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February 29, 2016

No new cert grants from short-handed SCOTUS and a notable dissent in one prisoner case

The Supreme Court this morning issued its first big orders list since the passing of Justice Scalia, which is available at this link, and perhaps unsurprisingly the Justices decided not to grant review in any new cases.  For any number of reasons, I think it wise and shrewd for the Supreme Court to keep its docket relatively light while it is so divided and short-staffed, especially given that there would seem to be a real possibility that Senate hearings for a possible Justice Scalia replacement may not take place for another year.  Especially given the many high-profile cases already before a Court now perhaps facing a good number of 4-4 tie votes, I would be surprised to see more than a handful of new grants in major cases anytime soon.

On the subject of being surprised, I was taken aback a bit to see the order list included this lengthy dissent from the denial of certiorari authored by Justice Alito in the prisoner case of Ben-Levi v. Brown, No. 14-10186.   The surprise comes from the fact that Justice Alito, who is usually the most consistent vote against criminal defendants, in this dissent complains about the Supreme Court's failure to take up the case of a pro se prisoner.  But the very start and very end of the lengthy dissent highlights the unique issue that in this case engendered Justice Alito's concerns:

Petitioner Israel Ben-Levi, a North Carolina inmate, filed a pro se petition challenging a prison policy that prevented him and other Jewish inmates from praying and studying the Torah together.  The North Carolina Department of Public Safety (NCDPS) imposed stringent restrictions on Jewish group meetings that it did not apply to other religious groups.  Because Ben-Levi has provided ample evidence that these restrictions substantially burdened his religious exercise, and because respondent has not identified a legitimate penological interest in treating Jewish inmates more strictly than inmates of other religions, I would grant Ben-Levi’s petition for certiorari and summarily reverse the judgment below....

Needless to say, the Court’s refusal to grant review in this case does not signify approval of the decision below. But the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.

February 29, 2016 at 10:11 AM | Permalink


These are words I rarely say, but I think Justice Alito was absolutely right on that prison case. I don't think the other Justices necessarily disagreed with him, they just decided not to take the case.

Posted by: Erik M | Feb 29, 2016 8:35:44 PM

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