33. The Penultimate Week of OT2022

Eight rulings in argued cases (including at least two to be covered in a future newsletter); a bizarre emergency application from Alabama; and Justice Alito's ... op-ed

Welcome back to “One First,” a weekly newsletter that aims to make the U.S. Supreme Court more accessible to all of us.

Every Monday morning, I’ll be offering an update on goings-on at the Court; a longer introduction to the Court’s history, current work, or key players; and some Court-related trivia. If you’re enjoying the newsletter, I hope that you’ll consider sharing it with your networks (and subscribing if you don’t already):

One editorial note about this week’s and next week’s Monday issues: Although I usually include a “Long Read” section—with a deeper dive into some historical or current aspect of the Court’s work—there’s enough straight news from the Court that it seems … unrealistic … to do both. Fear not; long reads will be back starting on Monday, July 10 (probably starting with why Jones v. Hendrix is such a massively important—and disappointing—ruling. Until then, here’s all the news that fits.

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On the Docket

This Week:

This ought to be the last full week of decisions for the Court’s October 2022 Term, with (no more than) 10 rulings to go—fewer if we get a consolidated ruling in either the two affirmative action cases, the two student loan cases, or both. The other six cases still outstanding are:

1. Mallory v. Norfolk Southern Railway (can states require that out-of-state businesses consent to personal jurisdiction as a condition of doing business?);

2. 303 Creative (does a wedding website designer have a First Amendment right to refuse to make same-sex wedding websites?);

3. Moore v. Harper (the “independent state legislature” doctrine case);

4. Arbitron (whether federal trademark law can be used to challenge foreign infringements);

5. Groff v. DeJoy (when are employees entitled to religious accommodations under the Civil Rights Act of 1964); and

6. Counterman v. Colorado (whether the test for a “true threat” unprotected by the First Amendment should be subjective or objective).

As of now, the Justices are only scheduled to hand down orders today at 9:30 ET and opinions tomorrow (Tuesday) at 10, but (1) we know tomorrow isn’t the last day of opinions; and (2) there’s every reason to expect the Court to be done by this Friday. So it seems likely that, after tomorrow, there will be at least one (and perhaps two) more decision days this week (some combination of Wednesday, Thursday, and Friday).

The last opinions, whenever they come down, will be followed by a second regular “Order List,” this one from the so-called “Cleanup Conference,” where the Justices deal with all matters that have been awaiting the final merits rulings and any other items that need resolution before the fall. Many of those orders are routine (e.g., sending cases back to lower courts for reconsideration in light of the Supreme Court’s recent decisions). But some can be quite significant—either in quietly resolving controversial cases or in putting them onto the Court’s docket for next Term.

In other words, this is going to be a very busy (and almost certainly momentous) week at the Court.

Last Week:

Last week was pretty busy, too. The justices handed down eight rulings in argued cases (so my summaries are going to be even more cryptic than usual):

1. Arizona v. Navajo Nation: For a 5-4 majority, Justice Kavanaugh held that, although the 1868 treaty establishing the Navajo Reservation reserved necessary water to accomplish the purpose of the Navajo Reservation, it did not require the federal government (or any state) to take affirmative steps to secure water for the Navajo. Justice Gorsuch, who has been a reliable vote in support of tribal interests since joining the Court, dissented on behalf of himself and the three Democratic appointees.

2. Pugin v. Garland: For a 6-3 majority, Justice Kavanaugh held that, for purposes of federal immigration law, a criminal offense can qualify as one “relating to obstruction of justice” even if the offense does not require that the obstructed proceeding be pending. Justice Sotomayor wrote on behalf of herself and Justices Kagan (except for Part III) and Gorsuch in dissent.

3. Yegiazaryan v. Smagin: For a 6-3 majority, Justice Sotomayor held that, where a plaintiff who resides outside the United States brings a civil suit under the Racketeer Influenced and Corrupt Organizations (RICO) statute, they can nevertheless satisfy the “domestic injury” requirement the Court had previously articulated (which limits the application of the statute to harms occurring outside the United States) so long as “the circumstances surrounding the injury indicate it arose in the United States”—even if the plaintiff himself resides elsewhere. Justice Alito wrote on behalf of the dissenters, including Justice Gorsuch in part and Justice Thomas in full.

4. Jones v. Hendrix: For a 6-3 majority, Justice Thomas held that a federal prisoner cannot bring a “second-or-successive” post-conviction motion based on a claim that his conviction or sentence is unlawful (as opposed to unconstitutional) in light of an intervening change in the relevant statute. In other words, no federal prisoner will be able to bring even a meritorious challenge to their conviction or sentence if (1) it’s a second-or-successive claim; and (2) the ground for relief is statutory, rather than constitutional (e.g., the statute of conviction has been repealed, or has been interpreted to no longer apply to the prisoner’s conduct). Justices Sotomayor and Kagan wrote a joint dissent; Justice Jackson dissented by herself. I’m going to have a lot more to say about this terribly important (and, frankly, terrible) ruling in a future issue.

5. United States v. Hansen: For a 7-2 majority, Justice Barrett rejected a First Amendment challenge to a federal statute that makes it a crime to “encourage or induce” illegal immigration, holding that the statute only bars “the intentional solicitation or facilitation of certain unlawful acts,” and thus does not prohibit enough protected speech to be unconstitutionally overbroad. Justice Jackson, joined by Justice Sotomayor, dissented.

6. United States v. Texas: In a case with … a lot … going on (about which I also plan to say more in a future installment), eight Justices, led by Justice Kavanaugh, held that Louisiana and Texas lacked standing to challenge the Biden administration’s immigration enforcement priorities—reversing a district court injunction that the Court, by a 5-4 vote, had previously refused to stay. (Among other things, here’s another example of a ruling on an emergency application that ended up not being predictive of the merits.) Only Justice Alito dissented.

7. Coinbase, Inc. v. Bielski: In a technical procedural case with potentially broader significance, Justice Kavanaugh held for a 5-4 majority that, when a district court denies a motion to compel arbitration, it must stay all further proceedings pending appeal if the losing party exercises its statutory right to immediately appeal that ruling. Justice Jackson wrote for the dissenters, including Justices Sotomayor and Kagan in full, and Justice Thomas in principal part (including perhaps the first-ever Supreme Court citation to “If You Give a Mouse a Cookie”).

8. Samia v. United States: Finally, Justice Thomas wrote for what was effectively a 6-3 majority (Justice Barrett concurred in the bottom line) in holding that, in a criminal trial with multiple defendants, prosecutors can introduce a confession of a non-testifying co-defendant without violating the other defendants’ rights under the Sixth Amendment’s Confrontation Clause if the confession has been modified to avoid directly identifying the non-confessing co-defendant and the court offers a limiting instruction that jurors may consider the confession only with respect to the confessing co-defendant. The ruling provoked an especially sharp dissent from Justice Kagan on behalf of herself and Justices Sotomayor and Jackson, along with a separate solo dissent by Justice Jackson.

The Court’s regular Order List last Tuesday added one new case to next Term’s argument calendar: A petition from the federal government asking whether the Fair Credit Reporting Act authorizes suits against the United States, and not just private businesses.

One emergency application of note: Alabama had sought emergency relief after lower courts vacated the death sentence for a state prisoner whom the district court held to be intellectually disabled—and thus constitutionally ineligible for capital punishment. In a sign of just how much of a stretch Alabama’s request was, Justice Thomas denied it by himself on Friday—without even referring it to the full Court or calling for a response .

Finally, perhaps the biggest story of the week was the swirl surrounding the latest ProPublica reporting about Justice Alito, including Justice Alito’s “op-ed” in response. That story was the focus of last week’s bonus content, so I won’t re-visit it here.

And that was last week…

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SCOTUS Trivia: The Summer “Recess”

Whenever the Court hands down its last decision in an argued case from the October 2022 Term, Chief Justice Roberts will announce that the Justices are “rising” for their summer recess—a move that has no legal significance. The Court’s Term is, per its Rule 3, “continuous,” and runs all the way to the beginning of the October 2023 Term on Monday, October 2. Thus, the Court can resolve emergency applications and other procedural business over the summer—and, if necessary, even hold oral argument.

But it wasn’t always so. As I’ve noted before, until 1980, when the Justices “rose” for their summer recess, the Court formally adjourned. That meant that it was not possible for the full Court to act on any matters until either (1) the next Term began; or (2) the Justices were called back to Washington by the Chief Justice to hold a “special Term.” This may seem like a semantic distinction, but the move to a continuous Term, which began in 1980, was at least in part one of the ways in which the Court changed its behavior to accommodate the flood of emergency applications in death penalty cases it began receiving in the late 1970s—a shift that led away from the pre-1980 model of having most emergency applications, both during the Term and over the summer, resolved by individual Circuit Justices in the first instance (often after oral argument and with an “in-chambers” opinion).

It’s worth asking, as I suggest in the book, whether that model might have been preferable to unsigned, unexplained rulings by the full Court…

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Happy Monday, everyone! I hope you have a great week.