Weekly Roundup – June 23, 2017

After announcing five opinions on Monday (discussed here), the Supreme Court issued three more on Thursday and another three on Friday. This coming Monday, June 26, is the last announcement day currently scheduled, and there are six cases still to be decided. And it is possible (although not overwhelmingly likely at this point) that the Court will push one or more of those cases over to next Term for reargument if it is deadlocked 4-4 in a case that was argued before Justice Gorsuch joined the Court. Also on Monday, the Court will announce its orders from the last Conference of the Term and it will, most likely, announce both whether it is upholding the stays in the travel ban cases and whether it will hear one or both of those cases on the merits.

Perhaps the most high profile case announced on Thursday was Maslenjak v. United States. The Court held, 9-0, that the United States government cannot strip a naturalized citizen of her citizenship on the basis of falsehoods told during the application process unless it can prove that those falsehoods were material to the decision to grant citizenship — that is, whether there is a causal relationship between the falsehood and the decision. Justice Kagan wrote the opinion, which the Chief Justice and Justices Kennedy, Ginsburg, Breyer, and Sotomayor joined in full. Justice Alito concurred in the judgment, and Justice Gorsuch, in his first separate opinion, concurred in part and concurred in the judgment, joined by Justice Thomas. (Justice Gorsuch would have declined to provide as much guidance about how the lower courts should evaluate materiality as the Court did.)

Maslenjak is one of several cases that Pam Karlan, Stanford law professor and highly experienced Supreme Court advocate, describes as part of the “outrage docket.” It was a case that the Court might not have had to take on traditional criteria, but the case provoked strong reactions among at least some of the Justices. As she recounted the oral argument in Malenjak, “Chief Justice John Roberts forced the assistant to the solicitor general to admit that under the government’s view, someone could be denaturalized if he didn’t admit to driving 61 miles per hour in a 55 zone, even if he was never caught and the statute of limitations for such an infraction has run out.” Other cases from this Term that Karlan places on the outrage docket include Buck v. Davis, where an African-American capital defendant’s own attorney put on expert testimony that blacks are more likely to be dangerous than are whites; Moore v. Texas, in which Texas persisted in using long-outdated tests for determining cognitive impairment to determine eligibility for execution; Packingham v. North Carolina, decided Monday, in which a North Carolina law barred convicted sex offenders from vast swaths of the internet; and Nelson v. Colorado, which involved a Colorado requirement that a defendant who has been exonerated establish his innocence by clear and convincing evidence to recover fines and fees. Professor Karlan’s discussion is part of the annual Slate.com The Breakfast Table — a conversation between some of the most interesting courtwatchers and advocates about the Court’s Term.

Also on Thursday, the Court issued opinions in Weaver v. Massachusetts and Turner v. United States. Weaver involves the interaction of postconviction review with what is called “structural error.” As the Weaver majority explained, “[t]he purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should
define the framework of any criminal trial,” and requires automatic reversal when those guarantees are violated. The error in Kentel Myrone Weaver’s murder trial was that during two days of jury selection, the courtroom was improperly closed to the public, which would normally be considered structural error. But because his lawyer failed to object or to raise the issue on appeal, Weaver had to raise it as part of an ineffective assistance of counsel claim on postconviction review. And ineffective assistance of counsel requires a showing of prejudice to overturn a conviction. The question in Weaver addressed the need to demonstrate prejudice when the ineffective assistance resulted in structural error. The Court decided, 7-2, that Weaver must show prejudice. As The New York Times outlines, Justice Kennedy’s majority opinion (joined by the Chief Justice and Justices Thomas, Ginsburg, Sotomayor, and Gorsuch) states that “it must be recognized that open trials ensure respect for the justice system and allow the press and the public to judge the proceedings that occur in our nation’s courts. Even so, the violation here did not pervade the whole trial or lead to basic unfairness.” Justice Breyer’s dissent opposed the majority’s view that the constitutional violation must have affected the whole trial, and states that an error leading to a “fundamental constitutional violation” should be enough to automatically grant a new trial. Justices Thomas, joined by Justice Gorsuch, concurred, questioning whether the closed courtroom should really be considered structural error and taking issue with the majority’s articulation of the prejudice standard. Justice Alito, also joined by Justice Gorsuch, concurred in the judgment also for reasons related to the prejudice standard. As ScotusBlog points out, Justice Gorsuch joined all three opinions that agreed on the outcome, even the one where the author himself declined to join the majority..

In Turner, the third of Thursday’s cases, the Court decided that the petitioners in a 1985 murder case were not entitled to a new trial due to previously withheld exculpatory evidence. In a 6-2 decision, with the majority authored by Justice Breyer, the Court decided that the evidence withheld was not material under the Brady v. Maryland standard. The Washington Post reports that Justice Kagan, who was joined by Justice Ginsburg in dissent, staunchly opposed the bottom line of the majority decision, noting that, “[w]ith the undisclosed evidence, the whole tenor of the trial would have changed.” (Justice Gorsuch did not participate.) In his contribution to The Breakfast Table on Slate.com, former United States Solicitor General Walter Dellinger offers an interesting perspective of the case, seeing it from the solicitor general’s point of view: “[o]ne of the few unhappy aspects of being solicitor general is when you find out that a United States attorney has brought an ill-advised criminal case, won a conviction, and then persuaded a federal court of appeals to uphold the conviction.” Dellinger points out that sometimes prosecutors are overzealous and need to be reminded of Brady’s requirements, but he does not argue that the Court’s decision was clearly wrong, giving special credit to the government’s lawyer in the Supreme Court, Michael Dreeben, who is now also working part time for Robert Mueller, the special prosecutor in the Russia investigation.

Ineffective assistance of counsel was at issue in one of Friday’s opinions, Lee v. United States. In Lee, the defendant pleaded guilty to a drug crime at his attorney’s urging and assurance that it would not affect his immigration status. In fact, that advice was wrong and Lee found himself subject to deportation. The 6-member majority, in an opinion written by the Chief Justice and joined by Justices Kennedy, Ginsburg, Breyer, Sotomayor, and Kagan, held that Lee adequately established prejudice and was entitled to a new trial. Justice Thomas, joined in part by Justice Alito, dissented, and Justice Gorsuch did not participate.

Murr v. Wisconsin, also decided on Friday, was the only close vote of the six cases released at the end of this week. Murr, which involved an alleged regulatory taking, was 5-3, with Justice Kennedy, joined by the four liberals, writing for the majority, the Chief Justice, joined by Justices Thomas and Alito, dissented, and Justice Thomas wrote an additional dissent. (Justice Gorsuch did not participate.) The issue in Murr involved how to evaluate whether a regulatory taking has occurred — that is, whether a property-owner has been deprived of all economically beneficial use of their property as a result of a regulation — where the property at issue is two adjoining lots. The Court provided a fact-specific, multifactor approach to the analysis and held that, in this case, the property was appropriately treated as a whole and no regulatory taking occurred.

Finally, on Thursday, the Court released a 7-2 decision in Perry v. Merit Systems Protection Board, a case notable to the general public largely because it was argued on the first day that Justice Gorsuch was on the bench. The issue in the case was whether a federal employee, disappointed by the resolution of a certain type of employment dispute in front of the Board, should appeal to the district court or to the Federal Circuit. The Court held that the correct forum was the district court. Justice Gorsuch, joined by Justice Thomas, dissented, arguing that the Court was effectively rewriting the statute and echoing his complaints at oral argument.

ISCOTUSnow will be back next week with the final decisions of the Term. The remaining cases are Jennings v. Rodriguez, an important case about detained immigrants’ right to release on bond, Hernandez v. Mesa, about the extraterritorial application of the Fourth Amendment in a cross-border shooting of a fifteen-year-old Mexican boy and possibility of suit by his parents, Trinity Lutheran Church of Columbia v. Comer, a challenge to Missouri’s constitutional prohibition on funding even nonreligious activities, like playgrounds, undertaken by churches, Davila v. Davis, a habeas case about when ineffective assistance of counsel can excuse a petitioner from raising claims in state court, Sessions v. Dimaya, addressing what qualifies as an aggravated felony for purposes of mandatory deportation, and California Public Employees’ Retirement System v. ANZ Securities, Inc., which is about the timeliness of individual securities fraud claims that might have been part of a putative class action. SCOTUSblog offers more detailed descriptions of these cases here.

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