Publications

Greetings, Court Fans!

The blocks are finally busting this week at One First Street[’s internet server], with four new decisions, including two of the most anticipated of the term. On Monday, in Bostock v. Clayton County (No. 17-1618), the Court held that Title VII prohibits employment discrimination on the basis of sexual orientation or identity and yesterday the Court held, in Department of Homeland Security v. Regents of the University of California (No. 18-587), that the Trump Administration’s rescission of the Deferred Action for Childhood Arrivals (“DACA”) program violated the Administrative Procedure Act (“APA”). If that wasn’t enough, the Court gave the go-ahead to plans to build a natural-gas pipeline across the Appalachian Trail in U.S. Forest Service v. Cowpasture River Preservation Association (No. 18-1584) and vacated a death sentence in Andrus v. Texas (No. 18-9674). Still not satisfied? Well, The Nine also made waves this week by denying certiorari in some closely watched cases involving Second Amendment rights and qualified immunity. That’s an awful lot to get through in one Update, so you might want to clock out early.

First up, the Title VII cases, Bostock, Altitude Express v. Zarda (No. 17-1623), and R.G & G.R. Harris Funeral Homes v. EEOC (No. 18-107). As we noted in our very first Update this term, these (ultimately consolidated) cases were among the first argued of OT19, while also among the most hotly anticipated. At issue was whether Title VII of the Civil Rights Act of 1964, which makes it “unlawful . . . for an employer to . . . discriminate against any individual . . . because of such individuals’ race, color, religion, sex, or national origin,” prohibits discrimination against homosexual and transgender persons.

The three cases involved similar facts. Gerald Bostock was an award-winning child welfare advocate for Clayton County, Georgia, who was fired for “conduct unbecoming” a county employee after he started participating in a gay softball league. Donald Zarda was a skydiving instructor for Altitude Express who was fired just days after he mentioned to his employer that he was gay. And Aimee Stephens, who presented as a man when she was hired by R.G. & G.R. Harris Funeral Homes, was fired six years later after she informed her employer that she planned to “live and work full-time as a woman.” Each employee brought suit under Title VII alleging discrimination on the basis of sex. Stephens and Zarda were permitted to pursue their claims after the Sixth and Second Circuits concluded that Title VII’s prohibition of sex discrimination encompasses discrimination on the basis of sexual orientation and identity. But the Eleventh Circuit concluded that Title VII does not prohibit discrimination on these bases and therefore affirmed the dismissal of Bostock’s claim. The Supreme Court granted certiorari to resolve this split.

By a 6-3 margin (with the Chief and Justice Gorsuch joining the Court’s leftward flank), the Supreme Court held that an employer who fires an individual for being gay or transgender violates Title VII. Justice Gorsuch wielded the pen for the majority (without a concurrence in sight). He acknowledged that the drafters of the Civil Rights Act almost certainly did not anticipate that Title VII would apply to homosexual and transgender employees and that the generally accepted meaning of the word “sex” in 1964 referred only to the biological distinctions between male and female. But that was not the end of the textual inquiry, he insisted. Instead, the Court had to determine what was meant by prohibiting discrimination “because of . . . sex.” The Court has long held that “because of” implicates traditional “but-for” causation. And “discrimination” means treating an individual worse than others similarly situated. “So, taken together,” Justice Gorsuch concluded, “an employer who intentionally treats a person worse because of sex—such as by firing the person for actions or attributes it would tolerate in an individual of another sex—discriminates against that person in violation of Title VII.”

Justice Gorsuch rejected the argument—advanced in dissent by Justice Alito—that the “discrimination” prohibited by Title VII is categorical discrimination—for example, women, as a group—not individual discrimination. While he acknowledged the argument that some appeal, Gorsuch insisted that Title VII prohibits individual discrimination, as it expressly (and repeatedly) prohibits employers from taking action against “any individual,” not any group or class of individuals. Therefore, he noted “an employer who fires a woman, Hannah, because she is insufficiently feminine and also fires a man, Bob, for being insufficiently masculine may treat men and women as groups more or less equally. But in both cases the employer fires an individual in part because of sex. Instead of avoiding Title VII exposure, this employer doubles it.”

Once Title VII is read to bar employers from treating individuals differently because of their sex, its application to these cases was clear: “Homosexuality and transgender status are inextricably bound up with sex. Not because homosexuality or transgender status are related to sex in some vague sense or because discrimination on these bases has some disparate impact on one sex or another, but because to discriminate on these grounds requires an employer to intentionally treat individual employees differently because of their sex.” The fact that the employer may be motivated by something in addition to the employee’s sex—for example, the sex of the person s/he’s attracted to or with which s/he identifies) is irrelevant, so long as part of the motivation is the employee’s sex. “If an employer would not have discharged an employee but for that individual’s sex, the statute’s causation standard is met, and liability may attach.”

This conclusion, Gorsuch insisted, is nothing more than a “straightforward application of legal terms with plain and settled meanings.” However, it is also supported by the Court’s Title VII precedents, especially Oncale v. Sundowner Offshore Services (1998), a decision authored by Justice Scalia which held that an employee who was sexually harassed by his male co-workers for being effeminate could state a sex-discrimination claim under Title VII. From these decisions, Justice Gorsuch found and reiterated three lessons: “First, it’s irrelevant what an employer might call its discriminatory practice, how others might label it, or what else might motivate it. . . . When an employer fires an employee for being homosexual or transgender it necessarily and intentionally discriminates against that individual in part because of sex.” “Second, the plaintiff’s sex need not be the sole or primary cause of the employer’s adverse action.” And “[f]inally, an employer cannot escape liability by demonstrating that it treats males and females comparably as groups.”

Justice Gorsuch recognized that the Congress that enacted Title VII almost certainly did not intend for it to apply to gay and trans people. Indeed, since 1964, there have been several efforts to amend Title VII to add sexual orientation as a protected characteristic, suggesting successive Congresses have also not believed that it is already covered. But none of that was relevant, he concluded. “Ours is a society of written laws. Judges are not free to overlook plain statutory commands on the strength of nothing more than suppositions about intentions or guesswork about expectations. In Title VII, Congress adopted broad language making it illegal for an employer to rely on an employee’s sex when deciding to fire that employee. We do not hesitate to recognize today a necessary consequence of that legislative choice: An employer who fires an individual merely for being gay or transgender defies the law.”

Justice Alito penned the principal dissent, joined only by Justice Thomas. In Alito’s view, “[t]here is only one word for what the Court has done today: legislation.” Stating the obvious, Alito pointed out that “sexual orientation” and “gender identity” appear nowhere in the text of Title VII. For the past 45 years, up to including last year, bills have been introduced to add these qualities to the list of protected classifications, but the statute remains the same. Alito called the majority’s statutory construction “preposterous,” pointing out that no member of Title VII’s enacting Congress (nor most since) understood the statute to prohibit discrimination based on sexual orientation or identity; that, until 2017, every single Court of Appeals held that it did not; and that until 2012 the EEOC itself took the same view. For the majority to suddenly say all of these actors have been wrong for decades and that Title VII has always prohibited discrimination based on sexual orientation and identity, Alito said, is “breathtakingly arrogant.” It’s also wrong, Alito argued. For, while the majority insisted that “it is impossible to discriminate against a person for being homosexual or transgender without discriminating against that individual based on sex,” in fact it is entirely possible. An employer could, for example have a blanket policy of not hiring gay and trans people and enforce that policy without ever knowing each applicant’s sex. Proceeding to his own textual analysis, Justice Alito concluded that the plain meaning of “discrimination . . . because of . . . sex” in 1964 (and now) is unequal treatment of men and women. While Justice Alito recognized the impetus to “update” Title VII to protect gay and transgender individuals, he insisted “that is not our job.”

Justice Kavanaugh also dissented, in slightly less strenuous terms. To him, the case boiled down “to one fundamental question: Who decides?” Looking at the ordinary, not literal, meaning of “discriminate because of sex,” Justice Kavanaugh concluded that there is no way to read it as applying to discrimination based on sexual orientation or identity. Like Justice Alito, Kavanaugh recognized the laudable goal of amending Title VII to provide this protection, but he insisted that, under the Constitution’s separation of powers, the responsibility to amend Title VII to prohibit discrimination against gay and transgender individuals belongs to Congress and the President, not the Court. The majority’s effort at textualism was, in Kavanaugh’s view, “a novel form of living literalism” used to “rewrite ordinary meaning and remake American law,” at a time when it is likely that Congress itself would get around to amending the statute itself sooner or later. Channeling the Chief Justice’s dissent in Obergefell v. Hodges (2015), Kavanaugh concluded his dissent with a conciliatory acknowledgment of “the important victory achieved today by gay and lesbian Americans,” who “have worked hard for many decades to achieve equal treatment in fact and in law. . . . They have advanced powerful policy arguments and can take pride in today’s result.” But it is Congress that should have delivered it to them, Kavanaugh lamented, not the Court.

Bostock wasn’t the only big opinion of the week. On Thursday morning, the Court released its much-awaited decision in Department of Homeland Security v. Regents of the University of California (No. 18-587), a consolidation of several cases asking whether the Trump Administration’s cancellation of the Deferred Action for Childhood Arrivals program, or DACA, was legal. In a decision that has a great deal in common with last year’s Department of Commerce v. New York (better known as the census case), Chief Justice Roberts, joined by the Court’s liberals, concluded that while the Department of Homeland Security had the authority to terminate DACA, its rationale for doing so didn’t pass muster under the Administrative Procedure Act. So, as in the census case, the Court remanded the matter to the agency to try again, something (as in the census case) it certainly won’t be able to accomplish before the election this fall. DACA thus remains safe, at least for now.

We begin with DACA itself. In 2012, the Secretary of DHS (then Janet Napolitano) issued a memorandum announcing a policy for the benefit of young people brought into the country as children. Those who met the requirements of DACA—primarily that they had resided in the U.S. continuously since 2007, were attending school, had completed high school, or been honorably discharged from the military, and did not threaten public safety—were deemed to warrant favorable treatment under the immigration laws. Accordingly, DHS instructed Immigration and Customs Enforcement to exercise its prosecutorial discretion by declining to remove DACA recipients, and it told U.S. Citizenship and Immigration Services to privilege DACA recipients in granting work authorizations. Other regulations provided that DACA recipients should be considered lawful permanent residents, a status that made them eligible for benefits like Social Security and Medicare.

In 2014, DHS announced a new program, modeled on DACA, called Deferred Action for Parents of Americans and Lawful Permanent Residents, or DAPA. DAPA would have extended the same DACA benefits to parents whose children were U.S. citizens or lawful permanent residents. But before DAPA went into effect, several states, led by Texas, sued. Texas prevailed before a divided panel of the Fifth Circuit, which upheld a lower court’s nationwide injunction against enforcement of DAPA on the ground that it was not issued pursuant to notice-and-comment rulemaking and because it was contrary to the Immigration and Nationality Act. That case then went before the Supreme Court, but before the Court could decide it, Justice Scalia died. With the Court’s remaining 8 justices dividing 4-4, the Fifth Circuit’s judgment was affirmed in a non-precedential order.

Soon afterwards, the new Trump Administration came on the scene. It promptly rescinded DAPA, which had never taken effect due to the injunction. Three months later, then-Attorney General Jeff Sessions sent a letter to the Acting Secretary of DHS, Elaine Duke, “advising” that in the AG’s view, DACA was illegal for the same reasons the Fifth Circuit had found DAPA to be, and it should therefore also be rescinded. The next day, Acting Secretary Duke took the AG’s advice, issuing a memorandum ordering the wind-down of DACA. Her only rationale for doing so was the AG’s conclusion that DACA was illegal for the same reasons identified by the Fifth Circuit in the DAPA case. That is (and this is important), she provided no policy rationale for ending DACA at all.  

Plaintiffs around the country promptly sued. The plaintiffs in those cases all prevailed, with the relevant district courts concluding that Acting Secretary Duke’s decision was reviewable under the APA and that the plaintiffs were likely to prevail on the merits on various theories. These courts thus directed DHS to continue to provide DACA’s benefits to those who had already been determined to meet DACA’s requirements, while allowing DHS not to extend DACA to any new recipients. By then, Acting Secretary Duke had been replaced at DHS by non-acting (i.e., Senate confirmed) Secretary Kirstjen Nielsen. She responded to these adverse decisions by issuing a new memorandum, which “declined to disturb” Acting Secretary Duke’s decision to rescind DACA. At the same time, she went beyond Acting Secretary Duke’s memorandum by providing various policy reasons supporting her decision. Meanwhile, the government appealed these adverse lower-court decisions, and they eventually made their way to the Supreme Court (through a strange, but ultimately not-worth-summarizing process). There they were consolidated into the present case. 

Chief Justice Roberts, joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan, began by noting the case was not about whether DHS could rescind DACA at all. On that point, the parties all agreed that it could. Instead, the question was whether DHS had exercised its authority to rescind DACA in a manner consistent with the APA. This led to an initial question: Was DHS’s decision to rescind DACA the type of decision subject to the APA at all? The APA genuinely presumes that all agency actions—of which this surely was one—were subject to judicial review. But there is a narrow carve out for agency actions “committed to agency discretion by law.” The government argued that exception applied, because DACA was mostly about directing government agencies on how to exercise their prosecutorial (and other) discretion. But the majority made quick work of that, noting that DACA was not only a policy of non-enforcement of certain immigration laws against certain individuals; it also conferred positive benefits (like entitlement to Social Security) on DACA recipients.

With this threshold issue out of the way, the Chief turned to the merits. And here, much turned on a methodological question about how courts should review agency action under the APA. Specifically, what rationales for DACA’s cancellation could the Court consider: The one given by Acting Secretary Duke when she initially terminated the program or the one given by Secretary Nielsen nearly a year later when she “declined to disturb” the prior decision? The majority concluded that only the former set of reasons was properly before it: It is a “foundational principle” of administrative law that courts review agency action based on the justifications the agency provides at the time it acts, not the justifications it provides post hoc when its action has been challenged. Thus, the majority simply disregarded any justification for terminating DACA provided by Secretary Nielsen that was not part of Acting Secretary Duke’s original memo.

The Chief then turned to whether Acting Secretary Duke’s decision to terminate DACA was “arbitrary and capricious,” the general standard under which all agency actions are reviewed, in light of the reasons she offered for her decision in her 2017 memo. As noted above, Acting Secretary Duke’s memo was based entirely on then-AG Sessions’s memo opining that DACA was illegal for the same reasons the Fifth Circuit had found DAPA to be illegal. The various plaintiffs challenging the DACA termination argued at length that the Attorney General’s legal conclusions were faulty. But the Court sidestepped that issue, noting that whether or not the AG was right, by law, the Secretary of DHS was required to follow the AG’s conclusions on any question of law. Thus, it was not a defect in her memorandum that she simply followed the AG’s legal conclusion.

This, however, led the majority right to the aspect of the Acting Secretary Duke’s memorandum that was arbitrary and capricious. While it is true that DHS may be required to follow the AG’s conclusions on questions of law, it remains DHS’s obligation to determine as a matter of policy how best to deal with the AG’s determination about what the law requires. And here, the limits of the AG’s legal analysis had consequences. Turning back to the original DAPA litigation, the Fifth Circuit concluded DAPA was illegal because of the benefits it conferred, like Social Security and Medicare. Indeed, the Fifth Circuit had explicitly sidestepped the thornier question of whether DAPA’s core feature was valid, namely its direction that immigration authorities use their discretion to “defer” (hence the “D”) adverse immigration actions toward DAPA recipients. And since the Fifth Circuit had never addressed the legality of this key part of DAPA, the AG’s conclusion that DACA was illegal for the same reasons as DAPA necessarily didn’t address the corresponding part of DACA (again the “D”). This left a hole in Acting Secretary Duke’s justification for terminating the entire DACA program: Even if DACA’s provisions conferring certain benefits on DACA recipients were invalid, DHS had provided no reason why everything in DACA, including the deferral of removal proceedings against DACA recipients should also go. Sure, there may be reasons, even good ones, why it was impossible or inadvisable to keep the “deferral” part of DACA while ending the “benefits” part. But the APA requires administrative agencies to explain why alternative approaches like this aren’t feasible. And this was not the only policyaspect of DACA’s rescission that Acting Secretary Duke’s memorandum failed to explain: It also gave no consideration at all to the substantial reliance interests of DACA recipients and their families, who had come to expect that the rights granted by DACA would continue and had made many personal decisions (like starting families and careers) based on that assumption. These concerns may not be dispositive, but at the very least, DHS has to explain why they are outweighed by competing considerations. Thus the Court remanded the matter to the agency to consider the matter anew (and offer a new justification for whatever action it takes), something it surely will not be able to finish before this fall’s election. DACA’s fate thus lies in the hands of whatever administration assumes the presidency in 2021.  

Before wrapping up, the Chief turned quickly to a separate basis for challenging DACA’s termination: Plaintiffs’ arguments that the termination violated the Equal Protection Clause of the Fifth Amendment because it was motivated by racial animus. At this point, the composition of the majority changed, with Justice Sotomayor getting off the bus and the four dissenters (who we’ll get to in a moment) getting on. Writing for this majority of eight, the Chief’s opinion recalled a different end-of-term-Roberts-decision about a key Trump Administration policy: the Travel Ban case. As in that case, the Court could hardly deny the existence of countless statements and tweets by President Trump suggesting that the Administration’s DACA policy (and its immigration policy more broadly) were motivated by animus, this time of a racial rather than religious nature. But DHS’s decision to terminate DACA didn’t cite these tweets as the basis for agency action; it was based on the Attorney General’s determination regarding the program’s legality. And the plaintiffs challenging DACA had not provided a plausible basis for concluding that these administrative officials were motivated by racial animus.

Now we get to the dissents, of which there were no less than four. Most simply, Justice Sotomayor, writing only for herself, concluded that there was more than enough support for the plaintiffs’ equal protection theory to get past the preliminary stage the consolidated cases were in and to allow further fact development and discovery. And Justice Alito (taking them a bit out of order) wrote briefly to say he agreed not only with the two principle dissents but also with the government’s argument that the termination decision was not reviewable at all under the APA.

Next up was Justice Thomas, joined by Justices Alito and Gorsuch. In his view, the Majority’s basic mistake was that it was looking at the wrong thing. The decision that should have been the focus of the Court’s attention was not the 2017 decision to end DACA but the 2012 decision to begin it in the first place. Reviewing DACA at some length, Justice Thomas concluded that it was illegal for lots of reasons (which we won’t try to summarize here). And given that, he would demand nothing more. “The decision to end an unlawful agency action is per se lawful;” no more detailed explanation for an agency’s action is required.

Finally, we come to Justice Kavanaugh, writing only for himself (though Justice Alito noted he would have joined this opinion but for his view that the APA precluded review). Like the majority, he would focus on whether DHS’s termination of DACA was arbitrary and capricious under the APA. But unlike the majority, he would not confine the analysis of that issue to the reasons provided in Acting Secretary Duke’s memorandum. Instead, he would look also (indeed, primarily) to Secretary Nielsen’s memorandum. That memorandum filled the holes in the Duke memorandum identified by the Court, providing a more than adequate basis for the administration’s decision to end DACA. But what of the majority’s concern that this memorandum was just a post-hoc attempt to fix a defective administrative process? Well, Justice Kavanaugh had a lot to say on that, but primarily he didn’t view it as post hoc at all. Instead, he saw it as a new decision to end DACA, one accompanied by its own rationale. This essentially mooted whatever justification had been offered by Acting Secretary Duke when she decided to end the program the first time. With the benefit of Secretary Nielsen’s reasoning, then, Justice Kavanaugh would uphold the administration’s action under the APA.

The Court’s second decision from Monday, U.S. Forest Service v. Cowpasture River Preservation Association (No. 18-1584), didn’t get quite as much media attention as Bostock or DACA. But who isn’t interested in a 42-page decision deciding whether the U.S. Forest Service or the National Parks Service has administrative authority over the land 600 feet below a portion of the Appalachian Trial passing through a national forest? If we’ve lost you already, here’s a spoiler: By a vote of 7-2, the Forest Service. But if you want more, read on.

Before we jump to the law, why does this dispute about which federal agency controls this small stretch of underground land matter? Because of a pipeline. In 2015, Atlantic Coast Pipeline, LLC filed an application to construct a natural gas pipeline from West Virginia to North Carolina. Along the proposed route, the pipeline would cross 600 feet below a short stretch of the Appalachian Trail within the George Washington National Forest. Since the George Washington National Forest is under the U.S. Forest Service’s jurisdiction, Atlantic sought and obtained a special use permit from the Forest Service. But public interest groups challenged the Forest Service’s issuance of the permit on various grounds. And the Fourth Circuit agreed with one of those grounds, concluding that through a thicket of federal statutes and regulations, the Appalachian Trail had become part of the National Park System, which, prevented the Forest Service (and any other government agency as well) from granting Atlantic the required pipeline right-of-way. The Court granted cert to review that decision.

While the factual background is simple, the legal one is not. Simplifying things as much as we can, all agreed that the George Washington National Forest fell within the jurisdiction of the U.S. Forest Service. The Appalachian Trail, by contrast, falls under the authority of the Secretary of Interior, who delegated the authority to administer it to the National Park Service. A federal statute, the Mineral Leasing Act, gives federal agencies the authority to grant pipeline rights-of-way through “federal lands.” But the Leasing Act’s definition of federal lands excludes lands that are part of the “National Park System.” That statute defines the National Park System as land administered by the National Park Service for purposes like recreation. Tying it all together, the question then is how to treat this short stretch of land 600 feet below the Appalachian Trail. Did the creation of the Appalachian Trail transfer to the Park Service authority over the land within the George Washington National Forest that the Trail passes over? Or should the land itself continue to be treated like the rest of the forest, with the National Park Service simply having administrative authority over the Trail?

Justice Thomas, writing for a majority of seven, resolved this question by looking to the terms of the agreements between the Forest Service and the National Park Service regarding the Trail. Pursuant to the federal law that established the Trail in the first place, the Forest Service gave the National Park Service a “right of way” for the Appalachian Trail passing through the George Washington National Forest. To Justice Thomas and the majority, this “right of way” sounded a lot like a run-of-the-mill easement. And under the private law of easements, an easement only grants the easement holder a non-possessory right to use the land; possession of the land itself remains with the grantor of the easement. Justice Thomas thus concluded that the right of way granting authority over the Trail to the Parks Service simply gave the Parks Service administrative authority over the Trail, with control of the land remaining within the Forest Service. Accordingly, the land over which the Trail passed never became part of the National Parks System under the Leasing Act, so authority remained with the Forest Service to grant Atlantic its pipeline right-of-way.

Justice Sotomayor, joined by Justice Kagan, saw the issue quite differently. In their view, it made no sense to treat the Appalachian Trail as simply an easement over land, with the “land” under the authority of one agency (the Forest Service) and the “Trail” under the authority of another. Instead, the Forest Service transferred to the Parks Service the authority to “administer the Trail,” and how can it administer the Trail without also having the authority to administer the land over which it passes? The dissenters also saw the majority’s reliance on the private easement law particularly strange since this is not a case where one landowner granted rights to another. There is only one landowner involved: The federal government, which indisputably owns all of the land. The question is just which administrative agency of the federal government is in charge of it, and the dissenters thought it was strange to look to private property law to resolve that administrative law question. In the dissenters’ view, then, the Forest Service’s grant of authority over the Trail to the Park Service made the Trail, and all the land over which it passes, part of the National Parks System, taking it outside the scope of the Leasing Act and precluding the granting of any right of way.

Finally, in Andrus v. Texas (18-9674), the Court gave a new (though possibly limited) lease on life to a death-row inmate in the Lonestar State. When he was 20 years old, Terrence Andrus attempted a carjacking in a grocery-store parking lot while high on PCP. During the bungled attempt, he fired multiple shots, killing the car-owner and a bystander. He was charged and convicted of capital murder and sentenced to death. But the Supreme Court put a hold on that death sentence due to all the things that happened to Andrus before he turned 20 and, in particular, his trial counsel’s failure to discover or inform the jury of them.

Under Strickland v. Washington (1984), a defendant is entitled to a new trial if he can show a reasonable probability that his counsel’s deficient performance prejudiced him at trial or sentencing. Here, a habeas court had concluded that Andrus’s defense counsel’s performance was woefully deficient, in that he failed to investigate and uncover a “tidal wave of information . . . with regard to mitigation,” all arising from a “childhood marked by extreme neglect and privation [and] a family environment filled with violence and abuse.” But the Texas Court of Criminal Appeals reversed, concluding without explanation that Andrus has failed to satisfy his burden under Strickland.

The Supreme Court reversed, in a per curiam opinion. The Court had no trouble concluding that trial counsel’s performance was deficient. Indeed, by failing to investigate the mitigating circumstances of Andrus’s childhood, defense counsel unwittingly piled on the aggravating evidence that prosecutors presented to the jury. But on the question of prejudice—that is, whether it would have made a difference if the jury had heard the available mitigating evidence—the Court punted, concluding that “[i]t is unclear whether the Court of Criminal Appeals considered Strickland prejudice at all,” given its one-sentence denial of the Strickland claim. The Court therefore remanded the case to the CCA to consider the prejudice prong anew.

That bit irked Justice Alito, who dissented along with Justices Thomas and Gorsuch. Alito found this “tutelary remand” entirely unnecessary, since the CCA had explicitly held that Andrus failed to show “that there was a reasonable probability that the result of the proceedings would have been different, but for counsel’s deficient performance.” What more could be expected? “Perhaps the Court thinks the CCA should have used CAPITAL LETTERS or bold type. Or maybe it should have added: And we really mean it!!!,” Alito mused. (We suspect, but cannot confirm, this is the first SCOTUS opinion to use three exclamation marks.) To the dissenters, the Court had cherry-picked mitigating evidence to produce a one-sided account. The full record contained ample aggravating evidence to justify the CCA’s conclusion that any deficiency in trial counsel’s performance was not prejudicial.

That covers the roughly 314 pages of opinions the Court issued this week. But there was more news on the certiorari front.

First, two grants: In Henry Schein v. Archer and White Sales (No. 19-963), a case that might sound familiar, the Court will decide whether a provision in an arbitration agreement exempting certain claims from arbitration negates an otherwise clear and unmistakable delegation of questions of arbitrability to an arbitrator. And in Albence v. Guzman Chavez (No. 19-897), the Court will decide whether the detention of an alien who is subject to a reinstated removal order and who is pursuing withholding or deferral of removal is governed by 8 U.S.C. 1231 (which does not permit bond) or 8 U.S.C. 1226 (which does).

But the real news was in a slew of denials of closely watched petitions that have been relisted over the past several weeks. In one day, the Court denied the Government’s petition challenging California’s “sanctuary state” laws (after 12 relists); it denied ten petitions raising Second Amendment challenges to various gun-control measures (after 6 relists, and despite having dismissed the first gun-rights case in over a decade on mootness grounds this term); and it denied nine petitions challenging the longstanding, but judge-made, doctrine of qualified immunity, which has been much in the public consciousness of late, as police-reform protests and legislation sweep the nation.

Justice Thomas would have granted cert in both a gun-rights case and a qualified-immunity case. Dissenting from denial in Rogers v. Grewal (No. 18-824), Justice Thomas lamented that the Court did not see fit to review an “onerous” New Jersey law that barred law-abiding citizens from carrying a firearm without a “justifiable need” or “good reason” for doing so. “This Court would almost certainly review the constitutionality of a law requiring citizens to establish a justifiable need before exercising their free speech rights. And it seems highly unlikely that the Court would allow a State to enforce a law requiring a woman to provide a justifiable need before seeking an abortion. But today, faced with a petition challenging just such a restriction on citizens’ Second Amendment rights, the Court simply looks the other way.” And in Baxter v. Bracey (No. 18-1287), Thomas reiterated his “doubts about our qualified immunity jurisprudence,” which he believes strays from the text of 42 U.S.C. § 1983. Perhaps most notable about both “dissentals,” though, was the lack of backing support. Justice Kavanaugh joined (most) of Thomas’s Rogers dissent, and no other justice dissented from the denial in Baxter. Whether this suggests that the Court has less interest in these hot-button issues than the rest of us, or just needs a break, remains to be seen.

That, at long last, is all for this week. We’re still waiting on a number of potential blockbusters, on religion, abortion, and President’s finances, so stay tuned next week.

Tadhg and Dave