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.

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