Supreme Court Update: Orders

March 21, 2018 Supreme Court Update

Greetings, Court Fans!

The Court kicked off its March sitting with three new decisions. We'll have summaries toute de suite, but here are the squibs in the meantime:

  • In Cyan, Inc. v. Beaver County Employees Retirement Fund (No. 15-1439), a unanimous Court held that the Securities Litigation Uniform Standards Act of 1998 (SLUSA)—a statute that amended the Securities Act of 1933—did not deprive state courts of their jurisdiction to decide class actions brought under the 1933 Act, nor did it permit defendants to remove class actions alleging only 1933 Act claims from state to federal court;
  • In Ayestas v. Davis (No. 16-6795), the Court (again unanimously) held that a district court's denial of a habeas petitioner's motion for funding to investigate potential habeas claims is a judicial decision subject to appellate review, and that the Fifth Circuit's requirement that the petitioner show a "substantial need" for the services was too demanding;
  • And in Marinello v. United States (No. 16-1144), the Court held 7-2 that to convict a defendant of "corruptly" obstructing or interfering with the due administration of the Internal Revenue Code, the Government must prove that the defendant was aware of a pending tax-related proceeding, or could at least reasonably foresee that such a proceeding would commence.

In addition to the three decisions, the Court granted cert in Nielsen v. Preap (No. 16-1363), which asks whether a criminal alien is exempt from mandatory detention under 8 U.S.C. §1226(c) if, after the alien is released from criminal custody, the Department of Homeland Security does not immediately take him into immigration custody. That issue has been simmering in the federal courts for a while: While the Ninth Circuit held in Nielsen that the answer was "yes," four other federal appeals courts have reached the opposite result. Despite the circuit split, Nielsen has been on hold while the Justices considered Jennings v. Rodriguez, the immigration-detention case finally decided last month after being held over from last term. In Jennings, as you'll no doubt recall, the Court held that detained immigrants have no statutory right to a bond hearing while awaiting removal. We'll find out next term whether the harsh holding in Jennings impacts the Justices' view of the split in Nielsen.

Two cert denials are also worth noting. First, the Court denied review in Hidalgo v. Arizona (No. 17-251), a death-penalty case squarely asking whether, in light of contemporary standards of decency, capital punishment violates the Eighth Amendment. There were no dissents from denial, but Justice Breyer, joined by Ginsburg, Sotomayor, and Kagan issued a "statement respecting the denial of certiorari." Breyer's statement, however, addressed only the more limited question in the case, whether the Arizona's death-penalty statute complied with the requirement that capital-sentencing regimes "genuinely narrow the class of persons eligible for the death penalty." Given that it only takes four to grant cert, it stands to reason that the statement-makers do not think the time is ripe for reconsideration of the death-penalty's constitutionality as a whole.

The Court's denial of cert in Garco Construction v. Speer (No. 17-225) also tells us something about the Court's willingness to revisit existing precedent. The case involved a challenge to the Army Corps of Engineers' interpretation and application of its own regulations, a challenge the Federal Circuit rejected under Auer v. Robbins. Auer held that federal courts must defer to an agency's interpretation of its own ambiguous regulations unless the interpretation is plainly erroneous or inconsistent with the regulation. Although it's not that old, Auer was a frequent target of criticism from the late Justice Scalia, who suggested more than once that the Court should overrule it. Here, the Court rejected the petitioner's request to revisit Auer, but not without a dissent from Justices Thomas and Gorsuch, who are happy to carry on this particular torch. Whether they'll be any more successful at convincing other members of the Court to get on board remains to be seen.

That does it for now. We'll be back soon with summaries of this week's decisions.