Orders Lists: October 9 and 15, 2018

Although the Supreme Court has held two Conferences since it began hearing oral arguments in October, it has not added any new cases to its argument docket for the Term. [Correction: it added one case on Friday, October 12. See here for details.] Indeed, the Order Lists from those Conferences were fairly uneventful. The Court denied certiorari in Brown v. United States, with Justice Sotomayor, joined by Justice Ginsburg, writing an opinion dissenting from the denial of certiorari. Brown argued that Johnson v. United States, in which the Court held in 2015 that the definition of “violent felony” in the Armed Career Criminal Act was unconstitutionally vague, should apply to his case retroactively. (You can read Brown’s petition here.) Justice Sotomayor wrote in her dissent:

“Regardless of where one stands on the merits of how far Johnson extends, this case presents an important question of federal law that has divided the courts of appeals and in theory could determine the liberty of over 1,000 people. That sounds like the kind of case we ought to hear. Because the Court nevertheless declines to do so, I respectfully dissent.”

In two other cases, the Court granted the petition for writ of certiorari, vacated the judgment, and remanded the cases in light of a recently issued opinion. (This procedure is commonly known as a “GVR,” for Grant, Vacate, Remand, and it is most common when the lower court opinion issued before the Supreme Court decision that is arguably relevant.) First, the Court remanded Hashimi v. United States to the United States Court of Appeals for the Fourth Circuit in light of the recent decision in McCoy v. Louisiana. McCoy held that if defense counsel concedes a defendant’s guilt over the defendant’s express objection, the defendant’s Sixth Amendment right to autonomy with his assistance of counsel is violated. Ahmad Hashimi’s lawyer conceded his guilt during closing arguments without first consulting his client and despite Hashimi’s insistence on pleading his innocence. Hashimi’s appeal in the Fourth Circuit was denied on January 22, 2018, and the McCoy opinion was released on May 17, 2018. Hashimi filed his petition to the Court on June 9, 2018. Read the petition here.

The Court also GVR’d Frazier v. U.S. to the lower court to for further consideration in light of Sessions v. Dimaya. Petitioner, Frazier, was convicted on two counts of assault with a dangerous weapon while being a part of a motorcycle group engaged in racketeering activity, and one count of using and carrying the firearm while participating in a crime of violence. One of the questions Frazier presented was whether the term “crime of violence” under the relevant statute, 18 U.S.C. § 924(c)(3)(B), is unconstitutionally vague. The Supreme Court vacated the judgment and remanded the case back to the Sixth Circuit to further consider it in the context of the recent decision in Sessions v. Dimaya which held a definition of “violent felony” to be unconstitutionally vague. Frazier’s petition is here.

Last week, the Court also remanded a case as moot. This case, Niang v. Tomblinson, involved two hair-braiders fighting Missouri’s requirement that they obtain a barbering or cosmetology license. The braiders claimed the requirement violated their Fourteenth Amendment rights, specifically their right to earn a living. (You can read more about their case at Forbes.) While the case was pending, however, the State of Missouri changed its law, and it no longer imposes such a requirement. The parties informed the Court of this development in a joint filing, and the Court ordered the case remanded and then dismissed as moot under United States v. Munsingwear. For more on a recent application of the doctrine of mootness in a pending cases, see this FindLaw post about Azar v. Garza, the case in which a undocumented teenaged girl in government custody sought an abortion.

The October 9 and 15 lists are available here and here.

Written by ISCOTUS Fellows Zoe Arthurson-McColl, Chicago-Kent Class of 2020, and Breana Brill, Chicago-Kent Class of 2021, edited by ISCOTUS Editorial Coordinator, Matthew Webber, Chicago-Kent Class of 2019, and overseen by ISCOTUS Co-Director Carolyn Shapiro.


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