Quiet day for orders

This morning the Supreme Court issued orders from the justices’ private conference last week – the first one in which the court’s newest justice, Brett Kavanaugh, participated. On Friday afternoon, the justices had announced that they had granted review in one new case, involving the application of the First Amendment to the private operator of a public-access television channel. The justices did not add any new cases to their docket with today’s order list, and they did not act on several of the higher-profile cases that they were slated to consider last Friday.

The justices denied review in a group of cases filed by inmates who were sentenced as “career offenders” under federal sentencing guidelines. They had argued that their sentences were unconstitutional, citing a 2015 case in which the court struck down a federal provision requiring a longer sentence for certain defendants who have been found guilty of violating the ban on gun possession by felons. The court concluded that the provision, which applied to defendants who had already been convicted of three violent felonies, was too vague to be constitutional, because it included any felony that “involves conduct that presents a serious potential risk of injury to another.” Last year the Supreme Court ruled that a similar provision in the U.S. Sentencing Guidelines was not unconstitutionally vague because the guidelines in effect when the defendant was sentenced were only advisory, not mandatory. The inmates whose petitions for review were denied today contended that, unlike the inmate in last year’s case, they should be resentenced because the guidelines were mandatory when they were sentenced.

The justices today declined to take up their challenges, over a dissent from Justice Sonia Sotomayor that was joined by Justice Ruth Bader Ginsburg. Sotomayor emphasized that, no matter what her colleagues think about how broadly the court’s 2015 ruling should apply, “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,” Sotomayor concluded, “we ought to hear.”

The justices also denied review in ConAgra Grocery Products v. California and The Sherwin-Williams Co. v. California, arising from California’s efforts to hold three companies liable for their role in making, selling and promoting lead paint. In their briefs asking the justices to weigh in, the companies complained that they had been ordered to pay “hundreds of millions of dollars to remediate a decades-old problem” based on their speech – that is, their efforts to promote the use of lead paint in homes.

The justices did not act on either the challenge to the “peace cross,” a memorial to soldiers killed in World War I that stands on public land in the Washington, D.C., suburbs, or a case involving the constitutionality of mandatory bar dues for lawyers. The justices will meet again for a private conference on Friday, October 26, with orders from that conference likely either that afternoon or on Monday, October 29.

This post was originally published at Howe on the Court.