November 13 Orders: Redistricting and Unsolicited Faxes

On November 13, 2018, the Court issued orders from its November 9th conference.  The justices added two new cases to their docket. Among the cases the Court announced it will hear is Virginia House of Delegates v. Bethune-Hill, a challenge to the use of race in legislative redistricting. Based on the 2010 Census, the Virginia General Assembly redrew districts for the Virginia House of Delegates. However, the new legislative map contained twelve majority-minority districts. The plaintiffs argued the districts constituted racial gerrymandering, which violates the Equal Protection Clause of the 14th Amendment. Bethune-Hill is coming to the Court for the second time. When the Court heard the case in 2017, it ruled that the district court had applied the wrong legal standard when it upheld the twelve challenged districts. After applying the standard outlined by the Court, the district court determined that race was the predominant factor used to create eleven of the twelve districts and ordered a special redistricting process.

The Republican-controlled House of Delegates and its Speaker, a Republican legislator, filed an appeal to stop the redistricting.  The state’s Democratic attorney general, Mark Herring, however, stated “Virginia law is clear that in the commonwealth, like in most states, the ultimate authority to speak for the state in federal court rests with its elected attorney general.” Mr. Herring believes the state would be better served to not pursue the lawsuit.  As part of its order last week, the Court ordered both parties in to fully brief whether the appellants, Republican legislators, have the right to appeal. The case could decide the partisan control of the Virginia House of Delegates as Republicans currently hold a 51-49 advantage.

The Court also decided to consider PDR Network v. Carlton & Harris. In 2013, PDR sent Carlton & Harris, a West Virginia chiropractor practice, a fax offering a free reference book. Carlton & Harris declined the offer and sued PDR, alleging a violation of the Telephone Consumer Protection Act, which prohibits unsolicited advertisements. PDR contends a fax is not an advertisement, but Carlton & Harris point to a supporting FCC interpretation. The district court agreed with PDR, but the U.S. Court of Appeals for the 4th Circuit reversed that decision. The Court granted writ of certiorari, but only to the question of whether the Hobbs Act required the district court to accept the FCC’s legal interpretation.  

Additionally, the Court denied writs of certiorari review to a group of cases challenging the Court’s decision in Hurst. Hurst held that pursuant to the 6th Amendment, a jury must find every element required to impose a death sentence. Since the decision, the Florida Supreme Court has rejected appeals from death sentences if the jury was unanimous in their decision to recommend the sentence. Several inmates urged the Court to overturn the Florida Supreme Court decision and cited Caldwell v. Mississippi. In Caldwell, the Court held a death sentence is not valid when the jury believes it is not responsible for determining whether a death sentence is appropriate.

The Court denied a review of the cases, but there was dissent among the justices. Justice Breyer wrote respecting the denials, highlighting three issues: (1) the cruelty of delay defendants face when waiting for execution, (2) whether the decision in Hurst should be applied retroactively, and (3) whether the 8th Amendment requires a jury, rather than a judge, to make the decision to sentence a defendant to death. Justice Thomas agreed with the decision to deny review, rebutted Justice Breyer’s arguments, and stated “The only thing ‘cruel and unusual’ in this case was the petitioner’s brutal murder of three innocent victims.” Justice Sotomayor dissented from the denial of review, providing “The consequence of error in these cases is too severe to leave petitioners’ challenges unanswered, and I therefore would grant the petitions.”

The remainder of the Court’s November 13, 2018, orders can be found here.

Written by ISCOTUS Fellow James O’Brien, 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.

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