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The justices return, without Ginsburg or any new grants (Updated)

[Editor’s Note: This post was updated to cover the four cases in which the Supreme Court asked the U.S. solicitor general to file briefs.]

The justices returned to the bench today for the first arguments of the new year. Justice Ruth Bader Ginsburg, who had surgery on December 21 to remove two cancerous growths from her lungs, was not on the bench this morning; a court spokeswoman indicated that she would still participate in today’s cases based on the briefs and transcripts.

The justices issued a lengthy order list from last Friday’s private conference. After having added six new cases to their merits docket for the term on Friday afternoon, they did not grant any new cases today, but they did act on several cases that had been their docket for some time.

Under the Supreme Court’s cases, the standard for qualified immunity is fairly difficult for plaintiffs suing police offers for violating the plaintiffs’ constitutional rights to overcome: The question is whether the laws that would apply to a specific case are so clear that an officer would know that his actions were wrong.

Today’s unsigned ruling in City of Escondido v. Emmons arose from a standoff during a domestic dispute. Marty Emmons surprised police by leaving the apartment at the center of the standoff without any warning; when Emmons did not heed police instructions not to close the apartment door, officers pushed him to the ground.

Emmons filed a lawsuit, arguing that the officers had used excessive force against him, but a federal district court concluded that the officers were immune from suit because Emmons had not cited any cases supporting his argument that police violated the Constitution when they pushed him to the ground or placed a hand on him.

The U.S. Court of Appeals for the 9th Circuit reversed, reinstating the excessive-force claim. The city asked the Supreme Court to weigh in, arguing that the lower court’s decision “puts police officers in the impossible position of enforcing the laws without knowing whether their particular conduct is constitutional.”

Today the Supreme Court threw out the 9th Circuit’s decision entirely as to one officer, concluding that the claim against him had been erroneously reinstated. And the court instructed the lower court to reconsider the case against a second officer, explaining that the 9th Circuit should have been more specific in defining the clearly established law that the officer allegedly violated: The 9th Circuit had said only that there is a clearly established “right to be free of excessive force” when it “should have asked whether clearly established law prohibited the officers from stopping and taking down a man in these circumstances.”

The justices also sent a death-penalty case, Shoop v. Hill, back to the court of appeals for another look. The inmate in the case is Danny Hill, who was convicted and sentenced to death for the brutal rape and murder of a 12-year-old boy, Raymond Fife, in Ohio in 1985. After the Supreme Court’s 2002 decision in Atkins v. Virginia, holding that the Eighth Amendment’s ban on cruel and unusual punishment prohibits the execution of individuals with intellectual disabilities, Hill went back to state court to argue that he was intellectually disabled. In 2005, a state trial court rejected that claim, concluding that Hill had not met the standard outlined by the Ohio Supreme Court after Atkins, and a state appeals court upheld that ruling in 2008.

But the U.S. Court of Appeals for the 6th Circuit overturned Hill’s death sentence, applying the standard for state prisoners seeking post-conviction relief in federal courts and finding that the Ohio courts had unreasonably applied the Supreme Court’s decision in Atkins. The ruling relied heavily on Moore v. Texas, a 2017 decision by the Supreme Court rejecting a Texas court’s standards for determining whether an inmate is intellectually disabled. Ohio asked the justices to review that ruling, arguing that the 6th Circuit should not have based its decision on a Supreme Court case that wasn’t decided until several years after the state courts ruled on Hill’s intellectual-disability claims.

Today the Supreme Court agreed with Ohio, in an unsigned opinion that observed that “no reader of the decision of the Court of Appeals can escape the conclusion that it is heavily based on Moore, which came years after the decisions of the Ohio courts.” Therefore, the court concluded, the 6th Circuit’s decision “must be vacated.” “On remand,” the court explained, the 6th Circuit “should determine whether its conclusions can be sustained based strictly on legal rules that were clearly established in the decisions of this Court at the relevant time.”

Eighteen years ago, in Apprendi v. New Jersey, the Supreme Court ruled that any fact – except a prior conviction – that increases the penalty for a crime beyond the maximum sentence provided by law must be submitted to a jury and proven beyond a reasonable doubt. Six years ago, the justices agreed that the Apprendi rule also applies to criminal fines. Today, in Hester v. United States, the justices declined to decide whether Apprendi applies to criminal restitution – here, an order requiring two men to pay over $300,000 in restitution to CitiGroup.

Justice Neil Gorsuch, joined by Justice Sonia Sotomayor, dissented from the court’s announcement that it would not hear the case. Gorsuch began by describing the “increasing role” of restitution in federal criminal sentencing, noting that “between 1996 and 2016, the amount of unpaid federal criminal restitution rose from less than $6 billion to more than $110 billion” and that the failure to pay restitution orders can have serious consequences, ranging from the loss of the right to vote to reincarceration. Gorsuch then noted that the government’s arguments against applying Apprendi to restitution are also “difficult to reconcile with the Constitution’s original meaning.”

Justice Samuel Alito filed a separate opinion agreeing with the decision to deny review. Alito expressed skepticism about whether the court’s decision in Apprendi was correct in the first place. “Unless the Court is willing to reconsider” that decision, he concluded, it should not extend its reasoning in Apprendi to new areas of the law.

The justices declined to hear Lance v. Sellers, the case of Donnie Lance, who is on death row in Georgia for the 1997 murder of his former wife and her boyfriend. Lance argues that when he was sentenced, his attorney’s performance was so sub-par that it violated Lance’s constitutional right to have an attorney represent him. In particular, Lance contends, his attorney did not investigate or present any evidence that Lance suffered from a condition similar to dementia as a result of trauma to his head (including a gunshot wound) and alcohol abuse. A state court agreed that Lance should get a new trial, but the Georgia Supreme Court reversed.

Lance went to the U.S. Supreme Court, asking the justices to review his case, but today the justices turned him down, over a dissent by Sotomayor that was joined by Justices Ruth Bader Ginsburg and Elena Kagan. Sotomayor emphasized that the “jury heard no evidence whatsoever to counterbalance the State’s case for the death penalty.” Because “Lance was prejudiced by his inability to inform the jury about his impairments,” she would have granted Lance’s petition for review and ruled in his favor. Instead, she observed, “Lance may well be executed without any adequately informed jury having decided his fate.”

The justices asked the U.S. solicitor general to file briefs in four cases (two of which are related). In HP Inc. v. Berkheimer, the technology giant had asked the justices to review a ruling against it by the U.S. Court of Appeals for the Federal Circuit after it was sued for allegedly infringing a patent. The question on which the federal government will now weigh in is a technical one: whether eligibility for a patent is a question of law, which a court decides based on the scope of the claims, or instead a question of fact, which a jury decides based on the state of the art at the time of the patent.

The court also sought the solicitor general’s views in another patent case, Texas Advanced Optoelectronic v. Renesas Electronics America. Under federal patent law, someone infringes a patent when she “offers to sell” a patented invention “within the United States.” The question presented in the case is where the offer to sell takes place: Is it where the offer is actually made, or is it where the offer imagines that the sale will occur? The court asked the solicitor general to address this question once before, in 2013, but the case settled before the brief was filed.

The current case arose from a battle to supply ambient light sensors – which, the petition for review explains, are “used in smartphones to adapt screen brightness to lighting conditions” – for iPhones. TAOS holds the patent for the sensors in the United States, where Renesas (formerly known as Intersil) offered to sell sensors to Apple. When TAOS sued Intersil in federal court, Intersil countered that because the sensors were delivered overseas, there was no offer to sell within the United States. The district court ruled for Intersil on the nearly 99 percent of its products delivered overseas, and the U.S. Court of Appeals for the Federal Circuit affirmed that ruling.

The Foreign Sovereign Immunities Act generally bars lawsuits against foreign countries in U.S. courts. However, the FSIA contains an exception for (among other things) “commercial activity” – which, the Supreme Court has explained, applies when the foreign government acts as a private player in the market. In YPF v. Petersen Energia and Argentine Republic v. Petersen Energia, the question on which the federal government will opine is whether the “commercial activity” exception applies to lawsuits challenging action that is “inextricably intertwined” with another activity, expropriation, that is a sovereign act.

The case leading to the two petitions was filed by Petersen, which owns stock in YPF, a publicly held oil and gas company in Argentina. Petersen alleges that Argentina violated YPF’s bylaws when it expropriated 51 percent of the company’s stock in 2012; Argentina and YPF counter that, under the FSIA, they cannot be sued in U.S. courts.

There is no deadline for the solicitor general to file his briefs.

The justices did not act on some closely watched cases that they considered at last week’s conference, including the case of a high-school football coach fired for praying on the field after a game, a challenge to an Indiana law barring abortions based on the race, sex, or disability of the fetus and requiring fetal remains to be buried or cremated, a challenge to a New York City law banning the transport of unloaded guns outside the city limits, and a group of cases asking whether federal employment discrimination laws protect LGBTQ employees.

The justices will meet again for another private conference on Friday, January 11.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, The justices return, without Ginsburg or any new grants (Updated), SCOTUSblog (Jan. 7, 2019, 11:55 AM),