Supreme Court Update: Kansas v. Carr (14-449) and Order List
Greetings, Court fans!
Wiggin and Dana just opened a a shiny new office Washington, D.C., but it seems our arrival has been eclipsed by that of another force of nature in the nation's capital. Perhaps anxious to skip town before it's buried, the Justices have been especially busy in the last week, churning out three new opinions, eleven cert grants (including a few biggies), and most recently a couple of separate opinions in a case denied cert. We'll get you partway caught up through this Update, with summaries of the Court's latest death-penalty offering and its recent orders.
In Kansas v. Carr (14-449), the Court reinstated the death sentences of three murderers, reversing the Kansas Supreme Court. That outcome was telegraphed by Justice Scalia's lengthy and detailed description of the underlying crimes—generally a bad sign for the defendants in a capitol appeal. Sidney Gleason was sentenced to death for the murder of a co-conspirator and her boyfriend, whom he killed to prevent them from snitching about a separate violent robbery of an elderly man. The brothers Reginald and Jonathan Carr, meanwhile, are the perpetrators of the so-called Wichita Massacre, a week-long crime spree that began with an armed robbery, continued with the murder of a local cellist and culminated in the rape, robbery, kidnapping, and murder of four young men and women. A fifth survived, only because the bullet intended for her was deflected by a hair clip, and she provided crucial testimony in the brothers' joint sentencing proceeding.
Though the State had no trouble proving aggravating circumstances in either case, the Kansas Supreme Court held that the sentencing court's jury instructions had violated the Eighth Amendment by failing to "affirmatively inform the jury that mitigating circumstances need only be proved to the satisfaction of the individual juror . . . and not beyond a reasonable doubt." It further held that the Carrs' joint sentencing proceeding violated their Eighth Amendment right "to an individualized capital sentencing determination." The U.S. Supreme Court disagreed.
Justice Scalia first rejected Gleason's claim that the Kansas Supreme Court's decision was based on adequate and independent state-law grounds, noting in particular that the Kansas court had itself characterized its decision as deriving from the Eight Amendment. Turning to the jury instructions, Scalia doubted whether it is even possible to apply a standard of proof in determining mitigating factors. Unlike aggravating factors, which are purely factual determinations, "[w]hether mitigation exists . . . is largely a judgment call (or perhaps a value call)" which turns primarily on mercy. "It would mean nothing . . . to tell the jury that the defendants must deserve mercy beyond a reasonable doubt; or must more-likely-than-not deserve it." But even if the constitution forbade an instruction that mitigation must be proved beyond a reasonable doubt, that's not what happened in these cases. The jurors in each case were told that the State has "the burden to prove beyond a reasonable doubt that there are one or more aggravating circumstance and that they are not outweighed by any mitigating circumstances found to exist." In Scalia's view, no reasonable juror could understand that instruction to mean that mitigating circumstances must be proved beyond a reasonable doubt. As for the Carr brothers' joint sentencing, Scalia concluded that, far from being unconstitutional, joint proceedings may be preferable in cases like these because they allow the jurors to more reliably assign relative responsibility. In any event, given the "acts of almost inconceivable cruelty" committed by the Carr brothers, Scalia concluded that it would be "the most extravagant speculation" to suggest that their sentences would have been different if they'd been sentenced separately.
Justice Sotomayor penned a brief solo dissent, stating that she would have dismissed the writs as improvidently granted because the U.S. Supreme Court shouldn't, as a general matter, intervene when a state supreme court has "overprotected" its own residents through an arguably strained interpretation of the federal constitution. Doing so also prevents state courts from experimenting with the best way to protect constitutional rights and may discourage states from adopting important procedural protections in their own constitutions. (This quasi-federalist concern echoes one she raised last term in Heien v. North Carolina (2014), where she lamented that the over-use of qualified immunity as a basis for dismissing civil rights suits prevents courts from deciding tough cases, thereby developing the law.)
We'll bring you updates on the other two cases decided this week—Campbell-Ewald Co. v. Gomez, concerning class actions and the Telephone Consumer Protection Act, and Montanile v. Bd. of Trustees of the Nat'l Elevator Indus. Health Benefit Plan, on ERISA and "equitable liens"—in short order. In the meantime, let's catch up on the Court's recent cert grants. Since our last Update, the Court has accepted eleven new cases, which should just about fill up the OT15 docket. They are:
Elijah v. Joliet (14-9496), which asks whether a Fourth Amendment malicious prosecution claim is cognizable through Section 1983;
Murr v. Wisconsin (15-214), which asks whether, in a regulatory taking case, the "parcel as a whole" concept establishes a rule that two legally distinct, but commonly owned, contiguous parcels must be combined for takings analysis purposes;
Kirtsaeng v. John Wiley & Sons, Inc. (15-375), which asks what is the appropriate standard for awarding attorneys' fees to a prevailing party under § 505 of the Copyright Act;
Encino Motorcars v. Navarro (15-415), which asks whether "service advisors" at car dealerships are exempt from the Fair Labor Standards Act's overtime-pay requirements;
Cuozzo Speed Technologies v. Lee (15-446), which asks whether the Patent Trial Appeal Board, in hearing adjudicative proceedings known as "inter partes review" may construe claims in an issued patent according to their broadest reasonable interpretation rather than their plain and ordinary meaning, and whether the Patent Trial Appeal Board's decision to institute an inter partes review proceeding is judicially unreviewable;
Microsoft Corp. v. Baker (15-457), which asks whether a federal court of appeals has jurisdiction under both Article III and 28 U.S.C. § 1291 to review an order denying class certification after the named plaintiffs voluntarily dismiss their individual claims with prejudice;
McDonnell v. United States (15-474), which asks whether the term "official action" under federal laws making it a felony to take "official action" in exchange for money, campaign contributions, or other things of value, is limited to exercising actual governmental power, threatening to exercise such power, or pressuring others to exercise such power and, if not, whether these statutes are unconstitutional;
Trinity Lutheran Church v. Pauley (15-577), which asks whether the exclusion of churches from an otherwise neutral and secular aid program violates the Free Exercise and Equal Protection Clauses when the state has no valid Establishment Clause concern;
Dietz v. Bouldin (15-458), which asks whether, after a judge has discharged a jury from service in a case and the jurors have left the judge's presence, the judge may recall the jurors for further service in the same case;
Salman v. United States (15-628), which asks whether the personal benefit to the insider that is necessary to establish insider trading under Dirks v. SEC (1983) requires proof of "an exchange that is objective, consequential, and represents at least a potential gain of a pecuniary or similarly valuable nature," as the Second Circuit held in United States v. Newman (2d Cir. 2014), or whether it is enough that the insider and the tippee shared a close family relationship, as the Ninth Circuit held here;
…and last, but certainly not least,
United States v. Texas (15-674), concerning the Obama administration's deferred-action program, which asks: (1) whether a state that voluntarily provides a subsidy to all aliens with deferred action has standing to challenge the program because it will lead to more aliens having deferred action; (2) whether the program is arbitrary and capricious and otherwise not in accordance with law; (3) whether the program was subject to the Administrative Procedure Act's notice-and-comment procedures; and (4) whether the program violates the Take Care Clause of Article II.
Finally, the Court's denial yesterday of certiorari and a stay of execution to the petitioner in Brooks v. Alabama (15-7786), prompted two separate opinions. As Justice Breyer pointed out, dissenting from denial, Brooks was sentenced to death under Alabama's capital sentencing procedure, which allows a jury to render an "advisory verdict" that is not binding on the court. Just last week, the Court struck down Florida's similar scheme under the Sixth Amendment, yet it refused to stay the execution here. In Breyer's view, "[t]he unfairness of treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment." Justices Sotomayor and Ginsburg also noted this disparity in a separate concurrence, but voted to deny certiorari in this particular case because of unnamed procedural obstacles that would have prevented the Court from granting relief.
That'll do it for now. We'll be back soon, though, with all the ERISA and TCPA analysis you can handle! For those of you south of the Sound—including anyone trapped in our new D.C. office—be safe this weekend!