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Justices clean up cert docket before summer recess

James Ho may have been confirmed to the U.S. Court of Appeals for the 5th Circuit late last year, but today the Supreme Court ruled that a case that he filed before taking the bench, on behalf of a Kansas woman who alleged that police officers violated her civil rights when they tried to stop her from praying in her own apartment, can go forward. The justices emphasized that the lower courts should have interpreted her pleadings more generously because she had acted as her own lawyer in early proceedings in the case.

Mary Anne Sause’s case arose back in 2013, when two Kansas police officers went to her home in response to a noise complaint. At first Sause refused to let the officers into her apartment; when she eventually did admit them, they told her that she was going to jail. That announcement prompted Sause (with one officer’s permission) to kneel and begin to pray. The other officer told her to stop, and she received two tickets for her failure to answer the door.

Acting without a lawyer, Sause filed a federal civil rights lawsuit against the officers, claiming that they had violated her First Amendment rights when they forced her to stop praying. The police officers asked the lower court to dismiss the case, arguing that they were entitled to qualified immunity. The U.S. Court of Appeals for the 10th Circuit ruled for the officers. Even if they did violate Sause’s rights, the court reasoned, the officers still could not be sued because there is no case in which a court ruled that a scenario like this one violated the First Amendment.

Backed not only by the state of Texas but also by a group of former federal prosecutors, Sause asked the Supreme Court to overturn the 10th Circuit’s decision without briefing or oral argument. She told the justices that the 10th Circuit had granted the officers qualified immunity “solely because the officers’ alleged conduct was so egregiously unconstitutional” that there are no similar cases. But, she argued, the court has not required identical cases for a lawsuit to go forward; what matters is whether the officers had “fair warning” that their actions were unconstitutional – which the officers here did, she said.

Allyson Ho, Jim Ho’s wife, took over as counsel of record in the case after moving to Gibson Dunn, Jim Ho’s former law firm. After considering the case at their private conferences 15 times in a row, today the justices sent the case back to the lower court. Although Sause had argued on appeal only that the police officers had violated her First Amendment right to freely exercise her religion, the court observed, she had originally argued also that the officers violated her Fourth Amendment to be free of unreasonable searches and seizures. And in this case, the court continued, the two issues are “inextricable”: Although the right to pray is “unquestionably” protected by the First Amendment, police may in some circumstances tell someone to stop praying – for example, if he were being arrested and placed in a police car. But it’s not clear, the court stressed, precisely what the circumstances of Sause’s case were. Because Sause had drafted her own complaint, the court reasoned, the federal district court that first heard her case should have interpreted it “liberally” to include “Fourth Amendment claims that could not properly be dismissed.”

In February, the Supreme Court granted a request by Republican legislators in North Carolina to block part of a decision by a three-judge federal court invalidating the state’s legislative maps. The lower court had ruled that several state legislative districts were the product of racial gerrymandering, while others violated state law, but the justices put part of that ruling on hold to give the legislators time to appeal the merits of the lower court’s decision. The brief order meant that the lower court’s ruling on the remaining districts went into effect, leaving replacement maps drawn by a special master in place.

Today the Supreme Court effectively continued its February order, in a brief unsigned opinion that affirmed the district court’s ruling requiring the state to use the special master’s maps for four districts – two in the state senate, and two in the state’s house of representatives. But the Supreme Court reversed the district court’s order requiring state house districts in Wake County (which includes the state capital, Raleigh) and Mecklenburg County (which includes Charlotte) to be redrawn on the ground that they violated a provision of the state constitution regulating the timing of redistricting. That part of the district court’s order was “clear error,” the justices explained. “Once the District Court had ensured that the racial gerrymanders at issue in this case were remedied, its proper role in North Carolina’s legislative redistricting process was at an end.”

In Harris v. Cooper, the justices affirmed, without any written comment, a ruling by another three-judge court in North Carolina rejecting a claim that the congressional redistricting plan adopted by the state’s legislature in 2016 was the product of partisan gerrymandering.

In several cases, the announcement that the justices would deny review drew separate written opinions. In E.I. du Pont de Nemours v. Smiley, Justice Neil Gorsuch filed a statement regarding the denial of review in a case involving deference to an administrative agency’s interpretation of a law, when that interpretation comes for the first time while a dispute is being litigated. Joined by Chief Justice John Roberts and Justice Clarence Thomas, Gorsuch emphasized that the lower courts are divided on the question, which he described as an “important one.”

In Rowan County v. Lund, Thomas (joined by Gorsuch) dissented from the court’s denial of review in a challenge to a North Carolina county’s practice of beginning its board meetings with a prayer led by board members. Thomas stated that the lower court’s ruling that the practice violates the Constitution’s establishment clause, which prohibits the government from endorsing a particular religion, “failed to appreciate the long history of legislator-led prayer in this country.”

Justice Stephen Breyer dissented from the denial of review in the cases of two Mississippi death row inmates. For several years, Breyer has contended that the death penalty “suffers from unconscionably long delays, arbitrary application, and serious unreliability,” and he reiterated those themes in discussing the cases of Richard Jordan and Timothy Evans in detail.

Finally, the justices added seven new cases to their docket for the fall. Those cases are:

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices clean up cert docket before summer recess, SCOTUSblog (Jun. 28, 2018, 4:42 PM),