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Greetings, Court Fans!

Last week’s big news was not found in the pages of the U.S. Reports. As you’ve surely heard, last Thursday Justice Breyer officially announced his retirement from regular service on the Court after that news was leaked the day before. The decision will take effect when the Court recesses for the summer “assuming that by then [a] successor has been nominated and confirmed.” Court watchers have spent the better part of the week debating whom that successor should be (President Biden has promised to nominate a Black woman), but we remain focused as always on the quotidian opinions of the Court she will join.

It doesn’t get much more quotidian than the subject-matter of the Court’s sole opinion of the week: the obligations of a fiduciary under the Employee Retirement Income Security Act (ERISA). In Hughes v. Northwestern University (No. 19-1401), a unanimous Court (with Justice Barrett recused due to a fleeting involvement with the case in the Seventh Circuit) held that a fiduciary has a continuing duty to monitor investments and remove imprudent ones even in the context of defined-contribution plans where beneficiaries have a menu of investment options to choose from. Here, the petitioners (certain current and former employees of Northwestern) alleged that the respondents (Northwestern and its retirement-plan administrators) breached ERISA’s duty of prudence by failing to remove imprudent investments from the menu of investment offerings in Northwestern’s retirement plan. The Seventh Circuit held that the petitioners could not state a claim because they were able to choose which investments they wished to make from a diverse menu of options, which included investments that had the low-fee characteristics that the petitioners desired. Writing for the Court, Justice Sotomayor concluded that the Seventh Circuit had conflated two different duties under ERISA. While it is true that fiduciaries must offer a diverse menu of options, doing so does not relieve them of the separate duty to ensure that all options are prudent. If, as alleged, certain of the options offered by Northwestern’s plan were imprudent, then the respondents had a duty to remove them regardless of whether the petitioners had other choices on the menu.

Although Justice Breyer hasn’t traditionally been associated with the  Court’s fascinating ERISA jurisprudence, he has been front and center in recent years in its death-penalty jurisprudence, where he has recently taken the lead in suggesting that the modern death penalty may not be constitutional. (Prediction: He will finally come right out and say so in a dissent this term, perhaps in United States v. Tsarnaev, (No. 20-443) It may therefore have been bittersweet for him to formally announce his retirement on a day that the Court lifted a stay of execution that had been entered not only by an Alabama district judge, but affirmed by a unanimous Eleventh Circuit. That was the result in Hamm v. Reeves (No. 21A372), which was handed down last Thursday.

Matthew Reeves had been on Alabama’s death row for nearly a quarter century, following his conviction for a 1996 murder. Alabama’s default method of execution is lethal injection. But over the last few decades there have been a number of successful challenges to lethal-injection protocols. To avoid such challenges, Alabama (along with a few other states) has enacted a law that gives inmates a window of opportunity to choose a different method of execution (in Alabama’s case, execution by nitrogen hypoxia). Some members of the Court have opposed this “perverse requirement that inmates offer alternative methods for their own executions,” but Reeves’s challenge had less to do with the choice-of-execution law and more to do with his own cognitive disabilities. He argued that the form he was given to opt out of lethal injection was incomprehensible to him and that Alabama violated the Americans with Disabilities Act by failing to provide him with assistance in understanding the form. The District Court, after an evidentiary hearing, concluded that Reeves was likely to prevail on his ADA claim and therefore issued a stay of execution. The Eleventh Circuit affirmed. Both courts stressed that there was no prejudice to Alabama in granting a brief stay, as the state could still execute him via nitrogen hypoxia.

By a 5-4 vote, the Supreme Court vacated the stay, but provided no explanation why. Justice Kagan led the charge for the dissenters (Breyer was otherwise indisposed), arguing that once the lower courts had determined that a brief stay of execution was warranted, the majority had “no warrant to reweigh the evidence offered below.” “A short delay,” she maintained, “cannot justify dismissing . . . the strength of Reeves’s suit [] or the careful work of the judges primarily responsible for assessing his case.”

Of note, Justice Barrett also dissented, albeit without opinion. (She did not join Kagan’s dissent.) Given her past (academic) writings, some have wondered whether Barrett might be a bit queasy when it comes to the death penalty. And, because the five other conservative Justices can generally grant or vacate a stay regardless of Barrett’s vote, it is not always possible to know how she’s voted on a particular motion. Her decision to state that she would have denied Alabama relief in Reeves could therefore provide a slight glimmer of hope for death-penalty opponents yearning for a fifth vote; but without writing or joining an opinion to explain her views, there remains a great deal of uncertainty.

That’s all for now. The Court is in recess at the moment, so we don’t expect further opinions in the immediate future. But because it’s been issuing decisions remotely, that’s not so sure a prediction as it might have been in past years. In any case, we’ll bring you the latest when it arrives.

Tadhg and Dave