One week after finally denying review in a large batch of cases asking them to weigh in on issues relating to qualified immunity for police officers and the rights of gun owners, this morning the justices issued a relatively quiet list of orders from their private conference last week. The justices did not add any new cases to their merits docket for next term, nor did they ask for the federal government’s views in any cases.
The justices denied review in Kansas v. Boettger, the only case that they had relisted after last week’s conference. Five years ago, in Elonis v. United States, the Supreme Court threw out the conviction of a Pennsylvania man, Anthony Elonis, who had been found guilty of communicating threats on his Facebook page to (among others) his co-workers, his estranged wife and an FBI agent. Elonis argued that he hadn’t intended to threaten anyone at all but was instead simply imitating lyrics such as those of rapper Eminem. The jury, the court explained, had been instructed that it could convict Elonis as long as a reasonable person would regard his postings as threats – without any consideration of what Elonis himself may have thought. The court did not decide, however, what kind of criminal intent the First Amendment requires. The state of Kansas had asked the justices to weigh in on that question, arguing that the defendants in the two cases in which it sought review – one of whom told a convenience store clerk that he “was going to end up finding [his] father,” a detective in the local sheriff’s office, “dead in a ditch,” while the other told his mother that he would burn down her house and kill her – could be convicted of making threats even if they didn’t specifically intend to threaten violence; it is enough, the state asserted, that the defendants recklessly disregarded the risk that their listeners would be afraid.
Justice Clarence Thomas dissented from the court’s decision to deny review. He explained that he believes that “the Constitution likely permits States to criminalize threats even in the absence of any intent to intimidate.” But in any event, he continued, because state courts of last resort have reached different conclusions on this question, he would have granted the state’s petition.
The Supreme Court also denied a petition for review by the American Institute for International Steel, a trade association representing steel importers, challenging the constitutionality of a 25-percent tariff imposed on steel imports by the Trump administration in March 2018. The trade group urged the justices to take up the case and clarify the extent to which Congress can delegate legislative authority to the president, but the court turned the petition down today without comment.
The justices will meet again for another private conference – the last one scheduled before their summer recess – on Thursday, June 25. The list of petitions on their agenda for Thursday’s conference includes several in which the U.S. solicitor general has recommended that review be granted. We expect orders from Thursday’s conference on Monday, June 29, at 9:30 a.m. EDT.
This post was originally published at Howe on the Court.
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