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Justices add five cases out of clean-up conference

The Supreme Court on Tuesday added five new cases – two of which will be argued together – to its docket for the 2024-25 term. The justices declined to take up a number of notable cases, including challenges to Illinois’s regulation of assault weapons and high-capacity magazines and a challenge to the power of federal administrative agencies, here the Occupational Safety and Health Administration.

The list of orders from the justices’ private conference on Monday was one of the court’s final acts before the justices begin their summer recess. Between now and the end of September the justices will likely issue orders to dispose of requests on the emergency docket and to deal with various administrative and procedural questions, but they normally do not grant new petitions for review during the recess.

In Free Speech Coalition v. Paxton, the justices will weigh in on a challenge to a Texas law that requires any website that publishes content one-third or more of which is “harmful to minors” to verify the age of each of its users before providing access. The challengers contend that the law imposes a burden on adults’ access to that content, but the U.S. Court of Appeals for the 5th Circuit upheld the law. As the case comes to the Supreme Court, the dispute centers on the proper test to determine the law’s constitutionality. The lower court applied a test known as “rational basis” review, which looks at whether the law is rationally related to a legitimate government interest. But the challengers contend that the court of appeals should have applied a more stringent test, known as strict scrutiny, instead.

In Hewitt v. United States and Duffey v. United States, the justices will consider an issue involving the interpretation of the First Step Act, a 2018 law that (among other things) reduced the mandatory minimum sentences for some federal drug and gun crimes. The question before the court in these cases is whether the sentence reductions apply to a defendant who was originally sentenced before the law was enacted but was then resentenced after the law’s enactment.

In Monsalvo Velazquez v. Garland, the court will consider a procedural question in an immigration case – specifically, when the time for a noncitizen to voluntarily leave the country ends on a weekend or holiday, whether a noncitizen who files a motion to reopen immigration proceedings can avoid penalties for failing to leave the country by filing that motion on the following business day.

And in Food and Drug Administration v. Wages and White Lion Investments, the justices granted a petition filed by the Biden administration, seeking review of a ruling by the 5th Circuit in a challenge to the FDA’s denial of applications to market new e-cigarette products. The court of appeals set aside the FDA’s orders denying the applications, but now the Supreme Court will weigh in.

The court’s denials of review in several cases were accompanied by separate writings from the justices. The justices turned down a group of challenges to an Illinois law and three municipal ordinances that seek to regulate assault weapons and high-capacity magazines – ammunition-feeding devices that can carry more than 10 rounds of ammunition.

Justice Samuel Alito indicated that he would have granted the petitions for review, without saying more. Justice Clarence Thomas penned a four-page statement in which he urged his colleagues to “provide more guidance on which weapons the Second Amendment covers,” and he suggested that the Illinois ban was “highly suspect.” But he acceded to the decision not to hear the dispute right now, noting that the case was still in its preliminary stages.

Justice Sonia Sotomayor agreed with the court’s denial of review in the case of Charles McCrory, who was convicted of murder in 1985 “based on forensic bitemark testimony that has now been roundly condemned by the scientific community and retracted by the expert who introduced it at his trial.” Because, she explained in a 13-page statement, claims like McCrory’s – that the use of that testimony made his trial fundamentally unfair – have not yet “percolated” sufficiently through the federal courts, the Supreme Court was correct not to weigh in now. There is “no reason, however,” she added, “for state legislatures or Congress to wait for this Court before addressing wrongful convictions that rest on repudiated forensic testimony.”

Justice Ketanji Brown Jackson, joined by Sotomayor, dissented from the denial of review in the case of Warren King, who was convicted nearly three decades ago for the murder of a Georgia convenience store owner. The jury that convicted King, who is Black, and sentenced him to death was made up of two Black jurors and 10 white ones.

King challenged the prosecution’s use of its discretionary strikes to remove six of the eight potential Black jurors from the jury pool. At issue in his case was whether the state supreme court misapplied the U.S. Supreme Court’s 1986 decision in Batson v. Kentucky, holding that it violates the Constitution to strike jurors in a criminal trial based on their race, but the justices rejected his request to weigh in.

In a 10-page dissent, Jackson indicated that she would have reversed the state court’s decision without additional briefing or oral argument. The deference that federal courts owe to state courts’ determinations in post-conviction proceedings is “not boundless,” she contended, “and when a state court fails to engage with critical evidence in rendering its factual findings,” federal courts “should not hesitate to deem those findings unreasonable.”

Justice Neil Gorsuch indicated, without explanation, that he would have granted review in Allstates Refractory Contractors v. Su, in which the court had been asked to wade once more into the question of the power of federal administrative agencies.

The law at the center of the case is the Occupational Safety and Health Act, in which Congress gave the Occupational Safety and Health Administration the power to set “reasonably necessary or appropriate” standards for workplace safety.

The challenger in the case, a general industrial contracting company, paid a penalty of just under $6,000 after a worker was injured on the job. It later went to federal court, where it argued that Congress’s grant of power to OSHA to set safety standards violates the nondelegation doctrine – the long-dormant principle that Congress cannot delegate its power to legislate to other branches of government.

The company lost in the lower courts, and on Tuesday the justices declined to weigh in. Thomas dissented from the denial of review, arguing that the “standard this Court currently applies to determine whether Congress has impermissibly delegated legislative power largely abdicates our duty to enforce that prohibition.”

Thomas, joined by Gorsuch, also dissented from the denial of review in a case brought against the social media platform Snapchat by the victim of a high school science teacher who used the app, he contends, to send him explicit content and later sexually assault him. The victim, known as John Doe, sued Snapchat under Texas law, arguing that it was negligently designed because (for example) it encourages minors to lie about their ages, while the self-deleting messages on the app allow adults to prey on minors.

The 5th Circuit ruled that Doe’s claims were barred by Section 230 of the Communications Decency Act, which indicates that social media platforms cannot be held liable as the publisher or speaker of content provided by their users. In Thomas’s view, the Supreme Court should weigh in on the scope of Section 230. He acknowledged that “there will be other opportunities in the future” to do so, he cautioned that “there is danger in delay.”

“Social-media platforms,” he suggested, “have increasingly used §230 as a get-out-of-jail free card”: They argue that they are engaging in speech protected by the First Amendment when they organize their users’ content, but at the same time they maintain that they are not speakers for purposes of liability for those users’ speech. “The Court,” Thomas concluded, “should consider if this state of affairs is what §230 demands.”

In other actions on Monday’s order list, the justices:

  • Sent several other gun-rights cases, including a challenge to the constitutionality of the law banning the possession of guns by people convicted of felonies by a Pennsylvania man convicted of food stamp fraud, back to the lower courts for another look in light of the Supreme Court’s June 21 decision in United States v. Rahimi, upholding a federal law banning the possession of guns by people subject to domestic-violence restraining orders;
  • Dismissed an appeal by a political commentator who alleged that Twitter and the state of California had acted together to restrict his First Amendment rights when the social media giant suspended his account in 2021; and
  • Declined to hear the case of Rodney Reed, who was convicted and sentenced to death for the 1998 murder of Stacy Stites in Texas. In a state post-conviction proceeding, Reed presented evidence that he says would have undermined the state’s narrative of the case, including testimony by two witnesses that Stites’ fiancé confessed to killing her, but the court adopted the prosecution’s findings of fact and conclusions of law verbatim.

This article was originally published at Howe on the Court

Recommended Citation: Amy Howe, Justices add five cases out of clean-up conference, SCOTUSblog (Jul. 2, 2024, 2:05 PM),