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Justices take up Clean Water Act case, rebuke Texas court in death penalty case

Last Friday the justices added the dispute over the decision to add a question about citizenship to the 2020 census to their merits docket. Today they issued more orders from last week’s conference, granting review in another case and throwing out – for the second time – the death sentence of a Texas inmate who argues that he cannot be executed because he is intellectually disabled.

The Clean Water Act bars the discharge of any pollutant into “navigable waters” without a permit. In its lone grant on today’s order list, the Supreme Court agreed to decide whether a violation of the CWA occurs only when a pollutant is released directly into navigable waters, or whether it is enough that the pollutant is released indirectly.

The question arises in a case from Hawaii, where Maui County owns a wastewater-treatment plant that processes four million gallons of sewage each day. The plant injects the treated wastewater through wells into the groundwater; some of that groundwater eventually enters the Pacific Ocean.

Hawaii Wildlife Fund and other environmental groups filed a lawsuit, claiming that the county was violating the Clean Water Act because it did not have a permit to discharge pollutants into the ocean. A federal district court agreed, and the U.S. Court of Appeals for the 9th Circuit upheld that ruling. The court of appeals rejected the county’s argument that, for purposes of the Clean Water Act, there is a “discharge” only when pollutants are released directly into navigable waters.

The county asked the Supreme Court to review the 9th Circuit decision, and on December 3 the justices asked the U.S. solicitor general to weigh in – and, in an unusual step, set a deadline of January 4, 2019, for the government to do so. The justices did not act on the case before their winter recess, but today they announced that they would review the case, presumably in October.

In 2017, a divided Supreme Court told a Texas court to take another look at the death sentence of Bobby James Moore, who is on death row for killing a supermarket employee. The state court had rejected Moore’s argument that he should not be sentenced to death because he is intellectually disabled, relying in no small part on factors developed from stereotypes of the intellectually disabled and from the John Steinbeck novel “Of Mice and Men.” In a decision by Justice Ruth Bader Ginsburg that was joined by now-retired Justice Anthony Kennedy and Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan, the Supreme Court instructed the Texas court to hew more closely to the most recent medical guide on intellectual disabilities.

When Moore’s case returned to the state courts, he was again sentenced to death – even after the local district attorney’s office agreed that Moore is intellectually disabled and may not be executed.

Moore returned to the Supreme Court this fall, asking the justices to take up his case once more. He argued that, despite the Supreme Court’s 2017 rebuke, the state court had essentially conducted the same analysis again, using its “own lay judgments and stereotypes to dismiss evidence” of his intellectual disabilities: For example, the state court had emphasized that Moore had once had “a girlfriend” and a job at a restaurant, but it failed to address clinical evidence that points toward an intellectual disability, such as Moore’s inability to understand the days of the week or basic mathematical concepts.

With the local district attorney declining to defend the state court’s decision, the Texas attorney general’s office stepped in and asked the court for permission to do so. But today the Supreme Court reversed the state court, in another sharp rebuke.

In a 10-page unsigned opinion, the Supreme Court complained that the state court’s decision essentially reiterated the same analysis “we previously found wanting” – emphasizing, for example, Moore’s ability to read and write based on the papers that he filed himself in court. But there’s no way to know, the Supreme Court pointed out, whether Moore drafted the papers himself. And the state court once again appeared to rely on many of the stereotypes of the intellectually disabled that the Supreme Court had barred in its earlier ruling, the justices observed. The Supreme Court sent Moore’s case back to the state courts again “for further proceedings not inconsistent with this opinion.” In light of the court’s explicit agreement “with Moore and the prosecutor that, on the basis of the trial court record, Moore has shown he is a person with intellectual disability,” however, it’s not clear how much is left for the state court to do.

Chief Justice John Roberts dissented when Moore’s case was before the Supreme Court last time, but today he wrote a separate opinion concurring in the decision to throw out Moore’s sentence. Roberts wrote that, although he continued to believe that the majority’s ruling in Moore’s earlier case “lacked clarity” and would be hard to apply in other cases, “it is easy to see that” the Texas court in this case “misapplied it here.”

Justice Samuel Alito dissented from the court’s ruling, in a three-page opinion that was joined by Justices Clarence Thomas and Neil Gorsuch – but not by the court’s newest justice, Brett Kavanaugh. Alito blamed the Supreme Court’s “failure to provide a clear rule” the first time around for “each of the errors that the majority ascribes to the state court’s decision.” The Supreme Court’s ruling today, Alito argued, simply corrected the state court’s findings of fact – which “is an unsound departure from our usual practice.”

The justices declined to take up cases involving two high-profile defendants. They turned down the case of former congressman Aaron Schock, who had challenged his indictment for misusing government funds. Justice Sonia Sotomayor penned a brief statement regarding the court’s decision not to review Schock’s case, noting the question Schock raised is an important one but suggesting that other reasons may have played a role in the court’s rejection of Schock’s petition.

The justices also declined to weigh in on a defamation case filed by Kathrine McKee, who has accused comedian Bill Cosby of raping her 40 years ago. McKee argued that one of Cosby’s lawyers wrote a defamatory letter that was leaked to the public, but her lawsuit was dismissed on the ground that she had become, at least for purposes of the allegations against Cosby, a public figure and could not recover damages unless she could show that Cosby and his lawyers acted with malice. McKee went to the Supreme Court, where she argued that she is not a public figure, but the justices rejected her appeal. Justice Clarence Thomas filed an opinion in which he agreed with the decision not to hear McKee’s case, but he urged the justices to reconsider the seminal First Amendment cases at the heart of the dispute, including New York Times v. Sullivan, calling them “policy-driven decisions masquerading as constitutional law.”

The justices once again did not act on several high-profile cases that they considered at last week’s conference, including a challenge to an Indiana law that requires fetal remains to be buried or cremated and bars abortions based on (among other things) the sex or disability of the fetus and a group of cases in which the justices have been asked to weigh in on whether federal employment discrimination laws protect LGBTQ employees. The justices’ next conference is scheduled for Friday, February 22.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices take up Clean Water Act case, rebuke Texas court in death penalty case, SCOTUSblog (Feb. 19, 2019, 12:38 PM),