SCOTUS News Update: Travel Ban Filings, Death Penalty Challenges, and Errors in Opinions

On Tuesday, the Trump administration asked the Supreme Court to allow full reinstatement of President Trump’s latest travel ban order on September 24, and block the Hawaii District Court’s order suspending full implementation of the travel restriction while plaintiffs, including the International Refugee Assistance Project, challenge the ban. Solicitor General Noel Francisco filed the request at the Court late Tuesday and argued the Court would likely hear the case if the Ninth Circuit upholds the injunction. The Court had previously agreed to hear challenges to Trump’s original travel ban, but it later dismissed the case as moot because the 90-day ban on immigrants from six majority Muslim countries expired before arguments. The Court has given plaintiffs until Tuesday, November 28 to respond to the request.

At Bloomberg, Jordan S. Rubin discusses Hidalgo v. Arizona, a pending cert petition originally scheduled for consideration for the November 21 conference but now rescheduled with no new conference date yet assigned.  Hidalgo considers the constitutionality of Arizona’s death penalty sentencing scheme, which includes so many “aggravating factors” – specific conditions regarding the class of defendants eligible for a death sentence – that virtually every defendant convicted of first-degree murder is eligible for the death penalty. The petitioner, Abel Hidalgo, also argues that the Court should hold that the death penalty “cannot be administered in accordance with contemporary standards of decency” and is thus a violation of the 8th Amendment. Rubin notes, however, that only Justices Breyer and Ginsburg have expressed an interest in re-evaluating the constitutionality of the death penalty. The article also quotes Margery M. Koosed,a  professor at The University of Akron School of Law, who argues it is more likely that the Court will grant review of the Arizona-specific question because the “justices are usually more comfortable ‘chipping away’ than taking a ‘broad-based’ approach.”

Ryan Gabrielson at ProPublica discusses the implications of a long-standing fear held by many legal scholars: justices on the Court using erroneous statistical information in their rulings. The article highlights the implications of a distinction drawn by legal scholar Kenneth Culp Davis between “legislative facts”, which are assertions about the real world, and  “adjudicative facts”, which relate to legal precedent and procedure. Davis asserted in 1987 that “[m]uch of our law is based on wrong assumptions about legislative facts.” In his concurring opinion in U.S. v. Leon, Justice Blackmun articulated that these wrong assumptions are partly attributable to “institutional limitations” that constrict the Court’s ability to gather information.

Gabrielson cites at least seven instances between 2011 and 2015 where a justice used incorrect information when deciding a case, including Arizona v. U.S., in which the Court decided whether Arizona could enact a law that, among other things, allowed law enforcement agents to verify the citizenship status of anyone detained by state authorities. Although most of the law was struck down, verification of citizenship was upheld. Writing for the majority, Justice Kennedy stated, “[A]liens are reported to be responsible for a disproportionate share of serious crime.” Kennedy cited the Center for Immigration Studies, which published a report stating undocumented individuals comprised 8.9% of Maricopa County’s population, and they were responsible for 21.8% of the felonies. However, the organization calculated these statistics by utilizing data from a variety of sources, including a 2008 study conducted by former Maricopa County Attorney, Andrew Thomas. The study stated that 18.7% of all felonies in the county were attributed to undocumented individuals, which is still much higher compared the number of undocumented individuals in the county. Thomas was ultimately disbarred in Arizona for “dishonesty, fraud, and deceit” weeks before Justice Kennedy delivered the opinion. It was found that Thomas misrepresented misdemeanor offenses as felonies to enhance the perception of the severity of criminal activity, and that ultimately, his reported percentage of felonies committed in Maricopa County by undocumented individuals was an estimate.

Another example is NASA v. Nelson, in which Justice Alito wrote for a unanimous Court. Upholding background checks on scientists at the Jet Propulsion Laboratory, Alito explained that 88% of private companies use background checks. But according to Pro Publica, that statistic came from an amicus brief filed by the National Association of Professional Background Screeners — and that organization was unable to substantiate its claim.

This post was drafted by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2018, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

Justice Ginsburg Wins the Genesis Prize Foundation’s Lifetime Achievement Award

The  Genesis Prize Foundation announced on Wednesday November 15 that Justice Ruth Bader Ginsburg will be the first recipient of their Lifetime Achievement Award, which they are awarding to mark the fifth anniversary of the Genesis Prize. According to the Foundation, the prize has been marked “the Jewish Nobel” by Time Magazine.  Justice Ginsburg will be presented with the award in Israel next summer by Israel’s former Supreme Court Justice President, Aharon Barak. The committee of former Genesis Prize recipients that chose Justice Ginsburg for the award were Michael Bloomberg, Michael Douglas, Yitzhak Perlman, Sir Anish Kapoor, and Natalie Portman. These previous winners of the Genesis Prize described Justice Ginsburg as a “perfect role model for young Jews.”

As the first Jewish woman to be appointed to the Supreme Court, Justice Ginsburg has been vocal about her identity as a Jewish woman and has spoken at several events celebrating Jewish holidays. According to US News, she was a surprise speaker at an event celebrating Rosh Hashanah in Washington this year where she spoke about how her faith has guided her to be empathetic towards members of minority groups who experience discrimination. Justice Ginsburg, along with Justice Stephen Breyer, who is also Jewish, was instrumental in ensuring that the Court not hear arguments on Yom Kippur in 1995. Nathan Lewis of Jewish Telegraphic Agency noted that they argued Jewish lawyers who had been preparing their arguments for several weeks would be forced to choose between arguing before the court and observing their religious holiday. Since then, the Supreme Court has not been open on Yom Kippur.

Along with Justice Ginsburg, Justice Stephen Breyer and Justice Elena Kagan, who is also Jewish, have spoken publicly about their religion, such as when Breyer and Kagan spoke at the Jewish Federations General Assembly in November of 2014.  

Justices Ginsburg, Breyer, and Kagan are far from the first Jewish Justices on the Court. Five more Jewish Justices have previously served: Abe Fortas, who served from 1965 to 1969 Arthur Goldberg; who served from 1962 to 1965; Felix Frankfurter, who served from 1939 to 1962; and  Benjamin Cardozo, who served from 1932 to 1938; and Louis Brandeis, who served from 1916 to 1939.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2019, edited by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2018, and overseen by ISCOTUS Co-Director and Chicago-Kent faculty member Carolyn Shapiro.

SCOTUS News Update

As its October 2017 term continues in full swing, the Supreme Court continues to make news.

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Greg Stohr of Bloomberg recently wrote a valuable article on the dominance of free speech cases on the Court’s docket. This term the Court has either heard arguments or agreed to hear arguments in First Amendment cases involving a range of issues: a baker’s denial of service to same-sex couples, mandatory union fees, partisan gerrymandering, abortion counseling, rights regarding political clothing at the voting polls, and retaliation due to criticizing local government. Stohr quotes Harvard Law School professor Rebecca Tushnet’s noting that  “the current court interprets the First Amendment more expansively in many ways that it did in the past,” and that these free speech claims have more “charisma” than other constitutional claims. Stohr also quotes the University of Chicago’s David Strauss noting that “when it comes to free speech, pretty much everybody is an activist.”

In other news, Mark Sherman of ABC News noted that in making legal filings available online like other federal courts, “surely but slowly, the Supreme Court is entering the 21st century.” The Court has never been eager to embrace technological innovation, of course. Chief Justice John Roberts has said that the courts are “late to the harvest of American ingenuity,” because their “primary role is to resolve disputes fairly.” The justices also routinely sent notes to each other on paper, “definitely not by email.” The Court is still unlikely to allow cameras in the courtroom in the foreseeable future or to allow live audio access to oral arguments.

News reports say that President Donald Trump, who recently updated his list of potential Supreme Court nominees, predicts he will appointment three more justices to the Court. The president apparently believes that Justices Kennedy and Ginsburg are ready to retire and that Justice Sotomayor may leave the Court due to health issues. As to Justice Sotomayor, she has has suffered from diabetes since childhood, but there are no signs that she will be leaving the Court anytime soon. Vanity Fair reported that the Justice has said she is vigilant about maintaining her health. And Justice Ginsburg has repeatedly stated that she has no plans to retire. “As long as I can do the job full stream, I will do it,” she has said. ABC News reports that Justice Ginsburg refers to herself as “Rapid Ruth,” and Justice Sotomayor as “Swift Sonia,” due to their speedy opinion writing.

In late October, Chief Justice John Roberts and Justices Elena Kagan, Anthony Kennedy, Stephen Breyer, Neil Gorsuch and retired Justice David Souter attended a bicentennial celebration at Harvard Law School, their alma mater. During the event, the justices shared numerous personal stories. Justice Kagan revealed that fellow Justice Breyer was her favorite professor in law school. Justice Kennedy recalled that one of the more feared professors during his time there was nicknamed “darkness at noon.” Justice Breyer said that one of the most influential pieces of advice he received came from Senator Ted Kennedy, who once asked him, “Do you want credit or do you want the result?” Justice Gorsuch recalled that he was “scared to death” during his first day of law school, and that clerking for Justice Kennedy was one of the most important experiences of his professional career. Justice Kennedy then joked to his former clerk, “You didn’t always do what I told you to do when you were my clerk—you better start doing it.”


This post was drafted by ISCOTUS Fellow Matthew Webber, Chicago-Kent Class of 2019, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Professor Christopher Schmidt.

This Day in Supreme Court History—November 18, 1811

On this day in 1811, the Senate confirmed, by voice vote, two of President James Madison’s nominees to the Supreme Court, Joseph Story and Gabriel Duvall.

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[Joseph Story]

At 32, Story was the youngest Supreme Court appointee in history. The two men received their commissions that same day. (Once they arrived at the Court, Duvall who was 58 years old, was given seniority over Story because he was older.) Duvall, who served as Chief Justice of the Maryland General Court from 1796 to 1802 and as Comptroller of the Treasury under Madison, took the seat of Justice Samuel Chase, a fellow Marylander, who had died the previous June. Story replaced Justice William Cushing, who had died over a year earlier. Both Story and Cushing hailed from Massachusetts.

Earlier in 1811, Madison tried three separate times to fill Cushing’s seat. Levi Lincoln was appointed and commissioned, but declined the nomination because of failing eyesight. The Senate rejected customs inspector Alexander Wolcott by a 9-24 vote, largely because of Wolcott’s public support and enforcement of the Embargo Act of 1807. The Senate then unanimously confirmed John Quincy Adams, but he declined the honor.

At the time of his nomination, Story had already argued a case, Fletcher v. Peck, before the Court. He had a successful law practice through which he was earning $5,000 to $6,000 per year. His acceptance of the position on the Court meant he had to take a pay cut to $3,500. After taking his seat on the Court, Story wrote a friend to explain his decision. He cited the “high honor” of a serving on the Supreme Court, “the permanence of the tenure, the respectability, if I may so say, of the salary, and the opportunity it will allow me to pursue, what of all things I admire, judicial studies, have combined to urge me to accept.”   

The two justices who joined the Court together left very different marks on the institution. Justice Duvall had a rather undistinguished career on the Court; he served until his retirement in 1835. Justice Story, who served until his death on September 10, 1845, wrote many significant opinions as well as influential multi-volume commentaries on the law. He has gone down in history as one of the most important justices in the history of the Court, second only to the great Chief Justice John Marshall during the Court’s first half-century.


This post was drafted by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019, and edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018, and ISCOTUS Co-Director Professor Christopher Schmidt.

Conference Report – November 10, 2017 Conference

The Supreme Court issued orders from the November 9th conference on Monday morning.  The justices added three new cases to their docket and denied certiorari in a death penalty case from Alabama.

All three of the cases that were added to the docket are First Amendment cases. The first, National Institute of Family and Life Advocates v. Becerra, is a case brought by crisis pregnancy centers against the State of California.  The issue to be decided is whether the California Reproductive FACT Act’s required disclosures violate free speech protections in the First and 14th Amendments.  Crisis pregnancy centers (“CPCs”) are centers which provide some services for pregnant women and attempt to persuade women not to end their pregnancies.  As the Washington Post reports, some state legislatures have claimed that CPCs use deceptive and confusing advertising and may intimidate women who are unaware of the type of facility they are entering. The Reproductive FACT Act requires CPCs to disclose whether they have licensed medical personnel on staff and to inform women that California offers free and low-cost contraceptives and abortions to women who qualify for those services.

The CPCs who brought suit claimed that being forced to provide the disclosures required by the Reproductive FACT Act violates their First Amendment rights to free speech and free exercise of religion.  The Ninth Circuit upheld the law, holding that the state can regulate professional speech and that the sign did not encourage abortion but merely informed patients of available services.  In addition, the Ninth Circuit held that the state has a valid interest in safeguarding public health. The Supreme Court granted cert only as to the free speech issue and declined to take up the free exercise of religion argument.  This case will be watched closely by both sides of the abortion debate, and may have far-reaching effects.  As Dahlia Lithwick and Mark Joseph Stern at Slate argue, if California is legally unable to require that CPCs post truthful disclosures regarding medical licensure and state abortion services, then other states may not be able to force abortion providers to convey anti-abortion information.

The second case granted review, Lozman v. City of Riviera Beach, Florida, presents the question of whether a First Amendment retaliatory-arrest claim is defeated by the existence of probable cause. Fane Lozman, who will be presenting his second case on the merits to the Supreme Court, will be represented by the Stanford Law School Supreme Court clinic.  His arrest occurred after he refused to stop talking about local government corruption during a city council meeting, in spite of being directed by a councilmember to stop. Lozman claims that the arrest was retaliatory and violated his First Amendment right to free speech. The Eleventh Circuit ruled that because the jury found that the police had probable cause to arrest Lozman, his retaliatory-arrest claim could not survive.  As USA Today reports, Lozman’s counsel and others who have filed briefs in support of him, argue that retaliatory arrests against political activists, protesters, and the media are designed to stifle criticism of the government and violate the free speech rights of those who are arrested.

The third case added to the docket is Minnesota Voters Alliance v. Mansky.  The issue in this case is whether a Minnesota law which broadly bans all political apparel at polling places violates voters’ right to freedom of expression. According to the Duluth News Tribune, the law “prohibits anyone within 100 feet of polling places on election day from wearing ‘a political badge, political button or other insignia.’”  The lawsuit was brought by Andrew Cilek, an official of the Minnesota Voters Alliance, who was temporarily prevented from voting in 2010 after he arrived at a polling place wearing a “Don’t Tread on Me” t-shirt and a badge that stated, “Please ID me” with Election Integrity Watch’s website and telephone number printed on it.

According to CNN, counsel for Mr. Cilek and the Minnesota Voter Alliance argued in court papers that “Although this Court has permitted campaign-free zones that prohibit campaign materials and active solicitation, it has never endorsed a ban on all political speech.”  The Eighth Circuit upheld the law, stating that the polling place is a nonpublic forum and that speech restrictions in such forums are constitutionally valid if they are viewpoint neutral and reasonable in light of the purpose of the forum.

Finally, the Court declined to grant review of the Alabama death penalty case Reeves v. Alabama.  The issue was whether a defendant may establish ineffective assistance of counsel using evidence other than testimony from trial counsel about his or her own strategic decisions under Strickland v. Washington; or whether the absence of such testimony makes the presumption of sound strategy categorically irrebuttable, as the Alabama Court of Criminal Appeals held.  In Strickland, the Court set out a standard for courts to use to determine whether counsel was constitutionally ineffective: (1) counsel’s performance must be deficient; and (2) the deficient performance must have prejudiced the defense in such a way that the defendant was deprived of a fair trial.

In 1997, Matthew Reeves was convicted of capital murder for the death of Willie Johnson in a robbery.  Reeves contends that although the trial court had granted his trial attorneys’ request for funds to pay for an expert to evaluate his intellectual disability, his attorneys never hired a mental health professional to do so.  In addition, Reeves contends that the expert that did offer testimony in his case was a court-appointed expert who only conducted limited examination of Reeves and did not speak with his attorneys until shortly before taking the stand.  The Alabama Circuit Court held an evidentiary hearing on Reeves’ post-conviction claims, but held that in spite of the substantial evidence presented regarding his intellectual disability and his counsel’s performance, the lack of testimony from his trial and appellate counsel was fatal to his claims of ineffective assistance of counsel. The Alabama Court of Criminal Appeals affirmed. The Alabama Supreme Court denied review.

Justice Sonia Sotomayor dissented from the Court’s decision not to grant review of this case, in which she argues that the court has never required that a defendant present testimony from counsel as evidence of his counsel’s actions in order to establish an ineffectiveness of counsel claim.  In fact, Justice Sotomayor argues, such testimony is not sufficient to find adequate performance if the full record “rebuts the reasonableness of the proffered justification.”  Justice Sotomayor concludes that Reeves provided ample evidence that met the Strickland standard and should have been granted review.  Justice Sotomayor was joined in her dissent by Justices Ruth Bader Ginsburg and Elena Kagan.  The dissent can be read here.

This post was drafted by ISCOTUS Fellow Eva Dickey, Chicago-Kent Class of 2020, and was edited by ISCOTUS Editorial Coordinator Anna Jirschele, Chicago-Kent Class of 2018. It was overseen by ISCOTUS Co-Director and Chicago-Kent Professor Carolyn Shapiro.

The Supreme Court and the Great Tomato Controversy

Over its long history, the Supreme Court has ruled on  many contentious legal issues: slavery and racial segregation, free speech and religious freedom, abortion and marriage equality. Perhaps it is not surprisingly, then, that our nation’s highest court has also weighed in on the biggest controversy ever debated in the produce aisle: whether the tomato is a fruit or a vegetable. Technically, a tomato is considered a fruit because it develops from the ovary of the flower of the tomato plant and it contains seeds of the tomato plant. Yet in Nix v. Hedden, the Supreme Court held that, for purposes of tariffs imposed on imported produce, the tomato is, in fact, a vegetable.

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Decided on May 10, 1893, Nix concerned a suit brought by a fruit importer, John Nix & Co., against Edward L. Hedden, the collector of the port of New York. Hedden had imposed a tariff on Nix’s  Carribean tomatoes, per the Tariff Act of March 3, 1883, which imposed a tax on imported vegetables (but not on fruits). Nix presented three dictionaries and two witnesses in order to prove that because tomatoes have seeds, they should be considered fruits, pursuant to the scientific definition of fruit. The Court reasoned that, while the dictionary definitions defined ‘fruit’ as “the seed of plaints, or that part of plaints which contains the seed, and especially the juicy, pulpy products of certain plants, covering and containing the seed,” the definitions did not demonstrate that tomatoes were understood to be ‘fruit’ within the meaning of the Tariff Act and that the words ‘fruits’ and ‘vegetables’ did not have any special meaning for the purposes of trade or commerce. Therefore, to determine whether produce was classified as either ‘fruit’ or ‘vegetable,’ it was necessary to look to the ordinary meaning of the words.

Justice Horace Gray, delivering the unanimous decision, wrote: “Botanically speaking, tomatoes are the fruit of a vine, just as are cucumbers, squashes, beans, and peas. But in the common language of the people, whether sellers or consumers of provisions, all these are vegetables which are grown in kitchen gardens, and which, whether eaten cooked or raw, are, like potatoes, carrots, parsnips, turnips, beets, cauliflower, cabbage, celery, and lettuce, usually served at dinner in, with, or after the soup, fish, or meats which constitute the principal part of the repast, and not, like fruits generally, as dessert.” Thus, the Court concluded, a tomato was a vegetable.

In 2005, a class of New Jersey fourth graders cited Nix v. Hedden in a successful bid to have the tomato chosen as the state vegetable of the Garden State. Because the tomato was technically a fruit, it had originally been excluded for consideration, but the school children argued that if the Supreme Court could declare the tomato a vegetable, then so could New Jersey.

This post was drafted by ISCOTUS Fellow Zoe Arthurson-McColl, Chicago-Kent Class of 2020 and edited by ISCOTUS Fellow Elisabeth Hieber, Chicago-Kent Class of 2019, and ISCOTUS Co-Director Professor Christopher Schmidt.

Week in Review: Arguments and Opinion from the Week of November 6, 2017

The Court heard oral arguments in only two cases this week, previously discussed here, and it issued its first opinion of the Term. In Hamer v. Neighborhood Services of Chicago, argued on October 10, the Court unanimously held, in an opinion by Justice Ginsburg, that a rule of appellate procedure governing extensions to file a notice of appeal did not create a jurisdictional deadline. Only time limits provided in statutes create jurisdictional bars. ISCOTUS now described the oral argument in Hamer here. Justice Ginsburg prides herself on writing opinions quickly and recently dubbed herself “Rapid Ruth” in a speech, as described by the Associated Press here.

On Tuesday, the Court heard argument Patchak v. Zinke, which presented the question of whether a statute that directed federal courts to “promptly dismiss” any legal action pertaining to a particular tract of land, without amending the underlying substantive or procedural laws and enacted while a lawsuit was pending, violates the Constitution’s separation of powers doctrine.

David Patchak, a resident who lived near the Bradley Property – the tract of land at issue in the case – sued Secretary of the Interior Ryan Zinke in 2008, claiming Zinke lacked the authority to put the tract into a trust for the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians (the “Gun Lake Tribe”), who subsequently built a casino on the land. After the Supreme Court decided that Patchak had standing to sue in that suit, President Obama signed into law the Gun Lake Trust Reaffirmation Act in 2014, which provided that any legal action relating to the Bradley Property “shall not be filed or maintained in a Federal court and shall be promptly dismissed.”

Scott Gant, representing Mr. Patchak, argued that Congress exceeded its constitutional authority by passing a statute that directs the dismissal of specific litigation. Gant acknowledged that, pursuant to Ex Parte McCardle, a case from 1869, Congress has the authority to statutorily strip jurisdiction from federal courts, but that the Gun Lake Trust Reaffirmation Act in an unconstitutional abridgment of judicial power because it directs the dismissal of a specific lawsuit, rather than passing a law that limits jurisdiction more generally.

Ann O’Connell, Assistant to the Solicitor General in the Department of Justice, represented Zinke. She argued that, because the Court has previously held that Congress may enact jurisdictional rules and apply them to pending cases, such a rule poses no separation of powers problem.

Pratik Shah represented the Gun Lake Tribe, who joined the suit as an intervening defendant. Shah argued that the Court should not rule the Act unconstitutional just because Patchak’s case was the only case at the time that the Act applied to.  “Instead,” he said, “you should look at the words that Congress enacted which was trying to insulate a category of cases. . . from any federal court exercising jurisdiction. That’s precisely what Congress has done for over 150 years dating back to McCardle and in a line of cases since then.”

On Monday, the Court heard arguments in Merit Management Group v. FTI Consulting, Inc. That  case seeks to resolve a circuit split over the scope of a safe harbor provision of the Bankruptcy Code, prohibiting avoidance of a transfer made by or to a financial institution. Under bankruptcy law, when a person or entity declares bankruptcy, some transfers of funds that they made beforehand can be recovered, or “avoided.” The safe harbor provision here protects transfers made to or from financial institutions.

This post was drafted by Bridget Flynn and edited by Elisabeth Hieber, both ISCOTUS Fellows and Chicago-Kent Class of 2019.

Conference Report – November 3, 2017 Conference

As part of its Order List from its November 3 Conference, the Supreme Court on Monday issued two summary decisions reversing lower court rulings in favor of habeas petitioners. It did not otherwise grant review in any new cases.

The first case, Dunn v. Madison, involves the execution of an Alabama inmate who cannot remember his crime due to neurological health issues stemming from a series of strokes. According to the ABA Journal, Madison was sentenced to death for murdering a police office in 1985. His execution is now approaching, and he sought habeas relief due to his memory loss, alleging that because he cannot remember the crime, he is not competent to be executed. The state trial court concluded he failed to show that he is unable to rationally understand that he is being executed as punishment for murder. He sought habeas relief, and the federal judge held the state trial court made a reasonable decision and correctly applied precedent — all that is required under the governing statute, the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The Eleventh Circuit reversed, holding that because Madison does not recall the offense, he cannot possibly understand the connection between the crime and his execution.

In a unanimous per curiam opinion, the Supreme Court reversed and stated precedent has not established that “a prisoner is incompetent to be executed because of a failure to remember his commission of the crime, as distinct from a failure to rationally comprehend the concepts of crime and punishment.” Justice Ginsburg, joined by Justices Sotomayor and Breyer, concurred, explaining that the issue presented is substantial and important and would be worthy of the Court’s attention if brought on direct appeal. Because the case came to the Court on habeas, however, AEDPA, it could not address the issue directly and was limited to determining if the state court’s holding was not an unreasonable application of “clearly established Federal law as determined by the Supreme Court.”

In addition to joining Justice Ginsburg’s concurrence, Justice Breyer wrote a concurrence solely on his own behalf. Justice Breyer pointed to constitutional questions due to the aging class of inmates on death row. He wrote that the “lengthy periods of imprisonment between death sentence and execution can deepen the cruelty of the death penalty while at the same time undermining its penological rational.” As Robert Barnes of The Washington Post noted, “no conservative justice rebutted him, [although i]n the past, they have alleged that it is the numerous appeals and creativity of defense lawyers that have postponed the imposition of the death penalty.” Breyer also raised the issue of the constitutionality of the death penalty itself, something that he suggested the Court should consider in his opinion in Glossip v. Gross.

In the second case, Kernan v. Cuero, Michael Cuero pleaded guilty to two charges after he caused a car accident while under the influence of methamphetamines and left another man injured. Cuero was on parole from previous drug related offenses and was unlawfully carrying a firearm with him at the time of the accident. As explained by Court House News, his original plea bargain carried a maximum sentence of 14 years in prison, but prosecutors sought to amend the original criminal complaint after the plea deal and before the sentencing date. They argued that due to his other previous offenses, Cuero fell under California’s “three strikes” law, meaning that he was eligible for a much longer sentence. Although the trial court allowed him to withdraw his guilty plea, he ultimately pleaded guilty again and was sentenced to 25 years to life.

On habeas review, Cuero argued that the state courts should have enforced the original plea deal. The Ninth Circuit held that the trial court wrongly refused to do so. The Supreme Court however, applying AEDPA, held that, “to the contrary, no ‘holding of this court’ requires the remedy of specific performance under the circumstances present here,” and thus reversed the lower court decision, thus upholding Cuero’s conviction and sentence. The opinion in Kernan was an unsigned per curiam opinion and there were no separate opinions.

This post was drafted by Matthew Webber and edited by Elisabeth Hieber, both ISCOTUS Fellows and members of Chicago-Kent Class of 2019.

Arguments: Week of November 6, 2017

The Court will hear only two arguments this week — one each on Monday and on Tuesday. It has also indicated that the first opinion(s) may be issued on Wednesday. In addition, orders from last Friday’s Conference will be released on Monday.

On Monday, the Court will hear oral arguments in a bankruptcy case, Merit Management Group, LP v. FTI Consulting, Inc. In this case the Court is being asked to resolve a circuit split about when funds transferred before a bankruptcy can be recovered by the bankruptcy trustee.

Tuesday the Court will hear Patchak v. Zinke, which poses the question of whether Congress violated the separation of powers principle of the Constitution when it passed legislation mandating federal courts to dismiss a lawsuit. David Patchak, a Michigan resident, sued Ryan Zinke, Secretary of the Department of Interior, for allotting a tract of land to the Match-E-Be-Nash-She-Wish Band of Pottawatomi Indians to build a casino near his property. After the case was under way — in fact, after the Supreme Court determined that sovereign immunity did not preclude it — Congress passed the Gun Lake Trust Land Reaffirmation Act, which provides that any case relating to the land at issue be “promptly dismissed,”, but that made no substantive changes to the governing law. The Government contends that this provision does not violate the Constitution because Congress has the ability “to define and limit the jurisdiction of the inferior courts of the United States.” Marcia Coyle of PBS NewsHour describes the issues in the case, explaining that, “[s]eparation-of-powers issues go to the fundamental structure of our Constitution.”  The case also poses the question of whether a statute that does not amend a substantive or procedural law, but deprives a petitioner the right to pursue his pending lawsuit, violates the Fifth Amendment’s Due Process Clause.

This post was drafted by ISCOTUS Fellow Michael Halpin, Chicago-Kent Class of 2020, and edited by ISCOTUS Fellow Bridget Flynn, Chicago-Kent Class of 2019.

This Day in Supreme Court History—November 5, 1987

On this day in 1987, President Ronald Reagan’s nominee to the Supreme Court, Douglas H. Ginsburg, admitted to using marijuana while he was a student at Cornell University and as a professor at Harvard Law School. Ginsburg’s admission would end his chance to occupy the seat that had opened when Justice Lewis Powell had announced his retirement the previous June.

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Ginsburg had been a Supreme Court nominee for just nine days. President Reagan nominated him after the Senate rejected Reagan’s initial nominee for Powell’s seat, Judge Robert H. Bork. At the time of his nomination, Ginsburg was a judge on the United States Court of Appeals for the District of Columbia Circuit.

Nina Totenberg of NPR first broke the news of Ginsburg’s marijuana use. Several of the nominee’s former colleagues from Harvard Law, where he taught from 1975 to 1983, disclosed to the press that they had witnessed Ginsburg smoking marijuana during his time on the faculty. Ginsburg admitted to the allegations later that day. “It was a mistake,” he stated in a press conference, “and I regret it.”

The revelation was especially controversial because of the Reagan Administration’s aggressive “War on Drugs” campaign. When Reagan nominated Ginsburg, he presented him as someone who would be tough on crime. “No one has rights when criminals are allowed to prey on society,” Reagan stated in announcing Ginsburg’s nomination. “Judge Ginsburg understands that.”

Just two days after Totenberg’s revelation and the nominee’s admission, Ginsburg withdrew his name from consideration. On November 11, President Reagan nominated Justice Anthony M. Kennedy, who received unanimous approval in the Senate on February 3, 1988.


This post was drafted by ISCOTUS Fellow Elisabeth Hieber and edited by ISCOTUS Fellow Bridget Flynn, both Chicago-Kent Class of 2019. It was overseen by ISCOTUS Co-Director Professor Christopher Schmidt.