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Court to take up case on “harmless error” standard in habeas proceedings

The Supreme Court on Monday announced that it would add the case of a Michigan inmate convicted of premeditated murder to its docket for next term. The justices granted Brown v. Davenport, a petition filed by the state of Michigan on the standard for whether a constitutional error is “harmless” when a defendant is seeking federal post-conviction relief. The inmate, Ervine Davenport, was convicted after a trial at which he was shackled. State courts in Michigan agreed that shackling Davenport violated the Constitution, but they concluded that the mistake was harmless. A divided U.S. Court of Appeals for the 6th Circuit granted him federal post-conviction relief. The state appealed to the Supreme Court in December, and on Monday the justices granted review.

The justices denied review in a case asking them to weigh in on the extent to which federal civil rights laws require employers to accommodate their employers’ religious practices. The question came to the court in the case of Jason Small, a Jehovah’s Witness, who argued that his employer had violated civil rights laws when it suspended him for two days without pay when (among other things) he went to church on Good Friday after his request to take vacation time then was denied. Title VII of the Civil Rights Act of 1964 requires employers to accommodate religious employees as long as doing so would not cause “undue hardship.” Nearly 45 years ago, in Trans World Airlines, Inc. v. Hardison, the Supreme Court interpreted the phrase “undue hardship” to mean “more than a de minimis cost.” Small asked the justices to take up his case and reconsider Hardison, but – after considering Small’s petition at six consecutive conferences – the justices declined on Monday to do so.

Justice Neil Gorsuch dissented from the decision not to hear Small’s case, in an opinion joined by Justice Samuel Alito. Gorsuch explained that he would have granted Small’s petition because Hardison’s “de minimis cost test does not appear in the statute” and was announced “in a single sentence with little explanation or supporting analysis.” Other civil rights laws adopted since then, Gorsuch added, impose a more stringent burden on employers, leaving Title VII “the odd man out” when it comes to religious exercise. Because “[t]here is no barrier to our review and no else to blame,” Gorsuch concluded, the “only mistake here is of the Court’s own making — and it is past time for the Court to correct it.”

Calls for the views of the federal government

The justices asked the federal government to provide its views on two pending petitions seeking the court’s review. The first is Waterfront Commission of New York Harbor v. Murphy, a lawsuit arising out of New Jersey’s efforts, through a state law, to withdraw from an interstate compact with New York to run the area’s ports. The commission sued New Jersey’s governor, but the U.S. Court of Appeals for the 3rd Circuit ruled that the lawsuit was barred by sovereign immunity.

The second is Golan v. Saada, an international child custody case. Under the Hague Convention on the Civil Aspects of International Child Abduction, children who are abducted must be returned to the country that is their habitual residence so that the courts there can resolve any custody disputes. The convention carves out some narrow exceptions to that general rule, including when there is a grave risk that returning the child would expose him or her to physical or psychological harm. The question that the justices were asked to decide, and on which the acting solicitor general will now weigh in, is whether a court must consider measures to facilitate a child’s return when it finds that return will put the child at grave risk of harm. There is no timetable for the government to provide its views.

No action on high-profile cases

The justices once again did not act on Dobbs v. Jackson Women’s Health Organization, Mississippi’s request for the Supreme Court to weigh in on the constitutionality of a state law that bans abortion after the 15th week of pregnancy. The state came to the Supreme Court in June of last year, after the lower courts struck down the law as unconstitutional; the justices have now considered the case at nine consecutive conferences without acting on it.

The justices also did not act on New York State Rifle & Pistol Association v. Corlett, which the justices considered for the second time at their conference last week. At issue in the case is a question left open after the justices’ 2008 ruling in District of Columbia v. Heller and their 2010 decision in McDonald v. City of Chicago, holding that the Second Amendment protects a right to have a handgun in the home for self-defense: whether and to what extent the Second Amendment protects a right to carry a handgun outside the home for self-defense.

The court is currently in recess; the justices will meet for their next private conference on Friday, April 16, with orders from that conference expected on Monday, April 19.

This post was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Court to take up case on “harmless error” standard in habeas proceedings, SCOTUSblog (Apr. 5, 2021, 3:23 PM),