Attorney & Court Information
On June 19 at 1 p.m., the Washington Legal Foundation will host a media briefing entitled, “The U.S. Supreme Court: How Free Enterprise Fared in October Term 2018.” Speakers will include Allyson Ho, Carter Phillips and Nicole Saharsky; Lawrence Ebner will serve as moderator. More information about this event, which will be available online, can be found on the foundation’s website.
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John Elwood reviews Monday’s relists.
I’ve got to be extremely summary this week because of the press of urgent work. First, we’ll dispatch the old business: Last week’s relists yielded five new grants (with the justices picking Comcast Corporation v. National Association of African American-Owned Media, 18-1171, over its companion Charter Communications Inc. v. National Association of African American-Owned Media, 18-1185, to resolve an issue about the showing of causation required for a claim of discrimination in cable-carriage decisions). And we got a statement respecting denial from Justice Stephen Breyer in four-time relist al-Alwi v. Trump, 18-740, concerning the indefinite detention of enemy combatants at Guantanamo.
That brings us to this week’s new business. There are no cases that have been relisted for the first time this week. But there’s a trio of closely watched cases that have been relisted for a second time … sort of. The federal government has three pending petitions involving the Trump administration’s decision to end the Deferred Action for Childhood Arrivals policy: Department of Homeland Security v. Regents of the University of California, 18-587, Trump v. NAACP, 18-588, and McAleenan v. Vidal, 18-589. The court relisted all three after the January 11 conference, and there they sat for five months. Court-watchers have speculated about what was going on; to me, it looked like the court was holding the cases for something on its merits docket, perhaps the census case, perhaps Azar v. Allina Health Services – both administrative law cases addressing steps the government must take to justify certain actions. Neither is clearly related to DACA, but the court has a pretty low threshold for holding a case if it might be affected. Because these cases have been set for conference after a long period of stasis, I would normally classify them as “released holds” rather than relists.
Recently, the court rejected the government’s request to expedite consideration of a fourth DACA petition, in which the government argued that there was an “urgent need for the[] prompt consideration” of the DACA petitions “before the Court’s summer recess.” By releasing the apparent hold on the first three DACA petitions and setting them for consideration this Thursday, the court has set the stage for the government to get what it sought in its motion – a decision before the summer recess on whether the court will hear the DACA cases, and, if cert is granted, briefing over the summer in preparation for a fall argument.
That’s all for this week. Thanks again to Ben Moss for compiling the relists.
New Relists
Returning Relists
Roman Catholic Archdiocese of San Juan, Puerto Rico v. Feliciano, 18-921
Issue: Whether the First Amendment empowers courts to override the chosen legal structure of a religious organization and declare all of its constituent parts a single legal entity subject to joint and several liability.
(relisted after the March 22, March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)
Department of Homeland Security v. Regents of the University of California, 18-587
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11 and January 18 conferences)
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11 and January 18 conferences)
Issues: (1) Whether the Department of Homeland Security’s decision to wind down the Deferred Action for Childhood Arrivals policy is judicially reviewable; and (2) whether DHS’ decision to wind down the DACA policy is lawful.
(relisted after the January 11 and January 18 conferences)
Klein v. Oregon Bureau of Labor and Industries, 18-547
Issues: (1) Whether Oregon violated the free speech and free exercise clauses of the First Amendment by compelling the Kleins to design and create a custom wedding cake to celebrate a same-sex wedding ritual in violation of their sincerely held religious beliefs; (2) whether the Supreme Court should overrule Employment Division, Department of Human Resources of Oregon v. Smith; and (3) whether the Supreme Court should reaffirm Smith’s hybrid-rights doctrine, applying strict scrutiny to free exercise claims that implicate other fundamental rights, and resolve the circuit split over the doctrine’s precedential status.
(relisted after the March 29, April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)
Issues: (1) Whether the U.S. Court of Appeals for the 4th Circuit erred when it found no constitutional error when the state failed to disclose Brady evidence, a letter from a jailhouse snitch, until the post-trial hearing for a motion for a new trial; (2) whether the state and federal courts’ decisions were contrary to Giglio v. United States, United States v. Bagley, Brady v. Maryland and Napue v. Illinois when the state failed to disclose material impeachment evidence, a letter from a jailhouse snitch who testified that petitioner confessed to him; and (3) whether the state and federal courts erred in finding that trial counsel rendered effective assistance of counsel when he failed to interview Michael Jones and call him as a witness.
(relisted after the April 12, April 18, April 26, May 9, May 16, May 23, May 30 and June 6 conferences)
Box v. Planned Parenthood of Indiana and Kentucky, 18-1019
Issue: Whether a state, consistent with the 14th Amendment, may require an ultrasound as part of informed consent at least 18 hours before an abortion.
(relisted after the May 9 and May 16 conferences; now held)
Jordan v. City of Darien, Georgia, 17-1455
Issue: Whether the existence of probable cause defeats a First Amendment retaliatory arrest claim as a matter of law.
(relisted after the May 30 and June 6 conferences)
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In a broad, unanimous and unsurprising decision, the Supreme Court yesterday held that the Outer Continental Shelf Lands Act only incorporates state law when federal law’s silence on a particular issue creates a “gap” for state law to fill. The decision is a defeat for Brian Newton, a former employee of Parker Drilling Service, Ltd., who sought compensation under California’s more labor-friendly wage-and-hours law for hours that he spent on standby but not working on oil-drilling platforms miles off the coast of California.
Justice Thomas with opinion in Parker Drilling v. Newton (Art Lien)
The case turned on what Justice Clarence Thomas’ opinion for the court candidly called “a close question of statutory interpretation.” Under the OCSLA, structures attached to the continental shelf more than three nautical miles from the coast are deemed to be under exclusive federal control and are governed solely by federal law. However, because federal law does not contain a full code of behavior to regulate human interaction, 43 U.S.C. § 1333(a)(2)(A) provides that “the civil and criminal laws” of the adjacent states are incorporated into the prevailing federal law “[t]o the extent that they are applicable and not inconsistent with” other provisions of federal law. The U.S. Court of Appeals for the 5th Circuit — which is responsible for over 90 percent of the cases arising under the OCSLA — has generally interpreted that statutory provision to spring to life only when a “gap” exists in federal law that requires a rule of decision. The Supreme Court’s few prior opinions interpreting the OCSLA have hinted at the same construction, applying state law because such a gap existed, albeit without ever saying that a gap was required. In this case, the district court followed the 5th Circuit’s approach, but the U.S. Court of Appeals for the 9th Circuit reversed, holding that the plain language of the statute required an approach receptive to the application of state-law rules on the outer shelf, as long as such rules are relevant to the subject matter of the litigation and do not violate ordinary pre-emption principles.
Though the justices found many factual and legal points difficult during oral argument, as I wrote for this blog, the Supreme Court ultimately found it unnecessary to engage those peripheral issues in order to resolve this case. After acknowledging that the question of statutory interpretation is “close,” Thomas’ opinion immediately explained that the court found the 5th Circuit’s approach advocated by Parker Drilling “more persuasive” in the context of the full statutory scheme. That argument had two parts. First, the court somewhat perfunctorily cited to a series of contemporaneous dictionaries suggesting that the word “inconsistent” had multiple meanings when the OCSLA was adopted and that those meanings pointed in different directions in this case. Second, the court with a bit more gusto concluded that the OCSLA’s focus on establishing exclusive federal control over and supervision of the outer continental shelf and its insistence that state law only applies to the shelf as “surrogate federal law” show that Congress wanted state law to play a much more limited role on the outer shelf than it does in the contiguous states. Because traditional pre-emption law balances the interests of two geographic sovereigns, it implicates federalism concerns that are absent when — as here — there is only one governing authority.
Perhaps in order to establish unanimity, the opinion went on to list a variety of other factors and reasons that also support the Supreme Court’s narrow interpretation. First, the broader reading of the statute advocated by Newton and the 9th Circuit, under which state law would apply unless pre-empted by federal law, would render the bulk of the statutory language superfluous. Second, the role given to state law under the court’s interpretation is broadly consistent with the limited role state law plays in other federal enclaves (such as national parks and military bases). Finally, the court’s reading is consistent with settled expectations as established by its earlier dicta and, to a lesser extent, the 5th Circuit’s holdings.
After providing its authoritative construction of the relevant statutory provision, the Supreme Court briefly applied its rule to the facts of this case, vacating the 9th Circuit’s judgment and ruling against Newton on his core claims but remanding for resolution of some peripheral claims that were not briefed before the court. In rejecting Newton’s central claims (involving whether he should be paid for his time on standby and whether the California minimum wage is applicable on the outer continental shelf), the court concluded that they are addressed and defeated by the federal Fair Labor Standards Act and that there is, therefore, no relevant gap for state law to fill.
In practice, this decision changes little, as almost all of the cases involving the OCSLA arise in the 5th Circuit, which has always applied a rule similar to the one the Supreme Court adopted. However, it does close off one avenue that coastal states might potentially have relied upon to gain greater control over offshore oil drilling, a potential flashpoint in future debates over energy and environmental policy. And on a doctrinal level it has the potential to become a convenient citation for the proposition that textualism is not literalism but instead requires careful contextual analysis.
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We’re well into June now, and the court enters the morning with 27 outstanding merits cases. It’s beginning to look like a busy final few weeks of the term.
An item in a recent edition of the court’s internal newsletter, Oyez! Oyez!, got me thinking about one of the mind games I played during slower moments of oral arguments this term. The item said “POSTED: applications are being accepted for a cabinetmaker/woodworker in the marshal’s office.”
Justice Sotomayor, “. . . takes awhile, right?” (Art Lien)
It’s a reminder that the court has its own woodshop, as it were, presumably to serve the never-ending need for custom furniture of various forms. The notice also makes one wonder whether relevant employees in the building — from the woodworkers to the administrative officers to the justices themselves — have paid any attention to the debate swirling about “court packing,” or expanding the size of the court.
With proposals floated by various advocacy groups and presidential candidates to add as few as two and as many as six justices to the court, there would be some significant practical considerations if any of those proposals became law, however unlikely that is.
Even the addition of two new justices would likely set the court’s woodworkers to work expanding the existing bench on each end. That would push the workspaces of Marshal Pamela Talkin and her assistant, on the right side (looking at the bench), and Clerk Scott Harris and his assistant, on the left, farther to the extreme edges of the available space in the courtroom.
If some of the more radical proposals were enacted, then we would be talking about some serious work in the woodshop. Expanding the court to 15 members would probably require a whole new bench. One possibility is a new, longer version of the current curved bench. Another would involve two rows of benches in the style of some congressional committee rooms. Since there is plenty of room looking up toward the ceiling of the courtroom, perhaps planners should consider a variation of the old “Hollywood Squares” set, with five justices per row stacked in three rows.
The courtroom considerations say nothing of where to put additional chambers. Mark Joseph Stern of Slate floated the idea of a WeWork court, with the most junior justices using offsite workspace until they gain enough seniority to move to traditional chambers.
At 10 a.m., eight of the nine justices serving in the current court — the size authorized by an 1869 act of Congress — take the bench. Justice Stephen Breyer is away on travel, though his voice has been heard in today’s order’s list, with a statement respecting the denial of certiorari in al-Alwi v. Trump, a challenge to the long-term detention of a citizen of Yemen at the U.S. naval base at Guantanamo Bay, Cuba.
Chief Justice John Roberts announces that Justice Brett Kavanaugh has the opinion for the court in Quarles v. United States, which concerns whether for purposes of a violent felony requiring a longer sentence under the Armed Career Criminal Act, a defendant can form the requisite intent to commit burglary any time after entering a building or structure unlawfully.
Kavanaugh explains that this case revolves around “remaining-in burglary,” such as when a person enters a store lawfully but stays after closing and then intentionally steals something.
Justice Kavanaugh with opinion in Quarles v. U.S. (Art Lien)
He explains that the court is rejecting the claims of the petitioner, a Michigan man named Jamar Alonzo Quarles, that remaining-in burglary occurs only when the defendant has the intent to commit a crime at the exact moment he or she first unlawfully remains in a building.
The court sides with the government’s view that remaining-in burglary occurs when the defendant forms the intent to commit a crime at any time while unlawfully present.
“Burglary is dangerous because it creates the possibility of a violent confrontation between the offender and an occupant,” Kavanaugh says from the bench as he delivers a crisp summary of his opinion. For remaining-in burglary, “the possibility of a violent confrontation does not depend on the exact moment when the burglar forms the intent to commit a crime while unlawfully present in a building.”
The opinion is unanimous, with Justice Clarence Thomas filing a concurring opinion.
This case was argued in the unusually busy argument sitting of April. It was one of two, in fact, argued on April 24, the last day for arguments. The other case from that day, Taggart v. Lorenzen, was already decided as well, in a June 2 opinion by Breyer.
Next up is Justice Sonia Sotomayor with the opinion in Return Mail Inc. v. United States Postal Service, stemming from the postal service’s efforts to invalidate a patent for a machine that scans and processes barcodes containing address information, which speeds up the handling of undeliverable mail.
Justice Sotomayor with opinion in Return Mail Inc. v. USPS (Art Lien)
The Feb. 19 argument in this case marked the return of Justice Ruth Bader Ginsburg to the bench after her treatment for lung cancer and a recuperation that required her to be absent for the January argument sitting.
The case presents the question of whether the federal government is a “person” who may petition to institute review proceedings in the U.S. Patent and Trademark Office under a 2011 federal statute, the Leahy-Smith America Invents Act.
Sotomayor summarizes the case, including the three arguments offered on behalf of the postal service that would displace the presumption that a statutory reference to a “person” does not include the government.
“None delivers,” she says of those arguments. It takes a moment for her postal wordplay, which is also in her written opinion, to reach the mental inbox of those in the crowded courtroom, but people begin to chuckle when it does.
“Takes a while, right?” Sotomayor says of the delayed reaction, and she gets a heartier laugh with that.
The ruling below for the government is marked “Return to Sender,” or reversed and remanded. Sotomayor, it turns out, is part of an unusual lineup, joining with the court’s more conservative members in this outcome, while Breyer has written the dissent, joined by Ginsburg and Justice Elena Kagan.
Although the postal service has been declared a non-person, today’s decision cannot detract from the federal agency’s heartwarming role in the landmark case of State of New York v. Kris Kringle (unpublished bench opinion, December 24, 1947), in which the state trial judge took judicial notice of the federal Post Office Department’s (arguably ad hoc) declaration that Mr. Kringle was the one and only Santa Claus. (See “Miracle on 34th Street,” but only the 1947 original in black and white, not the colorized version of that film or the 1994 remake.)
Thomas has the final opinion of the day, in Parker Drilling Management Services Ltd. v. Newton, involving an attempt by a worker on an oil rig off the California coast to be compensated for time on “standby,” a period as long as 12 hours per day when he cannot leave the rig.
Justice Thomas with opinion in Parker Drilling v. Newton (Art Lien)
Writing for the court, Thomas says that the U.S. Court of Appeals for the 9th Circuit was wrong to hold that California’s wage-and-hour laws, which the worker contends would require that he be paid for standby time, apply. When federal law addresses the relevant issue, state law is not adopted as surrogate federal law on the Outer Continental Shelf, Thomas says.
This spells an end to the worker’s California minimum-wage claims, though Thomas explains that the worker’s other claims were not analyzed by the 9th Circuit, so its decision is vacated and remanded. The opinion is unanimous, and it marks the completion of another case from the April argument sitting.
As the session comes to a close, Talkin announces that we will have to wait until next Monday for delivery of some of the term’s 24 remaining packages.
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In a unanimous 10-page opinion this morning, Justice Brett Kavanaugh answered for the Supreme Court what he described as “an exceedingly narrow question” and affirmed a prosecution-friendly definition of “burglary” as used in the Armed Career Criminal Act (18 U.S.C. §924(e)). In a brief concurrence, Justice Clarence Thomas repeated his long-standing view that the court “should consider whether its [“categorical”] approach is actually required … for ACCA’s enumerated offenses.” But the court was plainly not interested in using this case to examine that or any other more complicated questions of statutory construction. “Under this Court’s precedents,” the categorical ACCA definition of burglary in Section 924(e) includes, if state law permits it, any unlawful “remaining in” presence in a building or structure “when the defendant forms the intent to commit a crime at any time” (emphasized twice in the opinion).
Justice Kavanaugh with opinion in Quarles v. U.S. (Art Lien)
Background and Quarles’ “esoteric” argument
As previewed, Jamar Quarles was previously convicted under a Michigan “burglary” statute that encompasses not just common-law offenders (those who, in Blackstone’s conception repeated today, “break and enter a dwelling at night with the intent to commit a felony”), but also anyone who “enters a dwelling without permission and, at any time while he or she is … present in … the dwelling, commits a misdemeanor.” A majority of states have similarly broadened the common-law definition of burglary to include such “remaining in” offenses. Meanwhile, the ACCA requires enhanced imprisonment terms for federal “felon-in-possession” offenders who have three prior convictions for various felonies including “burglary.” The question presented in this case was whether a “remaining in” burglary conviction fits within the “categorical” definition of burglary that the Supreme Court adopted in Taylor v. United States back in 1990.
To account for the many variations in state criminal law statutes, Taylor adopted a “generic” definition of burglary for federal purposes: “unlawful or unprivileged entry in, or remaining in, a building or structure, with intent to commit a crime.” The Supreme Court explained then that “so long as the state law in question ‘substantially corresponds’ to (or is narrower than) generic burglary, the conviction qualifies.” Moreover, said Taylor, a “categorical” approach, which examines all possible applications of the state criminal statute, rather than the actual facts of any particular prior conviction, must be used.
Because Taylor embraced a “remaining in” burglary definition, Quarles’ prior Michigan “remaining in” conviction might seem to qualify easily as a burglary under ACCA. Indeed, the U.S. Court of Appeals for the 6th Circuit had found that it did. But Quarles presented a more intricate (or as Kavanaugh described it, “esoteric”) distinction: Must the intent to commit a crime while unlawfully remaining in a structure exist “at the exact moment when he or she first unlawfully remains” or, as the Michigan statute says “at any time”? Quarles argued that the prior, narrower definition should apply for Taylor purposes, because (a) the common-law definition of burglary had used an exact “time of entry” intent requirement, and (b) in 1986, when Congress enacted Section §924(e), only five states had clearly adopted a broader “at any time” definition. The Taylor court said that it intended to adopt a burglary definition that “most states” used at that time, and five states is far from a majority. So Quarles argued that the subsequent adoption of a broader “at any time” intent requirement should be held to go beyond Taylor’s generic definition.
Today’s opinion: “remaining in” means “at any time” during the remaining
Today’s unanimous court made quick work of rejecting Quarles’ position. First, wrote Kavanaugh, “[i]n ordinary usage, ‘remaining in’ refers to a continuous activity” — the Supreme Court “has followed that ordinary meaning in analogous legal contexts.” Moreover, a majority of state burglary statutes in 1986 did encompass the “remaining in” concept, and “all [five] of the state appellate courts that had definitively addressed th[e timing] issue as of 1986 had” adopted the “at any time” position. Finally, excluding such burglaries from ACCA “would make little sense” and would “defeat Congress’ stated objective” of requiring enhanced imprisonment terms for repeat “armed career criminals.” “The possibility of a violent confrontation does not depend on the exact moment” that criminal intent is formed, and “we should not lightly conclude that Congress enacted a self-defeating statute.” It was “not likely” that, when directing that repeat burglars be imprisoned, Congress intended to include only some “remaining in” burglars while excluding others.
An aside: as we first-year criminal law professors routinely note, the common-law definition of burglary turned precisely on such an “esoteric” distinction: At common-law, felonious intent had to be present at the moment of entry or the breaking and entering was not “burglary.” The Supreme Court’s only reference to this point was oblique: Kavanaugh noted that “by the time Congress passed” ACCA, “burglary statutes had long since departed from the common-law formulation.” (Kavanaugh’s 10-page opinion also noted, at the end, that the court was not addressing other arguments that Quarles presented but “did not preserve.”)
“To sum up,” the opinion concludes, the “same sources” examined in Taylor lead to the conclusion today that criminal intent that arises “at any time” while unlawfully remaining in a structure falls within the range of ACCA’s enhanced sentencing requirement.
Conclusion
Quarles is the third ACCA opinion issued by the Supreme Court this term (U.S. v. Stitt and Stokeling v. U.S. are the other two.). All three have rejected the defendant’s arguments. And most of the justices appear to be no longer interested in revisiting the “categorical” approach, even as Thomas repeats his criticism that cases like Quarles “demonstrate[] [its] absurdity.” (Certainly Thomas is correct that Quarles’ “esoteric” intent argument is “starkly different from the reality” of the violent and unsavory individual facts of Quarles’ present and prior convictions – facts which, relevant or not, Kavanaugh’s brief opinion took time to describe.)
As I have previously noted, Justice Elena Kagan has referred, at prior ACCA arguments this term, to proposed federal legislation that would revise ACCA. But with the government winning all three ACCA cases this term, prospects for a majority of both houses of Congress perceiving a pressing need for legislative action seem dim. Today’s unremarkable and unanimous opinion suggests that the justices similarly have lost interest. Lower federal courts will undoubtedly continue to struggle with many “esoteric” details of Taylor’s categorical approach to ACCA. But for now, the Supreme Court seems content to leave that struggle below, while sending lower courts a general message that “ordinary meaning” and “common sense” should control.
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In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court and Tom Goldstein take a look at what’s ahead at the Supreme Court for the final weeks of June. The justices have 24 argued cases still to decide, including a number of the more high-profile cases from this year’s docket: Gundy v. United States, The American Legion v. American Humanist Association, Department of Commerce v. New York, and partisan-gerrymandering cases Rucho v. Common Cause and Lamone v. Benisek.
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