A Look Back—Justice Sotomayor’s First Oral Dissent

The Supreme Court has finally released—and Oyez has made available—audio recordings of last Term’s opinion announcements. Most of these announcements are summaries of majority opinions, but there are also a few oral dissents. Standard practice on the Supreme Court is for only the author of the opinion of the Court to read a summary of that opinion from the bench. The justices typically do not also summarize their dissents or concurrences. Yet on occasion—usually a handful of times a Term—a justice will decide to read a dissent from the bench. The justices recognize oral dissents as a way to amplify the dissenter’s displeasure with the majority holding. They often explain that in reading their dissents from the bench they seek to draw increased attention to their position.

In a Term with numerous important decisions featuring oral dissents (more on those in subsequent postings), the most notable was surely the dissent that Justice Sotomayor read in the Term’s affirmative action case, Schuette v. Coalition to Defend Affirmative Action. In her five years on the Supreme Court, Sotomayor had never before read a dissent from the bench. Indeed, she had said that she didn’t think much of the practice, once dismissing oral dissents as “entertainment for the press.” She noted her frustration when “listening to my colleagues read their summary of our opinion”: “I’m saying, ‘That’s not what the case is really about; that’s not what it said.’”

Sotomayor said she changed her mind about oral dissents because of a discussion with Linda Greenhouse, in which the ex-New York Times Supreme Court reporter convinced the justice of their potential value. She chose Shuette, a case in which a six-justice majority upheld Michigan’s ban on racial preferences in its public universities, as the occasion for her first bench dissent. When Justice Sotomayor first read her dissent, I posted a discussion on inaugural oral dissents in which I wrote:

That Justice Sotomayor chose this particular case for her first oral dissent makes sense. As various media accounts have noted, she has been outspoken in her support for affirmative action programs. In her memoir, Justice Sotomayor recognized that affirmative action played a critical role in her own life. During oral arguments in the Schuette case, she was particularly aggressive in challenging the lawyer defending the affirmative action ban. Her lengthy written dissent, which was joined by Justice Ginsberg, is impassioned and direct. Considering all this, it would be more surprising if she had chosen not to announce her dissent from the bench.

Now we can actually listen to what she said. Justice Sotomayor’s announcement runs about twelve minutes. She reads her statement in a tone that is careful, controlled, as well as clearly frustrated with the direction the Court has taken. She draws the language of her bench dissent from excerpts of her written opinion, with some reordering of arguments and minor editing. The bulk of the statement is a summary of why she feels the “political process” precedents of Hunter v. Erickson, 393 U. S. 385 (1969) and Washington v. Seattle School Dist. No. 1, 458 U. S. 457 (1982) should control in this case, and of why Michigan voters’ effort to amend their constitution to prohibit racial preferences in higher education should be struck down as a violation of the Fourteenth Amendment’s Equal Protection Clause.

Toward the end of her bench announcement (at about 9:40 in the audio), however, she shifts gears, arguing why she believes there is still a need for race-conscious admissions policies in universities. Here she reads excerpts from the most controversial portion of her written dissent. This is the section in which she challenges her colleagues for “question[ing] the wisdom of using race sensitive admissions policies in the first place.” This is the section that moved Chief Justice Roberts to write a concurring opinion specifically to rebut her characterization of the majority’s position.

To challenge the wisdom of race-conscious admissions policies, Justice Sotomayor argues, ignores the value of diversity in higher education. At this point she diverges from her the language written opinion, toning down her accusations against her colleagues. Her written opinion reads as follows: To question “race-sensitive admissions policies … ignores the importance of diversity in institutions of higher education and reveals how little my colleagues understand about the reality of race in America.” Translated into her bench dissent, she said that to question race-sensitive admissions policies “reveals a fundamental understanding about the reality of race in American society.” (I assume she meant to say “misunderstanding about the reality of race in society,” which would make more sense. Her misstatement or self-edit might indicate that throwing barbs at colleagues is a bit harder to do when they’re sitting right next to you. According to Adam Liptak of the New York Times, “[s]everal of her colleagues seemed tense, impatient and grim as she spoke.”) She continues (again toning down slightly the language of the written dissent): “In the end, my colleagues believe that we should leave race out of the constitutional picture entirely and let the voters sort it out. This reasoning ignores the stark reality, all too apparent in communities throughout the country: that race still matters.”

She then concludes her inaugural oral dissent by reading this impassioned language from the text of her written dissent:

The way to stop discrimination on the basis of race is to speak openly and candidly on the subject of race, and to apply the Constitution with eyes open to the unfortunate effects of centuries of racial discrimination. As members of the judiciary tasked with intervening to carry out the guarantee of equal protection, we ought not sit back and wish away, rather than confront, the racial inequality that exists in our society. It is this view that works harm, by perpetuating the facile notion that what makes race matter is acknowledging the simple truth that race does matter, and that it has influenced and continues to influence voters’ decisions to deny minorities meaningful and equal access to the political process.

States’ Rights and White Teeth

On Tuesday, the Supreme Court heard a case involving the North Carolina dental board’s efforts to regulate the market for teeth-whitening services. Why, you may ask, is the nation’s highest court concerning itself with this kind of case? The answer, argues Noah Feldman, is states’ rights. The lawyers representing the dental board argue that this is a case about protecting the states from regulatory overreach by the Federal Trade Commission.

The basic issue before the Court is as follows: The North Carolina State Board of Dental Examiners was created by the state, but the state does not oversee its operations. Most of the board members are selected by the state’s dentists. The board decided to prohibit anyone other than a dentist from performing teeth-whitening procedures—an obvious effort to a serve the financial interests of North Carolina dentists. The FTC sanctioned the dental board for anticompetitive practices, and a federal court upheld the FTC decision. But the dental board argues that it does not fall under the jurisdiction of the FTC because it is a state organization—and state organizations are generally exempt from federal antitrust regulation. The Supreme Court must now decide whether the board—which, while created by the state, is not under the direct supervision of the state—falls under the protective shield of “state action immunity” from FTC regulation. (For more details on the case, check out the SCOTUSblog preview here.)

At oral arguments on Tuesday, the lawyer representing the board hit his big theme right from the start. “[R]espect for federalism,” he told the justices, “requires deference to a State’s sovereign choices concerning how to structure and manage its own regulatory agencies.” And he kept returning to his federalism theme: “[F]undamentally, it is a question for the State to determine whether it wants to bear that risk”—i.e., of granting substantial autonomy to a regulatory board staffed by obviously self-interested actors. “The State has decided that the benefits of having market participants make decisions and not having their every—each and every decision actively second­-guessed by a higher level of bureaucracy is worth it.”

We’ll have to wait and see whether these kinds of federalism arguments will win over the Court. Justices Alito and Scalia were particularly aggressive in questioning the federal government lawyer about how closely the FTC could delve into the workings of state organizations when determining whether “state action immunity” applied to that organization. The lawyer for the dental board appeared to be subject to more frequent and more skeptical questioning than the government lawyer—a possible indication that the Court is leaning toward upholding the FTC ruling.

Predicting the Winners in Teva Pharmaceuticals v. Sandoz and Jennings v. Stephens

The Supreme Court heard oral argument in two cases on Wednesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Teva Pharmaceuticals USA, Inc. v. Sandoz, Inc. asks whether a district court’s factual finding in support of its construction of a patent claim term may be reviewed de novo, as the Federal Circuit requires, or only for clear error, as Federal Rule of Civil Procedure 52(a) requires.

The Petitioner Teva argued that Federal Rule of Civil Procedure 52(a) applies and the Federal Circuit must apply a deferential clear error standard of review to the district court’s findings of facts that underlie its claim construction of the patent. The Respondent Sandoz argued that de novo review applied because of the Supreme Court’s Markman decision. The Solicitor General, supporting neither party, argued that Rule 52(a) applies to any subsidiary factual findings related to claim construction, such as to the underlying science related to the invention. But the SG also argued that applying the clear-error standard would not likely alter the Federal Circuit’s conclusion that the patent was indefinite and that, ultimately, the Supreme Court should remand the case back to the Federal Circuit to consider the correct standard. In a footnote in its brief, the SG even conceded its approach might make any later ruling on remand irrelevant if it occurs after Teva’s patent expiration in September 2015.

My prediction is that the Supreme Court will reverse the Federal Circuit decision insofar as it failed to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below. The Respondent Sandoz received 40 questions, 7 more than the Petitioner Teva. The differential suggests a win for Teva, at least in some respect.

The SG’s more nuanced position makes it more difficult to predict the entirety of the Supreme Court’s ruling. The SG, which received 12 questions in 10 minutes, agreed that Rule 52(a) should apply to subsidiary factual findings, but had a much different take on the merits of Teva’s patent and how the case should proceed on remand. In past cases, the Supreme Court has tended to side with the SG’s positions. In this case, though, I think the Court is unlikely to find appealing the possibility of a remand that could be mooted by the expiration of Teva’s patent. So, looking beyond simply the number of questions during oral argument, I predict that the Supreme Court will resolve the case and issue of the definiteness of the patent applying Rule 52(a) to the district court’s factual findings, instead of remanding that determination for the Federal Court. Whether or not the Supreme Court will find Teva’s patent claim definite is harder to predict. All I can say is that it should help Teva’s side, at least modestly, to have a Rule 52(a) standard of review.

Figure 1.

Lee - 10.15.14 Teva v Sandoz (edited)

The second case, Jennings v. Stephens, asks whether the Fifth Circuit erred in holding that a federal habeas petitioner who prevailed in the district court on an ineffective assistance of counsel claim must file a separate notice of appeal and motion for a certificate of appealability to raise an allegation of deficient performance that the district court rejected, even though the Fifth Circuit acquired jurisdiction over the entire claim as a result of the respondent’s appeal.

My prediction is that the Court will side with the Respondent Stephens’ position (i.e., that the Fifth Circuit correctly decided the case). This case is easier to predict. The Petitioner Jennings received 14 more questions than the Respondent Stephens, which is a fairly large differential in questioning that suggests a win for Stephens (the Director of the Texas Department of Criminal Justice, Correctional Institutions Division).

Figure 2.

Lee - 10.15.14 Jennings v Stephens

UPDATE on October 20: Individual Justice Analysis Suggests Close Call

I had a chance to go back over the question count per Justice. This examination paints a different picture of the possible winner than my earlier analysis of the total question count during oral argument. In contrast to using the Court’s total question count as a predictor, the question count by individual Justice leans slightly in favor of the Respondent Sandoz.

Five of the Justices (Roberts, Kennedy, Ginsburg, Alito, and Sotomayor) asked the Respondent fewer questions than the Petitioner—which suggests a more favorable outcome for the Respondent. It should be noted, however, the differential was not large. For four of these Justices (Roberts, Kennedy, Alito, and Sotomayor), the question differential was only one or two questions. Justice Kennedy, whose vote in past studies was harder to predict based on question counts, asked the Petitioner Teva just one more question than the Respondent (4 to 3). Justice Ginsburg was the only Justice who asked the Petitioner twice as many questions (6 to 3).

By contrast, three of the Justices (Scalia, Breyer, and Kagan) asked the Petitioner fewer questions by large margins. Indeed, Justices Scalia and Kagan asked the Respondent twice as many questions than the Petitioner (6 to 3, and 7 to 3 questions), while Justice Breyer asked more than three times as many questions to Respondent (14 to 4). (Justice Thomas did not ask any questions.)

So has this analysis changed my original prediction? To some extent, yes. I am less confident in the prediction, given the individual Justice breakdown. However, given the Solicitor General’s position in the case and the total question count plus three Justices with larger question differentials in favor of the Petitioner, I am going to stick by my original prediction that the Supreme Court will reverse the Federal Circuit decision for failing to apply a clear error standard under Rule 52(a) to any factual findings related to the claim construction below.

Teva Pharmaceuticals v. Sandoz: Inside the Case

On October 15, 2014, the Supreme Court hears oral argument in Teva Pharmaceuticals v. Sandoz, a pharmaceutical patent case that could clarify critical issues of claim construction in patent litigation as well as the relative power of trial courts and appellate courts in such matters. Professor David Schwartz (IIT Chicago-Kent College of Law) discusses the background of the case and the central issue: What is the proper standard of review that the appellate court should use to review claim constructions of a patent done by trial courts?

Predicting the Winners in Kansas v. Nebraska and N.C. Board of Dental Examiners v. FTC

The Supreme Court heard oral argument in two cases on Tuesday. I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. Studies have shown that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Kansas v. Nebraska and Colorado asks what relief is appropriate to remedy the violation by Nebraska of a compact apportioning the waters of the Republican River between Kansas, Nebraska, and Colorado. The Court has original jurisdiction over the case involving three states and will review the special master’s report and award of remedies.

This is an unusual case involving the Court exercising original jurisdiction. It’s a tough case to call simply based on the question count. Plaintiff Kansas received a few more questions (38) than Defendants Nebraska and Colorado (32), which suggests that the Kansas will lose in its attempt to convince the Court that injunctive relief is warranted, as well as more significant disgorgement.

However, the Defendants’ position may not necessary prevail, either. In prior cases, the Court has tended to side with the Solicitor General’s position. In this case, the SG supported the special master’s report and issuance of partial disgorgement, but no injunctive relief. The SG’s attorney received 22 questions, although it’s not clear how much time was allotted. Based on both the question count and the Supreme Court’s tendency of adopting the SG’s position in prior cases, my prediction in this case is that the Supreme Court will follow the SG’s position.

Figure 1.

Lee 10.14.14 Kansas v Nebraska questions

The second case, North Carolina Board of Dental Examiners v. Federal Trade Commission, asks whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants.

My prediction is that the Court will side with Respondent FTC’s position (i.e., that the Fourth Circuit correctly upheld the FTC’s determination that the state-action doctrine did not exempt the Petitioner’s conduct from federal antitrust scrutiny). The Petitioner North Carolina Board of Dental Examiners received nine more questions than the Respondent FTC, which suggests a win for the FTC.

Figure 2.

Lee 10.14.14 NC Board of Dental Examiners questions

 

Recapping the Opening Week at the Supreme Court, October Term 2014

It has been a remarkably exciting opening week of the new Term at the Supreme Court. The biggest news came right at the opening “Oyez.” With most Court watchers confidently predicting that this was going to be the term when the justices squarely faced the constitutionality of same-sex marriage bans, the justices announced at 9:30 am on Monday morning that they were going to take a different approach. The Court denied review of the seven pending same-sex marriage cases. Since each of these cases involved federal appeals court decisions that had recognized a constitutional right to same-sex marriage, the effect of this monumental decision not to decide was to strike down same-sex marriage bans in a large swath of the country.

This non-decision amounted to the strongest signal the Court has given to this point that a majority of the justices believe the Constitution prohibits states from prohibiting same-sex marriage. It also brings same-sex marriage to states in which there is considerable opposition to same-sex marriage. Prior to this point, state legislatures and courts had legalized same-sex marriage in 19 states. After Monday’s Court order, the number has reached 24 and, counting all the states covered by the three federal circuits affected by Monday’s order, will soon reach 30 states. Many of these newly added states have strong conservative leanings. In response, some of the affected states have given up the fight against same-sex marriage, while others are vowing to fight on. Then, on Tuesday, the U.S. Court of Appeals for the Ninth Circuit struck down prohibitions on same-sex marriage in Idaho and Nevada. As a result, the total number of states in which same-sex couples have or will likely soon have the right to marry is now at 34.

Tuesday’s Ninth Circuit decision led to some interesting events, including some embarrassment, at the Supreme Court. Idaho immediately filed at the Supreme Court a request for a stay, which Justice Kennedy—as the Justice responsible for these kinds of requests from the Ninth Circuit—granted. This pro forma decision had the effect of temporarily halting the granting of marriage licenses to same-sex couples in Idaho. Granting a stay in this situation is standard practice for the Court, and, in light of Monday’s actions, it will likely only prove a temporary delay in Idaho’s acceptance of same-sex marriage. This was not the end of the story, however. An apparent mix-up at the Court resulted in the stay being applied to Nevada as well, despite the fact that Nevada had not requested a stay and was already starting to issue marriage licenses to same-sex couples. The Court quickly fixed the mistake, but not before Nevada halted issuing marriage licenses to same-sex couples for a day.

The other big issue that the Court has been dealing with this week is voting rights. Partly in response to the Court’s 2013 decision in Shelby County, in which the Court struck down a key section of the Voting Rights Act of 1965, various states have passed new voting regulations. With a new round of elections looming, legal challenges to these regulations have been working their way through the courts at high speed, and the Supreme Court has weighed in on several of them. On Wednesday, the Court issued an unsigned order that put back into effect certain voting regulations that North Carolina had implemented but that a federal appeals court had blocked. The court found that the regulations, which prohibited same-day registration and the counting of votes cast in the wrong precinct, disproportionately harmed African American voters. Dissenting from the Court’s order were Justices Ginsburg and Sotomayor. On Thursday, the Court came out the other way in a challenge out of Wisconsin, blocking a photo-identification requirement the state recently passed. Other cases are still pending review at the Court.

The Court was also hearing arguments in some interesting cases this week. On Tuesday, the Court heard arguments in a religious freedom case involving a man serving a life sentence in an Arkansas prison who wants to grow a beard. (See my summary of the case here.) Oral arguments seemed to be strongly in favor of the prisoner’s claim.

On Wednesday, the Court considered the question of whether the time that retail or warehouse employees spend going through security checks must be recognized as time on the clock. If so, the employees may be due overtime pay. The businesses countered that this time is analogous to the time an employee spends commuting to work, and therefore is not part of the paid workday. Although a rather dry, technical question, the resolution of this issue has huge financial consequences for large businesses like Amazon that routinely require employees to stand in security checks at the end of the day—sometimes for as long as 25 minutes—to prevent theft of merchandise.

The Court on Wednesday also considered a case about whether jurors should be allowed to testify about their deliberations. Adam Liptak reported in the New York Times that oral arguments in the case were unusually one-sided, with the lawyer arguing that juror testimony should not be allowed receiving almost no questions.

So there you have it—an historic opening week to the Supreme Court Term. Onward.

Predicting the Winners in Integrity Staffing Solutions v. Busk and Warger v. Shauers

The Supreme Court heard oral argument in two cases on Wednesday, October 8, in the first week of the October 2014 Term. As I hope to do all Term, I’m predicting the winners of the Supreme Court cases based on the number of questions asked during oral argument. It’s well established that the advocate who receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

Integrity Staffing Solutions, Inc. v. Busk presents the question whether time spent in security screenings is compensable under the Fair Labor Standards Act, as amended by the Portal-to-Portal Act. My prediction is that the Petitioner Integrity Staffing Solutions will win. The Respondent Busk received almost twice as many questions as the Petitioner (51 to 27 questions), and 11 more questions than even the total number of questions for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Integrity Staffing Solutions (which argued that the time spent in security screenings is not compensable under the FLSA).

Figure 1.

Lee - 10.8.14 Integrity Staffing v Busk questions

The second case, Warger v. Shauers, raises the issue whether Federal Rule of Evidence 606(b) permits a party moving for a new trial based on juror dishonesty during voir dire to introduce juror testimony about statements made during deliberations that tend to show the alleged dishonesty.

This is an easy case to predict, given the large disparity in the number of questions asked to the parties. The Petitioner Warger received more than twice as many questions than the Respondent and U.S. Solicitor General (who supported the Respondent’s position) combined (31 to 13 questions). The attorney for the Solicitor General’s Office in fact received no questions at all—a rarity during oral arguments. The huge disparity in the number of questions points to a victory for the Respondent Shauers (who argued that Rule 606(b) precludes evidence of juror testimony about statements made during jury deliberations even if it relates to juror dishonesty).

Figure 2.

Lee - 10.8.14 Warger v Shauers questions

Predicting the Winners in Holt v. Hobbs and Dart Cherokee Co. v. Owens

The Supreme Court heard oral argument in two cases on October 7, 2014. I’m predicting the winners of the cases based on the method of question counting—i.e., the advocate that receives more questions during oral argument is more likely to lose. For more about this method, see my post on last Term’s Aereo case.

The first case may be too close to call. In Dart Cherokee Basin Operating Company, LLC v. Owens, the Court considered whether a defendant seeking removal to federal court is required to include evidence supporting federal jurisdiction in the notice of removal, or whether it is enough to allege the required “short and plain statement of the grounds for removal.” The Petitioner Dart Cherokee received 48 questions, three fewer than the Respondent Owens, who received 51 questions. The total question count is favorable to the Petitioner. But if you look at the questions per Justice, five of the Justices (Roberts, Scalia, Kennedy, Sotomayor, and Kagan) asked more questions to the Petitioner. Three other Justices (Ginsburg, Breyer, and Alito) asked more questions to the Respondent.   The individual question count by Justice might suggest a favorable outcome for the Respondent. This case is a toss-up.

Figure 1.

Lee - 10.8.14 Dart Cherokee v Owens questions

The second case is easier to predict. In Holt v. Hobbs, the Court considered whether the Arkansas Department of Corrections grooming policy violates the Religious Land Use and Institutionalized Persons Act of 2000, 42 U.S.C. § 2000cc et seq., to the extent that it prohibits petitioner from growing a one-half-inch beard in accordance with his religious beliefs. The Respondent Hobbs, Director of the Arkansas Department of Corrections, received twice as many questions (52) as the Petitioner (23)—and seven more questions than the total number for the Petitioner and U.S. Solicitor General (who supported the Petitioner’s position) combined. The question count strongly suggests a victory for the Petitioner Holt.

Figure 2.

Lee - 10.8.14 Holt v Hobbs questions

Heien v. North Carolina—Predicting the Winner Based on the Oral Argument

[Reposted from IIT Chicago-Kent Faculty Blog]

The Supreme Court opened its October 2014 Term by hearing oral argument in Heien v. North Carolina, which raises the question: Whether a police officer’s mistake of law can provide the individualized suspicion that the Fourth Amendment requires to justify a traffic stop?

I am using the same method of predicting the winner of the case that I have used before, which is based simply on the total number of questions each party receives. Other scholars have shown that the more questions an advocate receives during oral argument before the Supreme Court, the more likely the advocate will lose the case. For more about this method, see my post on last Term’s Aereo case.

Figure 1.

Lee - 10.6.14 Heien v North Carolina questions

In this case, we have the confounding factor of the Solicitor General’s participation on the side of the Respondent. The participation of the SG is confounding in two respects: (1) it decreases the time the party whose side it supports has during the oral argument (usually by 10 minutes), thus decreasing the time the party is questioned and increasing the likelihood the party will receive fewer questions than the opposing party, who is questioned for the full 30 minutes; and (2) the Supreme Court often ends up agreeing with the side that the SG supports.

I also should mention that I am not an expert in Fourth Amendment law and have not studied the Court’s jurisprudence in this area (at least not since law school).

With those caveats in mind, my prediction is that the Supreme Court will side with the State of North Carolina, which received eleven fewer questions than the Petitioner. However, the disparity of questions between both parties is not large, so my confidence level in the prediction is not very great. From my analysis of last year’s IP cases, the predictive value of the question-counting method appeared to work best when the disparity of questions between the parties was great (excluding the SG’s participation). If we calculate the questions asked per minute to each party, the Respondent North Carolina actually had the higher rate of questioning (1.55 questions per minute versus 1.4 questions per minute for the Petitioner).

As the Term progresses, I hope to refine the method, especially in cases in which the SG participates. But for now, my prediction in this case will be for North Carolina.

Religious Rights and Bearded Prisoners

Tomorrow the Supreme Court will hear oral arguments in an intriguing religious freedom case brought by Gregory Holt.

Holt is in an Arkansas prison, serving a life sentence for burglary and domestic battery. While in prison, Holt converted to Islam, took the name Abdul Maalik Muhammad, and, in accordance with his religious beliefs, sought to grow a beard. Arkansas prison regulations forbid facial hair other than a mustache. By refusing to allow him to grow a half-inch beard, Holt argues, prison authorities violate his rights under a federal law designed to protect religious exercise for prisoners. Arkansas counters that their policy is designed to prevent inmates from hiding contraband and to protect security. The courts, Arkansas argues, should defer to the judgment of the state’s prison officials.

Two factors make this case make particularly noteworthy. First, Holt wrote, by hand, his own appeal to the Supreme Court. He filed his petition “in forma pauperis,” an often used (particularly by prisoners) but almost never successful path to Supreme Court review that allows impoverished individuals to submit an appeal without paying the standard filing fees.

(Most famously, Clarence Gideon wrote his own in forma pauperis petition from a Florida prison, setting in motion events that led to the landmark 1963 Court ruling in Gideon v. Wainwright, which held that states are required to provide a lawyer for felony defendants who are unable to pay for their own lawyer.)

In fourteen painstakingly careful, handwritten pages, Holt argued why the Supreme Court should take his case. He raised religious freedom claims under both federal law and the First Amendment. The refusal of Arkansas prison authorities to grant religious exemptions to their no-beard policy is “intolerably oppressive and force[s] inmates to either obey their religious beliefs and face disciplinary action on the one hand or violate their beliefs in order to acquiesce with the grooming policy.” Holt noted that federal and other state prison policies achieve the same security goals without such a restrictive grooming policy. He also pointed out that Arkansas allows prisoners with “certain dermatological conditions” to grow a quarter inch beard, and therefore “it is not too far of a stretch to allow 1/2 inch beards for religious purposes.”

Holt concluded his petition by condemning Arkansas prison officials for being particularly restrictive toward the practice of Islam by inmates. According to Holt, his case raises “a matter of grave importance, pitting the right of Muslim inmates against a system that is hostile to these views.” He noted that “There are no group worship services, sajadahs (prayer rugs) are not allowed, there is extremely limited access to an Islamic spiritual advisor constituting no real meaningful access, Islamic publications are limited and Islamic catalogs are classified as books that, should they exceed the 10 book total limit, are subject to confiscation and there are no alternatives to religious instruction.” Growing a beard, Holt suggested, would provide “a suitable alternative form of religious expression.”

When the Supreme Court agreed to hear his case, it assigned him an attorney. In this case, Holt was assigned Douglas Laycock, a professor at the University of Virginia and one of the country’s leading religious rights lawyers (he appeared before the Court last term in Town of Greece v. Galloway).

The second intriguing element of this case is that it brings to the Supreme Court a religious liberty claim with powerful echoes of last term’s controversial Hobby Lobby decision.

When it accepted his case for review, the Supreme Court also narrowed the scope of Holt’s appeal. The Court will not consider his First Amendment claim. The justices will limit their review to his statutory claim, which was based on the Religious Land Use and Institutionalized Persons Act (RLUIPA), a law Congress passed in 2000. RLUIPA prohibits government policies that “impose[] a substantial burden on the religious exercise of a person residing in or confined to an institution,” unless the government can show that the policy is the least restrictive way of advancing a “compelling governmental interest.”

For followers of the Supreme Court, this legal language should sound familiar: it is the exact same test the Court applied in its controversial Hobby Lobby decision from last term. Both the federal law that Hobby Lobby successfully used to challenge the Affordable Care Act’s contraception mandate (the Religious Freedom Restoration Act) and the federal law under which Holt seeks protection were congressional responses to a 1990 Supreme Court decision that made free exercise claims more difficult to win under the First Amendment.

One key difference this time around, however, is that Holt has the federal government on his side. The Justice Department submitted a brief in the case supporting Holt.