Bucklew v. Precythe

Bucklew v. Precythe

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky

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Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
17-8151	8th Cir.	Nov 6, 2018 Tr.Aud.	Apr 1, 2019	5-4	Gorsuch	OT 2018

Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is counsel on an amicus brief in support of the petitioner in this case.

Holding: Baze v. Rees and Glossip v. Gross govern all Eighth Amendment challenges alleging that a method of execution inflicts unconstitutionally cruel pain; Russell Bucklew’s as-applied challenge to Missouri’s single-drug execution protocol -- that it would cause him severe pain because of his particular medical condition -- fails to satisfy the Baze-Glossip test.

Judgment: Affirmed, 5-4, in an opinion by Justice Gorsuch on April 1, 2019. Justice Thomas and Justice Kavanaugh filed concurring opinions. Justice Breyer filed a dissenting opinion, in which Justices Ginsburg, Sotomayor, and Kagan joined as to all but Part III. Justice Sotomayor filed a dissenting opinion.

Opinion analysis: Divided court rejects lethal-injection challenge by inmate with rare medical condition (Amy Howe)
OT2018 #7: "Now Who's the Legal Realist?" (First Mondays)
Argument analysis: Relatively subdued court is divided in lethal-injection case (Amy Howe)
Argument preview: Justices to consider another lethal-injection challenge, this time by inmate with complicated medical history (Amy Howe)
OT2018 #0: "Looks A Lot Like Grift" (First Mondays)
Criminal cases in the October 2018 term: A law professor’s dream (Rory Little)
OT2017 #24: "Kudos To Whoever Did This" (First Mondays)
Justices add three new cases to next term’s docket (Amy Howe)
Justices block Missouri execution (Amy Howe)

Date	Proceedings and Orders (key to color coding)
Mar 15 2018	Petition for a writ of certiorari and motion for leave to proceed in forma pauperis filed. (Response due April 16, 2018)
Mar 15 2018	Application (17A911) for a stay of execution of sentence of death, submitted to Justice Gorsuch.
Mar 16 2018	Brief of respondents Anne Precythe, et al. in opposition filed.
Mar 19 2018	Reply of petitioner Russell Bucklew filed.
Mar 20 2018	Application (17A911) referred to the Court.
Mar 20 2018	Application (17A911) granted by the Court. The application for stay of execution of sentence of death presented to Justice Gorsuch and by him referred to the Court is granted pending the disposition of the petition for a writ of certiorari. Should the petition for a writ of certiorari be denied, this stay shall terminate automatically. In the event the petition for a writ of certiorari is granted, the stay shall terminate upon the sending down of the judgment of this Court. The Chief Justice, Justice Thomas, Justice Alito, and Justice Gorsuch would deny the application for stay of execution.
Mar 22 2018	DISTRIBUTED for Conference of 4/13/2018.
Apr 06 2018	Brief amici curiae of The American Civil Liberties Union, et al. filed. (Distributed)
Apr 16 2018	DISTRIBUTED for Conference of 4/20/2018.
Apr 23 2018	DISTRIBUTED for Conference of 4/27/2018.
Apr 30 2018	Motion to proceed in forma pauperis and petition for a writ of certiorari GRANTED. In addition to the questions presented in the petition, the parties are directed to brief and argue the following Question: Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ____ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.
May 08 2018	Motion for an extension of time filed.
May 16 2018	Motion to extend the time to file the joint appendix and petitioner's brief on the merits granted and the time is extended to and including July 16, 2018.
Jun 26 2018	Blanket Consent filed by Petitioner, Russell Bucklew
Jul 06 2018	Blanket Consent filed by Respondent, Anne Precythe, et al.
Jul 16 2018	Brief of petitioner Russell Bucklew filed.
Jul 16 2018	Joint appendix (2 volumes) filed. (Statement of costs filed)
Jul 16 2018	Petitioner's Unopposed Motion to File Joint Appendix -- Volume III Under Seal of Russell Bucklew not accepted for filing. (Amended motion submitted.) (August 15, 2018)
Jul 20 2018	Brief amici curiae of The American Civil Liberties Union, et al. filed.
Jul 23 2018	Brief amicus curiae of Pharmacy, Medicine, and Health Policy Experts filed.
Jul 23 2018	Brief amici curiae of Former Corrections Officials filed.
Jul 23 2018	Brief amicus curiae of Association for Accessible Medicines in support of neither party filed.
Jul 23 2018	Brief amici curiae of Scholars and Academics of Constitutional Law filed.
Jul 23 2018	Brief amicus curiae of Megan McCracken and Jennifer Moreno filed.
Jul 23 2018	Brief amicus curiae of Former Judges and Prosecutors filed.
Jul 23 2018	Brief amicus curiae of American Medical Association in support of neither party filed.
Aug 15 2018	Motion to file Volume III of the joint appendix under seal with redacted copy of transcript for public record filed by petitioner Russell Bucklew.
Aug 15 2018	Brief of respondent Anne Precythe, et al. filed.
Aug 20 2018	SET FOR ARGUMENT on Tuesday, November 6, 2018
Aug 22 2018	DISTRIBUTED for Conference of 9/24/2018.
Aug 22 2018	Brief amici curiae of States of Texas, Alabama, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Louisiana, Mississippi, Nebraska, South Carolina, Tennessee, Utah, Wyoming filed. (Distributed)
Aug 22 2018	Brief amici curiae of Arizona Voice for Crime Victims, Inc., and Melissa Sanders filed. (Distributed)
Sep 06 2018	Lodging proposal of petitioner filed. (Distributed)
Sep 10 2018	Record requested from the U.S.C.A. 8th Circuit.
Sep 10 2018	Opposition of respondent to lodging proposal of petitioner filed. (Distributed)
Sep 12 2018	CIRCULATED
Sep 14 2018	Reply of petitioner Russell Bucklew filed. (Distributed)
Sep 19 2018	Record received from the U.S.C.A. 8th Circuit. The record is complete. (1 Box).
Oct 01 2018	Motion to file Volume III of the joint appendix under seal with redacted copy of transcript for public record GRANTED.
Oct 19 2018	Motion to appoint counsel filed by petitioner Russell Bucklew.
Oct 31 2018	DISTRIBUTED for Conference of 11/16/2018.
Nov 06 2018	Argued. For petitioner: Robert Hochman, Chicago, Ill. For respondents: D. John Sauer, State Solicitor, Jefferson City, Mo.
Nov 19 2018	Motion to appoint counsel filed by petitioner GRANTED, and Cheryl A. Pilate, Esquire, of Kansas City, Missouri, is appointed to serve as counsel for the petitioner in this case.
Apr 01 2019	Adjudged to be AFFIRMED. Gorsuch, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Alito, and Kavanaugh, JJ., joined. Thomas, J., and Kavanaugh, J., filed concurring opinions. Breyer, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined as to all but Part III. Sotomayor, J., filed a dissenting opinion.
May 03 2019	JUDGMENT ISSUED.

Featured Posts

Opinion analysis: Justices narrow bankrupts’ power to rescind contracts in bankruptcy – Ronald Mann

Opinion analysis: Clarity on “clear evidence” of drug pre-emption? – Elizabeth McCuskey

Opinion analysis: Court rejects issue preclusion in affirming Crow Tribe’s treaty hunting right – Gregory Ablavsky
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The Supreme Court released orders from the May 16 conference on Monday; the justices granted Ritzen Group Inc. v. Jackson Masonry, LLC.
On Monday, the justices released their opinions in Mission Product Holdings Inc. v. Tempnology, LLC, Herrera v. Wyoming and Merck Sharp & Dohme Corp. v. Albrecht.
On Thursday, the justices meet for their May 23 conference.
Major Cases
- Department of Commerce v. New York
  (1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.
- Lamone v. Benisek
  In case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.
- Kisor v. Wilkie
  Whether the Supreme Court should overrule Auer v. Robbins and Bowles v. Seminole Rock & Sand Co., which direct courts to defer to an agency’s reasonable interpretation of its own ambiguous regulation.
- Rucho v. Common Cause
  (1) Whether plaintiffs have standing to press their partisan gerrymandering claims; (2) whether plaintiffs’ partisan gerrymandering claims are justiciable; and (3) whether North Carolina’s 2016 congressional map is, in fact, an unconstitutional partisan gerrymander.
- The American Legion v. American Humanist Association
  (1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.
- Gamble v. United States
  Whether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.
see all this term’s cases »
Recent Decisions
- Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.
- Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.
- Mission Product Holdings Inc. v. Tempnology, LLC A bankruptcy debtor’s rejection of an executory contract under 11 U.S.C. §365 has the same effect as a breach of that contract outside bankruptcy; such an act thus cannot rescind rights that the contract previously granted.
see all this term’s cases »
Current Relists
- al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.
- Box v. Planned Parenthood of Indiana and Kentucky Inc. Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
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Summary reversals 4

Merits cases granted to date 73

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.

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Cases argued	70
Cases decided	32
Summary reversals	4
Merits cases granted to date	73

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