Court issues orders from “long conference,” but relists some high-profile cases

AMY HOWE OCT 4, 2021 8:37 PM

Before the justices returned to the courtroom on Monday morning for the first in-person oral arguments in over a year and a half, they issued a second set of orders from their private conference last week. As expected, the justices did not add any cases to their docket for the 2021-22 term; those grants came last week. Instead, Monday’s orders focused primarily on turning down appeals, including on issues like voting representation for the residents of the District of Columbia and funding for the wall along the U.S. border with Mexico. The justices did not act on several high-profile petitions for review on issues such as the Environmental Protection Agency’s authority to regulate greenhouse gases, the clash between religious freedom and LGBTQ rights, and a challenge to a New York regulation that requires employers to fund abortions through their employee health plans.

The justices invited Acting Solicitor General Brian Fletcher to file briefs expressing the federal government’s views in three cases. In Robertson v. Intratek Computer, the government will weigh in on the effect of a federal whistleblower statute on an arbitration agreement between an employer and its employee. Personalweb Technologies v. Patreon is a challenge to a procedural doctrine applied in patent cases by the U.S. Court of Appeals for the Federal Circuit, and C.H. Robinson Worldwide v. Miller involves whether federal laws trump a lawsuit brought against a freight broker by the driver of a car who was seriously injured by a tractor-trailer on a trip arranged by the broker.

Two members of the court’s liberal wing, Justices Stephen Breyer and Sonia Sotomayor, penned opinions regarding the court’s decision not to take up the cases of two death-row inmates. In the case of Texas inmate Carl Wayne Buntion, Breyer acknowledged the “procedural obstacles that make it difficult for the Court to grant certiorari in Buntion’s case.” But Breyer explained that he wanted to “underscore how this case illustrates the problem with the death penalty that” he had identified in earlier cases – specifically, that it “subjects death row inmates to decades of especially severe, dehumanizing conditions of confinement.” In the case of Arkansas inmate Mickey Thomas, Sotomayor similarly conceded that “Thomas’ claim does not satisfy this Court’s traditional criteria for granting” review. She stressed, however, that the lower court had ruled for the state based on an argument that the state had not raised, and to which Thomas had not had a chance to respond – a practice, she suggested, that the court’s denial of review “should not be understood to endorse.” 

Sotomayor dissented from the denial of review in James v. Bartelt, in which the U.S. Court of Appeals for the 3rd Circuit granted qualified immunity to the police officer who shot and killed Willie Gibbons, who suffered from mental illness and was holding a gun to his own head. Sotomayor emphasized that “qualified immunity properly shields police officers from liability when they act reasonably to protect themselves and the public. It does not,” she concluded, “protect an officer who inflicts deadly force on a person who is only a threat to himself.”           

The justices turned away an appeal in Castanon v. United States, a lawsuit challenging the lack of voting representation in the House of Representatives for residents of the District of Columbia. A three-judge district court ruled that D.C. residents are not entitled to representation in the House because they do not live in a “state”; the Supreme Court on Monday allowed that ruling to stand.

The justices sent Biden v. Sierra Club, a dispute over funding for President Donald Trump’s border wall (not to be confused with a different case, with the same name, also involving a dispute over funding for the border wall), back to allow the trial court to vacate its judgment in light of the Biden administration’s decision to cancel construction of the wall. The trial court, the justices wrote, “should consider what further proceedings are necessary and appropriate in light of the changed circumstances in this case.”

The other cases in which the justices denied review included:

• Louisiana v. Hill, a challenge to a Louisiana law that requires registered sex offenders to carry identification bearing the phrase “SEX OFFENDER” and bans registrants from altering the identification cards to remove the “SEX OFFENDER” designation. When Tazin Hill was charged with violating the provision prohibiting alteration of the identification, he argued that both parts of the law violate the First Amendment because they compel speech. The state courts agreed, prompting Louisiana to come to the court.
• Threatt v. Farell, a class-action lawsuit involving the legality of a $35 overdraft fee charged by Bank of America. The district court awarded the plaintiffs’ lawyers $14.5 million in fees. That award was over 10 times the lodestar – a method used to calculate attorney’s fees by multiplying the lawyers’ reasonable hourly rate and the number of hours spent on the litigation. The district court held that it did not have to consider the lodestar, and a divided U.S. Court of Appeals for the 9th Circuit upheld that ruling.
• Taylor Lohmeyer Law Firm v. United States, a case arising from a 2018 summons from the IRS to the law firm, seeking documents for any U.S. taxpayers who had used the firm to establish, acquire or maintain foreign accounts or corporations. The summons was issued after the IRS learned that a client of the firm had relied on the firm’s advice to avoid over $2 million in income taxes; the IRS wanted to learn whether other clients had asked the firm for similar advice. The firm had asked the court to weigh in on whether documents that would reveal the client’s identity are protected by the attorney-client privilege.
• Strain v. Regalado, a lawsuit filed on behalf of Thomas Pratt, who was in an Oklahoma jail when he told medical personnel that he was suffering from alcohol withdrawal. He alleges that the defendants were aware of his symptoms but did not seek additional care for him; as a result, he suffered (among other things) a heart attack, paralysis and renal failure. Pratt had asked the court to weigh in on the standard that courts should use in cases brought by individuals who are in custody awaiting trial, alleging that the medical staff at the jail provided treatment that did not meet the standards required by the Constitution.
• Baisley v. International Association of Machinists and Aerospace Workers, involving whether the Supreme Court’s decisions on union fees for public-sector employees apply to a challenge by a United Airlines employee to the requirement that he opt out of paying full union dues.

The justices did not act on some of the higher-profile petitions that they considered last week, instead opting to consider them again at their conference on Friday. Those cases include:

• Boardman v. Inslee, a challenge to a Washington state law that shields the personal information of in-home care providers from public disclosure but allows the state to provide that data to the union that represents the providers.
• Roman Catholic Diocese of Albany v. Lacewell, a challenge to a New York regulation that requires employers to fund abortions through their employee health plans.
• A quartet of cases challenging the authority of the Environmental Protection Agency to regulate greenhouse gases at the national level.
• Dignity Health v. Minton, a case filed by a transgender patient who wanted a hysterectomy and alleges intentional discrimination by the Catholic hospital that refused to permit the doctor to perform it. The hospital came to the Supreme Court last year after a California appeals court allowed the case to go forward.

The justices will also take another look at the petition for rehearing filed by Barronelle Stutzman, a Washington state florist who has argued that requiring her to create custom flower arrangements for same-sex weddings would violate her religious beliefs. The justices turned down Stutzman’s petition for review earlier this year, but she is seeking reconsideration of that ruling.

The justices’ next private conference is scheduled for Friday, Oct. 8. Orders from that conference are likely to follow on Tuesday, Oct. 12, at 9:30 a.m.

This article was originally published at Howe on the Court.

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