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Denials of review in five cases draw dissents from various justices

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The Supreme Court on Monday issued orders from the justices’ private conference last week. After granting four petitions for review on Friday afternoon, the court – as expected – did not add any new cases to its docket for the 2022-23 term. But with five different dissents from the denial of review, spanning 48 pages, Monday’s order list was far from mundane.

Buffington v. McDonough

After rescheduling it seven times and relisting it five times, the justices turned down the case of an Air Force veteran who had asked them to overrule their 1984 decision in Chevron U.S.A. v. Natural Resources Defense Council, holding that courts should defer to a federal agency’s interpretation of the laws it administers if those laws are ambiguous. The veteran, Thomas Buffington, initially served for eight years and received disability benefits for tinnitus after leaving the Air Force. Those benefits stopped when Buffington returned to active duty twice; when Buffington sought to restart them four years after his final tour of duty, the Department of Veterans Affairs would only provide him with benefits beginning one year before he filed.

Justice Neil Gorsuch dissented from the decision not to take up Buffington’s case. Stressing that the “VA’s misguided rules harm a wide swath of disabled veterans,” Gorsuch suggested that the Chevron doctrine had been expanded well beyond its original intent, and as a result gives too much power to bureaucrats, at the expense of “ordinary Americans.” Echoing his opinion earlier this year in Kennedy v. Bremerton School District, in which Gorsuch indicated that the test used to determine whether a government law or practice violates the Constitution’s establishment clause had been “long ago abandoned,” Gorsuch wrote that the “aggressive reading of Chevron has more or less fallen into desuetude — the government rarely invokes it, and courts even more rarely rely upon it.” But, Gorsuch continued, “the whole project deserves a tombstone no one could miss,” and he urged his colleagues to “acknowledge forthrightly that Chevron did not undo, and could not have undone, the judicial duty to provide an independent judgment of the law’s meaning in the cases that come before the Nation’s courts.”

Anthony v. Louisiana

Over a dissent by Justice Sonia Sotomayor that was joined by Justice Ketanji Brown Jackson, the court declined to review the case of a Louisiana man whose conviction relied in part on extensive testimony by the prosecutor who had presented the case to a grand jury. The man, Willard Anthony, was convicted and sentenced to life in prison for aggravated rape. At his trial, prosecutors called the assistant district attorney who had handled the case at the grand jury to the stand, where he testified at length.

A state appeals court ruled that Anthony had not received a fair trial. The assistant district attorney, the court of appeals ruled, “vouched for the credibility of the State’s witnesses and improperly commented on” Anthony’s guilt, “while using the prestige and dignity of his office to bolster the State’s case.”

The Louisiana Supreme Court sent the case back for the lower court to determine whether the admission of the testimony was “harmless” – that is, whether it made a difference to the jury’s verdict. On remand, the state court of appeals ruled that any error was harmless, and the Louisiana Supreme Court denied review.

In a 15-page opinion, Sotomayor detailed the facts of Anthony’s case. Emphasizing that the U.S. criminal justice system “holds prosecutors to a high standard,” she explained that the special role of prosecutors means that inappropriate conduct by prosecutors is “apt to carry much weight against the accused when they should properly carry none.” Describing the case as “one of the most egregious instances of prosecutorial testimony amounting to prosecutorial misconduct,” she would have reversed the lower court’s decision without additional briefing or oral argument.

Clendening v. United States

In Clendening v. United States, Justice Clarence Thomas dissented from the court’s decision not to take up a case filed by the widow of a Marine who contends that her husband died of leukemia because of his exposure to toxic chemicals while stationed at Camp Lejeune in North Carolina. The lower courts ruled that the case was barred by the Feres doctrine, which prohibits lawsuits by military personnel for injuries suffered as part of their military service.

As he has done in previous opinions, Thomas urged the court to overrule the Feres doctrine, describing it as “an atextual, policy-based carveout.” Thomas rejected the doctrine’s “professed concern with military discipline” and compared it to the court’s recent decision allowing the Pentagon to consider whether some members of the elite Navy SEALs are vaccinated against COVID-19 when making operational decisions. “Apparently,” wrote Thomas (who indicated that he would have denied the Navy’s request), the Supreme Court “cares about the chain of command when considering money-damages suits against the Government, but our concerns evaporate when servicemen seek injunctions against their superior officers’ personnel decisions.”

Khorrami v. Arizona

In Khorrami v. Arizona, the court denied a petition filed by a California man charged with blackmailing the married Arizona woman with whom he had been having an affair. When Ramin Khorrami was convicted by a jury with eight members, as Arizona law allows, he argued that the smaller jury violated his rights under the Sixth Amendment, which guarantees the right to an impartial jury – and, he says, a jury with 12 members.

Over 50 years ago, in Williams v. Florida, the Supreme Court ruled that the Constitution allows states to use juries with as few as six members. Today, six states, including Arizona, continue to use criminal juries as small as six or eight members. Calling the case’s reasoning “egregiously wrong, as it discards history in favor of now-discredited empirical research,” Khorrami came to the Supreme Court last summer, asking the justices to grant review and overturn Williams.

Gorsuch dissented from the decision not to take up Khorrami’s case. Williams, he wrote, “was wrong the day it was decided, it remains wrong today, and it impairs both the integrity of the American criminal justice system and the liberties of those who come before our Nation’s courts.”

Justice Brett Kavanaugh did not join Gorsuch’s 10-page dissent, but he indicated that he too would have granted review. There is no way to know how the court’s other members voted, but two years ago Justice Elena Kagan joined Justice Samuel Alito’s dissent from the court’s decision in Ramos v. Louisiana, holding that the Constitution establishes a right to a unanimous jury that applies in both federal and state courts. Alito’s dissent in that case rested primarily on the doctrine of stare decisis – the idea that courts should generally not overturn their prior precedent unless there is a good reason to do so. In light of Kagan’s position in that case, Sotomayor and Jackson may not have wanted to join Kavanaugh and Gorsuch in voting to grant review out of concern that there may not be a fifth vote on the court to overrule Williams.

Chinn v. Shoop

In Chinn v. Shoop, Jackson wrote her first opinion as a Supreme Court justice: a two-page dissent from the denial of review in the case of Davel Chinn, who was sentenced to death for the 1989 robbery and murder of Brian Jones. After Chinn’s state appeals were unsuccessful, Chinn went to federal court, where he argued that prosecutors had failed to turn over information that would have undermined the credibility of the state’s key witness. The prosecutors’ omissions, Chinn contended, violated his rights under the Supreme Court’s landmark ruling in Brady v. Maryland, holding that prosecutors must disclose any evidence that they have that is favorable to the defendant.

After the U.S. Court of Appeals for the 6th Circuit rejected Chinn’s claims, Chinn came to the Supreme Court, asking the justices to weigh in. He contended that the court of appeals applied the wrong standard to his Brady claim, asking whether it was more likely than not that the jury would have reached a different result if prosecutors had handed over the information about their star witness. Under the Supreme Court’s decisions, Chinn argued, the proper question was instead whether there was a reasonable probability of a different result.

In an opinion joined by Sotomayor, Jackson argued that the 6th Circuit’s decision “violated the spirit, if not the letter” of the Supreme Court’s “many cases” on this question. “Because Chinn’s life is on the line,” Jackson explained, “and given the substantial likelihood that the suppressed records would have changed the outcome at trial based on the Ohio courts’ own representations,” she would have summarily reversed the lower court’s decision “to ensure that the Sixth Circuit” employed the correct standard.

The justices’ next conference is scheduled for Friday, Nov. 11. Grants from that conference could come as soon as Friday afternoon, with the remaining orders expected on Monday, Nov. 14, at 9:30 a.m.

This article was originally published at Howe on the Court.

Recommended Citation: Amy Howe, Denials of review in five cases draw dissents from various justices, SCOTUSblog (Nov. 7, 2022, 3:47 PM),