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No action on blockbuster cases

This morning the Supreme Court released another set of orders from the justices’ private conference last week. On Friday, the justices announced that they would add eight cases from that conference to their docket. Today’s list did not grant review in any new cases, but it was perhaps most significant for what it did not do: The justices did not act on a long list of high-profile cases that they considered last week, involving everything from abortion to the Trump administration’s ban on service in the military by most transgender people.

The justices asked the U.S. solicitor general to weigh in on three cases, two of which are related. Alabama Department of Revenue v. CSX Transportation and CSX Transportation v. Alabama Department of Revenue are the latest chapter in a long-running battle over taxes that the state levies on diesel fuel for railroads – but not barges. The Supreme Court has already reviewed the case twice, in 2010 and again in 2015. In Toshiba Corp. v. Automotive Industries Pension Fund, the solicitor general will provide the government’s views on the reach of federal securities laws when a securities-fraud claim is based on a transaction in the United States but otherwise generally involves foreign conduct.

The justices sent the case of Kentucky death-row inmate Larry White – who was convicted in 2006 and sentenced to death for the 1983 sexual assault and murder of Pamela Armstrong, a young mother of five – back to the state court for reconsideration. The Armstrong case was cold until 2004, but when it was reopened police learned that White had been a suspect during the original investigation and had later been convicted of killing two other women around the same time and in the same place as Armstrong. Police were eventually able to link White to the crime through DNA that they obtained from a cigar that fell on the ground when police pulled over a car in which White was a passenger and patted him down.

After the Kentucky Supreme Court upheld his conviction and sentence, White asked the U.S. Supreme Court to review two questions. The first was whether he should have been allowed to present evidence of his intellectual disability beyond his score of 76 on one IQ test; the second was whether the traffic stop from which officers obtained the DNA evidence was unconstitutional (so that the evidence cannot be admitted against White) because the officers never followed through with their investigation of the traffic violation that triggered the stop.

Today the justices sent the case back to the Kentucky Supreme Court, ordering the state court to take another look at White’s case in light of the U.S. Supreme Court’s 2017 ruling in Moore v. Texas, in which the justices threw out a Texas death-row inmate’s sentence on the ground that the state court had used the wrong standards to conclude that the inmate was not intellectually disabled. Justice Samuel Alito dissented from the court’s decision to send the case back, in a brief opinion that was joined by Justices Clarence Thomas and Neil Gorsuch. Referring to an earlier opinion as well as one by the late Justice Antonin Scalia, Alito stressed that because the U.S. Supreme Court’s decision in Moore predated the Kentucky Supreme Court’s decision by “almost five months,” it is not an “intervening factor” that, in his view, would justify sending the case back: He would have simply denied review.

The justices also denied review in the case of Barry Michaels, who had challenged the federal ban on gun possession by convicted felons. When Michaels filed his petition for review in June, the lead respondent in the case was Jeff Sessions, then the attorney general of the United States. As law professor Steve Vladeck explained in November, Michaels later filed a motion seeking to have deputy attorney general Rod Rosenstein, rather than Matthew Whitaker, whom the president has named as the acting attorney general, substituted for Sessions, on the ground that the federal law governing vacancies in the executive branch does not trump another law outlining the order of succession for officials in the Department of Justice. Today the justices denied both the motion to substitute and the petition for review without comment.

The cases on which the justices did not act today include a challenge to the exclusion of churches from public funds for historic preservation; a challenge to an Indiana law that requires fetal remains to be cremated or buried and bars abortions based on the race, sex or disability of the fetus; a challenge to a New York City law restricting the transport of guns outside the city limits; a trio of cases asking the justices to weigh in on whether federal employment-discrimination laws protect LGBTQ employees; a challenge to the Trump administration’s decision to end DACA, a program that allowed undocumented immigrants who came to the United States as children to apply for temporary protection from deportation; and a challenge to the effective ban on transgender service members. The justices will likely consider these cases again at their conference on Friday, January 18, and could announce new grants from that conference as early as Friday afternoon. After that, the justices’ next conference is not until Friday, February 15, at which point any new cases would normally be scheduled for oral argument in the fall.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel to the petitioner in Michaels. The author of this post is not affiliated with the firm.]

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Past case linked to in this post: Moore v. Texas, 137 S. Ct. 1039 (2017)

Recommended Citation: Amy Howe, No action on blockbuster cases, SCOTUSblog (Jan. 14, 2019, 12:09 PM),