expert to evaluate Reeves, his attorneys failed to hire any mental health professionals to do so; they also did not call any witnesses to testify about a possible intellectual disability. Instead, they presented testimony from a court-appointed expert who had conducted only a limited examination of Reeves, and with whom Reeves’ attorneys had not spoken until the day she testified. Reeves was sentenced to death.

Reeves challenged his sentence, but the Alabama courts ruled against him on the ground that he had not called his trial attorneys to testify about their actions. That rule, Reeves told the Supreme Court, conflicts with the holdings of five federal courts of appeals and one state supreme court, which “recognize that reviewing courts must examine the record as a whole, even in the absence of direct testimony from trial counsel that purports to explain strategic trial decisions, to determine whether the defendant received constitutionally effective representation.”

Today the Supreme Court turned down Reeves’ petition. That order drew a sharp 14-page dissent (4 pages longer than Justice Ruth Bader Ginsburg’s opinion on the merits last week in Hamer v. Neighborhood Housing Services of Chicago) from Sotomayor, joined by Ginsburg and Kagan – but not Justice Stephen Breyer, who has recently been most likely to object to the court’s rulings against death-row inmates. Sotomayor began by emphasizing that there “can be no dispute” that a categorical rule requiring attorneys to testify in federal cases alleging ineffective assistance of counsel would be inconsistent with the Supreme Court’s rulings “requiring an objective inquiry into the adequacy and reasonableness of” the attorney’s performance “based on the full record before the court.” Indeed, Sotomayor stressed, even “Alabama does not defend such a rule.” Instead, she continued, the dispute in Reeves’ case was whether the Alabama state court “in fact imposed such a rule.”

Because Sotomayor believed that the state court “plainly did so,” she would have sent the case back to the state court for it to “explain why, given the full factual record, Reeves’ counsel’s choices constituted reasonable performance.” But instead, Sotomayor lamented, “the Court has cleared the way for Reeves’ execution.” And that, Sotomayor concluded, “is a result with which I cannot agree.”

The justices’ next conference is scheduled for November 21.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court grants review in three new cases, SCOTUSblog (Nov. 13, 2017, 11:21 AM),