Justices issue more orders from November 22 conference

This morning the Supreme Court issued more orders from last week’s private conference. The justices did not add any new cases to their merits docket for this term, and they denied review in several closely watched cases. Perhaps most notably, they turned down a request to reconsider one of last term’s significant decisions – even as Justice Brett Kavanaugh signaled that he might provide the key vote for the court to reach the opposite result in a future case. 

In June, a deeply divided eight-member Supreme Court declined to resurrect the “nondelegation doctrine,” which would bar Congress from giving its power to legislate to another branch of government. The issue arose in Gundy v. United States, a challenge to a provision of the Sex Offender Registration and Notification Act that gives the attorney general the authority to decide whether the law’s registration requirements should apply to sex offenders who were convicted before SORNA was passed.

Justice Elena Kagan – joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor – concluded that the law does not create nondelegation problems because it instructs the attorney general to apply the registration requirements to all pre-SORNA offenders as soon as possible.

Justice Neil Gorsuch, joined by Chief Justice John Roberts and Justice Clarence Thomas, took the opposite view. He interpreted SORNA as giving the attorney general an unconstitutional “free rein.”

Justice Samuel Alito agreed with the result that Kagan’s opinion reached – that is, that Herman Gundy should not prevail. He suggested that he might be willing to reconsider the nondelegation doctrine in the future, but he concluded that “it would be freakish to single out the provision at issue here for special treatment” when the court had upheld similar laws for nearly a century.

Justice Brett Kavanaugh did not participate in the case, because he had not yet been confirmed when the case was argued in October 2018. Kavanaugh’s absence prompted Gundy to file a petition asking the justices to reconsider his case, arguing that Kavanaugh’s presence on the court could lead to a different result. The justices considered Gundy’s petition, as well as two other petitions presenting the same issue, at seven consecutive conferences before turning it down today.

Kavanaugh did not participate in the decision not to rehear Gundy’s case, but he issued a statement regarding the court’s announcement that it would not take up one of the related petitions. Kavanaugh suggested that “Justice Gorsuch’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.” In particular, citing both the Gorsuch dissent and an opinion by then-Justice William Rehnquist in 1980, Kavanaugh posited that Congress “could delegate to agencies the authority to decide less-major or fill-up-the-details decisions,” but that it could not delegate the power “to decide major policy questions.”

The justices also denied review in two other high-profile cases. They declined to grant the petition filed by Adnan Syed, the Maryland inmate whose case became famous when it was the subject of the “Serial” podcast. When he was a 17-year-old high-school student, Syed was charged with the 1999 murder of his classmate, Hae Min Lee; he was convicted and sentenced to life in prison. Maryland’s highest court upheld his conviction, rejecting his argument that the lawyer who represented him at trial performed so poorly that Syed was deprived of his Sixth Amendment right to the effective assistance of counsel. The state court agreed that Syed’s lawyer should have contacted a fellow student who could have provided Syed with an alibi on the afternoon that Lee was killed, but it concluded that the lawyer’s failure to do so did not make a difference. Today’s ruling means that Syed’s life sentence will stand.

The justices also turned down a petition filed against the city of Ferguson, Missouri, by Dorian Johnson, who was with Michael Brown in 2014 when Brown was shot and killed by a police officer. Johnson had filed an excessive-force claim against the officer and the city, but the defendants countered (and the full U.S. Court of Appeals for the 8th Circuit agreed) that because Johnson was free to go, no Fourth Amendment “seizure” had occurred.

The justices issued a summary opinion in Thompson v. Hebdon, involving the complicated and often contentious area of campaign-finance law. At issue in the case was whether an Alaska law that imposes (among other things) a $500 annual limit on individual contributions to a political candidate and to any group other than a political party violates the First Amendment. The U.S. Court of Appeals for the 9th Circuit upheld the limits, ruling that they were drawn narrowly to prevent quid pro quo corruption or the appearance of such corruption. The challengers – who include two men who wanted to contribute more than $500 – then went to the Supreme Court, emphasizing that the current limits are among the lowest in the United States. “Alaska’s $500 limits,” they add, “allow only bare association” with political candidates and groups, “while depriving individuals of the ability to provide meaningful support.”

The Supreme Court today sent the case back to the 9th Circuit for another look, explaining that the lower court had “declined to apply our precedent in Randall v. Sorrell,” in which the justices struck down a Vermont law limiting individual contributions to candidates for statewide office. Alaska’s limits have some of the same “danger signs” that the court found in the Vermont law, the justices reasoned. Among other things, the state’s limits are “substantially lower” than other limits that the court has upheld (approximately $1600 in today’s dollars). Moreover, the $500 limit has not changed since 1996, because the law does not account for inflation. Therefore, the justices concluded, the 9th Circuit should “revisit whether Alaska’s contribution limits are consistent with our First Amendment precedents” – although the Supreme Court seemed to suggest that they are not.

Justice Ruth Bader Ginsburg took a slightly different view. She wrote a separate statement to make clear that, in her view, “Alaska’s law does not exhibit certain features found troublesome in Vermont’s law.” For example, and “unlike in Vermont, political parties in Alaska are subject to much more lenient contribution limits than individual donors.” Moreover, she added, there may be special reasons for the low limits in Alaska, such as the state’s small size and the extent to which its economy relies on the oil and gas industry.

Sam Pope and Kenneth Isom had a long history as adversaries. As a prosecutor in Arkansas, Pope prosecuted Isom three times, securing a conviction once. Isom was later released on parole – but not before Pope attempted to block his release. Several years later, when Isom was on death row and Pope had become a judge, the Arkansas Supreme Court granted Isom’s request for a hearing to consider allegations that prosecutors had suppressed evidence that might have helped him. Isom argued that Pope should recuse himself because, at the very least, it appeared that he could be biased against Isom based on their past history. Pope declined to do so, however, and denied Isom relief. A divided Arkansas Supreme Court upheld that ruling, and today the Supreme Court refused to intervene.

Justice Sonia Sotomayor wrote a separate statement regarding the denial of review. She stressed that the “allegations of bias presented to the Arkansas Supreme Court are concerning” but acknowledged that Isom had not raised them until long after his trial had ended. Although she did not dissent from the denial of certiorari, she emphasized that she nonetheless wanted to “encourage vigilance about the risk of bias that may arise when trial judges peculiarly familiar with a party sit in judgment of themselves. The Due Process Clause’s guarantee of a neutral decisionmaker,” Sotomayor concluded, “will mean little if this form of partiality is overlooked or underestimated.”

The justices also declined to intervene in a defamation lawsuit filed against the Competitive Enterprise Institute and the National Review by Michael Mann, a well-known climate scientist and Penn State meteorology professor. Mann is a prolific author whose most recent book, with cartoonist Tom Toles, argues in the preface that the “distortion, denial, and confusion in the public-policy response to climate change has been nothing short of a madhouse.” Mann sued CEI and NR (among others), alleging that articles on CEI’s website and in NR that criticized his views on climate change and accused him of misconduct contained false statements that harmed his reputation in scientific and academic circles. (As this blog’s John Elwood reported, a post on CEI’s website “compared Mann to another famous Penn State faculty member, former football coach Jerry Sandusky, who had recently been convicted of sexual misconduct.”)

CEI and NR argued that the claims should be dismissed under the District of Columbia’s Anti-SLAPP Act, a law intended to provide legal protection for statements involving matters of public concern. But the trial court allowed the case to go forward, and D.C.’s highest court upheld that ruling. CEI and NR asked the Supreme Court to weigh in on two questions: whether the judge or the jury should decide whether an ambiguous statement contains a “provably false” connotation; and whether the First Amendment allows someone to be held liable for defamation when he expressed an opinion about a matter of scientific or political controversy.

Alito dissented from the denial of review. He wrote that the dispute “presents questions that go to the very heart of the constitutional guarantee of freedom of speech and freedom of the press: the protection afforded to journalists and others who use harsh language in criticizing opposing advocacy on one of the most important public issues of the day.” “If the Court is serious about protecting freedom of expression,” Alito concluded, “we should grant review.”

The justices did not act on a request by President Donald Trump to block enforcement of a subpoena by the House of Representatives for the president’s financial records. A ruling on that request could come at any time.

The justices’ next conference is scheduled for December 6.

This post was originally published at Howe on the Court.