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 week’s oral arguments for more details about the cases. Now let’s 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 don’t make any money. And just because the government says it at argument doesn’t make it true, especially when they don’t 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.
