Supreme Court Update: Bosse v. Oklahoma (15-9173) and Order List

October 12, 2016 Supreme Court Update

Greetings, Court Fans!

Fresh from a three-day weekend, the Court made short work yesterday of its first decision of the term, a per curiam summary reversal in Bosse v. Oklahoma (15-9173). Though the case touched upon an interesting and potentially controversial question—whether the Eighth Amendment prohibits victims' family members from weighing in on the appropriate sentence during the penalty phase of a capital case—it actually turned on the much less controversial question of who gets to decide when a Supreme Court decision has been overruled. (Hint: It's not the Oklahoma Court of Criminal Appeals.)

In Booth v. Maryland (1987), the Supreme Court held that the Eighth Amendment prohibits a capital sentencing jury from considering victim impact evidence that does not directly relate to the circumstances of the crime. But four years later, in Payne v. Tennessee (1991) the Court reversed Booth—in part—holding that the Eighth Amendment does not bar victim-impact evidence relating to the personal characteristics of the victim and the emotional impact of the crimes on the victim's family. Payne did not address Booth's holding that the Eighth Amendment prohibits statements from victims' family members regarding the appropriate sentence. Nevertheless, the Oklahoma Court of Criminal Appeals has, for some time, been of the view that Payne implicitly overruled that portion of the Booth decision. In Bosse, the Supreme Court stepped in to remind the courts of Oklahoma and beyond that "it is this Court's prerogative alone to overrule one of its precedents." Unless and until the Supreme Court of the United States concludes that Booth's holding on family members' statements is no longer good law, lower courts must follow it.

While the Bosse decision is hardly controversial, the Court did add two new arguments to its calendar that belie the notion that the Eight are seeking to avoid tough cases while they are shorthanded:

Hernandez v. Mesa (15-118) arises out of the death of a 15-year-old Mexican boy who was shot by a U.S. Border Patrol agent while he played in a culvert along the U.S.–Mexico border. The Fifth Circuit ruled that the boy's family could not bring an excessive-force claim because the Fourth Amendment's protections do not extend to a Mexican citizen shot in Mexico, even if the bullet was fired from Texas. The Court has granted certiorari to consider: (1) Whether a formalist or functionalist analysis governs the extraterritorial application of the Fourth Amendment's prohibition on unjustified deadly force, as applied to a cross-border shooting of an unarmed Mexican citizen in an enclosed area controlled by the United States; (2) Whether qualified immunity may be granted or denied based on facts—such as the victim's legal status—unknown to the officer at the time of the incident; and (3) Whether the claim in this case may be asserted under Bivens v. Six Unknown Federal Narcotics Agents (1971).

The Court also granted cert in and consolidated a trio of cases out of the Second Circuit concerning the treatment of Middle Eastern prisoners in the immediate aftermath of the September 11th attacks. Ziglar v. Turkmen (15-1358), Ashcroft v. Turkmen (15-1359), and Hasty v. Turkmen (15-1363), together raise three questions: (1) Whether the judicially implied right of action under Bivens applies in these cases, which allege discrimination by high-ranking federal officials in the immediate aftermath of September 11th; (2) Whether the defendants are entitled to qualified immunity; and (3) Whether the plaintiffs' complaints meet the pleading requirements of Ashcroft v. Iqbal (2009). Notably, this potential blockbuster will be decided by just six justices, as Justices Sotomayor and Kagan are both recused.

Finally, the Court also granted cert in Midland Funding v. Johnson (16-348), a debt-collection case which raises two slightly more quotidian questions: (1) Whether the filing of an accurate proof of claim for an unextinguished time-barred debt in a bankruptcy proceeding violates the Fair Debt Collection Practices Act; and (2) Whether the Bankruptcy Code, which governs the filing of proofs of claim in bankruptcy, precludes the application of the Fair Debt Collection Practices Act to the filing of an accurate proof of claim for an unextinguished time-barred debt.

That's all for now. We'll be back with the latest when it arrives.