At its November 2 Conference, the Supreme Court granted certiorari in six cases. Two of the cases, which have been consolidated, involve challenges to a cross on public land. Those cases were brought by the American Humanist Association against the American Legion and the Maryland-National Capital Park and Planning Commission. In a 2-1 decision, he Fourth Circuit held that the large cross, a 93-year-old World War I memorial, excessively entangled the government with religion and so violated the Establishment Clause. More information about the case is available in this Washington Post article.
The Court also granted certiorari in Flowers v. Mississippi. In Flowers, the defendant stood trial six times on the same charges due to three judgments being reversed because of prosecutorial misconduct and the two other trials ending in hung juries. In three of the earlier trials, the prosecutor used peremptory challenges to strike African-Americans. In one of those cases, the trial judge disallowed one of those challenges as racially motivated, and in another, the Mississippi Supreme Court reversed the conviction as violating Baston v. Kentucky, which held that excluding jurors due to their race is unconstitutional. In the last trial, Flowers was convicted and sentenced to death by a jury made up of eleven whites and one African-American. Flowers alleged that the prosecutor again violated Batson, but the Mississippi Supreme Court held otherwise in a 6-3 decision. After the Supreme Court decided Foster v. Chatman, a 2016 case involving race-based jury exclusions, it remanded Flowers to the Mississippi Supreme Court to reconsider its decision in light of Foster. That court issued a substantially similar majority opinion, and Flowers has again asked the Supreme Court to review, in part due to the Mississippi court’s failure to consider the prosecutor’s past history of adjudicated purposeful race discrimination in striking minority prospective jurors.
Among the cases in which the Supreme Court denied certiorari was Smith v. Clinton, which gained much media attention, including this Politico article from May of 2017. Patricia Smith and Charles Woods brought this action together against former Secretary of State Hillary Clinton. They claimed that due to Clinton’s use of the private email server, which was later hacked, their sons Sean Smith and Tyrone Woods died because it revealed their location to terrorists who took their lives in Benghazi in September 2012. The plaintiffs also had defamation claims. The district court dismissed the case, and the D.C. Circuit affirmed. The Supreme Court will not hear the case, so the lower court ruling stands.
Other cases that were denied certiorari were a group of linked cases against the Federal Communications Commission (FCC) challenging the Obama-era net neutrality rules. Although the FCC has since changed the rules, it agreed with the plaintiff communications company that the D.C. Circuit’s decision upholding the rules should be vacated as moot. The Court disagreed, simply denying the petition. Justice Thomas, Alito, and Gorsuch, would have granted the request for vacatur. Chief Justice Roberts and Justice Kavanaugh were both recused. More information can be found in this NPR story. The other cases denied certiorari on November 5 can be viewed here.
This post was written by ISCOTUS Fellow Breana Brill, Chicago-Kent Class of 2021, edited by Matthew Webber, ISCOTUS Editorial Coordinator, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.