Tensions over the death penalty resurfaced today at the Supreme Court. The justices declined to take up two petitions for review filed by death-row inmates in Alabama and Tennessee, in orders accompanied by opinions that were sometimes biting. The justices also took the unusual step of issuing new opinions relating to their decision in March to put the execution of a Texas inmate on hold.
In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court briefly covers the latest Supreme Court news before speaking with John Elwood about the essentials concerning petitions for certiorari. Elwood is a partner at Vinson & Elkins and the author of “Relist Watch.”
(In the episode, Elwood suggested there were eight previously rescheduled cases. He later clarified with us that there were five: Illinois Central Railroad Company v. Tennessee Department of Revenue, Hunter v. United States, JTEKT Corp. v. GKN Automotive, Williams v. United States and Shular v. United States.)
This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their merits docket for next term, nor did they act on petitions for review asking them to weigh in on an Indiana abortion law or an Oregon couple’s refusal to make a custom cake for a same-sex wedding.
The justices denied review in Dahne v. Richey, in which they had been asked to decide whether prisoners have a First Amendment right to include threatening, abusive and irrelevant language in their grievances. The case arose in 2011 when Thomas Richey, who is serving a 65-year sentence for murder, filed a grievance in a Washington state prison. Richey complained that “an extremely obese Hispanic female guard” had refused to give him access to the prison yard, a shower and a change of clothes. Richey added that, when “guards like this fat Hispanic female guard abuse their position as much as they abuse their caloric intake, it can make prisoners less civilized than myself to resort to violent behavior in retaliation.”
The Supreme Court on Monday expanded the time available under some circumstances to private parties, or relators, who bring whistleblower suits called “qui tam” actions under the False Claims Act, the Civil War-era statute meant to battle fraud in federal contracting.
In Cochise Consultancy Inc. v. United States, ex rel. Hunt, the justices unanimously affirmed the federal appeals court’s holding that a second statute of limitations added to the FCA by Congress in 1986 applies to a relator-initiated suit in which the United States declines to intervene.
This morning a divided Supreme Court handed a major victory to the plaintiffs in a massive antitrust lawsuit against technology giant Apple. By a vote of 5-4, the justices allowed the lawsuit, brought by a group of iPhone users who allege that Apple is violating federal laws by requiring them to buy apps exclusively from Apple’s App Store, to go forward. In an opinion by its newest justice, Brett Kavanaugh, the court rejected Apple’s argument that the lawsuit should be shut down because the company was selling the apps at prices set by the app developers, so that the iPhone users’ claims were prohibited under the Supreme Court’s antitrust cases.
Justice Kavanaugh with opinion in Apple Inc. v. Pepper (Art Lien)
We live-blogged as the Supreme Court released orders from the May 9 conference and opinions in Apple Inc. v. Pepper, Franchise Tax Board of California v. Hyatt and Cochise Consultancy v. United States, ex rel. Hunt. The transcript is available below and at this link. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.
Amy Howe reports for this blog, in a post first published at Howe on the Court, that on Friday, “Republican legislators from Ohio and Michigan … asked the Supreme Court to put lower-court rulings that found partisan gerrymandering in those states on hold while they appeal”; the legislators argue that the Supreme Court may decide this term in partisan-gerrymandering cases from North Carolina and Maryland “that partisan gerrymandering claims do not belong in court at all.” At Modern Democracy, Michael Parsons observes that “[i]f the remedial process is dragged out long enough, the [Ohio and Michigan] plaintiffs might miss their chance at relief before the 2020 election even if the Supreme Court affirms in the North Carolina and/or Maryland cases,” and he offers “a few strategic case-management suggestions for district courts looking to provide timelier relief.”
The Supreme Court released orders from the May 9 conference on Monday; the justices did not add any new cases to their merits docket for next term.
On Monday, the justices released their opinions in Apple Inc. v. Pepper, Franchise Tax Board of California v. Hyatt and Cochise Consultancy v. United States, ex rel. Hunt.
On Thursday, the justices met for their May 16 conference; John Elwood’s Relist Watch compiles the petitions that were relisted for this conference.
UPDATE: On Monday, May 13, Justice Sonia Sotomayor called for responses in these applications, due Monday, May 20, at 3:00 p.m.
At the end of March, the Supreme Court heard oral argument in two cases challenging federal congressional districts in North Carolina and Maryland as the product of unconstitutional partisan gerrymandering. A key question in both cases was whether courts should review partisan-gerrymandering claims at all, or instead leave the issue to politicians and the political process. Citing the uncertainty surrounding that issue, Republican legislators from Ohio and Michigan today asked the Supreme Court to put lower-court rulings that found partisan gerrymandering in those states on hold while they appeal.
The first two requests came from Republican legislators in Ohio, which enacted a new federal congressional map in 2011 after the state lost two seats in Congress. On May 3, a three-judge federal court struck down the plan, holding that it was the product of unconstitutional partisan gerrymandering by the state’s Republicans, and ordered the state’s general assembly to come up with a new plan by June 14.
In emergency applications filed today, the legislators asked the justices to block the lower court’s ruling while they appeal to the Supreme Court. (Cases involving redistricting are among the narrow set of federal cases with an automatic right of appeal from the three-judge district court to the Supreme Court.)
At Bloomberg, Greg Stohr reports that the “Supreme Court term … so far is defined less by the issues the justices have decided than by those they’ve deferred,” noting that the court has “put off taking action in cases involving abortion, same-sex wedding cakes and transgender bathroom access,” as well as “President Donald Trump’s bid to end deportation protection for hundreds of thousands of young immigrants.” At The Hill, Jacqueline Thomsen reports that the court’s protracted consideration of the cert petitions in the abortion and wedding-cake cases has “fuel[ed] speculation about the justices’ closed-door deliberations.”
Briefly:
- Patrick Gregory reports at Bloomberg Law that a “Christian school is urging the U.S. Supreme Court to stop alleged zoning discrimination, and a dissent from a Trump shortlister for the high court might help.”
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