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Today’s orders: No new grants, one CVSG

There was intense interest in today’s oral arguments, scheduled for 10 a.m., because newly confirmed Justice Brett Kavanaugh would take the bench for the first time. But before that, the justices issued orders from last week’s private conference. They did not add any new cases to their docket, and they did not act at all on several high-profile petitions for review – potentially pushing those off until a future conference, at which all nine justices can vote.

The justices announced today that they will not hear the cases of three Colorado inmates who argue that holding them in solitary confinement, without any access to the outdoors or concerns about security, violates the Constitution’s ban on cruel and unusual punishment. Two of the inmates, Jonathan Apodaca and Joshua Vigil, didn’t go outdoors for more than 11 months, while the third inmate, Donnie Lowe, didn’t have outdoor recreation for several years. Prison officials argued that they could not be sued because it was not clearly established – the standard to overcome the general presumption that government officials are immune from lawsuits – that their solitary-confinement policy was unconstitutional. The U.S. Court of Appeals for the 10th Circuit agreed, and the inmates asked the Supreme Court to weigh in. Justice Stephen Breyer has expressed concern about holding inmates in solitary confinement before: Last year he dissented from the Supreme Court’s announcement that it would not block the execution of a Texas death-row inmate who had been held in solitary confinement for 20 years. And now-retired Justice Anthony Kennedy suggested in 2015 that extended periods of solitary confinement might violate the Eighth Amendment’s bar on cruel and unusual punishment. But there were apparently not four votes to take up the issue now.

In an eight-page opinion regarding the court’s decision to deny review, Justice Sonia Sotomayor suggested that the justices might have rejected these cases because the lower courts had not focused on whether Colorado had valid security reasons for its solitary-confinement policy. But Sotomayor then went on to express “grave misgivings” about solitary confinement, noting that as many as 100,000 inmates (including many who are not on death row) are held in cells alone. And she pointed out that Donnie Lowe – who was held in solitary confinement for 11 years while serving time for second-degree burglary and smuggling contraband into prison – died earlier this year: “While we do not know what caused his death,” she concluded, “we do know that solitary confinement imprints on those that it clutches a wide range of psychological scars.” She ended her opinion with a plea to courts and prison officials to “remain alert to the clear constitutional problems raised by keeping prisoners like Apodaca, Vigil, and Lowe in ‘near-total isolation’ from the living world, in what comes perilously close to a penal tomb.”

The court asked the U.S. solicitor general to weigh in on whether the justices should review a case involving securities fraud. The petitioner in the case is First Solar, Inc., an Arizona-based company that produces solar-panel modules. In 2012, the company was the target of a lawsuit by investors alleging that the company had first failed to disclose, and then misrepresented the effect of, defects in the panels. The Supreme Court has ruled that a plaintiff in a securities fraud case must show that the defendant’s fraud caused him to lose money. The question that First Solar has asked the court to decide (and on which the federal government will now opine) is whether the investors can make this showing when the event or disclosure that caused stock prices to go down did not itself reveal any fraud. There is no specific deadline for the federal government to file its brief.

The justices did not act on a pair of cases asking them to decide whether a 93-year-old cross on public land in the Washington, D.C., suburbs violates the Constitution’s establishment clause, which prohibits the government from favoring one religion over another. A federal appeals court ruled that it does, but the Maryland-National Capital Park and Planning Commission and the American Legion have asked the justices to review that ruling, telling them that (among other things) the lower court’s decision could jeopardize other, similar monuments, including at Arlington National Cemetery. The justices will consider the case again at their conference on Friday, and an announcement could come relatively soon after that.

The justices also did not act on a case challenging the requirement that lawyers who wish to practice in a particular state become members of (and pay dues to) that state’s bar association. As with the cross cases, the justices will consider the case again at Friday’s conference.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Today’s orders: No new grants, one CVSG, SCOTUSblog (Oct. 9, 2018, 1:52 PM),