Attorney & Court Information
We live-blogged as the Supreme Court released its opinion in Lamps Plus Inc. v. Varela. The transcript of the live blog is available below and at this link. SCOTUSblog is sponsored by Casetext: A more intelligent way to search the law.
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Today the Supreme Court refused to block the execution of John William King, who was scheduled to die by lethal injection tonight for the 1998 murder of James Byrd, Jr. Byrd, who was African-American, was the victim of a gruesome crime that spurred tougher hate-crime laws.
Byrd’s death drew nationwide headlines after he was chained to the back of a pickup truck and dragged down a road in Jasper, Texas. As the U.S. Court of Appeals for the 5th Circuit explained, Byrd’s “torso, legs, and left arm were found on Huff Creek Road, in front of a church. The rest of Byrd was found a mile and a half up the road.”
John William King, who was a member of a white-supremacist gang during an earlier stint in prison, was one of three men convicted of Byrd’s murder. Ever since he was indicted, King has maintained that he was completely innocent. At King’s trial in 1999, King’s lawyers conceded that he was at the scene when Byrd was killed and was guilty of murder – but not capital murder, warranting the death penalty, because King hadn’t kidnapped Byrd.
When the case came to the Supreme Court yesterday, King was not arguing that he was innocent. Instead, he relied on the Supreme Court’s 2018 decision in McCoy v. Louisiana, holding that the defendant has a constitutional right to insist that his lawyer not admit his guilt, even when the lawyer believes that admitting guilt is the defendant’s best chance to avoid the death penalty.
King had asked the justices to weigh in specifically on whether McCoy applies to the circumstances of his case – when his lawyer had admitted that King was guilty of a lesser offense – and whether it applies retroactively. But the justices declined to do so. In a brief order issued shortly before 7:30 p.m. EDT tonight, the justices denied both King’s request to put his execution on hold and his petition for review. There were no recorded dissents from the ruling.
The Supreme Court’s order cleared the way for Texas to execute King. King’s execution had been scheduled for 6 p.m. CDT but had been delayed until the Supreme Court acted. Once the stay was denied, the execution went forward, and King was pronounced dead shortly after 7 p.m. CDT.
This post was first published at Howe on the Court.
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On April 25 at 9 a.m. EST in Washington, D.C., the National Press Club will host the sixth annual “Home Stretch at the Supreme Court” panel discussion. Panelists include Kristen Clarke, William Jay, Allison Riggs and Brianne Gorod; Ari Melber will moderate and Elizabeth Wydra will deliver opening remarks. More information, including RSVP instructions, is available here.
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John Elwood reviews Monday’s relists.
A lot of movement on the relist front this week. Most noteworthy of all, the Supreme Court granted the long–simmering trio of cases involving whether Title VII of the Civil Rights Act of 1964 applies to discrimination on the basis of sexual orientation or discrimination on the basis of gender identity. At 10 relists each, the cases were well past the usual “sell by date” at which it’s more likely that the cases will be the subject of a summary reversal or a dissent from denial of cert than a grant of plenary review. The court also granted cert in a case that will settle once and for all the question of what is the dullest case the Supreme Court has ever taken: CITGO Asphalt Refining Co. v. Frescati Shipping Co., Ltd., 18-565, the one-time relist that asks whether under federal maritime law a safe-berth clause in a voyage charter contract is a guarantee of a ship’s safety or just imposes a duty of due diligence. [Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in this casezzzzzzzzzzzzzzzzzz.] Last was Barton v. Barr, 18-725, which asks whether a lawfully admitted permanent resident who is not seeking admission to the United States can be “render[ed] … inadmissible” for the purposes of the stop-time rule, 8 U.S.C. § 1229b(d)(1), which affects an alien’s eligibility for relief from deportation.
It’ll be a challenge to summarize this week’s relists in just a couple sentences. That’s because I can’t think of anything to say beyond, “There aren’t any.” Really. We’ve double checked. So instead, let me say a little bit about one case the court has repeatedly rescheduled and that has garnered some attention: Doe v. Boyertown Area School District, 18-658.
Boyertown Area School District, northwest of Philadelphia, allows some transgender students to use high school locker rooms and restrooms that match their gender identity. Some cisgender students brought suit, arguing that Boyertown’s practice forces students using those facilities to be seen by the opposite sex when they are partially or fully undressed, or to forgo using the facilities altogether. (There are, however, single-person facilities available.) Although the U.S. Court of Appeals for the 3rd Circuit held that students have a constitutional right not to be seen undressed by persons of the opposite sex, it upheld the policy as narrowly tailored to further a compelling state interest. The challengers now seek Supreme Court review, asking whether, given students’ constitutionally protected privacy interest in their partially clothed bodies, a public school has a compelling interest in authorizing transgender students to use locker rooms and restrooms aligned with their gender identity. The petition also asks whether Boyertown’s practice constructively denies access to locker room and restroom facilities under Title IX of the Education Amendments Act of 1972 “on the basis of sex.” And here again is an explanation of the difference between rescheduled and relisted cases.
Thanks to Ben Moss for laboring to determine that there are no new relists. Now if you’ll excuse me, I have to go pat myself on the back for being a 52-year-old person who used “cisgender” in a sentence. Hopefully correctly.
Returning Relists
Box v. Planned Parenthood of Indiana and Kentucky, Inc., 18-8
Issues: (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.
(relisted after the January 4, January 11, January 18, February 15, February 22, March 1, March 15, March 22, March 29, April 12 and April 18 conferences)
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 March 22, March 29, April 12 and April 18 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 conference; now held)
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 conference; now held)
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 conference; now held)
Daniel v. United States, 18-460
Issues: (1) Whether the Feres doctrine bars service members, or their estates, from bringing claims for medical malpractice under the Federal Tort Claims Act when the medical treatment did not involve any military exigencies, decisions or considerations, and when the service member was not engaged in military duty or a military mission at the time of the injury or death; and (2) whether Feres should be overruled for medical malpractice claims brought under the Federal Tort claims Act when the medical treatment did not involve any military exigencies, decisions or considerations, and when the service member was not engaged in military duty or a military mission at the time of the injury or death.
(relisted after the March 29, April 12 and April 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 and April 18 conferences)
City of Newport Beach, California v. Vos, 18-672
Issues: (1) Whether Title II of the Americans with Disabilities Act requires law enforcement officers to provide accommodations to an armed, violent and mentally ill suspect in the course of bringing the suspect into custody; (2) whether, under the Fourth Amendment “totality of the circumstances” analysis for assessing the reasonableness of force used against a suspect who attacks law enforcement officers, a court must take into account allegedly unreasonable police conduct that took place before the use of force, but foreseeably created the need to use that force; and (3) whether, under the Fourth Amendment’s analysis for use of force, a law enforcement officer’s interest in using deadly force against a suspect threatening an officer’s life is diminished if the assailant is mentally ill.
(relisted after the April 12 and April 18 conferences)
Issue: Whether prison inmates have a First Amendment right to include threatening, abusive and irrelevant language in grievances.
(relisted after the April 12 and April 18 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 and April 18 conferences)
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The transcript of oral argument in Quarles v. United States is available on the Supreme Court’s website; the transcript in Taggart v. Lorenzen is also available.
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Tuesday afternoon’s oral argument in Rehaif v. United States was not, as a formal matter, about the well-known “felon-in-possession” provision of 18 U.S.C. §§ 922(g) and 924(a)(2). It was supposed to be about a much less commonly charged provision, which makes it a federal crime to possess a firearm while in the United States illegally. On Tuesday, however, the justices seemed to operate on the premise that, if they rule that the government must prove an unauthorized immigrant with a firearm knew he was in the country illegally, that ruling will necessarily also require the government to prove that an ex-con with a firearm knew he was an ex-con.
A reversal of Hamid Rehaif’s conviction, then, would appear to have significant practical consequences. At argument, as expected, Justice Neil Gorsuch signaled his adherence to the view he held while on the U.S. Court of Appeals for the 10th Circuit — that the government is required to prove the defendant’s knowledge of his culpable status, whether as an unauthorized immigrant or an ex-con. Justice Brett Kavanaugh signaled that he too holds that view. Only Justice Samuel Alito showed clear agreement with the government’s position that such status elements should be treated the same as jurisdictional elements, which require no mens rea, or criminal intent.
Petitioner Hamid Mohamed Ahmed Ali Rehaif entered the United States on an F-1 student visa to study at the Florida Institute of Technology in August 2013. Under immigration law, he retained his student-visa status only so long as he remained enrolled as a full-time student. Eventually, he failed most of his classes, and the school academically dismissed him. Instead of leaving the country, however, he took up residence in a Florida hotel. One day he went to a nearby shooting range, renting a Glock to shoot for an hour and buying ammunition.
Rehaif was eventually convicted on two counts of possessing a firearm while being in the United States illegally, in violation of Sections 922(g)(5)(A) and 924(a)(2). The district court had refused to instruct the jury that the government was required to prove that Rehaif knew he was in the country illegally. The U.S. Court of Appeals for the 11th Circuit affirmed.
Assistant to the Solicitor General Allon Kedem faced withering fire from Gorsuch. “[H]ere we’re talking about the only thing that separates not just innocent conduct but constitutionally protected conduct … knowledge of the status, that I am a felon. As you well know, I had a case where the fellow was told by the judge that he was not a felon when he was convicted. And yet he was put in jail for 10 years afterwards because the government didn’t have to prove that he knew his status.” (Gorsuch was referring to United States v. Games-Perez, a 10th Circuit case from 2012.)
Later, Gorsuch pressed Kedem on Kedem’s claim that practical consequences weighed against requiring the government to prove the defendant’s knowledge of his status, given that such proof will be easy in the vast majority of cases. “There is a small but significant number of cases where, gee, it’s really going to be a colorable question and, therefore, a burden on the government,” said Gorsuch.
“So our argument is not that it’s a burden on the government,” replied Kedem. “Sometimes it will be, but usually it won’t. And, in any event, we’re not asking for your sympathy. Our point is that you risk shifting the focus of all felon-in-possession trials out of a concern for a category of cases that, if they exist, is extraordinarily small.”
“That does seem like you’re asking for our sympathy, with all respect,” said Gorsuch. “What is the practical consequence argument then if it isn’t the burden on the government?”
“It’s that it will be deeply confusing to the jury,” said Kedem. “Imagine you are a juror and you are at a felon-in-possession trial. And all of a sudden the judge, the witnesses, the lawyers, all start talking about a prior crime totally unrelated. And under the best of circumstances that sort of ‘trial within a trial’ can be deeply confusing.”
Kedem had an equally difficult time with Kavanaugh. “How is the defendant blameworthy if he or she truly thought that the status was lawful and then possesses the gun? Just focus on that question,” said Kavanaugh. “How is that person blameworthy?”
Kedem replied, “So I’m not sure that they are, but I think the more –”
“Well, okay, let me stop you there,” Kavanaugh broke in. “Then why should that person be subject to 10 years in prison?” Kedem responded with a question of his own, namely, whether Congress would have concerned itself with that small subset of cases. Kavanaugh agreed that the subset was small, but was not satisfied.
“[B]ut there are going to be those cases,” he continued, “the delta of cases where the defendant truly was mistaken about his or her status … and yet you would put that person in prison for up to 10 years.”
Justice Ruth Bader Ginsburg was clearly focused on the collateral effects of a reversal. Not far into the argument of Rehaif’s advocate, Rosemary Cakmis, Ginsburg said, “[A]s a practical matter I think I’m right that most of these possession cases are felon-in-possession cases.”
When Cakmis agreed, Ginsburg said, “And if that’s right and you prevail, then how many people who have been convicted under felon-in-possession charges could now say, well, the Supreme Court has said … I can’t be convicted of [the] crime I was convicted of, so I want to get out. I want habeas.”
“[H]abeas is not nearly as simple to navigate as a criminal proceeding,” Cakmis responded. “And once you reach the land of habeas, you have cause and prejudice that have to be shown for procedural default. It’s even harsher than harmless error when you get into the habeas world. And so the number of people who might want to ask for relief might be more, but there is only a small but significant number of people out there who actually had a genuine dispute.”
Ginsburg asked essentially the same question of the government’s lawyer, Kedem. “I would like to know your view of — let’s just say we would reverse — the collateral review issue that I asked about.”
“So the government’s view is that under Bousley [v. United States], the defendant would have to show on collateral review that he was actually innocent, meaning he actually did not know about his status,” replied Kedem.
Although the felon-in-possession provision dominated Tuesday’s hearing because the government uses it so much more often than the unauthorized-immigrant provision, there was some discussion of a politically salient hypothetical involving immigrants. When Alito asked Cakmis whether she really thought Congress meant to exempt unauthorized immigrants who “had every reason to know” they were in the country illegally but somehow still did not actually know, Cakmis brought up the DREAM Act.
“[T]ake, for example, the dreamers, children who come into this country with their parents illegally, live here all their lives and think they’re law-abiding citizens, only to find out later in adulthood that they never were law-abiding citizens. … [I]f that person who had no idea he was here illegally or unlawfully possessed a gun, he would be subject to 10 years in prison,” she said.
Almost as soon as Kedem began his argument, Justice Sonia Sotomayor brought that hypothetical right back up. “What do you do with that dreamer example of a student who got a visa from a certified institution and all of a sudden, unbeknownst to him or her, the school is decertified? And so they’re no longer in status. … [D]o you think Congress intended to include those innocent people as well?”
“I acknowledge that application of the government’s test in certain hypothetical examples that we could come up with would produce harsh results,” Kedem stated. “And perhaps you’re not comforted by the fact that this provision is applied many thousands of times every year, and no one has been able to identify an example like the type you’ve raised or anything close to it.”
Kedem later responded in much the same way to Justice Stephen Breyer’s hypothetical of a student who unwittingly overstayed his visa and yet possessed a gun. “Respectfully, Justice Breyer, if you reinterpret the mens rea for every 922(g) offense out of concern for that hypothetical category of people, that is worse than letting the tail wag the dog. That is letting the tail wag the dog where the dog is massive and the tail is tiny and largely hypothetical.”
Editor’s Note: Analysis based on transcript of oral argument.
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