Justices grant four new cases (Corrected)

The Supreme Court issued orders from last week’s private conference. The justices added four new cases to their docket for next term and asked the U.S. solicitor general to weigh in on two more cases. The justices also rejected an appeal from a Georgia death-row inmate who alleges that one member of the jury that convicted him was biased against the inmate because of his race.

In Kansas v. Garcia, the justices will review a ruling by the Kansas Supreme Court that reversed the convictions of Ramiro Garcia and two other defendants for identity theft after they used other people’s Social Security numbers. The federal Immigration Reform and Control Act bars employers from knowingly employing undocumented immigrants. The act also requires employees to verify that they are eligible to work in the United States by submitting a Form I-9, and it strictly limits the use of information on or attached to a Form I-9. Because the Social Security numbers that the defendants were using appeared on their I-9s, the state court reasoned, the prosecution was trumped by the IRCA, even if the Social Security numbers also appeared on the defendants’ tax-withholding forms.

The justices asked the U.S. solicitor general to weigh in last spring, and in December the federal government agreed with Kansas that the court should review the case. Even if states cannot use the information contained in a Form I-9, the government contended, they can still prosecute someone using information from other documents. Today the court announced that it had granted Kansas’ request for review; the case is likely to be argued in the fall.

In 2002, then-17-year-old Lee Boyd Malvo and John Allen Muhammad terrorized the Washington, D.C., region with a series of random sniper shootings that killed 10 people and wounded several others. Muhammad, an adult, was sentenced to death and executed in 2009. Malvo was sentenced to life without the possibility of parole and did not appeal, but now he is seeking to have his sentences for the killings that took place in Virginia overturned, and the Supreme Court today agreed to weigh in.

Malvo’s challenge centers on two Supreme Court cases decided after he was sentenced: Miller v. Alabama, holding that the Constitution’s bar on cruel and unusual punishment prohibits mandatory sentences of life without parole for juveniles; and Montgomery v. Louisiana, in which the court ruled that its 2012 decision in Miller applies retroactively.

The U.S. Court of Appeals for the 4th Circuit threw out Malvo’s sentences and ordered the trial court to resentence him. In particular, the court of appeals stressed, the trial court should determine whether Malvo is one of the “rare juvenile offenders” who is so irredeemable that he deserves a life-without-parole sentence.

Virginia went to the Supreme Court, arguing that the 4th Circuit read the justices’ decisions in Miller and Montgomery too broadly, and that Miller instead applies only when life-without-parole sentences are mandatory. The justices granted the state’s request for review today.

In 1972, the Supreme Court ruled that a defendant in a state criminal trial can be convicted even if the jury is not unanimous. Today the Supreme Court agreed to reconsider that ruling in the case of Evangelisto Ramos, who was charged with second-degree murder for the death of Trinece Fedison, whose body was found in a trash can in New Orleans; although only 10 of the 12 jurors voted to find Ramos guilty, he was convicted and sentenced to life in prison without the possibility of parole.

Ramos’ case hinges on whether the Sixth Amendment’s guarantee of a unanimous jury applies to the states – a question known as incorporation. The provisions of the Bill of Rights were originally interpreted as applying only to the federal government, not to the states. But starting in the 20th century, the Supreme Court ruled that most, but not all, of the amendments apply to the states. Last month the justices ruled in Timbs v. Indiana that the Eighth Amendment’s ban on excessive fines applies to the states. At the oral argument in that case, Justice Neil Gorsuch appeared almost incredulous that the question was still an open one. He told Thomas Fisher, the solicitor general of Indiana, that “here we are in 2018 still litigating incorporation of the Bill of Rights. Really? Come on, General.” Now the justices will decide whether the same is true for unanimous juries.

The justices also agreed to weigh in on an issue that, perhaps surprisingly, they have not previously resolved: whether the Constitution requires states to make an insanity defense available. The question arises in the case of James Kraig Kahler, who was convicted in Kansas of killing his wife, his two daughters and his wife’s grandmother and was sentenced to death. Kahler’s attorneys say that when he committed the murders, he was suffering from depression so severe that he disconnected from reality and couldn’t control himself.

Since 1996, insanity has not been a separate defense in Kansas. Instead, a defendant’s mental health is relevant only to the question whether he could intend to commit the crime. Kahler argues that the lack of an insanity defense violates the Eighth Amendment’s ban on cruel and unusual punishment, because it punishes him for the murders even though, because of his mental illness, he is not morally responsible for them, as well as the Constitution’s guarantee of due process.

The justices asked the federal government for its views on Patterson v. Walgreen, involving the question of exactly how much employers must do to accommodate an employee’s religious practices.

Federal law bars an employer from firing an employee for practicing his religion unless the employer can show that he cannot “reasonably” accommodate the employee’s practice without “undue hardship.” In 2011, Walgreen fired Darrell Patterson, a Seventh-day Adventist who does not work from sunset on Friday to sunset on Saturday, after Patterson did not show up to run a training on a Saturday afternoon. Patterson held the training the following Monday, allowing the company to meet the internal deadline that had prompted it to schedule the Saturday training.

Patterson sued Walgreen in federal court. The company countered that it had tried to accommodate Patterson by offering him a lower salary and a demotion; moreover, it added, allowing him to take Saturdays off would be an “undue burden” because it might need to hold trainings on Saturdays more often in the future.

The lower courts agreed with Walgreen, and Patterson went to the Supreme Court. He asked the justices to weigh in on whether an accommodation, like the demotion and pay cut offered by Walgreen, can be “reasonable” when it doesn’t completely eliminate the conflict between an employee’s job and his religious practice; he also asked them to decide whether the employer must show an actual, rather than a speculative, burden. The issues presented by his case are significant, he argued, “not only because they impact millions of religious employees and frequently find their way into court, but also because the Eleventh Circuit and some others are severely diminishing the protection for religious liberty that Congress enacted and intended.”

The government will also weigh in on Hikma Pharmaceuticals v. Vanda Pharmaceuticals. At issue in the case is whether a method to treat patients – here, a way to treat schizophrenia using a particular drug and methodology – can be patented. There is no deadline for the government to file its briefs.

The justices denied the petition for review filed by Keith Tharpe, a Georgia death-row inmate seeking review of his claim that one of the jurors who sentenced him to death was biased against him because of his race. Tharpe, who is African-American, has a signed affidavit from Barney Gattie, the juror, in which Gattie makes “repugnant comments” “rife with racial slurs” and indicates that Tharpe’s race played a role in Gattie’s decision to sentence Tharpe to death. Tharpe had asked the Supreme Court to review a ruling by the U.S. Court of Appeals for the 11th Circuit that rejected his efforts to reopen his federal post-conviction proceedings to raise the biased-juror claim.

In a statement regarding the court’s denial of review, Justice Sonia Sotomayor described herself as “profoundly troubled by the underlying facts of this case.” She noted that, although it “may be tempting to dismiss Tharpe’s case as an outlier,” “racial bias is a familiar and recurring evil” that “can and does seep into the jury system.” But Sotomayor agreed with the court’s decision not to review the case, emphasizing that the “petition that the Court denies today does not turn on the merits of that claim.”

This post was originally published at Howe on the Court.

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Miller v. Alabama, No. 10-9646. (U.S. Jun. 25, 2012)
Montgomery v. Louisiana, 136 S. Ct. 718 (2016)

An earlier version of this post stated that Evangelisto Ramos was sentenced to death; he was sentenced to life in prison without the possibility of parole.