Petition of the day

Petition of the day

The petition of the day is:


Issues: (1) Whether an asylum applicant suffers “persecution” under 8 U.S.C. § 1101(a)(42)(A) if he or she is forced to practice his or her religion in secret in order to avoid state-imposed punishment; and (2) whether a court of appeals reviews the Board of Immigration Appeals’ determination regarding the existence of persecution de novo (as a question of law) or for substantial evidence (as a question of fact), where all the underlying facts giving rise to the claim of persecution are undisputed.

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Final Stat Pack for October Term 2016 and key takeaways

Final Stat Pack for October Term 2016 and key takeaways

You can now download the final SCOTUSblog Stat Pack for October Term 2016 here. This year, the 43-page Stat Pack includes information about, among other things, the rate of unanimity, the opinions written by Justice Gorsuch in his first term, agreement among different justices, which justices asked the most questions at oral argument, and the advocates who argued the most frequently during the term.

Below you can view each section of the Stat Pack individually and review our key takeaways from the Stat Pack.

We would like to thank all of the individuals who provided comments and feedback on the Stat Pack throughout the term. Our Stat Pack is compiled as a labor of love, and once again the SCOTUSblog community has been hugely influential in shaping the content and design of our statistics. If you have any comments, suggestions or corrections, please do not hesitate to send me an email.

Key Takeaways

Opinion Distribution: Opinions were distributed relatively evenly within each sitting this term. The only sitting with an uneven distribution was January, when Chief Justice Roberts wrote two majority opinions (Expressions and Endrew F.) but Justice Thomas issued none. The mostly likely cause is that Justice Thomas was assigned the majority opinion in Dimaya, a case that was ultimately placed back on the calendar for reargument in OT17. Look out for whether Justice Thomas writes the majority opinion or lead dissenting opinion when Dimaya is ultimately decided. See Stat Pack, page 2.

Unanimity: An uncommonly large number of decisions were decided by a unanimous vote during OT16. Forty-one out of 69 opinions (59%) were decided 9-0, the highest number since OT13, when the court decided 66% of opinions by a unanimous vote. See Stat Pack, pages 5, 15-16.

Majority Opinion Authorship: Some justices are more likely to write opinions in divided cases than others. By this measure, Justice Kennedy wrote majority opinions in the most divisive cases, writing the opinion of the court in cases with an average majority vote of 7.0. That included three 5-4 opinions (Pena-Rodriguez, Murr, Cal. Public). See Stat Pack, page 13.

Apart from Justice Gorsuch, who wrote his lone majority opinion in 55 days, Justice Sotomayor was the fastest majority-opinion author during OT16. Justice Sotomayor’s majority opinions were released an average of 67 days after oral argument. Justice Kagan’s majority opinions had the longest delay between oral argument and opinion: 108 days. The average across all justices was 92 days. See Stat Pack, page 13.

Frequency in the Majority: Justice Kennedy was once again the justice most frequently in the majority, this time registering 69 majority votes in 71 cases (97%). Only twice in the last ten terms has Justice Kennedy not had the highest frequency in the majority. See Stat Pack, page 17.

Justice Agreement: The two justices with the highest agreement rate during OT16 were Justices Thomas and Gorsuch (100%), followed by the pairs of Justices Alito and Gorsuch (94.1%) and Ginsburg and Sotomayor (92.6%). The pair with the lowest rate of agreement was Justices Sotomayor and Gorsuch (58.8%). See Stat Pack, page 26.

Oral Argument – Justices: Justice Breyer asked the highest number of questions at oral argument this term, averaging 20.5 questions per oral argument. The justices with the lowest average number of questions were Justices Alito (10.1 per argument) and Thomas, who followed his recent practice of not asking any questions at oral argument. Justice Ginsburg was once again the leader in asking the first question, registering the first statement in 30% of cases. See Stat Pack, page 32.

Oral Argument – Advocates: The relatively low number of cases led to a lower than usual number of attorney appearances at oral argument. Only 100 different lawyers argued 158 times during OT16, fewer than the 117 lawyers who argued 186 times during OT15. Women represented a greater percentage of total advocates during OT16 than in any term since we started recording this statistic in OT10. See Stat Pack, page 33-34.

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Death-penalty symposium: Supreme Court marks time for a term on capital punishment

Death-penalty symposium: Supreme Court marks time for a term on capital punishment

Kent Scheidegger is the legal director of the Criminal Justice Legal Foundation. He filed amicus briefs in support of Texas in Davila v. Davis and Moore v. Texas.

The Supreme Court has often been the epicenter of the continuing debate over capital punishment, but it was not in October Term 2016. The larger battle was elsewhere, for the time being, and the Supreme Court was largely marking time and correcting errors in individual cases while waiting for its ninth seat to be filled.

The epicenter this year was at the ballot box. There were four propositions on state ballots for direct votes of the people, and the pro-death-penalty side ran the table. In Nebraska, the people delivered a stinging rebuke to their legislature, reversing the repeal of the death penalty by a 21-percent margin, with majorities in 92 of 93 counties. Even in deep-blue California, repeal failed and a reform measure to reduce delay passed. These results did not directly affect cases before the Supreme Court this term, but they surely will in the future when the high court is asked to declare particular applications of the death penalty or even the death penalty itself “cruel and unusual.”

Of greater importance for October Term 2016 was the surprising election of Donald Trump, who had promised to be a “law and order President.” That meant that Justice Antonin Scalia’s vacant seat would be filled with a justice sympathetic to strong enforcement of the criminal law, and indeed it was, as we saw at the end of the term.

The case that most clearly reflects the Supreme Court’s desire to correct an error in an individual case is Buck v. Davis. On the question of future dangerousness, the defendant’s own lawyer called an expert who testified that there is a correlation between race and probability of committing crimes, a fact that is true but dangerously misleading when given to a lay jury without explanation. Yet the ineffective-assistance claim was not raised at the proper time, and the normal habeas corpus proceedings ended with the Supreme Court’s denial of certiorari in 2010.

The difficult part of the case is not the ineffective-assistance claim on the merits but rather the mechanism by which the case was reopened. As “extraordinary circumstances” for the purpose of reopening a closed case via Federal Rule of Civil Procedure 60(b)(6), the court notes the particularly repugnant possibility that Duane Buck “may have been sentenced to death in part because of his race” and the fact that the state confessed error and waived default in the other cases involving the same expert but not Buck’s. The danger here is that the precedent of this case may enable other courts to evade the limit on successive petitions by declaring far less compelling circumstances to be “extraordinary.” Hard cases make bad law, and the Supreme Court may find itself correcting a lot of erroneous decisions citing Buck in the years to come.

A second case from Texas, Moore v. Texas, involved the implementation of the Supreme Court’s decision in 2002 that persons with intellectual disability are categorically exempt from capital punishment. The problem with basing a constitutional principle on a psychiatric diagnosis is that the criteria are often subjective, often matters of dispute, and frequently changed. The changes are often not based on scientific advances but rather on changes in social norms, and in some cases they may even be politically motivated.

Initially, it appeared that the Supreme Court might have been poised to declare that states must change their definitions of a rule of law every time private organizations with their own agendas put out new versions of their manuals. The court’s holding does not go quite that far, though it says “current standards” “supply one constraint on States’ leeway in this area,” a fuzzy statement that will surely be the subject of much litigation until the Supreme Court clarifies it. Bobby Moore’s case was reversed because the Texas standard was not just the prior edition of a manual, but it was also augmented by nonclinical factors that the Texas court simply made up. (The claim that the Texas court based them on Lennie from “Of Mice and Men” is an absurd falsehood, however.) Whether the court has really delegated the power to amend the Eighth Amendment to the American Psychiatric Association remains an open question.

McWilliams v. Dunn was the only non-Texas capital case to receive full briefing and argument this term. The Supreme Court granted certiorari limited to the question of whether a mental-health expert appointed under Ake v. Oklahoma must be an independent defense expert rather than one who reports results to both sides. The court ducked that question and decided on case-specific facts that the expert assistance provided was inadequate in any event. Four justices dissented from this disposition of the case, including new Justice Neil Gorsuch.

The problem here is that McWilliams was a poor vehicle to address the question presented. The Supreme Court denied certiorari without dissent on the direct appeal, and on federal habeas corpus the threshold question is not whether the state court’s interpretation of Ake is the best one but only whether the law was clearly established to the contrary. The answer to that question, as the dissent says, is clearly no, and that should be the end of the habeas-corpus case on that issue. To decide otherwise, the Supreme Court would have to shred a large stack of jurisprudence on the habeas-corpus standard. I suspect that at least one justice was willing to find a way to grant James McWilliams relief but not to violate the established meaning of the statutory command, so the court chose to punt rather than issue a fractured opinion.

Only on the last day of the term, in Davila v. Davis, did the Supreme Court cleanly decide a widely applicable legal issue with a rule that provides clear guidance for lower courts. Once the court decided that ineffective assistance of counsel could be good cause to reassert a claim previously defaulted, it opened up the possibility of a never-ending spiral of litigation, with the lawyers in each round claiming the lawyers in the prior rounds were incompetent. In the landmark 1992 case of Coleman v. Thompson, the Supreme Court drew a line. Ineffective assistance at trial and on direct appeal could provide cause, but that would go no further. If a claim was omitted from collateral review, it could not be revived later by attacking the collateral-review lawyer.

In Martinez v. Ryan in 2012, followed by Trevino v. Thaler the following year, the court carved out what it said was a “narrow” exception to the Coleman rule. Claims of ineffective assistance of trial counsel omitted from the initial collateral review could be revived if the collateral-review attorney provided ineffective assistance. Many of us were skeptical whether this “narrow” exception would remain narrow or whether it was the edge of a wedge that would splinter the Coleman rule and lead to the endless spiral that Coleman had prevented until Martinez.

Erick Davila sought to expand the Martinez exception beyond ineffective-assistance-of-trial-counsel claims to embrace claims of ineffective appellate counsel as well. If this had succeeded we would doubtless have seen a steady progression of additional exceptions until there was nothing left of Coleman. The Supreme Court rejected Davila’s argument by a bare 5-4 majority, with Gorsuch in the majority. Justice Anthony Kennedy, the author of Martinez, was also in the majority.

Justice Clarence Thomas’s opinion for the court notes the special factors cited by the Martinez court and says that the “narrow” exception will not be broadened where those factors do not apply. Ineffective assistance of trial counsel is a particularly problematic error because an ineffective lawyer’s failure to object means that a trial error will not be considered by the trial court or by any court thereafter. On the other hand, if the trial lawyer effectively objects but the appellate lawyer omits the claim, the claim has at least been considered by the trial court.

Justice in a capital case requires that there be an end to litigation at some point. Those who seek it can breathe a little easier knowing that Coleman remains the law for most claims. The “narrow” exception of Martinez is not as narrow as advertised, but at least now a majority of the Supreme Court is not going to let it grow any wider.

With the Supreme Court back to full strength, perhaps some real progress can be made in the next term or two. There is a mess to clean up from Hurst v. Florida. State high courts disagree markedly on its meaning, and the Supreme Court has so far denied certiorari on both sides of the split. Buck and Moore this term raised as many questions as they answered, and clarity is sorely needed on those issues. Establishing clear rules of law for lower courts to follow, not correcting case-specific errors in individual cases, is the reason we have a Supreme Court. Let us hope the court can get back to its real job in capital cases in the coming term.

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Immigration symposium: Lessons for the Jennings reargument from the Supreme Court’s unanimous reject

Immigration symposium: Lessons for the <em>Jennings</em> reargument from the Supreme Court’s unanimous rejection of the government’s position in <em>Esquivel-Quintana</em>

Nancy Morawetz is Professor of Clinical Law at NYU Law School.

Unanimous decisions might seem less noteworthy than holdings that divide the Supreme Court. But unanimous and otherwise lopsided rulings about substantive immigration law are significant for more than the issues they resolve. They also have important implications for how we think about the people who are the litigants in these cases and what kind of treatment they receive while they pursue their claims. And those issues will be front and center next term when the Supreme Court hears reargument in Jennings v. Rodriguez. Jennings concerns the prolonged detention of immigrants who are challenging their deportation. Unanimous decisions rejecting the government’s interpretation of immigration law show that immigrants facing prolonged detention may have extremely strong legal claims.

In one of its unanimous rulings this year, the Supreme Court resolved 20 years of litigation over one small part of the “aggravated felony” definition enacted in 1996. The “aggravated felony” label is a term of art in the immigration law that has dramatic implications for lawful permanent residents. It leads to mandatory deportation (other than for those with some persecution claims) and mandatory detention. People with convictions labeled as “aggravated felonies” may have never served a day in jail in their lives. But once the label attaches, they are arrested, shackled and held in jails. They face years of litigation to prove that the label should not be applied to their cases and that they should be able to access the kind of immigration hearing where the real facts of their lives – such as employment, rehabilitation, family ties and military service – can be factored into the decision whether they should be deported. And they face wrenching choices about whether they should give up their battle so that they can get out of detention, even if that means a deportation order and permanent separation from their families. Despite this pressure, some immigrants persevere and take their legal claims to court. Juan Esquivel-Quintana, the petitioner in Esquivel-Quintana v. Sessions, was one of those people. And after enduring 19 months of detention and years in temporary exile, Esquivel-Quintana prevailed: A unanimous Supreme Court decision written by Justice Clarence Thomas concluded that Esquivel-Quintana’s conviction was not an “aggravated felony” in the first place.

The opinion in Esquivel-Quintana is hardly an outlier. Immigrants who have taken their cases to the Supreme Court have prevailed in unanimous or lopsided decisions in many other cases involving the aggravated–felony category. These cases include Leocal v. Ashcroft (9-0 decision rejecting expansive application of the aggravated felony definition to cover driving under the influence); Lopez v. Gonzales (8-1 decision rejecting broad application of the drug-aggravated-felony category to any state drug felony); Carachuri-Rosendo v. Holder (9-0 decision rejecting government’s argument that two simple drug-possession convictions can be combined and treated as a drug-trafficking aggravated felony); and Moncrieffe v. Holder (7-2 decision rejecting government’s argument that a state law prohibiting both the sale and social sharing of marijuana is automatically an aggravated felony).

Indeed, two other immigration-related cases this term also led to strong wins for immigrants, in part because of the extreme positions taken by the government. In Maslenjak v. United States, the government sought an incredibly harsh rule in which new citizens could be jailed and stripped of their status for the most minor misstatements on their citizenship applications, including a failure to admit to driving over the speed limit. The government did not get a single vote for its position. In Lee v. United States, the Supreme Court rejected the government’s effort to create a per se rule that would have denied post-conviction relief to immigrants who plead guilty after receiving palpably false and misleading advice from their lawyers. The Supreme Court ruled 6-2 for Jae Lee.

Of course, the Supreme Court issues unanimous and lopsided rulings in many areas of law. But the clear track record of such results in cases related to immigration underscores the essential role of the judiciary as a check on governmental overreach, and as the ultimate arbiter of the correct interpretation of the law. If the judiciary is the ultimate arbiter, then the executive branch, which makes the initial decisions to arrest and detain immigrants, is not. And immigrants caught up in a deportation system that detains first and sorts out legal issues later will impose a serious loss of liberty on people who have strong claims – including claims that can win before a unanimous Supreme Court.

The judiciary’s role in resolving immigration issues will remain important because there continue to be many questions that are unresolved. Indeed, the decision in Esquivel-Quintana illustrates how the judiciary will have to resolve essential questions about the proper scope of the aggravated-felony category. Esquivel-Quintana expressly leaves to another day the resolution of several issues about the one aggravated-felony category it addressed. And even more significantly, the Esquivel-Quintana decision chose not to address a fundamental interpretive issue that was before the Supreme Court – namely whether a label that has both criminal and immigration consequences should be interpreted in light of the rule of lenity. The outcome of that question could have significant implications for the proper scope of the draconian aggravated-felony label, which will have to be sorted out in later cases.

Esquivel-Quintana shows how the executive branch’s positions can be dead wrong and that immigrants challenging their deportation can have viable claims and indeed may ultimately be vindicated by a unanimous Supreme Court. One can only hope that the Supreme Court will take that lesson to heart when it rehears Jennings v. Rodriguez in the fall. At issue in Jennings is whether an immigrant such as Mr. Esquivel-Quintana should be subjected to prolonged detention without any chance of release while pursuing a challenge to his deportation. The very fact that the Supreme Court has issued so many favorable rulings for immigrants makes clear that immigrants being detained are hardly destined to be deported simply because the government chooses to charge them as deportable. Understanding that basic fact is essential in achieving a fair result in Jennings.

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Symposium: Playground resurfacing case provides soft landing for state “no aid” provisions

Symposium: Playground resurfacing case provides soft landing for state “no aid” provisions

Alice O’Brien is general counsel for the National Education Association. She filed an amicus brief in support of the state in Trinity Lutheran v. Comer.

Those following this symposium know that the Trinity Lutheran v. Comer dispute over a playground-resurfacing grant was viewed by many as a stalking horse for the Supreme Court to decide the extent to which state constitutional provisions against religious aid limit private-school voucher programs. After the Supreme Court held in 2002 in Zelman v. Simmons-Harris that the federal establishment clause did not prohibit the states from using taxpayer dollars to pay for religious education in private schools, the religion clauses of state constitutions have remained a barrier to such voucher programs. Fully three-quarters of all state constitutions contain “no-aid” provisions like Article I, Section 7, of the Missouri Constitution, on which that state relied in declining to fund the Trinity Lutheran Church’s playground. And many other states have constitutional provisions prohibiting the “compelled support” of religious institutions – including involuntary support through the payment of taxes.

At least since the 1970s, state courts have been increasingly willing to recognize that their own state constitutions contain protections for individual liberties that should be construed independently of parallel provisions of the federal Bill of Rights. In particular, most state courts have interpreted their state constitutional guarantees of freedom of conscience and separation of church and state independently of the federal First Amendment. Doing so is particularly apt given that these state religion clauses – unlike, say, state constitutional equivalents of the Fourth and Fifth Amendment guarantees – typically differ considerably from the First Amendment in both text and history. Nearly all of them were written at a time when the First Amendment was not understood to apply to the states, so it was these state constitutional provisions that demarcated the extent to which state authorities could use public funds to support religious activity.

Both before and after Zelman, state courts have struck down private-school voucher programs under such provisions. Examples of such cases include Chittenden Town Sch. Dist. v. Department of Educ., 738 A.2d 539 (Vt. 1999); Bush v. Holmes, 886 So. 2d 340 (Fla. Dist. Ct. App. 2004), aff’d on other grounds, 919 So. 2d 392 (Fla. 2006); and Cain v. Horne, 202 P.3d 1178 (Ariz. 2009). Indeed, in a case that the Supreme Court sent back for reconsideration yesterday in light of Trinity Lutheran, Taxpayers for Pub. Educ. v. Douglas Cty. Sch. Dist., the Colorado Supreme Court invalidated a school district’s voucher program, with the plurality relying on the Colorado constitution’s no-aid clause.

Unsurprisingly, those who seek to divert public-education funds to private-school vouchers, most of which fund pervasively sectarian schools, have long sought to nullify these state constitutional barriers by arguing that the federal free exercise clause – and perhaps the equal protection clause as well – prohibits states from enforcing their state constitutional guarantees of religious liberty to the extent they impose more rigorous restrictions on public funding of religion than does the federal Constitution.

The first run before the Supreme Court along these lines failed, in 2004, on a 7-2 vote in Locke v. Davey, with the court (per Chief Justice William Rehnquist) holding that, as to the funding of religious activity, a state may “draw[] a more stringent line than that drawn by the United States Constitution.” Under the First Amendment there was “room for play in the joints” – so that the states were not prohibited by the free exercise clause from refusing, pursuant to their own constitutions, to fund religion in ways that would have been permitted under the establishment clause. In particular, the court rejected the argument – grounded in the 1993 decision Church of Lukumi Babalu Aye, Inc. v. City of Hialeah – that a refusal to fund religious activity was “presumptively unconstitutional because it is not facially neutral with respect to religion.” Applying that “facial neutrality” test when “[t]he State has merely chosen not to fund a distinct category of instruction” “would extend the Lukumi line of cases well beyond not only their facts but their reasoning.”

Ever since, voucher proponents have attempted to undermine Locke by arguing (generally unsuccessfully) that it should be limited to its specific facts – a state’s refusal to allow a student preparing for the ministry to participate in an otherwise generally applicable college scholarship program – and they seized on the Missouri playground case as another chance to ask the court to do so. On the theory that the court might explain, in the course of deciding in favor of a better playground for the church, that all state prohibitions against religious aid must yield to the federal Constitution’s protections for religious expression, the church and their amici argued that Locke should be limited to its facts, that the court should find the Missouri no-aid provision illegitimate on the theory that it was somehow tarred by a separate and subsequent debate over the federal Blaine amendment, and that the court should even go so far as to hold that states may not constitutionally limit voucher programs to non-sectarian uses.

But the court did none of that. Over the objection of Justices Neil Gorsuch and Clarence Thomas, Chief Justice John Roberts limited the sweep of the court’s opinion to the specific facts before it. Apparently viewing eligibility to participate in Missouri’s playground program as akin to eligibility for generally available public services like police and fire protection, the court held that Trinity Lutheran Church was being excluded from participation solely because of its status as a church, so that it was “put to the choice between being a church and receiving a government benefit.”

One might well question, as did Justice Sonia Sotomayor, whether this is the appropriate way to think about paying public funds to religious institutions. But the critical point here is that the court’s reasoning in Trinity Lutheran can have no applicability to voucher programs, in which the government typically provides to parents funds that they can use to pay tuition for their children to attend the private school of their choice – and in which the overwhelming majority of the private-school options available to parents typically are schools operated by churches and other religious institutions that have as a central purpose the inculcation of religious belief. A state constitutional provision that prohibits the use of public funds for such a purpose disqualifies no one from receiving a public benefit on the basis of his or her status. As in Locke, the disqualification from receipt of public funds is not “because of who [the recipient] was”; rather, it is “because of what [the recipient] proposed to do” with those funds.

And if there were any doubt about the limited sweep of the Trinity Lutheran ruling, the court made it explicit: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” In short, after Trinity Lutheran as before, the religious liberty clauses of state constitutions remain as independent bulwarks against the use of public funds to aid churches in teaching religion.

One other point bears noting. As they have done for years, voucher proponents in the Trinity Lutheran case sought to undermine the fundamental legitimacy of the no-aid clauses found in the vast majority of state constitutions by asserting that these “Blaine amendments” – so called, pejoratively, after a failed federal constitutional amendment of 1876 – were simply the product of anti-Catholic bigotry. This campaign rests on historical analysis that is at best shoddy and at worst tendentious. As more detached scholars have shown, the 19th century debate over the “school question” involved multiple and complex historical threads going back well beyond the rise of nativism and involving fundamental questions over the nature and funding of our nation’s common schools. What came out of that debate cannot simplistically be ascribed to “bigotry.” See, e.g., Noah Feldman, Non-Sectarianism Reconsidered, 18 J.L. & Pol. 65 (2002). In any event, the court in Trinity Lutheran gave this chorus of pseudo-historians precisely the attention it deserved – none. Their attempt to distort and discredit an important part of our nation’s constitutional heritage has nothing to commend it.

In our increasingly hyper-partisan and divided society, our common schools remain one of our most powerful institutions for creating a common understanding among each of us, of each other and our democratic society. By declining the invitation of school-voucher proponents to use Trinity Lutheran to remove a constitutional barrier to the diversion of funding from our public schools to vouchers, the court left the debate over voucher programs where it should be – namely, with the states, to be resolved based on their state constitutional provisions.

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Death-penalty symposium: Incremental victories for capital defendants but no sweeping change

Death-penalty symposium: Incremental victories for capital defendants but no sweeping change

Jordan Steiker is the Judge Robert M. Parker Endowed Chair in Law and Director of the Capital Punishment Center at The University of Texas at Austin School of Law. Carol Steiker is the Henry J. Friendly Professor of Law and Faculty Co-Director of the Criminal Justice Policy Program at Harvard Law School.

Two terms ago in Glossip v. Gross, Justice Stephen Breyer, dissenting from the Supreme Court’s rejection of a lethal-injection challenge, set forth a comprehensive case against the American death penalty, calling for the court to revisit the question of its basic constitutionality. Over the past 40 years, several justices have questioned the constitutional viability of the death penalty, but Breyer’s dissent seemed more significant because it came at a time when the death penalty appeared newly vulnerable. Seven states had legislatively abandoned the death penalty within the past decade (although Nebraska has since reinstated it by referendum). Executions and especially death sentences were in free-fall, declining around 80 percent and 90 percent respectively from their yearly highs in the mid-to-late 1990s. The few death sentences issued in recent years were increasingly confined to a few counties within a few states, leading Breyer to the conclusion that the imposition of the death penalty was “unusual.” Breyer also argued that the death penalty had become “cruel” given evidence of wrongful convictions, continued arbitrariness in its administration and excessive (and unprecedented) delays between sentence and execution. The latter point has been of particular concern to Breyer, who has noted the suffering caused by prolonged death-row incarceration as well as the ways in which delay undercuts the deterrent and retributive rationales of the death penalty.

Though Breyer’s dissent was joined only by Justice Ruth Bader Ginsburg, many observers of the court believed that Breyer would not have called for the court to revisit the death penalty’s constitutionality unless he suspected that a majority might reach his conclusion. Justice Anthony Kennedy – who was then and likely remains the critical fifth vote – had issued his own remarkable opinion 11 days before Glossip condemning solitary confinement on death row, in a case in which that issue had neither been briefed nor argued.

This term’s capital cases suggest that the court is no closer to taking up Breyer’s challenge. The court continued to grant relief in cases involving appalling facts left unredressed by state or federal courts. Three of the four cases briefed and argued on the merits fell within this category. The court also ruled against one inmate, rejecting an extension of recent decisions forgiving state procedural defaults on federal habeas review. All four decisions seem unlikely to change the trajectory of the American death penalty, given the fact-specific nature of the cases and the reluctance of the court to speak broadly in its opinions. The court’s disinclination to interfere with state prerogatives absent egregious legal error was most dramatically illustrated by its willingness to allow the resumption of executions in Arkansas. State officials there had scheduled eight executions over an 11-day period because the scarce lethal injection drugs the state had on hand were set to expire. (Four executions were eventually consummated, including two on one day.) As the American death-penalty ship is sinking, the court seems content to continue its work at the margins, showing little inclination either to abandon its regulatory role or hasten the death penalty’s demise. Only Breyer has continued to press the court to hear broader challenges to the death penalty in several dissents from denial of review, reiterating his concerns about prolonged death-row incarceration.

The most attention-grabbing of the court’s interventions was its decision in Buck v. Davis reversing the U.S. Court of Appeals for the 5th Circuit’s unwillingness to consider a claim involving overt racial discrimination stemming from a 1997 Texas capital trial. Duane Buck was sentenced to death after his trial lawyer called an expert witness to testify about Buck’s dangerousness, and the expert suggested that Buck’s risk of future criminality was heightened because he was black. The case came to the court in a procedural quagmire. The fundamental injustice was the expert’s racist testimony and the failure of Buck’s lawyers at every stage to do anything about it. By the time the case arrived for review, the court was faced with the absurdly technical issue of whether the 5th Circuit should have granted a certificate of appealability on the question whether Buck’s prior habeas judgment could be reopened under the applicable federal rule. Ultimately, the court made clear that Buck’s lawyer had been ineffective in allowing the expert’s testimony; Buck also satisfied the requirement of prejudice because of the especially damaging nature of racist testimony. The state argued that the racist testimony was brief and minuscule in relation to the evidence received by the jury. In response, Chief Justice John Roberts issued the most memorable line of the opinion: “Some toxins can be deadly in small doses.”

The court’s willingness to cut through the procedural morass (and to pave the way for relief in Buck’s case) is emblematic of this term’s incrementalism. It is hard to imagine many other condemned inmates benefiting from this decision. Instead, the opinion has expressive value. In truth, when Buck is coupled with McCleskey v. Kemp, the court’s position seems to be that racism will command relief only when it appears in small, discrete doses. When racism appears in its broader, systemic form, the court retreats because of the impossibility of cabining relief.

Texas was an outlier in another of the court’s cases – Moore v. Texas – in which the court rejected the effort of the Texas courts to shrink the protection of the Supreme Court’s decisions prohibiting the execution of persons with intellectual disability. The highest criminal court in Texas, the Texas Court of Criminal Appeals, reacted to the Supreme Court’s ban by creating its own standard for reviewing findings of intellectual disability – a test that diverged markedly from the clinical approach endorsed by the Supreme Court. The CCA’s test emphasized, among other things, whether friends and family regarded the defendant as having intellectual disability. The CCA created its test because it doubted that the court meant to exempt all persons with intellectual disability and accordingly sought to limit relief to those whom average Texas citizens would regard as deserving of the exemption. The court reversed the CCA 5-3, but it was unanimous in rejecting the CCA’s invented test as unfaithful to the court’s decisions. Moore will require Texas to revisit a substantial number of cases decided under that approach, but the decision will have much less purchase outside of Texas where states have shown less overt hostility to the court’s categorical protection.

Even less dramatic was the court’s decision in McWilliams v. Dunn, reversing a death sentence because the defense was not afforded adequate psychiatric assistance pertaining to the defendant’s mental health. At James McWilliams’ trial, the prosecutor had cross-examined him about the neurological effects of his head injuries, eliciting the response, “I am not a psychiatrist.” McWilliams had not received expert assistance to review his mental health records, develop a defense strategy, prepare witnesses or testify. In these circumstances, the court found McWilliams entitled to relief and did not decide the question that had generated the cert grant – whether an indigent defense is entitled to a psychiatric expert who is part of the defense team or simply access to a neutral psychiatric expert available to both parties. Like Buck, McWilliams corrected an obvious miscarriage of justice without venturing much beyond the facts of the case.

Justice Neil Gorsuch’s presence was significant to the one defeat for a Texas capital defendant.  In Davila v. Davis, the court, divided 5-4, refused to extend its decisions allowing federal habeas review where a defendant receives ineffective representation both at trial and on state habeas (as in Buck’s case). Erick Davila alleged ineffective representation on appeal and on state habeas, and the court parsed the language and reasoning of its earlier decisions to cabin their reach. Least persuasively, the court cited a concern about opening the floodgates to federal habeas claims raising this issue, despite the fact that Texas cited only 10 cases (of which only one was meritorious) out of 7,500 habeas cases that had attempted to access federal habeas review in the one circuit that permitted the extension that the court disallowed.

The court’s hesitance to extend recent precedent is further illustrated by the court’s refusal to clarify the implications of a major decision of the 2015 term, Hurst v. Florida. Hurst required a jury rather than a judge to find facts rendering a defendant death-eligible, thus invalidating Florida’s statutory scheme permitting judicial override of a jury’s sentence. In the months following the decision, the court remanded several capital cases to Alabama, whose statutory scheme also permitted judicial override, for reconsideration in light of Hurst. Early in the 2016 term, Alabama’s highest court ruled that its judicial-override scheme was sufficiently different from Florida’s to survive constitutional invalidation. Despite its previous remands, the court denied certiorari, declining to determine whether Alabama was correct that no reconsideration of its judicial-override practices was necessary. The Alabama legislature has since repealed the judicial-override provisions, but dozens of the nearly 200 people on death row in Alabama have been sentenced by judicial override, so the question lingers unresolved.

As capital sentences diminish to new lows and executions become even rarer events, the court remains visible in the capital sphere, reluctant to give up the appearance of carefully monitoring the American death penalty. As it has in every decade since the resumption of capital punishment in 1976, the court grants review and decides capital cases at a rate wholly disproportionate to their numbers in the criminal justice system and out of line with their dwindling practical significance. The court’s docket of four capital cases in the 2016 term seems high in relation to the 30 death sentences and 20 executions nationwide in 2016. Though its capital-case docket remains robust, the court continues to avoid the sweeping questions about capital punishment raised by Breyer. And when it addresses the cases it chooses to hear, the court eschews broad rulings that would fundamentally alter state capital practices, focusing instead on correcting particularly egregious mistakes or injustices. In this respect, the court’s role relative to capital punishment has become similar to the role of capital punishment relative to criminal justice: an occasional reminder of some awesome power, often an expression of outrage, but little to show for the effort.

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Wednesday round-up

Wednesday round-up

Yesterday the court accepted six new cases for next term, for a total of five hours of oral argument. Amy Howe covers the orders list for this blog. Additional coverage comes from Lyle Denniston at his eponymous blog. At Education Week, Mark Walsh reports that the justices “sent two sets of cases about aid to religious schools back to lower courts for reconsideration in light of their opinion on Monday that a church preschool could not be excluded from a state grant program to improve playgrounds.” Additional coverage of the aid-to-religion remands comes from Andrew Chung at Reuters. Reporting on some of yesterday’s other orders comes from Josh Gerstein at Politico, Lawrence Hurley at Reuters, and Howard Fischer at Capitol Media Services (via the Arizona Capitol Times).

In The Wall Street Journal, Brent Kendall reports that the court “agreed to consider New Jersey’s bid to legalize wagering on sports, a case in which the state is challenging restrictions imposed by the federal government.” Additional coverage of the grant in the two consolidated sports-betting cases, Christie v. National Collegiate Athletic Association and New Jersey Thoroughbred Horsemen’s Association, Inc. v. National Collegiate Athletic Association, comes from David Purdum and Ryan Rodenberg at ESPN, Lawrence Hurley at Reuters, Greg Stohr at Bloomberg, Mark Sherman at the Associated Press, and John Brennan at At his eponymous blog, Ross Runkel discusses the court’s decision to review Digital Realty Trust, Inc. v. Somers, which involves the whistleblower provisions of the 2010 Dodd-Frank financial law.

The Supreme Court’s announcement Monday that it will hear the two cases challenging the Trump Administration’s entry ban, and its decision to allow partial enforcement of the ban in the meantime, continues to spur court-related coverage and commentary. In The New York Times, Miriam Jordan reports that the court’s ruling has cast doubt on the prospects of refugees seeking resettlement in the United States. Additional coverage of the practical implications of the court’s ruling on the stay comes from Karin Fischer at The Chronicle of Higher Education. At Politico, Josh Gerstein answers five questions about the court’s first entry-ban decision. Commentary comes from Marty Lederman at Just Security, Alex Aleinikoff at ForcedMigrationForum, Ilya Somin at The Washington Post’s Volokh Conspiracy blog, the editorial board of The New York Times, Will Baude at PrawfsBlawg, Michael Dorf at Justia’s Verdict blog, Moustafa Bayoumi in The Guardian, Daniel Hemel at Take Care, Amir Ali, also at Take Care, Corey Brettschneider in an op-ed in The New York Times, Stephen Sachs at PrawfsBlawg, and Ciara Torres-Spelliscy at the Brennan Center for Justice.

In Trinity Lutheran Church v. Comer, the justices ruled on Monday that a state cannot deny a church a public benefit – here, improvements to a playground – because of the church’s religious status. Coverage of the effect of the decision on the school-voucher debate comes from Carolyn Thompson at the Associated Press. In The Economist, Steven Mazie also reports on the implications of the decision. Commentary comes from Garrett Epps in The Atlantic, Elizabeth Slattery at The Daily Signal, Jessica Mason Pieklo at Rewire, James Gottry in an op-ed for the Washington Examiner, Elizabeth Reiner Platt at Religion Dispatches, Michael Farris at Fox News, Paul Horwitz at PrawfsBlawg, Erik Stanley in an op-ed for The Kansas City Star, and Cristian Farias at New York Magazine’s Daily Intelligencer. Subscript provides a graphic explainer of the decision.

In Davila v. Davis, the justices held that ineffective postconviction counsel does not excuse procedural default of a claim that a prior appellate lawyer was ineffective. Steve Vladeck has this blog’s argument analysis. Jolie McCullough reports on the decision for The Texas Tribune.

In Hernandez v. Mesa, the justices vacated a ruling against the plaintiffs in a cross-border shooting case and remanded the case for the lower court to reconsider in light of a ruling last week that limited the ability to sue federal officials for damages under the Constitution. Nicando Ianacci covers this development for Constitution Daily, as does Howard Fischer for Capitol Media Services (via the Arizona Capitol Times). Commentary comes from Sarah Seo in The Washington Post and from Michael Dorf at Dorf on Law.

In Pavan v. Smith, the justices summarily ordered Arkansas to provide names of same-sex partners on birth certificates. Howard Fischer covers the ruling for Capitol Media Services (via the Arizona Capitol Times). Joshua Matz comments on Pavan at Take Care. The court also agreed on Monday to review Masterpiece Cakeshop v. Colorado Civil Rights Commission, which involves the right of private parties to deny services to same-sex couples, particularly in industries involving expression. At PrawfsBlawg, Will Baude speculates on a possible connection between the justices’ dispositions of these two cases. Erica Goldberg looks at the implications of Pavan for Masterpiece Cakeshop at In a Crowded Theater. Additional commentary on Masterpiece Cakeshop comes from James Gottry in an op-ed for The Denver Post.

At the International Municipal Lawyers Association’s Appellate Practice Blog, Lisa Soronen discusses Murr v. Wisconsin, last week’s regulatory-takings decision, as does Robert Glicksman at The George Washington Law Review’s On the Docket blog.

At Reuters, Lawrence Hurley looks back at the term that just ended and ahead to October Term 2017, as does Adam Liptak in The New York Times, who notes that “[t]he last term was marked by a level of agreement unseen at the court in more than 70 years.” At Empirical SCOTUS, Adam Feldman offers an end-of-term statistical wrap-up that focuses on the justices’ voting patterns.

Coverage of Neil Gorsuch’s debut on the court comes from Greg Stohr at Bloomberg and Robert Barnes in The Washington Post, who concludes that “Gorsuch is a Scalia 2.0, perhaps further to the right.” Commentary comes from Rick Hasen in an op-ed for The Los Angeles Times and Noah Feldman at Bloomberg View. Commentary on Gorsuch’s Second Amendment views comes from Robyn Thomas and Adam Skaggs in an op-ed for the New York Daily News.


  • In a column for Bloomberg View, Stephen Carter speculates on why the Supreme Court appears to be “all but leak-proof.”
  • The Open File blog looks at Turner v. United States, in which the court upheld the convictions of the defendants in a notorious murder trial over a claim that evidence had been suppressed in violation of Brady v. Maryland, noting that “the opinion leaves the law fully intact and merely plunges into the facts of the crime and investigation.”
  • At Lock Law Blog, Ryan Lockman looks at the court’s decision last week in in Lee v. United States, in which the court held that a defendant had been prejudiced by his attorney’s erroneous advice that a guilty plea would not result in mandatory deportation, maintaining that the “case shouldn’t have too many doctrinal implications.”
  • Counting to 5 (podcast) features a discussion of the court’s decision in Matal v. Tam, in which the justices held last week that a ban on the registration of disparaging trademarks violates the First Amendment.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you’d like us to consider for inclusion in the round-up, please send it to roundup [at]

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Petition of the day

Petition of the day

The petition of the day is:


Issues: (1) Whether the dormant commerce clause requires a State that imposes a fairly apportioned use tax to also credit sales taxes paid to other States; and (2) whether the dormant commerce clause requires a State that does not impose county or municipal use taxes to provide a credit for sales taxes paid to other States’ counties or municipalities.

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Immigration symposium: Delays, detentions and due process – Why Jennings matters

Immigration symposium: Delays, detentions and due process – Why <em>Jennings</em> matters

Shoba Sivaprasad Wadhia is the Samuel Weiss Faculty Scholar and founding director of the Center for Immigrants’ Rights Clinic at Penn State Law-University Park and the author of  Beyond Deportation: The Role of Prosecutorial Discretion in Immigration Cases.”

On June 26, the Supreme Court ordered reargument in the case of Jennings v. Rodriguez, which involves an individual who was held in immigration detention for more than three years without a bond hearing. The question before the court was whether detained immigrants have a right to a bond hearing. The U.S. Court of Appeals for the 9th Circuit concluded that detained immigrants must be given bond hearings at least every six months. Kevin Johnson has summarized the case in detail here. The decision by the Supreme Court to postpone Jennings is a disappointment, because it delays the uncertainty over fundamental questions about liberty and due process.

The government has broad discretion to detain immigrants who are alleged to be in violation of immigration law, including lawful permanent residents (green-card holders), students and asylum-seekers. Many detained immigrants are subject to “mandatory detention,” which enables the government to detain them without giving them any opportunity to see an immigration judge to determine whether a release on bond is warranted because they do not post a flight risk or a danger to public safety. At least three sections of the Immigration and Nationality Act contain language about mandatory detention. For example, one section states that Department of Homeland Security shall take into custody categories of noncitizens who have committed certain crimes. Another section mandates detention for inadmissible noncitizens who arrive at the border. A third imposes detention after a person has been ordered removed. The constitutional and statutory limits of mandatory detention have been tested in the courts, but the judicial journey has been a long one. The delay in Jennings only prolongs that journey.

It was not until 2001 that the Supreme Court held definitively that prolonged detention amounts to a due-process violation. In Zadvydas v. Davis, the court declared: “Freedom from imprisonment–from government custody, detention, or other forms of physical restraint–lies at the heart of the liberty that Clause protects.” Having begun the practice of immigration law before this seminal decision, I have tasted the landscape of immigration detention pre-Zadvydas. My first detainee case was a pro bono case assigned to me by the Arlington Immigration Court. By the time I became his attorney, my client had been in detention for more than two years and had been transferred more than a dozen times. Although the guidance in Zadvydas might have enabled my client to be released from detention much earlier, there are potentially thousands of immigrants who remained in detention indefinitely before this decision. After Zadvydas, in Demore v. Kim, the Supreme Court rejected a constitutional challenge to prolonged mandatory detention pending proceedings. The challenges of prolonged detention remain. As summarized by the 9th Circuit, noncitizens “who vigorously pursue claims for relief from removal face substantially longer detention periods than those who concede removability.”

The outcome in Jennings is unknown, but the case may be decided on statutory or constitutional grounds, or both. The statutory question in Jennings is whether or not the statute itself requires a bond hearing at reasonable intervals. The constitutional question (one that was briefed after the court requested supplemental briefing on this issue) is whether the Constitution requires that noncitizens subject to mandatory detention and detained for longer than six months be afforded a bond hearing.

The outcome in Jennings matters not only to the rule of law but to thousands of immigrants held in detention. Each year, more than 350,000 are placed into civil immigration detention centers, which in practical terms are state or local jails or facilities that look like them. The government has published Performance Based National Detention Standards to guide how detainees should be treated with regard to medical care, legal access and other services. These standards are critical in part because detained immigrants are not guaranteed court-appointed counsel, a right to a speedy trial or other related protections available in the criminal justice system. However, some reports suggest that these standards are often ignored.

It is uncertain how the Supreme Court will decide Jennings, but it should follow the 9th Circuit, which held that “the government must provide periodic bond hearings every six months so that non-citizens may challenge their detention ‘as the period of … confinement grows.’” The 9th Circuit decision should be a guide to the Supreme Court, because it is well reasoned, and it captures the history of how courts have handled and considered fundamental legal questions in the space of immigration detention.

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Death-penalty symposium: Even with this conservative court, some progressive wins remain possible

Death-penalty symposium: Even with this conservative court, some progressive wins remain possible

Brianne Gorod is Chief Counsel at the Constitutional Accountability Center. She filed an amicus brief in support of defendant Duane Buck in Buck v. Davis.

With the election of Donald Trump as president and the addition of his Supreme Court nominee Justice Neil Gorsuch to the bench, there’s no question: The conservative court is back. But even with this very conservative Supreme Court, there can still occasionally be progressive victories, at least for now. This year’s death penalty cases provide a key example: There were a number of progressive wins, but only by the narrowest of margins. In this area, as in so many others, Justice Anthony Kennedy’s vote is often key.

One of the most high-profile of this year’s death penalty cases came early in the term in Buck v. Davis, an important case about the role of race in our criminal justice system. In Texas, a person may be sentenced to death only if a jury concludes that he or she is likely to commit violent acts in the future that would constitute a continuing threat to society, and at Duane Buck’s sentencing hearing, the key question was whether Buck was likely to do so. Stunningly, Buck’s own attorney called a purported expert witness, who testified that Buck was more likely to be violent in the future because he is black, and the jury sentenced Buck to death.

The procedural history in Buck is complicated, and the question before the court was exceedingly technical, but the court took the opportunity the case presented to make an important statement about the role that race can play in our criminal justice system. As my organization explained in an amicus brief, the testimony elicited by Buck’s counsel evoked an “enduring racial stereotype that exerts a unique power in this nation,” one that can have a “[d]emonstrable [e]ffect on [p]erceptions and [j]udgments.” The court agreed, concluding that the so-called expert’s “testimony appealed to a powerful racial stereotype,” resulting in “something of a perfect storm. [The expert’s] opinion coincided precisely with a particularly noxious strain of racial prejudice, which itself coincided precisely with the central question at sentencing.”

The presentation of this evidence thus ran headlong into our constitutional commitment to “eradicating [racial] stereotypes from the administration of justice and ensuring that jury proceedings are free of racial bias and prejudice.” As Chief Justice John Roberts wrote for the court, the possibility that “Buck may have been sentenced to death in part because of his race” is a “disturbing departure from a basic premise of our criminal justice system: Our law punishes people for what they do, not who they are.” (A majority of the court reaffirmed that commitment later this term in a non-capital case involving racial bias in jury deliberations. Writing for the court in Pena-Rodriguez v. Colorado, Justice Anthony Kennedy observed that a “constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.” Roberts dissented in that case.)

Buck wasn’t the only case this term in which the Supreme Court reversed a lower court decision in an effort to introduce additional fairness into the way the death penalty is applied. In Moore v. Texas, for example, the question before the court was whether it violates the Eighth Amendment’s prohibition on cruel and unusual punishment to “prohibit the use of current medical standards on intellectual disability … in determining whether an individual may be executed.” In that case, a state habeas court had ruled that Bobby Moore could not be sentenced to death because he was intellectually disabled, but the Texas Court of Criminal Appeals concluded that the habeas court had “erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in [a prior case].”

The Supreme Court, 5-3, reversed, reaffirming its 2014 decision in Hall v. Florida that “adjudications of intellectual disability should be ‘informed by the views of medical experts.’” As the court explained, the guidelines established by the CCA “‘creat[ed] an unacceptable risk that persons with intellectual disability will be executed.’” Emphasizing that states do not enjoy unlimited discretion to determine who qualifies as intellectually disabled, the court rejected the CCA’s objective of “identifying the ‘consensus of Texas citizens’ on who ‘should be exempted from the death penalty’”: “Mild levels of intellectual disability, although they may fall outside Texas citizens’ consensus, nevertheless remain intellectual disabilities … and States may not execute anyone in ‘the entire category of [intellectually disabled] offenders.’”

In McWilliams v. Dunn, the court, 5-4, concluded that the defendant had been denied assistance in presenting his defense – assistance to which he was entitled under a prior decision of the court. As Justice Stephen Breyer, explained: “Our decision in Ake v. Oklahoma … clearly established that, when certain threshold criteria are met, the State must provide an indigent defendant with access to a mental health expert who is sufficiently available to the defense and independent from the prosecution to effectively ‘assist in evaluation, preparation, and presentation of the defense.’” According to the court, Alabama fell “dramatically short” of this requirement because, although a doctor examined James McWilliams, no one was asked “to provide the defense with help in evaluating, preparing, and presenting its case.” Although this wasn’t a total win for McWilliams – the court didn’t go as far as McWilliams had asked it to go, declining to decide whether “a State must provide an indigent defendant with a qualified mental health expert retained specifically for the defense team, not a neutral expert available to both parties,” and the court also left the door open for the U.S. Court of Appeals for the 11th Circuit to reach the same ultimate conclusion on remand – it was nonetheless a win.

To be sure, it was hardly all progressive wins on the death-penalty front. In Davila v. Davis, the court, 5-4, held that ineffective assistance of counsel in state postconviction proceedings does not excuse a defendant’s failure to bring a claim that his counsel was ineffective on direct appeal, and thus a federal habeas court may not hear such a claim. In reaching this result, the court declined to extend an earlier 7-2 decision in which it held that ineffective assistance of counsel would excuse procedural default when the claim was that trial counsel was ineffective. As Justice Stephen Breyer wrote in dissent, there was no reason to treat those two situations differently: “[W]hat is sauce for the goose is sauce for the gander.” And outside the court’s merits docket, the court made news this term when it allowed Arkansas to execute a number of individuals as part of the state’s effort to execute eight people over an 11-day period before one of the drugs it uses in its lethal injection protocol expired.

Looking at all of these cases as a group, two things stand out. First, as I noted at the outset, these cases make clear that even with this very conservative court, some victories are possible for those who oppose the death penalty, or are simply concerned about the fairness of its application. To be sure, counting to five is much easier in some contexts than in others. A win for the criminal defendant is more likely in cases involving allegations of unfairness in the initial trial or sentencing, and it is more likely when it involves a categorical claim that the death penalty cannot be applied to a particular group of people. A win is less likely in cases involving allegations of unfairness in later stages of the proceedings, or allegations that the manner in which the sentence is being carried out is problematic. But there are still a number of contexts in which wins are possible, at least for now.

Second, and related to that last point, these cases are all exceedingly closely divided. Other than Buck, all of the court’s merits death penalty cases this term were either 5-4 or 5-3 decisions. In two of the three, Kennedy voted with the court’s more liberal members, and the defendant won; in one he did not, and the defendant lost. The Court’s newest member, Gorsuch, voted against the criminal defendant in both of the cases in which he participated. Thus, in this area – as in so many others – it seems that Kennedy’s vote will often be key.

It was around this time two years ago that Breyer made huge headlines when he wrote a dissent, joined by Justice Ruth Bader Ginsburg, calling for a wholesale re-examination of the constitutionality of the death penalty: “[R]ather than try to patch up the death penalty’s legal wounds one at a time, I would ask for full briefing on a more basic question: whether the death penalty violates the Constitution.” That basic question may not be answered any time soon, but the lesson of this term is that there may be room for some additional patching of its wounds, at least for the time being.

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