December’s criminal law arguments

ScotusCrim is a recurring series by Rory Little focusing on intersections between the Supreme Court and criminal law.

The Supreme Court has only eight cases scheduled for oral argument over two weeks this December. (You can listen to their oral arguments live, here.) Two civil cases will attract much media attention:  Trump v. Slaughter (addressing the executive, legislative, and judicial branch powers to regulate the removal or reinstatement of federal officials) and NRSC v. FEC (are monetary political campaign limits on “coordinated party expenditures” constitutional?). But as is often the case, a significant portion of the December docket is comprised of arguments related to criminal law. Of those four cases, Hamm v. Smith, a death penalty case, is likely to attract the most public attention – but Urias-Orellana v. Bondi, largely unnoticed by the popular media, will affect far more cases in our legal system.

Below I give brief previews of the four criminal-law-and-related cases set for argument over the next two weeks. As is always the case on SCOTUSblog, other authors will provide their own, more detailed previews of each individual case as the arguments approach. Their readings of the briefs and records, as well as their evaluations, may not always align with what I say; SCOTUSblog prides itself on the independence of its authors and their views. My previews below are to give the general reader a combined understanding and “feel” for all the criminal cases the justices will hear as a body, day-by-day and relatively quickly over a two-week oral argument sitting. 

The four criminal law-ish cases set for argument between Dec. 1 and 10

Urias-Orellana v. Bondi: Immigration (Monday, Dec. 1)

A federal statute makes non-citizens presumptively eligible for asylum (meaning they will not be deported) if they have a “well-founded fear of persecution” in their home country. Two terms ago, the Supreme Court ruled in a very different context (Loper Bright Enterprises v. Raimondo) that federal courts should not defer to administrative agencies’ legal interpretations of ambiguous or undefined statutes, but instead should exercise their own independent legal judgements in construing such statutes. In this case, an immigration judge ruled that the facts Urias-Orellana presented did not reach the statutory level of “persecution,” and the agency’s Board of Immigration Appeals affirmed. The U.S. Court of Appeals for the 1st Circuit did not say whether it independently agreed, but instead deferred to the immigration agency, determining that there was “substantial evidence” to support the agency’s conclusion. 

On Dec. 1, lawyers for Urias-Orellana will argue that Loper Bright requires federal courts to not defer to an immigration agency’s ruling that the undisputed facts do not constitute a “well-founded fear of persecution.” Specifically, the question for the justices appears to be whether the given facts reach the legal statutory level of “persecution,” and whether that conclusion should be reviewed by federal courts with deference to the agency’s prior conclusion or be looked at de novo (literally meaning “from the beginning”).

The government argues that applying the statute’s terms to a given set of facts is predominantly a fact-based determination, subject to review only for whether “substantial evidence” supported the agency’s no “well-founded fear of persecution” finding. In other words, the government argues that the statute here is not unclear (as it was in Loper Bright) and that the immigration statutes plainly require a deferential “substantial evidence” standard of review. Urias-Orellana responds that the court has previously ruled that “mixed” questions of fact and law, “including ‘persecution’ determinations,” are not subject to such appellate fact deference. 

Five amicus briefs (“friend of the court” arguments filed by persons or groups who are not formal parties in the case) support Urias-Orellana; none have been filed in support of the government. Amici say that thousands of cases annually present fear of persecution claims for decision by many different immigration agency judges across the country, and that independent federal court review of those claims is important to assure uniformity. 

The facts of drug-lord threats and violence perpetrated against Urias-Orellana and his family (who fled El Salvador in 2021) might attract the attention of Justice Neil Gorsuch (as well as others), who has voted in favor of sympathetic immigration litigants in the past. Indeed, when concurring with his own opinion as a court of appeals judge, Gorsuch appeared to favor non-deference to some immigration agency determinations. Whether the December oral argument stays on an abstract “standad of review” plane, or dwells more on the violent facts said to be undisputed, may help foretell a likely result.

First Choice Women’s Resource Centers v. Platkin: First Amendment and state investigatory subpoenas

It is not uncommon, when a case gets to the Supreme Court after lower courts have examined it, for briefing and oral arguments to present starkly different “framings” of the issues. First Choice appears to be such a case. A New Jersey consumer protection agency issued a subpoena to a group of “faith based pregnancy centers” (First Choice), asking for documents that might bear on possible deceptive conduct. That state subpoena has not been enforced by a New Jersey court, and the U.S. Court of Appeals for the 3rd Circuit thus said that no injury has yet occurred. In contrast, First Choice says that being compelled to give the government its donor and other information alone, even without court enforcement, chills their and their donors’ First Amendment rights to association and religious freedom. The organization filed an affirmative lawsuit in federal court to try to stop the subpoena; the federal district and appellate courts ruled that that challenge was not yet “ripe” for federal attention because First Choice will be able to raise its First Amendment claims if a state court’s enforcement action occurs.

Is this a case about federal courts not interfering too early with state investigations, or is it about state governments trying to chill the First Amendment rights of groups to which they are hostile? Just the term “pregnancy center,” unexceptional on its face, raises immediate emotional and political disagreements in today’s climate. Meanwhile, state agency investigative subpoenas are not uncommon, and deciding when a federal court may intervene in state processes is likely to affect many Americans in diverse areas of day-to-day living. Over 40 amicus briefs have been filed in Platkin, by a lop-sided 39-3 count in support of First Choice, including one from the U.S. solicitor general.

First Choice begins its brief by recounting that 67 years ago the Supreme Court ruled in NAACP v. Patterson that compelling production of membership lists from the NAACP would chill First Amendment rights, so federal courts could intervene. That decision came, however, after a subpoena had been enforced and the NAACP had been held in contempt. A more recent decision involving a California disclosure subpoena – which produced a fractured set of opinions (as well as a dissenting vote below) – seems pretty different in its procedural history. Meanwhile, federal court avoidance rules of standing and ripeness, which counsel not intervening until potential injury to a party is clear and actual, still exist. Rather than try to resolve the “framing” question I began with, I will simply be listening avidly with popcorn at hand to the oral arguments on Dec. 2.

Olivier v. City of Brandon, Mississippi: Section 1983 civil rights challenges to criminal statutes

The day after First Choice is argued, the court will hear argument in another case involving access to federal courts, for a person alleging a religious freedom claim. As in First Choice, the solicitor general has entered the case as an amicus supporting the plaintiff. 

This case arose after Gabriel Olivier was convicted for violating a local ordinance in Brandon, Mississippi regulating protests outside a public amphitheater, by attempting to “evangelize” outside the designated protest area. Olivier paid his criminal fine and did not appeal his conviction to Mississippi state courts. Then, while on state probation, he filed a federal lawsuit under 42 U.S.C. § 1983 challenging the city ordinance as an unconstitutional infringement of his religious beliefs.

Over 30 years ago, the Supreme Court ruled in Heck v. Humphrey that a federal Section 1983 lawsuit challenging allegedly unconstitutional state law or actions may not be accepted if the federal lawsuit calls into question a state criminal conviction unless that conviction has been reversed, invalidated, expunged, or called into question by a federal habeas corpus attack on the conviction itself. The question in Olivier, at least as explained by the U.S. solicitor general as amicus, is whether Heck applies to an action seeking prospective (that is, only in the future) invalidation of a state law, or to a plaintiff who does not have (says Olivier) federal habeas relief available (for example, where the person is not in state custody). The U.S. Court of Appeals for the 5th Circuit rejected Olivier’s claim on the first part of this question by a slim 9-8 en banc (full court) vote.

Heck was written by Justice Antonin Scalia for a unanimous court invoking principles of federalism (respect for state court judgments) and criminal law finality. It will be extremely interesting to see how these principles and that author are treated by the entirely new (other than Justice Clarence Thomas) set of justices now on the court.

Hamm v. Smith: Capital punishment and how to evaluate whether a person scheduled for execution is mentally disabled

In 2021 Joseph Clifton Smith’s death sentence (which had been imposed in 1998 and affirmed by the Alabama Court of Criminal Appeals in 2001 for a violent murder) was vacated because the Alabama federal court found that Smith is intellectually disabled – the Supreme Court had ruled in 2002 (Atkins v. Virginia) that the execution of prisoners who are what was then called “mentally retarded” is barred under the Eighth Amendment’s cruel and unusual punishments clause. The U.S. Court of Appeals for the 11th Circuit affirmed that dispensation; both courts found it significant that the combined statistical effect of five IQ tests of Smith suggested that his IQ score may be under 70, which courts have generally agreed defines intellectual disability. But the circuit court later explained in this case that IQ score alone is not “conclusive;” rather, a “holistic approach” encompassing many factors is relevant to determining intellectual disability.

Last term, the court granted review in Alabama’s challenge and vacated the 11th Circuit’s ruling, remanding the case for further explanation. The appeals court quickly reaffirmed vacation of Smith’s execution and the court quickly granted Alabama’s renewed petition for review. On that occasion the justices wrote their own question: “Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.”

As I explained in my September overview of criminal cases for the 2025-26 term, the court has explained after Atkins, in the 2014 case of Florida v. Hall, that “[i]ntellectual disability is a condition, not a number,” and that “[i]t is not sound to view a single factor as dispositive.” But Chief Justice John Roberts and Justices Thomas and Samuel Alito dissented in that case, and three justices in that majority are gone. Thomas, now the senior associate justice on the court, also dissented in Atkins itself, while Justices Sonia Sotomayor and Elena Kagan were part of the Florida v. Hall majority. Thus the three justices appointed by President Donald Trump (Gorsuch, Amy Coney Barrett, and Brett Kavanaugh) appear to hold the swing votes on how Atkins will be applied. (I presume that the court will not vote to overrule Atkins – although Alabama originally suggested that Hall be overruled – and that Justice Ketanji Brown Jackson will vote for Mr. Smith.) Oral argument listeners should be attuned to whether and how the justices express respect for state court criminal judgments, and should compare this to what we hear on that same general issue during the First Choice and Olivier arguments previewed above.