Justices issue orders from Oct. 30 conference

The Supreme Court issued orders on Monday from the justices’ private conference last week. Although Justice Amy Coney Barrett joined the court last week, she did not participate in the conference; a statement from a Supreme Court spokeswoman indicated that Barrett sat out the conference to give her more time to prepare for oral arguments. The justices vacated two rulings by the U.S. Court of Appeals for the 5th Circuit, one involving qualified immunity for prison officials who held an inmate naked in cells covered in human waste for several days and another involving whether a police officer injured at a “Black Lives Matter” protest can sue the organizer of the protest. (Those decisions are covered in separate posts here and here.)

The justices invited the acting solicitor general to file a brief expressing the views of the United States in Cummings v. Premier Rehab Keller. At issue in the case is whether the compensatory damages available under Title VI of the Civil Rights Act, which prohibits recipients of federal funds from discriminating based on race, sex or disability, include compensation for emotional distress. There is no deadline for the acting solicitor general to file his brief.

The justices denied review without comment in the case of James Dailey, who was convicted of murder and sentenced to death in 1987. Dailey asked the state courts to vacate his conviction and sentence based on a 2017 confession by his co-defendant, who was tried separately and received a life sentence, but they declined to do so. Dailey then went to the Supreme Court, where he argued that the Florida Supreme Court’s refusal to allow any consideration of his co-defendant’s confession was inconsistent with the U.S. Supreme Court’s 1973 ruling in Chambers v. Mississippi, holding that courts should admit reliable statements that might otherwise be regarded as hearsay.

The justices also declined to weigh in on an antitrust dispute between the National Football League and subscribers who have purchased the “NFL Sunday Ticket” package from DIRECTV, which allows subscribers to watch Sunday afternoon games that would not otherwise be broadcast in their local market. The consumers – fans who do not live in the same area as their favorite team, and want to be able to watch those teams every week – contended that the package arrangement violates federal antitrust laws because it restricts individual NFL teams from distributing the broadcasts of their games on their own. The U.S. Court of Appeals for the 9th Circuit allowed the lawsuit to go forward, prompting the NFL to come to the Supreme Court. Arguing that the case “seeks to overturn arrangements for telecasting NFL Football that have been in place, and that have served the NFL’s hundreds of millions of fans, for over 25 years,” the NFL challenged the test that the 9th Circuit used to reinstate the lawsuit, arguing that the court of appeals should have used a more stringent form of review.

Justice Brett Kavanaugh filed a statement regarding the court’s decision to deny review. He stressed that although “a decision of such legal and economic significance might” normally warrant the Supreme Court’s intervention, there is not yet a final decision in the case, which “is a factor counseling against this Court’s review at this time.” But he was writing, Kavanaugh continued, “simply to explain that the denial of certiorari should not necessarily be viewed as agreement with the legal analysis of the Court of Appeals.” The NFL and DIRECTV have “substantial arguments” on the merits, Kavanaugh suggested, and could return to the court if they do not prevail in the lower courts.

The justices will hold another private conference on Friday, Nov. 6.

This post was originally published at Howe on the Court.