Publications

Greetings, Court Fans!

We’re back to start a new term. Coming off a seismic OT21, The Nine (or at least four of them) may be hoping for a “down year” in OT22. But that seems unlikely, as even the cases already on the calendar have the potential to produce some blockbuster decisions—on elections (Moore v. Harper, 21-1271); affirmative action (Students for Fair Admissions v. UNC, No. 21-720, and Students for Fair Admissions v. President & Fellows of Harvard College, No. 20-1199); “wedding speech” and public accommodations (303 Creative LLC v. Elenis, No. 21-476); even unclaimed financial instruments (Arkansas v. Delaware, No. 22O146)!

Read on for brief summaries of opinions relating to orders in several cases—Buffington v. McDonough (No. 21-972), Anthony v. Louisiana (No. 21-993), Clendening v. United States (No. 21-1410), Khorrami v. Arizona (No. 21-1553), Chinn v. Shoop (No. 22-5058), and Thomas v. Lumpkin (No. 21-444)—and for a preview of the cases being argued this week.

The Court issued orders yesterday morning denying cert in a number of cases that prompted dissents from denial:

• In Buffington v. McDonough (No. 21-972), Justice Gorsuch dissented from the denial of certiorari in a case involving Veterans Affairs benefits. The VA denied Thomas Buffington benefits based on its own internal regulations, and the lower courts invoked Chevron deference to uphold the denial. That, of course, is chalkboard-scratching to Gorsuch’s ears. In a sixteen-page dissent from denial, he once again excoriated Chevron deference as an abdication of the courts’ obligation to interpret the law as Congress, not agencies, write it.

• In Anthony v. Louisiana (No. 21-993), Justices Sotomayor and Jackson dissented from the denial of certiorari in a case involving “blatant and egregious” prosecutorial misconduct—namely the testimony by a grand-jury prosecutor in a resulting criminal case attesting to his own belief in the defendant’s guilt and vouching for the credibility of other prosecution witnesses. The lower court found the misconduct to be harmless error, but Sotomayor and Jackson believed that was a misapplication of existing law warranting summary reversal.

• In Carol v. Clendening (No. 21-1410), Justice Thomas dissented from the denial of a case calling for the reversal of Feres v. United States (1950), a case that held that military personnel cannot sue under the Federal Tort Claims Act for any injury “incident to military service.” Here, Feres was invoked to insulate the United States from a suit brought by the widow of a serviceman who died of leukemia after being exposed to toxins and contaminated water at Camp Lejeune. The Fourth Circuit acknowledged “criticism of the Feres doctrine,” but “le[ft] it to the Supreme Court” to overrule its own decision. Justice Thomas argued that the Court “should accept the invitation,” as Feres represents an atextual, policy-based carveout to the FTCA’s plain meaning.

• In Khorrami v. Arizona (No. 21-1553), Justice Gorsuch dissented from denial in a case arguing that the Sixth and Fourteenth Amendment requires criminal defendants to be tried by 12-member juries, notwithstanding the Court’s holding in Williams v. Florida (1970) that a 12-member panel is “not a necessary ingredient” of the Sixth Amendment right to trial by jury. Justice Gorsuch would have granted cert to reverse Williams. Justice Kavanaugh also noted (without comment) that he would have granted the petition.

• In Chinn v. Shoop (No. 22-5058), Justices Jackson and Sotomayor dissented from the denial of certiorari in a case involving a violation of Brady v. Maryland (1963). Justice Jackson wrote to emphasize the relatively low burden to demonstrate “materiality” under both Brady and Strickland v. Washington (1984). Believing that the Sixth Circuit applied a more onerous materiality standard, Justices Jackson and Sotomayor would have granted cert and summarily reversed.

• Finally (for the sake of completeness), Justices Sotomayor and Jackson also dissented from the denial of certiorari last month in Thomas v. Lumpkin (No. 21-444), a capital case in which the Black petitioner was convicted and sentenced to death by an all-white jury, three of whom expressed opposition to interracial marriage in their jury questionnaires. Notwithstanding clear evidence of racial bias among some jurors, Thomas’s defense counsel did not object. Contending that Thomas’s conviction and death sentence clearly violate right to effective assistance of counsel, Justices Sotomayor and Jackson would have granted cert and summarily reversed.

The Court hears argument in nine cases this week (albeit with some consolidation):

• Monday’s arguments concern the jurisdiction of federal courts to hear various types of agency challenges:
  • In Axon Enterprise v. FTC (No. 21-86) the Court will determine whether Congress impliedly stripped federal district courts of jurisdiction over constitutional challenges to the Federal Trade Commission’s structure, procedures, and existence by granting the courts of appeals jurisdiction to “affirm, enforce, modify, or set aside” the FTC’s cease-and-desist orders.
  • In SEC v. Cochran (No. 21-1239), the Court will decide whether federal district courts have jurisdiction to hear a suit in which the respondent in an ongoing Securities and Exchange Commission administrative proceeding seeks to enjoin that proceeding, based on an alleged constitutional defect in the statutory provisions that govern the removal of the administrative law judge who will conduct the proceeding.

• On Tuesday, the Court will take up potentially far-reaching questions of jurisdiction and civil procedure:
  • In Mallory v. Norfolk Southern Railway Co. (No. 21-1168),the Court will decide whether the Due Process Clause prohibits a state from requiring corporations to consent to personal jurisdiction in order to do business in the state.
  • In Health and Hospital Corp. v. Talevski (No. 21-806), the Court is invited to reexamine whether statutes enacted under the Spending Clause can give rise to privately enforceable rights under 42 U.S.C. 1983, and to determine in particular whether the Federal Nursing Home Amendments Act of 1987 gives rise to a private right of action.

• Thursday, the Court hears consolidated arguments in four cases—Haaland v. Brackeen (No. 21-375), Cherokee Nation v. Brackeen (No. 21-377), Texas v. Haaland (No. 21-378), and Brackeen v. Haaland (No. 21-380)—raising various challenges to the Indian Child Welfare Act of 1978 and its implementing regulations, which create placement preferences favoring Indian adoptive families in child-placement proceedings involving an “Indian child.” The questions include the following:
  • Whether Congress has the power under the Indian Commerce Clause or otherwise to enact laws governing state child-custody proceedings merely because the child is or may be an Indian;
  • Whether the ICWA and its implementing regulations violate the Fifth Amendment’s equal-protection guarantee;
  • Whether the child-preference policies created by the ICWA and its implementing regulations are rationally related to legitimate governmental interests;
  • Whether the ICWA and its implementing regulations violate the anticommandeering doctrine by requiring States to implement Congress’s child-custody regime;
  • Whether the ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement preference enacted by Congress.

Okay, that’s all for this first installment of Supreme Court Update 2.0. Please let us know how you like the new format (dislike opinions you can keep to yourself), and stay tuned for next Monday’s Update, with summaries of any additional opinions this week, as well as a preview of the (next) week to come.

Tadhg and Dave