A collection of significant and strange cases decided by the federal courts of appeals this week. Each summary delivered in a minute or less: seven cases, seven minutes. On the docket this week was lots of stuff at SCOTUS, government speech, the Second Amendment, and lawn signs.
1. Supreme Court won’t intervene in litigation over Texas abortion law.
Recall S.B. 8, a Texas law that bans abortions after six weeks of pregnancy. Last month the U.S. Supreme Court, voting 8:1, held that the law’s opponents may get their day in court. Making an Erie guess, the Court found that certain medical licensing officials, whose job it is to review abortion providers’ qualifications, are not immune from suit. The Court remanded to an appellate panel (here, a Fifth Circuit panel) “for further proceedings consistent with [the Court’s] opinion.” This is typical of every remand from the high court. What should’ve occurred next is the panel again remands to the district court, allowing for speedy proceedings in line with the Supreme Court’s instructions. But that didn’t happen. Instead, the Fifth Circuit panel “certified”—asked the Texas supreme court to decide—the question whether the Texas medical licensing officials may be sued. Sound familiar? That’s because that’s the same question the U.S. Supreme Court already decided. Judge Higginson, dissenting, argued the panel’s certification “exceed[s] the scope of the Supreme Court’s mandate.” Rightfully so. He also pointed out that the defendants forwent certification earlier in litigation when it may have been appropriate. In the face of a loss at the high court, their choice to seek it now smacks of delay and subterfuge.
It gets weirder. Plaintiffs appealed to the Supreme Court. They sought a writ of mandamus, which would force the Fifth Circuit to remand to the district court. But of the eight Justices who had said the case may proceed, only three voted for the plaintiffs. We don’t know why; the Court didn’t give an explanation. Granted, writs of mandamus are quite rare. And any writ from the high court would suggest a breakdown in communications or even a rift with a lower court. Ultimately, we must leave the task of explaining—or rather speculating about—the Court’s reasons to smarter legal minds.
2. Supreme Court won’t block release of Trump administration records to Congressional committee.
Last month the D.C. Circuit refused to block the release of presidential records from Donald Trump’s time in office to the Congressional committee investigating the January 6th riot. Mr. Trump appealed for a stay. The Supreme Court denied it this week. Justice Kavanaugh wrote a concurrence ruminating on the circumstances under which a former president may invoke executive privilege over administration documents. Justice Thomas was the only noted dissenter.
3. Supreme Court rules for defendant in criminal procedure appeal.
The last of the Supreme Court’s decisions this week will appeal to criminal procedure wonks. The Sixth Amendment gives defendants the right to confront witnesses who testify against them in court. With that in mind, consider the facts of this case (all of which are important): A woman is shot and killed. Police recover the 9-milimeter murder weapon and detain two suspects. Call them Al and Bob. Al says Bob committed the murder, but he later recants and says a new individual, Zack, is guilty. Police search Bob’s apartment. They find both a 9-milimeter cartridge(!) and .357-caliber bullets. Surprisingly, they offer Bob a deal under which he pleads guilty to possession of a .357 revolver—not the 9-milimeter—and his murder charges are dropped. Unsurprisingly, Bob accepts. Years pass. Police then arrest Zack and charge him with the murder. Police admit they found the 9-mil cartridge in Bob’s apartment, and Zack’s innocence therefore depends on Bob’s testifying on the stand. But Bob is out of the country. So, the court, over Zack’s objections, allows the prosecution to discuss Bob’s plea allocution, that is, Bob’s statement before he was sentenced for possessing the .357 revolver, not the 9-mil. Zack is then convicted of the murder.
Has the court deprived Zack of his right to confront witnesses against him? Yes, says the Supreme Court (voting 8:1). Justice Sotomayor, writing for the majority, rejected the argument that our “Zack” waived his right by “open[ing] the door” to discussion of Bob’s plea allocution. Justices Alito and Kavanaugh, concurring, explored what suffices for a defendant to waive the right to confront witnesses. Justice Thomas, the lone dissenter, argued the case should’ve been dismissed on procedural grounds.
Now for the non-SCOTUS decisions:
4. Ninth Circuit says California county’s shutdown order violates Second Amendment.
Ventura County, CA ordered gun shops and firing ranges to shut down temporarily due to COVID-19. But it didn’t require the same of other businesses, like bicycle shops and real estate services. Does the county’s shutdown order violate the Second Amendment? Yes, says a Ninth Circuit panel. Judge Kleinfeld, concurring: We don’t need to debate whether strict scrutiny applies. Judge VanDyke, concurring in his own majority opinion: Oh yes we do. I already know the full Ninth Circuit—most of whose opinions I disagree with—will overturn my opinion. So I’m attaching a draft decision in which I impersonate my fellow judges and write their decision for them. They should just use that; they’re busy, you see. And while I’m at it, I’ll mock all their principles in footnotes, which I call “thought bubbles.” (NB: This blog apologizes for the snark; we learned it from Judge VanDyke. We disapprove of the tone with which Judge VanDyke writes his opinions and, on occasion, describes his own colleagues. Causticity may be acceptable on a blog, but it belongs nowhere in a judge’s writings.)
5. Tenth Circuit dismisses anti-immigrant group’s lawsuit over canceled conference.
VDARE Foundation, a rightwing anti-immigration group, scheduled an event at a private resort near Colorado Springs. In the wake of the Charlottesville violence the city issued a public statement, which led to this lawsuit. It read: While the city doesn’t have the power to “direct [the resort] as to which events [it] may host,” the city “will not provide any support or resources to this event and does not condone hate speech in any fashion.” The resort canceled VDARE’s event soon thereafter. VDARE: The city violated our right to speak and associate freely. Tenth Circuit panel: No, it didn’t. For one, there isn’t a sufficient nexus between the city’s statement and the resort’s canceling your event. For another, the city’s speech itself isn’t beyond the pale. Finally, the mayor has qualified immunity. Judge Hartz, dissenting: I agree with much of the majority’s reasoning, including the qualified immunity bit. But I think there’s enough of a nexus to let VDARE at least argue its claims.
6. Fourth Circuit’s ruling on U.S. Sentencing Guidelines creates circuit split.
In Stinson v. United States (1993) the Supreme Court held that courts generally must adhere to the official commentary on the U.S. Sentencing Guidelines, even if the guideline itself is unambiguous. But in Kisor v. Wilkie (2019) the Court held that courts should defer to an agency’s interpretation of its own regulations only if the regulation is “genuinely ambiguous”. Does Kisor overrule Stinson? Fourth Circuit panel: Nope. We recognize, though, that we’ve created a circuit split with the Third and Sixth Circuits. (For more on this open question of law, here are two law review articles.)
7. Eleventh Circuit greenlights private lawsuit against police officers over lawn signs.
Police officers in Butts County, GA plant signs on the lawns of registered sex offenders before Halloween. The signs warn passersby not to “trick-or-treat[] at this address.” The county sheriff later goes on the department’s public Facebook account and posts about why the signs are there. Eleventh Circuit panel: . . . all of which amounts to compelled government speech. The county undoubtedly has a compelling interest in protecting minors from sexual abuse, but there are ways to do that without forcing the homeowners to give up their First Amendment right not to say something with which they disagree.
Benchwarmers 