Justices officially return from summer recess, issue orders from long conference

AMY HOWE OCT 1, 2018 2:04 PM

The eight justices of the Supreme Court returned to the bench today to hear oral arguments in the first cases of their new term. But before they did so, they issued an extensive (75 pages) list of orders from last Monday’s “long conference” – their first conference since their summer recess began in late June. The justices issued grants from the conference last Thursday. Today’s orders consisted primarily of denials of review and requests for the U.S. solicitor general to weigh in on several cases.

The justices apparently did not act on two of the highest-profile cases on the list for last week’s conference, which involve a challenge to a Latin cross, located on public land in the Washington, D.C. suburbs, commemorating soldiers who died in World War I. The U.S. Court of Appeals for the 4th Circuit ruled that the cross violates the Constitution’s establishment clause; the justices have been asked to review that ruling.

The justices asked the U.S. solicitor general to file briefs giving them the federal government’s views in eight cases, three of which involve the same issue. In Hernandez v. Mesa, the government will weigh in once again on a Mexican family’s efforts to hold a U.S. Border Patrol agent liable for the death of their 15-year-old son, Sergio Hernandez, who was shot to death while he was on the Mexican side of the border and the agent, Jesus Mesa, was on the U.S. side. The dispute has already been to the Supreme Court once: In 2017, the justices sent the case back to the lower court for it to take a new look. On remand, the U.S. Court of Appeals for the 5th Circuit ruled that the family cannot rely on a 1971 Supreme Court decision allowing a lawsuit seeking damages from federal officials for violating the Constitution to go forward.

In a trio of cases – Clearstream Banking v. Peterson, Banca UBAE v. Peterson and Bank Markazi v. Peterson – the government will provide the court with its opinion on whether the justices should once again intervene in the long-running efforts to obtain money to pay judgments against Iran for its support of terrorism. The respondents in this case are the victims (and their families) of the 1983 bombing of the U.S. Marine barracks in Beirut. A federal court awarded the victims nearly $4 billion in damages, part of which they are now trying to recover by seizing assets owed to Bank Markazi – Iran’s central bank – but held by Clearstream in Luxembourg. A federal district court ruled that the Foreign Sovereign Immunities Act, the federal law governing immunity for foreign governments and their property, barred the victims from attaching the assets. But the U.S. Court of Appeals for the 2nd Circuit reversed, holding that the FSIA does not prohibit federal courts from ordering Clearstream to bring the assets to New York. Bank Markazi and Clearstream asked the Supreme Court to weigh in, as did Banca UBAE, an Italian bank embroiled in the dispute, which argues that the 2nd Circuit should have considered its contention that U.S. courts do not even have jurisdiction over it.

The justices asked the government to file briefs in four other cases:

• Poarch Bank of Creek Indians v. Wilkes: Whether someone who is not a member of an Indian tribe can sue the tribe to recover for an accident or injury – here, a car accident caused by an employee of a casino owned by the tribe.
• Atlantic Richfield Co. v. Christian: Issues arising from the Montana Supreme Court’s ruling that landowners can bring claims under state law to require companies to pay to clean up hazardous-waste sites even though the companies are already working with the federal Environmental Protection Agency to remediate the sites.
• RPX Corp. v. ChanBond: Whether a party that asks for review of a patent has standing to appeal the U.S. Patent and Trademark Office’s final ruling on that review to the U.S. Court of Appeals for the Federal Circuit.
• Thole v. U.S. Bank: Whether a participant in a pension plan can bring a lawsuit against the managers of the fund when the participant has not yet suffered any individual financial injury.

There is no deadline for the U.S. solicitor general to file the government’s briefs, but such briefs are often not filed for several months after the justices request them. If that holds true in these cases, it would mean that the justices likely would not ultimately decide whether to grant review until next year – at which point the court is more likely to have all nine justices.

The list of cases in which the justices denied review today spanned over 60 pages. Among the cases that the justices turned down today were:

• Martins Beach 1 v. Surfrider Foundation: A property-rights battle involving the 89-acre private beach owned by Silicon Valley billionaire Vinod Khosla, who wants to cut off public access to the beach. A nonprofit has argued that Khosla’s efforts violate California laws regulating coastal development. A California appeals court ruled against Khosla, holding that requiring Khosla to allow public access to the beach was not an unconstitutional “taking” of Khosla’s property, for which he should be compensated, because the access requirement was not necessarily permanent.
• Davis v. Mississippi: A follow-up to the Supreme Court’s 2012 ruling that a mandatory sentence of life without parole for juveniles convicted of murder violates the Eighth Amendment’s ban on cruel and unusual punishment and its 2016 ruling that life without parole is appropriate only “for all but the rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” In this case, a Mississippi inmate who was convicted of a murder that he committed at the age of 16 had asked the justices to rule on two issues relating to the constitutionality of life without parole: first, whether the Constitution allows a sentence of life without parole without a finding that the juvenile is permanently incorrigible; and, second and more broadly, whether the Eighth Amendment bars a sentence of life without parole for juvenile offenders.
• Garvin v. New York: In a case stemming from an arrest and conviction for a series of bank robberies, the defendant had asked the justices to consider two questions: (1) whether police officers violated the Fourth Amendment when they arrested him inside his apartment without either a warrant or an emergency; and (2) whether New York’s persistent-felony-offender scheme is unconstitutional under the Supreme Court’s ruling in Apprendi v. New Jersey, which held that juries – rather than judges – must find, beyond a reasonable doubt, any facts that increase a sentence beyond the statutory maximum.

The justices will meet again for their next conference on Friday, October 5.

This post was originally published at Howe on the Court. Some of the content in this post also appeared in earlier posts, in slightly different forms, at Howe on the Court.

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