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Justices reverse in part on Indiana abortion law

May 28, 2019 by admin Leave a Comment

This morning the Supreme Court issued orders from the justices’ private conference last week. After considering the case at 15 consecutive conferences, the justices finally acted on a petition by Indiana, which had asked the court to review a decision by the U.S. Court of Appeals for the 7th Circuit striking down a law regulating abortions in that state. Today the justices handed the state a partial victory, reversing the lower court’s decision with respect to one provision of the law but leaving it in place with respect to another.

The case, Box v. Planned Parenthood, was a challenge to two provisions of an Indiana law regulating abortion that was signed by now-Vice President Mike Pence while he was still governor of Indiana. The first provision, the state explained, was based on the idea that fetal remains are “nothing less than the remains of a partially gestated fetus and should be treated with the same dignity”: Passed after the discovery that a medical-waste firm had been accepting and disposing of fetal tissue, the law requires fetal remains to be either buried or cremated. The second provision, sometimes referred to as the “nondiscrimination” provision, bars abortions based on the disability (such as Down syndrome), sex or race of the fetus.

Planned Parenthood went to federal court in Indiana, seeking to have the law declared unconstitutional. The district court agreed and blocked the state from enforcing the law. It ruled that the state did not have a valid interest in requiring fetal remains to be treated like other human remains because the Supreme Court has held that the fetus is not a person. The district court also struck down the “nondiscrimination” provision, reasoning that the state cannot prevent a woman from ending her pregnancy before the fetus is viable, regardless of the reason.

After the U.S. Court of Appeals for the 7th Circuit upheld the district court’s ruling, Indiana urged the Supreme Court to take up the case, telling the justices that the fetal-remains provision “expands on long-established legal and cultural traditions of recognizing the dignity and humanity of the fetus.” And the nondiscrimination provision, the state explained, is a response to new technology that allows “women to make a choice not contemplated at the time of Roe v. Wade”: “the choice of which child to bear.”

In a per curiam opinion, an opinion by the court as a whole that does not identify any particular justice as the author, the Supreme Court today reversed the 7th Circuit’s holding on the provision governing the disposition of fetal remains. The court stressed that Planned Parenthood had never suggested that the state’s law “creates an undue burden on a woman’s right to obtain an abortion.” Instead, the court explained, the only question was whether there was a rational basis for the law. Although the 7th Circuit had concluded that there was not, the justices disagreed: The Supreme Court, they reasoned, had already acknowledged that states have an interest in the proper disposal of fetal remains, and this law “is rationally related to” that interest.

The justices declined to weigh in on the part of the 7th Circuit’s decision that struck down the ban on abortions based on race, sex or disability of the fetus – which means that the state will not be able to enforce that part of the law. The justices emphasized that their opinion “expresses no view on the merits of” that question and that, in denying review, they were following their “ordinary practice of denying petitions insofar as they raise legal issues that have not been considered by additional Courts of Appeals.”

Justice Sonia Sotomayor indicated that she would have denied the state’s petition for review in its entirety – that is, she would have allowed the 7th Circuit’s ruling striking down both provisions to stay in place.

Justice Clarence Thomas filed a 20-page concurring opinion, which he began by noting that he “would have thought it could go without saying that nothing in the Constitution or any decision of this Court prevents a State from requiring abortion facilities to provide for the respectful treatment of human remains.” Thomas devoted most of his opinion, however, to a history of the eugenics movement in the United States. He concluded by stressing that the Supreme Court’s decision not to weigh in right now on the constitutionality of Indiana’s ban on abortions based on the race, sex or disability of the fetus “should not be interpreted as agreement with the decisions” striking down the ban. “Enshrining a constitutional right to an abortion based solely on the race, sex, or disability of an unborn child, as Planned Parenthood advocates, would,” Thomas suggested, “constitutionalize the views of the 20th-century eugenics movement.” And even if the Supreme Court is not taking up such issues now, he continued, “we cannot avoid them forever. Having created the constitutional right to an abortion, this Court is dutybound to address its scope.”

Justice Ruth Bader Ginsburg filed her own opinion in which she agreed with the court’s decision to deny review of the question dealing with the ban on abortions based on race, sex or disability. But, like Sotomayor, she would have also denied review of the first question, dealing with fetal remains. Ginsburg explained that the Supreme Court should not have reversed the 7th Circuit without briefing or oral argument when Planned Parenthood would likely prevail under the correct test – which, in her view, is a tougher one than the “rational basis” test that the 7th Circuit and the Supreme Court used in this case. Ginsburg also pushed back against Thomas’ criticism that her dissent made “little sense,” countering that Thomas “displays more light than heat.”

For the second time, the justices will hear oral argument in a case arising from a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the death of their 15-year-old son. Jesus Mesa, the agent, was on the U.S. side of the U.S.-Mexico border when he shot and killed Sergio Hernandez, who was on the Mexican side of the border. Two years ago, the court sent the case back to the U.S. Court of Appeals for the 5th Circuit for it to take another look at the case in light of another decision the Supreme Court issued that term. When the case went back to the 5th Circuit, the court of appeals ruled that the family cannot rely on Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, a 1971 decision by the Supreme Court allowing a lawsuit seeking damages from federal officials for violating the Constitution to go forward, to bring their case. In response to a request for its views from the Supreme Court last fall, the federal government recommended that the court grant review, which it did today.

The justices also denied review in a challenge to a Pennsylvania school district’s policy that allows transgender students to use locker rooms and restrooms that match their gender identity. The U.S. Court of Appeals for the 3rd Circuit had upheld the policy, rejecting a challenge by students who objected to the policy, and the Supreme Court had rescheduled the students’ petition 10 times before finally considering it at last week’s conference.

The justices are scheduled to meet again for another conference on Thursday, May 30. We expect orders from that conference on Monday, June 3, at 9:30 a.m.

This post was originally published at Howe on the Court.

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Academic highlight: Hyatt is latest example of textualist-originalist justices’ willingness to overturn precedent

May 24, 2019 by admin Leave a Comment

Anita S. Krishnakumar is the Mary C. Daly Professor of Law and the Associate Dean for Faculty Scholarship at St. John’s University School of Law.

The U.S. Supreme Court’s decision in Franchise Tax Board of California v. Hyatt has received significant attention for its overruling of Nevada v. Hall, a 40-year-old precedent that held that states lack sovereign immunity in each other’s courts. Observers have been quick to quote the penultimate sentence of Justice Stephen Breyer’s dissent (“Today’s decision can only cause one to wonder which cases the Court will overrule next”) and point to Hyatt as a harbinger that Roe v. Wade and other similar high-stakes constitutional precedents may be next in line for abrogation.

Overruling prior judicial decisions is a big deal; the doctrine of stare decisis directs judges, including Supreme Court justices, to follow prior decisions even when they think those prior decisions are wrong. The Supreme Court is not supposed to overrule a prior ruling unless at least one of several conditions is met: The decision is unworkable and lower courts have found it difficult to administer; it rests on outdated facts; or it is inconsistent with later legal developments, such as other judicial decisions or new laws passed by the legislature. The court is also not supposed to overrule precedent that parties have relied on in structuring their lives.

Despite all of the above, the Supreme Court’s decision in Hyatt should not have been surprising — because it continues a jurisprudential trend that extends beyond the court’s constitutional cases and that began more than a decade ago. Indeed, in a recent article titled “Textualism and Statutory Precedents,” I note that the court’s textualist justices have proved remarkably willing to abandon stare decisis and argue in favor of overruling established statutory interpretation precedents — even though such a practice is difficult to reconcile with textualism’s core aims of promoting clarity and stability in the law. The article suggests that textualist justices’ proclivity to overrule may be connected to two related features of modern textualism: (1) the oft-unspoken predicate assumption that there is a singular “correct answer” to every interpretive question; and (2) the political reality that some textualist jurists see themselves as “revolutionaries,” whose function is to overthrow the old, corrupt jurisprudential order — including outmoded precedents reached through the use of illegitimate, atextual interpretive resources. Both of these observations apply equally to constitutional interpretation; in fact, they may apply even more powerfully in the constitutional context, where the stakes are higher and Congress cannot step in to correct an incorrect interpretation.

Let me expand on each of these observations briefly. Textualist judges, particularly in the post-Scalia era, tend to presume that there is a correct, definitive answer to every (or nearly every) interpretive question — and there is some evidence that they tend to find a plain meaning more often than do nontextualist jurists. As the late Justice Antonin Scalia and co-author Bryan Garner put it in a book designed to serve as a primer on the interpretation of legal texts: “[M]ost interpretive questions have a right answer. Variability in interpretation is a distemper.” This assumption, which I have called the “correct answer mindset,” may have an underappreciated side effect for those who subscribe to it. That is, a belief that all interpretive questions have a single correct answer can make it especially difficult for textualist jurists to accept the idea that an incorrect statutory or constitutional interpretation should be left in place simply because it was first in time. As a result, the famous tenet that “in most matters it is more important that the applicable rule of law be settled than that it be settled right” may prove challenging for textualists to adhere to in practice. Justice Clarence Thomas in particular seems to have a difficult time reconciling the “correct answer” mindset with the doctrine of statutory stare decisis: He regularly has authored opinions that advocate overruling precedents because they are simply “wrong” — and this argument has featured prominently in a number of cases in which he alone has voted to overturn a statutory precedent.

Textualist jurists’ readiness to overturn precedents may also be explained, in part, by an underappreciated background attribute — that the most committed among them see themselves as “revolutionaries” seeking to reinvent the judiciary’s approach to interpreting statutes and the Constitution. Many served as legal advisors to Republican presidents prior to joining the bench, and some played key roles in selecting and vetting judicial nominees who could be counted on to follow specific jurisprudential approaches. As judges themselves, they now are on a mission to reshape the way that courts construe both the Constitution and statutes — championing an originalist approach to constitutional interpretation, and a textualist approach to statutory interpretation. Given their revolutionary mission, these jurists are perfectly willing to overrule past precedents — which, in their view, not only are erroneous but were decided using interpretive methods that these jurists consider illegitimate and, indeed, took office intending to overthrow. In other words, rejecting old precedents does not bother these textualist revolutionaries because it is part and parcel of their agenda to depose the old jurisprudential regime.

Whereas some state courts appear to be comprised of a solid bloc of jurists who fit this “revolutionary” bill, the justices on the U.S. Supreme Court seem to fall along a scale, or spectrum, in their commitment to a textualist-originalist revolution. At one end of the spectrum is Thomas, who regularly calls for overruling both statutory and constitutional precedents. Scalia was next on the spectrum, with Justice Samuel Alito and Chief Justice John Roberts a little further down the scale, along with former Justice Anthony Kennedy. Although it is too early to make definitive assessments, Justice Neil Gorsuch appears to be closer to Thomas’ end of the spectrum than to Alito’s or Roberts’ end, and Justice Brett Kavanagh may be as well. This now gives the court at least two solid revolutionaries and a five-justice majority that is either strongly originalist and textualist or at least originalist- and textualist-leaning.

When similar majorities have overtaken state courts in the recent past, precedents have been upended with notable alacrity. In Michigan, for example, when a textualist majority was appointed to the state supreme court in 1998-1999, the court rapidly overruled numerous statutory precedents on the ground that the precedent interpretations were clearly “erroneous.” Indeed, during the newly constituted Michigan Supreme Court’s first five years (2000-2005), it overruled 61 precedents — compared to only 18 overrulings in the previous five-year period.

In short, we have heard this tune before from committed textualist and originalist jurists: Precedents that a newly minted majority deems clearly “incorrect” are fair game for a quick reversal, irrespective of stability and rule-of-law concerns. Thomas’ decision in Hyatt fits within this framework, in that the five justices who voted to overrule did so on the grounds that Nevada v. Hall was clearly “erroneous” and therefore undeserving of adherence. Moreover, the majority opinion contains language suggesting that its constitutional reading is consistent with an originalist interpretive methodology (“Nevada v. Hall is contrary to our constitutional design and the understanding of sovereign immunity shared by the States that ratified the Constitution.”). In the textualist-originalist justices’ view, such certainty that a precedent got the constitutional question wrong provides sufficient reason to overrule, no matter how longstanding or settled the original decision. (“Stare decisis does not compel continued adherence to this erroneous precedent.”) Indeed, Thomas’ opinion laid bare the textualist-originalist justices’ jurisprudential priorities when it dismissed the plaintiff’s reliance-interest argument with the cursory comment that “in virtually every case that overrules a controlling precedent, the party relying on that precedent will incur the loss of litigation expenses and a favorable decision below. Those case-specific costs are not among the reliance interests that would persuade us to adhere to an incorrect resolution of an important constitutional question.” In other words, stability and predictability — and fairness to litigants who relied on the old rule established by the existing precedent — are secondary to accuracy, or the importance of getting to the “correct answer.”

Prior to 2018, the textualist and textualist-leaning justices on the Roberts Court, led by Thomas, called for overruling several statutory and constitutional precedents — but they only occasionally succeeded in garnering the votes necessary to overrule. Now that the court’s composition has changed — and at least one more seemingly committed textualist-originalist revolutionary has joined the court — it seems likely that we can expect more constitutional and statutory precedents that do not comport with these justices’ preferred originalist-textualist interpretive methodologies to be overruled, perhaps in quick succession.

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

May 21, 2019 by admin Leave a Comment

Yesterday’s opinion in Mission Product Holdings Inc. v. Tempnology, LLC resolved a long-standing disagreement in the lower courts about what happens when a debtor exercises its statutory right to reject a contract in bankruptcy. Section 365 of the Bankruptcy Code gives the debtor an explicit right to “reject” contracts, and tells us that rejection amounts to a “breach” of the contract, which gives the nonbankrupt counterparty a right to sue the bankrupt for damages. The lower courts have struggled, though, in deciding whether the rejection’s “breach” also rescinds the entire contract. In this case, for example, the contract in question is a trademark license, and the debtor not only wants to terminate its own obligations under the contract; it also wants to retract the licensee’s right to use the debtor’s trademark. Justice Elena Kagan’s opinion for the Supreme Court gives us a clear answer: Rejection breaches but does not rescind the contract in question.

Justice Kagan with opinion in Mission Product Holdings v Tempnology (Art Lien)

For Kagan, “the text” of Section 365 “does much of the work,” primarily because of the provision that states that rejection “constitutes a breach” of the challenged contract. Because “‘breach’ is neither a defined term nor a specialized bankruptcy term,” the Supreme Court’s normal practice suggests that “[i]t means in the [Bankruptcy] Code what it means in contract law outside bankruptcy.” To solve that problem, Kagan offers a “made-up” hypothetical contract, which happens to be drawn directly from the amicus brief filed by the U.S. solicitor general. In Kagan’s made-up contract, “[a] dealer leases a photocopier to a law firm, while agreeing to service it every month; in exchange the firm commits to pay a monthly fee.” Outside of bankruptcy, a decision by the dealer to stop servicing the photocopier would breach the contract and give the law firm the choice either to terminate the contract (and return the copier) or to continue to use the copier (paying the required monthly fee) and sue for damages. As Kagan summarizes: “The choice to terminate the agreement and send back the copier is for the law firm. By contrast, the dealer has no ability, based on its own breach, to terminate the agreement.”

Reasoning from that made-up contract, Kagan explains that the same results should follow in bankruptcy:

If the rejection of the photocopier contract ‘constitutes a breach,’ as the Code says, then the same results should follow…. That … means … that the law firm has an option about how to respond—continue the contract or walk away, while suing for whatever damages go with its choice. And most important, it means that assuming that the law firm wants to keep using the copier, the dealer cannot take it back.

Kagan sees nothing at all different about the trademark license at issue here, for which “the same consequences follow…. The debtor can stop performing its remaining obligations under the agreement. But the debtor cannot rescind the license already conveyed.” For her, that outcome “reflects a general bankruptcy rule: The estate cannot possess anything more than the debtor itself did outside bankruptcy.” Quoting University of Chicago’s Professor Douglas Baird, she emphasizes that “[a] debtor’s property does not shrink by happenstance of bankruptcy, but it does not expand, either.”

Kagan characterizes the contrary argument as “rest[ing] on a negative inference.” The debtor in this case (respondent Tempnology) points to several categories of contracts for which Section 365 provides specific treatment that defines rights that counterparties retain even after a debtor’s rejection. In Tempnology’s view (as recounted by Kagan), “the statute’s ‘general rule’ would ‘swallow the exceptions’ [unless] the ordinary consequence of rejection [is] something different – i.e., the termination, rather than survival, of contractual rights previously granted.”

Kagan offers two responses. First, Tempnology “offers no account of how to read” the provision that tells us that rejection “constitutes breach,” but instead reads that provision “to say essentially its opposite (i.e., that rejection and breach have divergent consequences).” More pointedly, she rejects Tempnology’s attempt to “trea[t] as a neat reticulated scheme … what history reveals to be anything but.” Kagan offers a grand historical view of the various specific provisions in Section 365, under which “each responded to a discrete problem—as often as not, correcting a judicial ruling of just the kind Tempnology urges.” For Kagan, “this mash-up of legislative interventions” suggests that “Congress enacted the [various exceptions], as and when needed, to reinforce or clarify the general rule that contractual rights survive rejection.”

For example, the provision that treads closest to the trademark license at issue here – the enactment of Section 365(n) in response to a lower court decision in Lubrizol Enterprises v. Richmond Metal Finishers – protects patent and copyright licensees from the consequences of a bankrupt’s rejection of their licenses. Tempnology argues that the exclusion of trademark licenses from that provision suggests that they should not survive rejection. For Kagan, though, Section 365(n) is just “part of a pattern—that Congress whacked Tempnology’s view of rejection wherever it raised its head.” Ultimately, she reasons, “Congress’s repudiation of Lubrizol for patent contracts does not show any intent to ratify that decision’s approach for almost all others.”

I expect this will prove to be one of the Supreme Court’s most important bankruptcy decisions of the decade. Unlike the minor and trivial circuit splits that have dominated the court’s bankruptcy docket in recent years, Mission Product Holdings confronts a conceptual question at the heart of business bankruptcy: how we should think of the debtor’s contractual relations. In general, most informed observers will welcome the decision, which enforces the approach that academics have strongly pressed.

That is not to say that all will applaud the Supreme Court’s reasoning. Licensing lawyers, for example, will doubtless wonder about Kagan’s ready treatment of an intellectual-property license as fundamentally a conveyance of property rather than a bare commitment not to sue for infringement. Future courts also should notice the “whack-a-mole” theory of legislation Kagan employs to parse the multifarious amendments to Section 365. And bankruptcy lawyers will mull the reasoning she uses to conclude that the case is not moot – that Mission Product Holdings might have a claim to reopen the plan and recover funds already distributed to creditors. But where would we be if the court left nothing for criticism?

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel on an amicus brief in support of the petitioner in this case. The author of this post is not affiliated with the firm.]

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Justices grant bankruptcy petition

May 20, 2019 by admin Leave a Comment

This morning the Supreme Court issued orders from the justices’ private conference last week. The justices added one new case to their merits docket for next term: Ritzen Group v. Jackson Masonry, a bankruptcy case. The filing of a petition for bankruptcy creates an “automatic stay” – a freeze on most efforts by creditors to collect debts from the debtor. However, creditors can ask the bankruptcy court to lift the automatic stay. The question that the Supreme Court agreed to hear today in Ritzen Group is whether an order denying a creditor’s motion to lift the automatic stay is a final order that the creditor can appeal.

The justices did not act on a pair of petitions asking them to weigh in on the constitutionality of Indiana abortion laws: One petition, which the justices have considered at 14 consecutive conferences, asks the Supreme Court to review a ruling by the U.S. Court of Appeals for the 7th Circuit striking down a law that bans abortions based on the race, sex or disability of the fetus and requires fetal remains to be buried or cremated, while the other petition involves a challenge to the requirement that a pregnant woman obtain an ultrasound at least 18 hours before an abortion. The justices also did not act on the petition for review filed by an Oregon couple who declined on religious grounds to make a custom cake for a same-sex wedding.

Over a dissent from Justice Clarence Thomas, the justices denied review in Daniel v. United States, a case filed by Walter Daniel, who is a lieutenant commander in the Coast Guard. Daniel’s wife, Rebekah, was a lieutenant in the Navy when she went to a naval hospital in Bremerton, Washington, to give birth to the couple’s daughter. The baby was healthy, but a few hours later Rebekah bled to death.

As a general rule, the federal government cannot be sued. But in 1946, Congress passed the Federal Tort Claims Act, a federal law that allows some personal-injury lawsuits against the government. Just a few years after that, in a case called Feres v. United States, the Supreme Court ruled that members of the military cannot bring personal-injury claims under the FTCA for injuries that arise out of or take place during their service. The justices have repeatedly rejected requests to overrule the Feres doctrine, and today they denied Daniel’s petition for review, which had asked them to consider whether the Feres doctrine should apply to medical malpractice claims.

In a two-page dissent, Thomas emphasized that, as he had previously written, the Feres case “was wrongly decided and heartily deserves the widespread, almost universal criticism it has received.” He noted that in Air & Liquid Systems v. DeVries, a decision this term involving veterans who developed cancer as a result of asbestos on U.S. Navy ships, the veterans sued the manufacturers because – as a result of the Feres doctrine – they could not sue the Navy. “This Court,” Thomas complained, “then twisted traditional tort principles to afford them the possibility of relief.” “Such unfortunate repercussions,” Thomas predicted, will continue unless and until the justices reconsider the doctrine

Justice Ruth Bader Ginsburg, who joined Justice Brett Kavanaugh’s opinion for the court in Air & Liquid Systems, did not join Thomas’ dissent, but she did indicate that she would have granted Daniel’s petition for review.

The justices also denied review in In City of Newport Beach v. Vos, involving whether the Americans with Disabilities Act requires police to accommodate a violent and mentally ill suspect when taking him into custody. The justices had granted review in 2014 to decide this question in another case, but dismissed the question without ruling on it. The city of Newport Beach, California, had appealed a decision by the U.S. Court of Appeals for the 9th Circuit in a case brought by Richard Vos and Jennelle Bernacchi. In 2014, Vos and Bernacchi’s son, Gerrit Vos, was shot and killed by police officers in Newport Beach. Vos – who had been diagnosed with schizophrenia – went into a 7-Eleven and stabbed a clerk with a pair of scissors. Vos later ran toward the police officers with the scissors; police fired at him when he ignored orders to drop his weapon. Vos’ parents sued the city, alleging (among other things) that police had violated the Americans with Disabilities Act, and the 9th Circuit allowed the claim to go forward.

The justices will meet again for another conference on Thursday, May 23. We expect orders from that conference on Tuesday, May 28.

This post was originally published at Howe on the Court.

[Disclosure: Goldstein & Russell, P.C., whose attorneys contribute to this blog in various capacities, is among the counsel to the respondents in Air & Liquid Systems, and my husband, Tom Goldstein, argued the case.]

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Justices spar over death penalty

May 14, 2019 by admin Leave a Comment

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 the early morning hours on April 12, the Supreme Court cleared the way for Alabama to execute Christopher Price, who was on death row for the brutal 1991 murder of Bill Lynn, a minister who had been putting together Christmas presents for his grandchildren. The lower courts had put Price’s execution on hold to give them more time to consider his claim that the state’s plan to execute him by lethal injection would violate the 8th Amendment’s ban on cruel and unusual punishment. Instead, Price contended, he should be executed using lethal nitrogen gas.

Justice Stephen Breyer dissented from the court’s order overturning the stay of execution, in a highly personal and often scathing opinion that criticized his colleagues for (among other things) not waiting to act until after the justices met for their private conference the next day.

Although the justices vacated the stay of execution, the state had already postponed Price’s execution because the death warrant expired at midnight on April 12. Today the justices denied review of Price’s petition for certiorari, and Justice Clarence Thomas took the opportunity to write a statement – joined by Justices Samuel Alito and Neil Gorsuch – concurring in the denial.

If Breyer’s dissent in April had been sharply critical of his colleagues, turnabout was fair play for Thomas today. Describing Breyer’s complaint that Price’s death sentence “was being carried out in an arbitrary way” and that the justices had “deviated from basic principles of fairness,” Thomas was unequivocal: “There is nothing of substance to these assertions.” Later on, Thomas dismissed Breyer’s contention that Price’s execution should be delayed because he had raised “substantial” legal questions, stressing that Breyer’s “rationale does not withstand even minimal legal scrutiny.”

Thomas seemed to question whether Breyer was in fact even “serious” in suggesting that the justices should wait until the next day to discuss Price’s case. If he was, Thomas retorted, “it should be obvious that emergency applications ordinarily cannot be scheduled for discussion at weekly (or sometimes more infrequent) Conferences,” because it would only give inmates even more of an incentive to challenge their executions.

Even more broadly, Thomas suggested, Breyer’s approach would “harm victims.” In this case, Bill Lynn’s widow was at the prison and “waited for hours with her daughters to witness” Price’s execution, “but was forced to leave without closure.”

The justices also denied review in another case involving a Tennessee death-row inmate, Abu-Ali Abdur’Rahman, who is scheduled to be executed on May 16. Abdur’Rahman and other prisoners were challenging the use of state secrecy laws in their challenge to Tennessee’s lethal-injection protocol. Justice Sonia Sotomayor dissented from the denial of review, lamenting that “the Court again ignores the further injustice of state secrecy laws denying death-row prisoners access to potentially crucial information for meeting that requirement.”

The justices also revived the dispute over the court’s decision in late March to block Texas from executing a Buddhist inmate who wanted to have his spiritual adviser in the execution chamber with him. That move came after the justices cleared the way for Alabama to execute a Muslim inmate who wanted to have an imam with him at his execution. Justice Brett Kavanaugh wrote a statement at the time concurring in the decision to block the Texas execution, and today Justice Samuel Alito wrote a dissent from the order that was joined by Thomas and Gorsuch.

Characterizing the order blocking the execution as “seriously wrong,” Alito explained that he was writing because “inexcusably late stay applications present a recurring and important problem and because religious liberty claims like Murphy’s may come before the Court in future cases.” First, he noted, Murphy and his lawyers could have started to litigate the issue of whether Murphy’s spiritual adviser could be with him as early as 2013 – but at the very least “should have been spurred to action when, in November of last year, his execution date was set.” “Instead,” Alito complained, “his lawyers waited three months before writing to the Texas Department of Criminal Justice. How can that be justified?”

Alito acknowledged that Murphy had raised “serious questions” under both the Constitution and the Religious Land Use Institutionalized Persons Act. “But they are not simple,” he continued, “and they require a careful consideration of the legitimate interests of both prisoners and prisons.” Therefore, he concluded, inmates should file such claims “well before their scheduled executions so that the courts can adjudicate them in the way that the claims require and deserve and so that States are afforded sufficient time to make any necessary modifications to their execution protocols.”

Kavanaugh wrote a new statement, joined by Chief Justice John Roberts, “to respectfully add two points.” Kavanaugh first noted that, after the court put Murphy’s execution on hold, Texas changed its policy and “now allows all religious ministers only in the viewing room and not in the execution room.” “Put simply,” Kavanaugh emphasized, the court’s actions allowed the state to resolve the “significant religious equality problem” and “should alleviate any future litigation delays or disruptions that otherwise might have occurred as a result of the State’s prior discriminatory policy.”

Kavanaugh also suggested that there were differences between Murphy’s case and that of Domineque Ray, the Muslim inmate whose request for a stay was denied. He concluded by acknowledging that “both the facts and the religious equality claim in Murphy’s case were highly unusual,” and he agreed with Alito that inmates should “raise any potentially meritorious claims in a timely manner.”

[Disclosure: Abu-Ali Abdur’Rahman was my client for many years while I was practicing law, but I no longer represent him and am not involved in this case.]

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Judicial enumeration: Amy Howe and Kimberly Robinson count five justices for the citizenship question in Department of Commerce v. New York

April 29, 2019 by admin Leave a Comment

In this week’s episode of SCOTUStalk, Amy Howe of Howe on the Court briefly reviews the latest SCOTUS news before providing deeper coverage with Kimberly Robinson of last week’s oral argument in Department of Commerce v. New York, a high-profile challenge to the Trump administration’s decision to add a question about citizenship to the 2020 census.

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