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May 13, 2019

No new grants, but lots of notable chatter on criminal cases in latest SCOTUS order list

It seems like a while since the Supreme Court has granted certiorari in an interesting criminal case, but today's SCOTUS order list has intrigue in the form of four interesting opinions regarding other dispositions in criminal cases. The opinion that will likely garner the most attention is the lengthy one by Justice Thomas, joined by Justices Alito and Gorsuch, in a capital case from Alabama, Price v. Dunn. That opinion gets started this way:

I concur in the denial of certiorari. I write separately to set the record straight regarding the Court’s earlier orders vacating the stays of execution entered by the District Court and the Court of Appeals in this case.  See Dunn v. Price, 587 U. S. ___ (2019).  In a late-night dissenting opinion accompanying one of those orders, JUSTICE BREYER asserted that petitioner’s death sentence was being “carried out in an arbitrary way” and that Members of this Court deviated from “basic principles of fairness.”  Id., at ___, ___ (slip op., at 1, 7). There is nothing of substance to these assertions. An accurate recounting of the circumstances leading to the now-delayed execution makes clear that petitioner’s execution was set to proceed in a procedurally unremarkable and constitutionally acceptable manner.

For First Amendment fans concerned about speech rights in prison, the next opinion on the order list may be event more interesting.  This one comes in Dahne v. Richey, and involves a dissent from the denial of cert authored by Justice Alito and is joined by Justices Thomas and Kavanaugh.  Here is the start and end of the opinion:

Does the First Amendment require a prison to entertain a prisoner grievance that contains veiled threats to kill or injure a guard? Or may the prison insist that the prisoner rewrite the grievance to eliminate any threatening language? In this case, respondent Thomas Richey, an inmate currently serving a sentence for murder in Washington state prison, submitted a written prison grievance complaining that a guard had improperly denied him shower privileges. His grievance not only insulted the guard, referring to her as a “fat Hispanic,” but contained language that may reasonably be construed as a threat.....

In the decision below, the Ninth Circuit doubled down on its earlier ruling, holding that prisoners have a clearly established constitutional right to use “disrespectful” language in prison grievances and that Richey was entitled to summary judgment on his First Amendment claim.

We have made it clear that prisoners do not retain all of the free speech rights enjoyed by persons who are not incarcerated.  See, e.g., Shaw v. Murphy, 532 U. S. 223, 229 (2001). Prisons are dangerous places. To maintain order, prison authorities may insist on compliance with rules that would not be permitted in the outside world. See Turner v. Safley, 482 U. S. 78, 89–91 (1987).  Even if a prison must accept grievances containing personal insults of guards, a proposition that is not self-evident, does it follow that prisons must tolerate veiled threats?  I doubt it, but if the Court is uncertain, we should grant review in this case.  Perhaps there is more here than is apparent on the submissions before us, but based on those submissions, the decision of the Ninth Circuit defies both our precedents and common sense.

In addition, we get an opinion in an ACCA case, Myers v. US, a case which is GVRed back to the Eighth Circuit but which prompts a short statement from the Chief Justice in dissent joined by Justices Thomas, Alito, and Kavanaugh.  That opinion starts this way: 

I dissent from the Court’s decision to grant the petition, vacate the judgment, and remand the case. Nothing has changed since the Eighth Circuit held that Myers’s conviction for first-degree terroristic threatening qualifies as a “violent felony” under the Armed Career Criminal Act, 18 U. S. C. §924(e). The Government continues to believe that classification is correct, for the same reasons that it gave to the Eighth Circuit. But the Solicitor General asks us to send the case back, and this Court obliges, because he believes the Eighth Circuit made some mistakes in its legal analysis, even if it ultimately reached the right result. He wants the hard-working judges of the Eighth Circuit to take a “fresh” look at the case, so that they may “consider the substantial body of Arkansas case law supporting the conclusion that the statute’s death-or-serious injury language sets forth an element of the crime,” and then re-enter the same judgment the Court vacates today. Brief for United States 9, 11.

I see no basis for this disposition in these circumstances.

Finally (and not noticed by me when I did this post too quickly while on the move this morning), Justice Sotomayor has a two paragraph dissent from the denial of certiorari in Abdur-Rahman v. Parker at the very end of the order list.  (Thanks to the helpful reader who made sure I caught this.)  Here is this opinion's closing paragraph: 

The Court has recently reaffirmed (and extended) the alternative-method requirement. See Bucklew v. Precythe, 587 U.S. ___, ___–___ (2019) (slip op., at 14–20).  And today, the Court again ignores the further injustice of state secrecy laws denying death-row prisoners access to potentially crucial information for meeting that requirement. Because I continue to believe that the alternativemethod requirement is fundamentally wrong — and particularly so when compounded by secrecy laws like Tennessee’s — I dissent.

The substance of each of these opinions could merit additional commentary (and readers are urged to use the comments to do so).  But I find especially interesting which of the conservative justices are NOT among those supporting each of the opinions authored by other conservative Justices.  In the big capital case, it is the Chief and Justice Kavanaugh not signing on with Justice Thomas; the the First Amendment prisoner case, it is the Chief and Justice Gorsuch not signing on with Justice Alito; in the ACCA case, it is only Justice Gorsuch not signing on with the Chief Justice.  Hmmm.

May 13, 2019 at 09:59 AM | Permalink


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