Kenyeres v. Ashcroft (02A777) and order list

March 24, 2003 Supreme Court Update

Greetings Court fans!
The Court reconvened today for its March argument session -- the big one of this Term. They hear the Texas sodomy case on Wednesday and the University of Michigan affirmative action cases next Tuesday. Nevertheless, since today's news isn't the most exciting in the world (see below), I thought I would start out with some statistics:
The Court has heard 54 of the 78 cases that it will decide this Term, and has issued decisions in 30 of those 54. Four of the 30 decisions did not reach the merits of the case (dismissed as improvidently granted, affirmed by equally divided Court, dismissed in light of recent legislation), but the remaining 26 resulted in published opinions. Souter and Ginsburg have each issued four majority opinions (accounting for nearly 1/3 of the Court's output), and thus lead the majority opinion race. Scalia, Kennedy, and Thomas have tied for last with 2 majority opinions each.
Perhaps Kennedy has been too busy reviewing stay applications to produce majority opinions. On Friday, Kennedy issued an "in-chambers opinion" to announce that he had denied an alien's application for a stay of removal (i.e., deportation) pending appellate review of his asylum application. Kenyeres v. Ashcroft (02A777). (Applications to stay proceedings pending review in the Supreme Court are usually routed to the Justice assigned to the relevant circuit court. Most applications are denied or granted without opinion, but occasionally a Justice feels moved to write about his or her reasoning. Any such writings are published as "in-chambers opinions.") The central point of Kennedy's opinion was not that he was denying the application, but rather that he thinks the Court should consider -- in another case -- the larger question presented by the application, namely the standard to be applied when an alien requests a stay of deportation proceedings pending further appellate review. Some circuit courts have applied the standard found in 8 USC 1252(f)(2), which prohibits a stay of deportation unless the alien shows by "clear and convincing evidence" that the removal order is unlawful. Other courts, by contrast, have expressed concern that this standard might impede access to the courts in meritorious cases and thus have applied a more lenient standard that merely evaluates the alien's "likelihood of success on the merits." According to Kennedy, this circuit split merits review by the Court, although not in Mr. Kenyeres' case because Kenyeres loses under either standard. Look for this issue on the Court's docket in the near future.
Finally today, the Court granted cert in one case and asked the Solicitor General to provide the views of the US in another. In Maryland v. Pringle (02-809), police arrested Pringle, a passenger in the front seat of a car, after they found a roll of cash in the glove compartment and drugs in a backseat armrest. Pringle subsequently confessed that the drugs and money were his, and (not surprisingly) he was convicted. The Maryland Court of Appeals held, however, that police lacked probable cause to arrest Pringle, and today, the Court agreed to hear Maryland's appeal from that decision. In Central Laborers' Pension Fund v. Heinz (02-891) the Court asked the SG to weigh in on whether a "suspension" of early retirement benefits constitutes an "elimination" or "reduction" of such benefits in violation of ERISA's anti-cutback rule. (I can just feel someone in the SG's office cringing--another ERISA case!)
Look for one or more opinions tomorrow, but that's all for today. Thanks for reading!
From the Appellate Practice Group at Wiggin & Dana.
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