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Justices add new cases on state secrets, free speech

The Supreme Court issued orders on Monday morning from the justices’ private conference on Friday, April 23. The court added three new cases to its docket for arguments next fall, including a major new case (covered in this article) on the scope of the Second Amendment right to carry a gun outside the home. The justices also turned down (at least for now) efforts by a group of states, led by Texas, to revive litigation over the “public charge” rule after the Biden administration refused to defend the rule. (That order is also covered in a separate article.)

While most attention was focused on the decision to hear the gun-rights case, the other two cases that the court agreed to hear also have the potential to make waves. One involves CIA records about so-called “black sites,” and the other involves the First Amendment rights of elected officials.

Black sites and state secrets

In United States v. Zubaydah, the justices granted the federal government’s petition for review of a ruling by the U.S. Court of Appeals for the 9th Circuit that rejected the government’s assertion of the “state secrets” privilege, which allows the government to block the release of sensitive national-security information in litigation, in a case against former CIA contractors. Zayn al-Abidin Muhammad Husayn, also known as Abu Zubaydah, has been a prisoner at Guantanamo Bay since 2006. The government originally claimed that he was a senior al-Qaeda official, but subsequent reporting has cast significant doubt on that claim. After his capture in Pakistan in 2002, but before being sent to Guantanamo Bay, Abu Zubaydah was subjected to the CIA’s “enhanced interrogation” program at several “black sites” in foreign countries. That program included, among other things, being waterboarded 83 times in one month and being deprived of sleep for 11 consecutive days.

Abu Zubaydah went to federal court in Washington state in 2017, seeking documents and testimony from two former CIA contractors who, Abu Zubaydah says, know about his detention and interrogation at the black sites. Abu Zubaydah wanted the information for use in a criminal investigation in Poland, where he was held for 10 months in 2002 and 2003. But the federal government asked the district court to block the subpoenas, citing the state secrets privilege.

The district court granted the government’s request, but on appeal the 9th Circuit sent the case back to the district court for it to take another look at whether information covered by the state secrets privilege could be separated from information that is not. Over a dissent by 12 judges, the full court of appeals declined to rehear the case.

The federal government, in a petition filed by Jeffrey Wall, the Trump administration’s acting solicitor general, in December 2020, asked the Supreme Court to take up the case. The 9th Circuit’s ruling, Wall told the justices, “is seriously flawed and poses significant risks to the national security.”

Opposing Supreme Court review, Abu Zubaydah emphasized that the 9th Circuit had only told the lower court to determine whether privileged and non-privileged information could be separated. The court of appeals did not, Abu Zubaydah stressed, actually order any privileged information to be disclosed. To the contrary, Abu Zubaydah noted, the 9th Circuit expressly indicated that the district court could throw out the discovery request if it concluded that it would be too hard to separate the information. But in any event, Abu Zubaydah added, the contractors have already provided testimony similar to what Abu Zubaydah is seeking in other litigation.

Free speech and public censure

The justices also agreed to hear Houston Community College System v. Wilson, a case about whether the First Amendment limits a local government’s power to censure its members – here, a member of a community college system’s board of trustees. The events that gave rise to the case began when David Wilson was elected to the board in 2013. His tenure was not a smooth one; it included accusations that he had leaked confidential information, Wilson’s role in a series of negative robocalls to other trustees’ constituents after the board voted to fund an overseas campus, and four different lawsuits against the system.

When the board publicly censured Wilson, he countered that the censure violated his First Amendment rights and asked for damages. A federal district court threw out his claim, holding that an elected board’s censure of its own members does not violate the First Amendment because it is merely a “statement” of the board’s disapproval. After the U.S. Court of Appeals for the 5th Circuit reversed, the community college system came to the Supreme Court, which agreed on Monday to weigh in.

Other notable items from Monday’s order list

The justices asked the Biden administration for more information in a trio of cases that the court granted in February. The cases – American Medical Association v. Becerra, Becerra v. Mayor and City Council of Baltimore and Oregon v. Becerra – are challenges to regulations issued by the Trump administration in 2019 that barred clinics that receive family-planning funds from providing abortion referrals – the so-called “gag rule.” The Biden administration and lawyers for the challengers asked the court to dismiss the case in March, but 19 states and a group of conservative medical associations asked the court to allow them to intervene to defend the rule. In a brief order on Monday, the court asked the Biden administration to file, by Monday, May 3, a three-page brief indicating whether it intends to enforce the rule outside Maryland – where the U.S. Court of Appeals for the 4th Circuit has blocked its enforcement – until a new rulemaking process has finished, and how the administration would respond if new litigation were filed challenging the rule outside of Maryland.

The justices also asked the federal government for its views in Volkswagen Group v. Environmental Protection Commission of Hillsborough County, in which Volkswagen has asked the court to consider whether the Clean Air Act prevents state and local governments from regulating car manufacturers’ post-sale, nationwide updates to vehicle emissions systems. There is no deadline for the acting solicitor general to respond.

In Alaska v. Wright, the justices summarily reversed a ruling by the U.S. Court of Appeals for the 9th Circuit that allowed an inmate’s federal post-conviction challenge to his state conviction even after the inmate completed his state sentence. The court of appeals reasoned that because the inmate was in custody for federal convictions that were based on his state convictions – specifically, a failure to register after being convicted in state court of being a sex offender – he could continue to challenge his Alaska state convictions even if he was not in custody for them. Alaska appealed that decision to the Supreme Court.

Explaining that the 9th Circuit “clearly erred,” the Supreme Court reversed, in an unsigned three-page decision. Federal law allows federal courts to review a request for post-conviction relief only from someone who is “in custody pursuant to the judgment of a State court,” the justices explained. In 1989, the court ruled that an inmate seeking post-conviction relief is not “in custody” for a conviction once the sentence for that conviction has expired. The fact that Wright’s federal conviction rested on his state conviction did not mean that he was “in custody pursuant to the judgment of a State court.”

In November, the Supreme Court heard oral argument in a challenge by Catholic Social Services to its exclusion from Philadelphia’s foster-care system. Catholic Social Services argued that its religious beliefs bar it from certifying same-sex couples as potential foster parents; as a result, the city’s decision to stop working with Catholic Social Services violated the First Amendment. The court announced on Monday that it would not take up Texas v. California, which presented a different twist on a related issue: Does it violate the Constitution for California to ban state-funded travel to Texas because of a Texas law that protects foster-care and adoption agencies that refuse to work with same-sex couples?

The dispute arose when California’s attorney general placed Texas on a list of states for which state-funded travel is restricted under a California law that prohibits state agencies from authorizing travel to states that (among other things) allow discrimination based on sexual orientation, gender identity or gender expression.

Texas then came to the Supreme Court, seeking permission to file what is known as an original action: a lawsuit against California in the Supreme Court, without first going to a federal trial court or a federal court of appeals. The Constitution allows such lawsuits, although they are more likely to involve disputes over boundaries or water rights. Texas argued that the California travel ban is based on a hostility toward religion, and that it violates the Constitution (by, for example, discriminating against commerce in other states). The justices asked the federal government for its views last year, and in December the Trump administration recommended that the court take up the case.

But after considering the case at 11 consecutive conferences, the justices turned down Texas’ request to file an original action. Justice Samuel Alito dissented from that decision, in a 10-page opinion that was joined by Justice Clarence Thomas. Alito focused primarily on the broader issue of the court’s decision not to allow a complaint to be filed in cases that fall within the court’s original jurisdiction. The Supreme Court, Alito noted, “adopted this practice without even providing a convincing justification.” And to the extent that the court has suggested that the justices “should hesitate to entertain suits between two States because they are of a ‘delicate and grave’ character,” Alito continued, that “seems exactly backwards”: “It is precisely because these disputes have a ‘delicate and grave’ character that they were placed exclusively in our hands.” Indeed, Alito observed, both Texas and California were briefly independent countries; if they had remained so, “it is entirely possible that their dispute would be the source of considerable international tension.”

Alito described Texas’ claims as “novel,” but stressed that he was not taking a position on whether Texas was correct. In his view, however, the court should have allowed Texas to file its complaint, or at the very least ordered briefing and held oral argument on whether it should have been allowed to do so.

The justices’ next conference is scheduled for Friday, April 30. We expect orders from that conference on Monday, May 3.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Justices add new cases on state secrets, free speech, SCOTUSblog (Apr. 26, 2021, 7:59 PM),