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No new grants today

The Supreme Court issued orders this morning from the justices’ conference last week, which was once again held with the justices – all of whom, according to the court’s Public Information Office, are healthy – participating by phone. The justices did not add any new cases to their docket for next term, nor did they call for the views of the federal government.

The justices denied review in three cases that they had repeatedly considered at several consecutive conferences, with each denial eliciting a written statement or dissent. The justices declined to take up a case involving the intersection between religion and government – specifically, a challenge to a policy that bars religious advertisements on public buses in the Washington, D.C., area.

In 2017, the Archdiocese of Washington began a campaign to encourage community service and charitable giving during the Advent season and to provide information about services at local Catholic churches. The archdiocese wanted to promote its campaign on public buses with an advertisement that featured three shepherds, sheep and the words “Find the Perfect Gift.” However, the Washington Metropolitan Transit Authority, known as WMATA, rejected the advertisement because of its religious nature. The archdiocese challenged that rejection in federal court, but the lower courts sided with WMATA.

In May of 2019, the archdiocese asked the Supreme Court to weigh in. The justices denied review today; Justice Brett Kavanaugh, who heard the case when it was argued in the U.S. Court of Appeals for the District of Columbia Circuit in March 2018, was recused. Justice Neil Gorsuch issued a statement regarding the denial, which was joined by Justice Clarence Thomas. Gorsuch explained that because all nine justices would not be able to hear the case on the merits, “it makes a poor candidate for our review.” “But for that complication, however,” Gorsuch continued, “our intervention and a reversal would be warranted.” The denial of the archdiocese’s advertisement “is viewpoint discrimination by a governmental entity and a violation of the First Amendment,” Gorsuch wrote. Moreover, Gorsuch argued, WMATA’s response – that it had “banned religion as a subject, rather than discriminated between religious and nonreligious viewpoints” – “rests on a misunderstanding” of the Supreme Court’s cases. “The First Amendment,” Gorsuch concluded, “requires governments to protect religious viewpoints, not single them out for silencing.”

The justices announced that they will not review the case of Randy Halprin, a Texas inmate who was sentenced to death for his role in the December 2000 killing of police officer Aubrey Hawkins after Halprin and six others escaped from prison. A newspaper article published in May 2018 revealed that the judge who presided over Halprin’s trial had racially bigoted views; an investigation by Halprin, who is Jewish, found that the judge also was anti-Semitic. Halprin had asked the justices to decide whether his petition for federal post-conviction relief on the grounds of judicial bias is a “second or successive” petition, which is generally prohibited, when the judge’s bigoted views were not exposed until after the district court denied his first petition.

Justice Sonia Sotomayor issued a statement regarding the denial of review in which she described the facts of Halprin’s case as “deeply disturbing” but explained that she did not dissent from the court’s order today because “state-court proceedings are underway to address – and, if appropriate, to remedy – Halprin’s assertion that insidious racial and religious bias infected his trial.” Moreover, she added, today’s denial of review does not close the Supreme Court’s doors to Halprin’s claims altogether; for example, she noted, it “does not prevent Halprin from seeking direct review from a constitutional ruling by the Texas courts.”

Finally, Justice Clarence Thomas – who once served as the head of the Equal Employment Opportunity Commission – dissented from the court’s denial of review in VF Jeanswear v. EEOC, a case involving the scope of the EEOC’s investigative authority. The case came to the Supreme Court after Lori Bell, who had worked as a salesperson for VF Jeanswear, filed a gender discrimination charge with the EEOC in June 2014. In December of that year, the EEOC issued a notice giving Bell a right to sue, which she did in federal court in Arizona. In August of 2015, the EEOC sent VF Jeanswear a subpoena seeking information about its employees; when the company refused to provide the information, the EEOC went to court to enforce the subpoena. The district court declined to enforce the subpoena but the U.S. Court of Appeals for the 9th Circuit reversed, holding that “EEOC subpoenas are enforceable so long as they seek information relevant to any of the allegations in a charge, not just those directly affecting the charging party.” The company then went to the Supreme Court, asking the justices to weigh in on whether federal employment discrimination laws allow the EEOC to continue to investigate a discrimination charge after it issues the “right to sue” notice and a private lawsuit has been filed, as well as whether the discrimination charge allows the EEOC to seek information from an employer about conduct or practices that do not affect the employee who filed the charge.

Thomas noted that the courts of appeals are divided on the question posted by the company’s petition. He wrote that although the “split in authority is shallow, it directly implicates the EEOC’s core investigative powers. If the Fifth Circuit is correct that issuing a right to sue notice terminates the EEOC’s ability to investigate,” Thomas continued, then the EEOC is exceeding its authority and “impermissibly subjecting employers to time-consuming investigations.” He would grant review “to determine whether the agency is operating within the confines of the authority granted by Congress.”

The justices’ next conference is scheduled for Friday, April 17. Orders from that conference are likely on Monday, April 20, at 9:30 a.m.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, No new grants today, SCOTUSblog (Apr. 6, 2020, 1:09 PM),