top of page
  • Elizabeth Slattery

Please excuse the lengthy intermission since our last post. As you may know, a certain SCOTUS Lady recently returned to Pacific Legal Foundation after a stint at the Cato Institute.

She's not the first to return to the trenches of fighting for individual liberty. In fact, it's so common, we have a nickname for returning colleagues: the PLF boomerangs.

There has certainly been plenty of Supreme Court related news since we last met —most notably FlagGate. If you aren't familiar, check out this article by Dan McLaughlin of National Review Online recapping the various flag stories.

I don't have much to add on the subject though one thing that grinds my gears is treating Martha-Ann Alito as an extension of her husband, aka Justice Samuel Alito. It's 2024. Aren't women separate individuals entitled to their own opinions, activities, merits, and flaws? Nevertheless, the tenor of the national conversation has tiptoed up to the line of suggesting "Justice Alito get his wife in line." As a fellow strong-willed (and occasionally misbehaving) woman, I bristle at the notion. 

With that out of the way, let's dig into some of the recent opinions. Admittedly, we are not yet in blockbuster territory. The coming weeks will be action-packed as the justices release a flurry of decisions before high-tailing it out of Washington, DC for the summer. Here are a few recent decisions that piqued my interest. 

First up is Becerra v. San Carlos Apache Tribe & Becerra v. Northern Arapaho Tribe, a case concerning funding for Native American tribe members' healthcare. In the 1970s, Congress enacted two laws aimed at improving healthcare for members of Indian tribes. One allows tribes to contract with the federal government for healthcare services that were previously provided by a government agency, the Indian Health Service. When tribes opt to contract with the government to administer healthcare services directly, they receive the appropriated funds the Indian Health Service would have spent.

Tribes also are reimbursed for administrative expenses called "contract support services." Another federal law authorizes Indian Health Service facilities (operated by the government or contracting tribes) to collect "program income" from Medicare, Medicaid, and private insurers for services provided to Indian patients. Tribes use this income to expand and improve services. The question in the San Carlos Apache and Northern Arapaho Tribes' cases was whether the government must reimburse tribes for contract support services they incur in the course of collecting program income from third parties. 

In an opinion written by Chief Justice John Roberts, the Court held that the government is obligated to pay up for these additional expenses. Justices Sonia Sotomayor, Elena Kagan, Neil Gorsuch, and Ketanji Brown Jackson joined the majority opinion. A SCOTUS line up like this takes some of the air out of the "they’re just politicians in robes and vote for 'their team'" balloon. 

Justice Brett Kavanaugh wrote a dissent, joined by Justices Clarence Thomas, Amy Coney Barrett, and Mr. Martha-Ann Alito (I kid!). Justice Kavanaugh explained:

For the past 30 years, the Executive Branch has interpreted the relevant statutory provisions … to require tribes to pay those overhead costs out of the third-party income collected from Medicare, Medicaid, and private insurers. And Congress has never overturned that consistent Executive Branch practice.

This decision "upends that long-settled understanding and requires the Federal Government to furnish additional funding to the tribes for the costs of spending the third-party income." That additional funding would be an estimated $800 million to $2 billion per year, and Justice Kavanaugh mused this may lead to tax hikes, diverting money from other federal programs, and other "difficult appropriations decisions and tradeoffs" that are better left to Congress and the President, not the Supreme Court. Touché

But, as the Chief explained, the tribes' reading of the statute is the better one and "complaints about costs are the domain of Congress, not this Court." Double touché!

Another decision that further deflates the "politicized court" balloon was National Rifle Association v. Vullo. The Court held the NRA plausibly alleged the New York’s Department of Financial Services violated the First Amendment by coercing insurance companies and other regulated entities to sever ties with the NRA in order to punish or suppress its gun rights advocacy. The unanimous majority opinion by Justice Sotomayor began: 

Six decades ago, this Court held that a government entity's 'threat of invoking legal sanctions and other means of coercion' against a third party 'to achieve the suppression' of disfavored speech violates the First Amendment… Today, the Court reaffirms what it said then: Government officials cannot attempt to coerce private parties in order to punish or suppress views that the government disfavors. Petitioner National Rifle Association (NRA) plausibly alleges that respondent Maria Vullo did just that.

Another recent unanimous decision was Harrow v. Department of Defense. Perhaps because my colleagues at Pacific Legal Foundation won a case involving a similar issue last term, there's a special spot in my heart for cases looking at whether courts lack jurisdiction to hear claims that have been filed after a statutory filing deadline has passed. (Don't judge me. The heart wants what it wants. And this SCOTUS Lady's heart wants courthouse doors to remain wide open.)

In recent years, the Court has steadily marched through the U.S. Code, determining that statutes of limitation in laws ranging from copyrights to tort claims to quiet title actions are not jurisdictional. In other words, missing a filing deadline doesn't deprive a court of its ability to hear your case because the court could excuse the tardiness if there are really good reasons to do soaka equitable tolling. And in this case there were some compelling reasons for a court to toll the statute of limitations (check out my argument preview for the details).  

Now the march continues. The Court unanimously held that missing the filing deadline for an appeal from a Merit Systems Protection Board decision does not deprive a federal court of jurisdiction to hear that appeal. Writing for the Court, Justice Kagan explained (in a brief, 11-page opinion) that Congress "legislates against the backdrop of judicial doctrines creating exceptions" for procedural requirements. Thus, the Court will "treat a procedural requirement as jurisdictional only if Congress 'clearly states' that it is." That wasn't the case with the relevant federal law, so that's the end of the story. One interesting note for bean-counters: Wilkins (PLF's win last term) was decided 6-3 whereas Harrow was unanimous. 

The last decision I'll mention is Alexander v. South Carolina State Conference of the NAACP, a challenge to the congressional district map drawn by South Carolina legislature's following the 2020 Census. A three-judge district court threw out the map, finding race played a predominant role and certain districts unconstitutionally diluted black voting power. The Supreme Court reversed in a 6-3 decision.

Writing for the majority, Justice Alito noted there are two lines of redistricting case law that "collide when race and partisan preference are highly correlated." (For example, ninety percent of black South Carolina voters cast a ballot for Joe Biden in 2020.) To deal with this collison, the Court has previously mandated that (1) courts begin with a presumption that the legislature acted in good faith and (2) the party challenging a map must "disentangle race and politics if it wishes to prove that the legislature was motivated by race as opposed to partisanship." (Legislators are always at least somewhat motivated by partisanship.) Yet the district court "paid only lip service to these propositions." Further, the district court relied on flawed expert reports and the challengers failed to carry their burden of providing direct or circumstantial evidence of racial gerrymandering.

The justices had a lot more to say in over one hundred pages of majority, concurring, and dissenting opinions. Justice Thomas observed in a concurrence that the Court's doctrines "indulge in race-based reasoning inimical to the Constitution" and perhaps the Court should "abandon [its] misguided efforts."

Political gerrymandering is as old as our nation. (Look up Elbridge Gerry if you don't know the backstory). It seems to me that Justice Felix Frankfurter was right when he cautioned against courts entering "the political thicket" that is redistricting. Alas, federal courts have been drawn into that thicket repeatedly for the past several decades with no end in sight. 

That's all for now. Check back for updates as decisions in the biggest cases of the term start coming down.

The Trumpy cases, once again, fall to me! But that’s not until the end of the week. Let's start with Monday.

Monday will be only slightly less controversial as the Court takes up City of Grants Pass v. Johnson, involving the ability of cities to respond to the rising homelessness crisis by banning camping in public.

The case stems from a previous decision by the Ninth Circuit a few years back called Martin v. City of Boise, 920 F.3d 584 (9th Cir. 2019). There, the Ninth Circuit interpreted the Cruel and Unusual Punishments Clause of the Eighth Amendment as preventing cities from criminalizing camping in public if the city has a shortage of beds depriving the campers of "access to adequate temporary shelter." The Ninth Circuit reasoned that if there aren’t enough beds, then the person is being forced to camp involuntarily---even if they’ve taken actions that have made them unable to get shelter and even if they've made no effort to get out of their situation.

It’s true, of course, that there are several laws in place that keep people in systematic poverty and the government could do a ton to help people out of poverty if it would just get out of their way and make it easier to hire, to build, to earn, to keep the fruits of one's labor, and to buy or sell property. So yes, the government plays a role in exacerbating the homelessness crisis. But it's also true that categorically saying that all people who are public camping are in that situation "involuntarily" erases their agency---especially given that many are, in fact, competent and have been in the same situation for decades.

Putting aside whether that’s what “involuntary” means, the Ninth Circuit has certainly stretched the meaning of the Eighth Amendment. As you can listen to here (courtesy of a fantastic episode of the hit podcast Dissed), the Cruel and Unusual Punishment Clause doesn’t prohibit government from doing whatever some judge at the time finds subjectively brutal or strange. Rather, it was meant to prohibit punishments that were disproportionate in relation to the crime or that have fallen out of use over time.

In Grants Pass, the Ninth Circuit extended Martin even further and said cities cannot even enforce a camping ordinance through civil citations.

The case has garned a wide array of amicus briefs, including the ACLU, Southern Poverty Law Center, the Becket Fund, Elizabeth's employer the Pacific Legal Foundation, the City of Los Angeles, California Governor Gavin Newsom, and the Sacramento DA. Perhaps surpsingly, the latter three filed to emphasize the problems that have unfolded as cities struggle to apply Martin in the face of rising homeless, as well as the growing threats to public health and safety.

The debate over bans is important, but one does wonder when we'll start talking about the root of homelessness: things like restrictive housing policies that suppress supply, laws that keep people out of a job, and regulations that make it harder for people to access healthcare of all kinds.

After that argument, the Court will switch to a decidedly less controversial issue: Whether Section 3 of the Federal Arbitration Act requires district courts to stay a lawsuit pending arbitration, or whether district courts have discretion to dismiss when all claims are subject to arbitration.

On Tuesday, in Department of State v. Muñoz, the Court willl consider "whether a consular officer's refusal of a visa to a U.S. citizen's noncitizen spouse impinges upon a constitutionally protected interest of the citizen" and "whether, assuming that such a constitutional interest exists, notifying a visa applicant that he was deemed inadmissible... suffices to provide any process that is due."


The case stems out of the marriage of Salvadoran citizen Luis Asencio-Cordero and U.S. citizen Sandra Muñoz. Asencio-Cordero entered the country in 2005 and the couple married in 2010. Once married, Muñoz filed a petition to allow Asencio-Cordero to become a lawful permanent resident. In the meanwhile, Asencio-Cordero also filed an application (as required) for a provisional waiver of his unlawful presence. After extensive correspondence with U.S. officials, the last step was for Asencio-Cordero to interview at the U.S. Consulate in El Salvador. There, the consular officer deemed him inadmissible based on the belief that Asencio-Cordero sought to enter the U.S. "to engage solely, principally, or incidentally in…unlawful activity.” Several years later, after Asencio-Cordero filed a lawsuit, it came out that the consular officer had made that decision based solely on Asencio-Cordero's tattoos, which the officer (incorrectly) suspected denoted gang affiliation.

Noncitizens have virtually no ability to challenge such decisions, so Muñoz filed a lawsuit arguing that the officer's decision affected her rights. Now the Court will determine whether the Ninth Circuit was correct to let her sue.

Keeping with the pattern from Monday, the Court will then turn to a rather less sensational case, Starbucks v. McKinney, which asks whether the National Labor Relations Board’s requests for injunctions under the National Labor Relations Act is applicable to the same four-factor test as all other preliminary injunctions or some other more lenient standard. (As I always say, what’s good for the goose is good for the National Labor Relations Board!).

On Wednesday, the Court will consider whether the Emergency Medical Treatment And Labor Act (known better as EMTALA) preempts state laws curbing the ability to get an abortion. EMTALA requires hospitals that receive Medicare funding to provide emergency treatment, including emergency stabilizing treatment to pregnant women. After the Court’s decision last term in Dobbs, Idaho passed a law prohibiting abortions unless necessary to save the life of the mother. A district court judge subsequently ruled that the law was preempted to the extent that it conflicts with EMTALA.

The state argues that the DOJ’s argument is a mere power grab that widely interprets EMTALA in order to curb a state law it doesn’t like. DOJ argues that EMTALA requires hospitals to provide any treatment necessary to stabilize the patient without regard to whether that treatment is permitted under state law, and it is merely pressing a straightforward interpretation of the statute.

After the Fifth Circuit ruled in a similar case that EMTALA does not preempt Texas’s abortion restrictions, thus creating a circuit split, the Court granted a stay in the Idaho case and agreed to hear oral argument.

The Court will round out the week by deciding just how immune former presidents are from criminal prosecution. President Trump argues that they are bigly immune. In fact, he argues that former presidents are so immune that they could assassinate political rivals and not face prosecution for it.

You may recall that Trump is currently being criminally prosecuted for his actions on January 6th. Trump unsuccessfully argued at the D.C. Circuit that he was immune for all official acts when he was president and instead that former presidents can only be prosecuted after they are first impeached. We'll see if this argument fares better at the Supreme Court, where the justices are keener on immunity of all kinds, as well as deference to the Executive.

I'll be back later this week for a full recap! Four very full days of SCOTUS arguments. It's like Christmas come early.

It was a packed week for the justices with arguments, orders, and opinions. Justice Clarence Thomas was absent from the oral arguments on Monday, but he was back on the bench Tuesday. No word from the Court where he was, though the justices occasionally take a sick day. Oftentimes, they still participate in the decision even if they miss an argument (as Justice Ginsburg did when she missed several in 2019).

Don't miss this article by Joan Biskupic exploring Justice Sandra Day O’Connor’s notes related to the 1984 Chevron case. The Library of Congress recently made a portion of the late O’Connor’s papers available to researchers. The notes detailed by Biskupic shed light on the justices’ private discussions about the case and explore why O’Connor recused herself from the case after participating in the oral argument. It’s a fascinating read!  

Check out my preview of this weeks oral arguments for more details about the cases. Now lets jump in.


Snyder v. United States 

This corruption prosecution of a small town mayor from Indiana presents the Supreme Court with an opportunity to clarify whether the federal law prohibiting state and local officials from accepting bribes includes “gratuities.” 

Lisa Blatt argued on behalf of Portage, Indiana Mayor James Snyder, who was convicted of soliciting and accepting $13,000 as a gratuity from a business that won a contract from the city to supply trash trucks. Snyder says this was a payment for consulting work he performed.

It was a hot bench with the justices interrupting each other and the advocates throughout the argument. 


Blatt argued that the statute uses language that covers classic bribes —“corruptly intending to be influenced” for payments made before an official act was taken and “corruptly intending to be rewarded” for payments made after the fact. But, Blatt maintained, the government’s approach extending this language to include gifts would leave millions of state and local officials without clear guidance about what could land them in prison for ten years. 

She peppered her argument with quips like, “There’s no drop-down menu on Amazon for mens rea” and “I don't know where on the Harry & David menu the gift becomes corrupt.”  She suggested, “I'm pretty sure Chipotle would be okay, Inn at Little Washington wouldn't, but ask [the government] about The Cheesecake Factory.” These points were often met with laughter in the courtroom, but Blatt underscored that the Court should not leave this up to prosecutorial discretion. She remarked, “there's just legions of cases that say you’re not going to interpret a statute with crazy breadth on the trust me assumption of federal prosecutors.”  

Representing the federal government, Assistant to the Solicitor General Colleen Roh Sinzdak maintained that the statute contains one offense for “corruptly accepting a payment,” and there are two ways of committing that offense, intending to be influenced or intending to be rewarded. These “overlap a lot of times when you're accepting a payment.” Chief Justice John Roberts said it didn’t seem like overlap but instead that “one is a lesser included offense [of] the other…” so “why isn't the bribery thing just surplusage?” 

Justice Brett Kavanaugh wanted to know how the government defines “corruptly” in the statute. Sinzdak answered that it’s “wrongful or evil or immoral.” Justice Kavanaugh followed up, “So does a $100 Starbuck gift certificate as a thank you to the city council-person who -- for working on a new zoning reg, is that corrupt or not? … How about a $500 one?” Justice Neil Gorsuch asked how someone knows their behavior is wrongful “if it’s perfectly legal” under state law. Justice Kavanaugh asked whether an act being lawful under state or local law would be “a safe harbor … then you cannot be federally prosecuted for the gratuity under this statute?” Sinzdak replied, “It's not necessarily a safe harbor if it’s obviously wrongful conduct.” 

Getting back to the issue of giving discretion, Chief Justice Roberts observed, “you say that … the government’s not going to go after you for the plate of cookies…But, I mean, you know, Al Capone went to jail for tax fraud, right, not for killing however many people.” (The Internet failed to supply a reliable number—between seven and 500—so we can forgive the Chief for not knowing how many people Al Capone allegedly killed.)

The Chief said he suspects the public integrity section of the Justice Department (which prosecutes corruption) “ha[s] a different perspective on a lot of these things than others might,” including whether this statute would allow prosecution for “something that other people might regard as really sort of normal type of let's say gratuity, you know, whether it’s a Christmas gift for the -- for the trash collectors or something like that.”

In her rebuttal, Blatt pushed back on the government’s claim that Mayor Snyder didn’t dispute the wrongfulness of his action during his trial. 

It is truly, as a former government lawyer, baffling how someone could just say that it was not contested, that this was wrongful. No citation. Of course, it was contested. The whole argument was this was a legitimate consulting agreement because local officials dont make any money. And just because the government says it at argument doesnt make it true, especially when they dont have a citation.

Here’s a fun fact about the ladies facing off in this case: each played a part in Justice Kavanaugh’s confirmation in 2018. Blatt, along with then-Senator Rob Portman (R-Ohio) and former Secretary of State Condeleezza Rice, introduced Kavanaugh at the start of his confirmation hearing. Sinzdak offered testimony on behalf of Kavanaugh, who had become a mentor after she took a course with him at Harvard Law School. 

Chiaverini v. City of Napoleon, Ohio

This case concerns a malicious-prosecution claim under 42 U.S.C. § 1983. Jascha Chiaverini, a jeweler who purchased stolen jewelry and refused to return the jewelry to the owner, was arrested and detained for four days. The charges (two misdemeanors and one felony) leading to his detention were dropped, and Chiaverini brought a malicious prosecution claim against police for initiating criminal charges without probable cause, leading to his unlawful detention. The dispute is whether a malicious-prosecution claim may proceed for a baseless charge even if other charges are supported by probable cause or if such a claim is precluded when there was probable cause to support at least one charge.  


Easha Anand of the Stanford Supreme Court Litigation Clinic represented Chiaverini, and she asserted there is “radical agreement” among the parties, including the federal government as amicus, that a “plaintiff may make out a malicious prosecution claim by proving that one charge is not supported by probable cause, even if other charges are.” Justice Samuel Alito remarked, “Well, radical agreement is -- is a good thing if … it exists, but I'm not quite sure there is radical agreement here.”

Indeed, the federal government, which supports Chiaverini, urged the justices to “take one step further [than Chiaverini asked] and to say that the plaintiff bears the burden of proving that the baseless charge caused an unreasonable seizure.” 

Megan Wold of Cooper & Kirk, representing the City, said it was “news to me that there was radical agreement.” Chiaverini’s description of the lower court ruling, she asserted, is a “strawman rule…the presence of one charge supported by probable cause automatically justifies any detention.” That’s not what the lower court held, and Wold claimed the two misdemeanor charges provided probable cause for Chiaverini’s four-day detention. She maintained that Chiaverini must show that the baseless charge resulted in his detention.  

In her rebuttal, Anand followed up on that strawman point: “I'll just note that what [the City is] now describing as a strawman is precisely what they argued for below. Here's a quote from oral argument: ‘So long as probable cause exists to one of multiple criminal charges, that is enough to negate the entire malicious prosecution claim.’” And such a rule “allows police officers to entirely insulate their misconduct by just tacking on a charge for which there is probably probable cause for just about anyone.”

Fischer v. United States

And now we’ve arrived at the most-anticipated argument of the week. Joseph Fischer was charged with various offenses stemming from his participation in the events of January 6, 2021 (including allegedly assaulting a Capitol police officer). The issue before the Supreme Court is whether his actions that halted a joint session of Congress violated 18 U.S.C. § 1512(c)(2), which prohibits obstructing, influencing, or impeding congressional proceedings. The argument clocked in at nearly two hours. Here are a few parts I found noteworthy. 

Jeffrey Green of Sidley Austin and the Northwestern Supreme Court Practicum argued on behalf of Fischer. He maintained that this statute, which was enacted in the wake of the Enron accounting scandal, is aimed at “the impairment of the integrity or availability of information and evidence to be used in a proceeding.” It has “never been used to prosecute anything other than evidence tampering.” He acknowledged there are a “host of felony and misdemeanor crimes that cover the alleged conduct” of the various January 6 defendants, but a “Sarbanes-Oxley-based, Enron-driven evidence-tampering statute is not one of them.” 

Solicitor General Elizabeth Prelogar contended that this is a “straightforward question of statutory interpretation” and the answer is “equally straightforward.” Fischer obstructed a congressional proceeding. Justice Clarence Thomas asked if the government has prosecuted protesters under this provision. Prelogar replied it has been used “in a variety of prosecutions that don’t focus on evidence tampering” such as “tipp[ing] off the subject of a investigation to the grand jury’s hearings” or “tipp[ing] off about the identity of an undercover law enforcement officer.” But she didn’t offer examples of prosecuting protestors. 

Justice Samuel Alito continued with the protestor theme, posing a hypothetical: "So we’ve had a number of protests in the courtroom. Let’s say that today, while you’re arguing or Mr. Green is arguing, five people get up, one after the other, and they shout either ‘Keep the January 6th insurrectionists in jail’ or ‘Free the January 6th patriots.’ And as a result of this, our police officers have to remove them forcibly from the courtroom and let’s say we have to -- it delays the proceeding for five minutes.” Would that violate § 1512(c)(2)?

That would be difficult for the government to prove, she responded, and “in a fundamentally different posture than if they had stormed into this courtroom, overrun the Supreme Court police, required the Justices and other participants to … flee for their safety, and done so with clear evidence of intent to obstruct.”

Touché, General.

Justice Alito pressed on with another hypothetical inspired by pro-Hamas supporters that shut down the Golden Gate bridge earlier this week: What if protestors blocked the bridges from Virginia into Washington, DC to prevent Members of Congress who live across the river from appearing for a vote or a hearing? Would that violate § 1512(c)(2)? “Maybe,” Prelogar said. She then pointed out that the government has charged more than 1,350 people for crimes committed on January 6, and only 350 of those with violating § 1512(c)(2). The “stringent mens rea requirement … has very much constrained” their prosecutions. 

Justice Kavanaugh asked why the government is pursuing this when there are six other counts in Fischer’s indictment that “don’t have any of the hurdles” of § 1512(c)(2). Is the potential prison sentence longer under § 1512(c)(2)? Prelogar explained that “one of the distinct strands of harm” is that Fischer knew Congress was in session and intended to obstruct the proceeding. The government seeks to hold him accountable for that. On the sentencing question, Prelogar explained the sentencing range was higher (24 months, on average) until a recent decision D.C. Circuit held that a particular sentencing enhancement doesn’t apply to § 1512(c)(2).

Justice Ketanji Brown Jackson asked why the fact that Congress enacted § 1512(c)(2) in response to a document-destruction scandal shouldn’t affect the scope of the statute. Prelogar asserted that Congress had learned the lesson that “when you set out in advance to try to enumerate all the various ways that official proceedings can be obstructed, things will slip through the cracks. You can't always foresee it.” Justice Jackson then followed up asking about the preceding section, § 1512(c)(1), which deals with documents, records, and other objects; she said she’s “struggling with leaping from what's happening in (1) … to all of obstruction in any form.”  

What Justice Jackson is picturing.

Several justices and Prelogar referred back to Monday’s argument in Snyder about how the government defines and needs to prove “corruptly.”

In rebuttal, Green pointed that the government admitted that the statute would cover “peaceful protests as long as [it] could demonstrate … there was the adequate mens rea and a nexus.” That will “chill protected activities. People are going to worry about the kinds of protests they engage in, even if they’re peaceful, because the government has this weapon.” 

Looming large over this case is the fact that the Court’s decision in Fischer could have implications for another defendant who has been charged with violating § 1512(c)(2): President Donald Trump. 

Thornell v. Jones

The final argument of the week involved a capital defendant’s ineffective assistance of counsel claim and whether the Ninth Circuit (which has an infamously poor track record in capital cases at SCOTUS) erred in effectively substituting its judgment for the district court’s on whether resentencing would be warranted. Arizona Deputy Solicitor General Jason Lewis represented Department of Corrections Director Ryan Thornell and Jean-Claude Andre argued on behalf of capital defendant Danny Lee Jones.

Lewis asserted that the Ninth Circuit erred in two critical ways: (1) failing to defer to the district court’s factual determinations based on an evidentiary hearing and (2) failing to “meaningfully” consider aggravating factors as required by Strickland v. Washington.

Justice Thomas asked, “Can we resolve this simply by saying that de novo review is improper?” Lewis replied that they could.

Justice Sonia Sotomayor wanted to know why the state is asking for a reversal, rather than vacating the Ninth Circuit’s decision and giving them another shot at applying the Strickland standard. Lewis replied, “I think concepts of finality would dictate that the circuit court has had this case for so long and has spent so much time granting relief on certain issues, reserving other ones, and then having it sent back continuously, it has to end at some point.” Indeed, Jones was convicted and sentenced in the mid-1990s, and his postconviction appeals—which included a GVR from the Supreme Court in 2011 (that's shorthand for granting the petition, vacating the lower court ruling, and remanding for further proceeding)—have dragged on for decades. 

Andre began his argument directly attacking the sentencing attorney’s “concededly deficient performance” and the district court for “serially nit-pick[ing] all of Jones's mitigating evidence.” The district court offered “its view of what it thought the more persuasive side was” rather than asking whether the “sum total of all the evidence … established a reasonable probability that the Arizona court system might have imposed a different sentence.”

Justice Elena Kagan pointed out that the Ninth Circuit “completely ignore[d] all the aggravating evidence, which was substantial in this case. So, you know, what everyone can say about what the district court did wrong, we're reviewing the circuit court opinion and that opinion doesn’t do what it’s supposed to do.” Strickland requires the appellate court “to look at the good and the bad,” Kagan continued. “So the circuit court is supposed to look at the mitigating evidence, as well look at the rebuttal case that the state put on about -- about the strength of that mitigating evidence, and then, most crucially, weigh it against the aggravating evidence. And that -- that most crucial last stage -- I mean, there were lots of aggravators in this case, and the circuit court doesn't even mention some of them.”

Justice Gorsuch brought up the longevity of this case. “What do you say, though, to your friend’s argument on the other side that this case has been lingering for decades and that we’ve already vacated and remanded this case once and that if we think that the Ninth Circuit didn’t engage in the classic Strickland analysis this Court requires ... wouldn’t there be some value to everybody to have some finality in this case and just have us do the Strickland weighing in the first instance?” Andre replied that he’s “not resisting” the Court doing that but “the typical procedure is to send it back to the lower court.” 

Opinions and Orders

In addition to hearing oral arguments, the Court handed down decisions in four cases. 

In DeVillier v. Texas, the Court unanimously held that property owners outside Houston whose property was flooded due to a highway project could pursue their takings claims in state court. The Court declined to address what action a property owner could take to seek just compensation in the absence of a cause of action under state law. 


In Rudisill v. McDonough, the Court held that servicemembers who accrue educational benefits under the Montgomery and Post-9/11 GI Bills for separate periods of service do not have to exhaust less generous available benefits before using the more generous ones they have earned. Instead, eligible servicemembers may use their benefits in any order up to the 48-month aggregate benefit cap. 


In McIntosh v United, the unanimous Court held that a “district court’s failure to comply with Rule 32.2(b)(2)(B)’s requirement to enter a preliminary order before sentencing does not bar a judge from ordering forfeiture at sentencing subject to harmless-error principles on appellate review.” 


In Muldrow v. City of St. Louis, the Court held that an employee who argues that a job transfer was the result of sex discrimination under Title VII of the Civil Rights Act “must show that the transfer brought about some harm with respect to an identifiable term or condition of employment, but that harm need not be significant.”


The Court also released an orders list, which was mostly denials and a few dissents from denial of cert by Justice Sotomayor doing her "conscience of the court" thing, and Justice Jackson getting in on that too.


Favorite SCOTUS moments of the week

My favorite exchange from an argument was this one between Lisa Blatt and Justice Sotomayor in Snyder

Here's my other favorite SCOTUS (adjacent) moment. Is that the real SCOTUS behind us? We'll never tell.

two women in blazers with columns behind them
SCOTUS Ladies reunited in DC

bottom of page