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Wednesday round-up

The justices have one oral argument on their agenda this morning, in Lomax v. Ortiz-Marquez, about whether dismissal without prejudice for failure to state a claim counts as a “strike” under a federal statute that limits prisoners’ ability to file lawsuits without paying the filing fees. Margo Schlanger previewed the case for this blog. Emma Horne and Nicole Jaeckel have a preview at Cornell Law School’s Legal Information Institute.

Yesterday, the justices boosted their disposition rate for the term, releasing opinions in four cases. In Hernandez v. Mesa, the court held 5-4 that the family of a Mexican teenager who was killed by a U.S. Border Patrol agent in a cross-border shooting cannot sue the officer for damages under the Constitution. Amy Howe has this blog’s opinion analysis, which was first published at Howe on the Court. At Fox News, Ronn Blitzer and Bill Mears report that the court held that “precedent regarding lawsuits against officers, known as ‘Bivens claims,’ does not apply to cross-border shootings’: [Justice Samuel] Alito noted the high standard of extending Bivens to a ‘new context’ and gave several reasons why it was inappropriate in this case.” At Capitol Media Services (via the Arizona Capitol Times), Howard Fischer reports that “Tuesday’s ruling is virtually certain to quash a nearly identical lawsuit filed by Araceli Rodriguez following the 2012 shooting death of her son, Jose Antonio Elena Rodriguez.” For The New York Times, Adam Liptak reports that “[i]n a concurring opinion, Justice Thomas, joined by Justice Gorsuch, called on the court to overrule the Bivens decision entirely.” Additional coverage comes from Kevin Daley at The Washington Free Beacon.

At PrawfsBlawg, Howard Wasserman notes that “[i]f any case not on all factual fours with Bivens represents a new context, the majority gets where Justice Thomas wants to go, without the political cost of overrulings.” At Vox, Ian Millhiser argues that “[t]he Supreme Court’s decision in Hernández transforms the Bill of Rights into a paper tiger in many cases involving law enforcement overreach.” Tuan Samahon wonders at PrawfsBlawg whether “[a]fter Hernandez, … Congress [is] ready yet to codify Bivens.” Kym Stapleton discusses the opinion at Crime & Consequences.

In another 5-4 decision, the court ruled against a death-row inmate in McKinney v. Arizona, holding that a court of appeals, not a jury, can reweigh aggravating and mitigating circumstances on collateral review. This blog’s opinion analysis comes from Amy Howe, in a post that first appeared at Howe on the Court. At Crime & Consequences, Kent Scheidegger writes that “[a] great deal of post-conviction litigation in capital cases consists of claims that some marginally relevant mitigating evidence, often with no connection to the crime, was erroneously omitted from the sentencing process,” and that “[a]llowing the state collateral review court to say ‘even assuming that was an error, the aggravating still outweighs the mitigating, and the sentence is still proper’ would go a long way toward mooting those claims relatively early in the process.”

In Monasky v. Taglieri, the court ruled unanimously that under the Hague Convention on international abductions, a child’s “habitual residence” depends on the totality of the circumstances, not on categorical requirements such as an actual agreement between the parents. Amy Howe analyzes the opinion for this blog, in a post that first appeared at Howe on the Court. In another unanimous ruling, Rodriguez v. FDIC, the court held that a judicially created rule about how courts should determine ownership of a tax refund paid to an affiliated corporate group is not a legitimate exercise of federal common law rulemaking, and sent the case back for the lower courts to apply state law.

Adam Liptak reports for The New York Times that during yesterday’s argument in United States v. Sineneng-Smith, the court “seemed doubtful that a 1986 federal law that makes it a crime to ‘encourage’ unauthorized immigrants to come to or stay in the United States could be squared with the First Amendment.” At Education Week’s School Law Blog, Mark Walsh reports that “[t]he lively hour-long argument … touched on the roles of sanctuary cities and advocacy groups in aiding undocumented immigrants, as well as other areas in which speech inducing someone to commit a legal violation might be at issue.” For The Wall Street Journal (subscription required), Jess Bravin reports that “[s]everal justices questioned whether the statute could be read more narrowly, limiting its application to clearly criminal conduct and sparing the court from having to strike down the law as unconstitutional.” At the Constitutional Law Prof Blog, Ruthann Robson observes that the argument “criss-cross[ed] the lines between conduct and speech, between criminal law and the First Amendment, and between constitutional avoidance and judicial ability to redraft a statute.”

Noah Sachs analyzes Monday’s argument in U.S. Forest Service v. Cowpasture River Preservation Association, involving the power of the Forest Service to grant rights of way through lands traversed by the Appalachian Trail, for this blog. Ellen Gilmer reports at Bloomberg Environment that “[t]he Atlantic Coast pipeline appears likely to clear a major legal hurdle after a majority of Supreme Court justices seemed to lean in favor of allowing the project to cross the Appalachian Trail.” At E&E News, Niina Farah reports that, although the outcome “will remain unknown until the Supreme Court issues its opinion in the coming months, legal experts said they largely expect the justices to overturn a lower court’s finding that the Forest Service could not authorize the trail crossing.” [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the respondents in this case.]

At Fox News, Edmund DeMarche reports that “[i]n a remarkable public rebuke, President Trump late Monday called on Supreme Court justices Sonia Sotomayor and Ruth Bader Ginsburg to recuse themselves from any cases involving his administration over their past comments.” Robert Barnes and Ashley Parker report for The Washington Post (subscription required) that “Trump interpreted as biased a dissent from Sotomayor about his administration’s tendency to seek emergency interventions from the Supreme Court” and “[h]e reminded Ginsburg of remarks she made about him as a candidate in 2016, for which she has expressed regret.” Mark Sherman reports at AP that “[j]ustices decide for themselves when to step aside from cases the court is considering, and it is highly unlikely either justice would sit out cases involving Trump, including two cases the court will hear on March 31 over subpoenas for Trump’s tax, bank and financial records.” At The Washington Free Beacon, Kevin Daley reports that “[t]he justices generally do not disclose why they remove themselves from particular cases, though reasons are sometimes readily identifiable.” At the Constitutional Law Prof Blog, Ruthann Robson comments on ‘[t]he seemingly persistent question of the type of bias of SCOTUS Justices that should merit recusal.”


  • At the Brennan Center for Justice, Andrew Cohen weighs in on the court’s decision last week to allow the federal government to enforce a new “public charge” rule limiting noncitizens’ access to green cards, the case that triggered Sotomayor’s dissent, arguing that the court has “already has declared itself in Trump’s camp this term, over and over again, using stay procedures as both a shield and a sword for the administration, without paying much of a price in terms of its institutional credibility.”
  • Ian Millhiser writes at Vox that Fulton v. Philadelphia, a challenge to Philadelphia’s exclusion of Catholic Social Services from the city’s foster care system because the group will not place children with same-sex couples that the court will hear next term, “is a significant escalation from most of the Supreme Court’s previous cases asking when religious people may seek an exemption from the law.”

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Recommended Citation: Edith Roberts, Wednesday round-up, SCOTUSblog (Feb. 26, 2020, 6:50 AM),