The Supreme Court on Thursday put a bankruptcy plan for Purdue Pharma, the manufacturer of the highly addictive opioid painkiller OxyContin, on hold while it reviews a challenge to the legality of the plan, which would shield the Sackler family, the owners of the drug company, from lawsuits. In the brief order the justices agreed to hear oral arguments this December in the Biden administration’s appeal of a lower-court ruling approving the plan. There were no recorded dissents.

U.S. Solicitor General Elizabeth Prelogar had told the justices that if the ruling by the U.S. Court of Appeals for the 2nd Circuit confirming the plan were allowed to stand, it “would leave in place a roadmap for wealthy corporations and individuals to misuse the bankruptcy system to avoid mass tort liability.” But lawyers for Purdue Pharma countered that if the implementation of the plan is delayed, it would result in “potentially grievous” harm for hundreds of thousands of victims of the opioid epidemic.

OxyContin first came on the market in 1996. In the years that followed, the painkiller generated more than $35 billion in revenue for Purdue Pharma. But the use and abuse of opioid painkillers, including OxyContin, also led to a serious public health crisis: During the 20-year period between 1999 and 2019, nearly a quarter-million people died from overdosing on prescription opioids like OxyContin.

Purdue Pharma twice pleaded guilty, in 2007 and 2020, to federal criminal charges arising from its marketing of OxyContin. The company was also the targets of thousands of lawsuits accusing the Sackler family and it of being a catalyst for the opioid epidemic through its deceptive marketing of OxyContin. To shield against those lawsuits, Purdue filed for bankruptcy in 2019. Purdue then proposed a reorganization plan that would remake the company as a nonprofit dedicated to addressing the problems created by the opioid epidemic. The Sacklers, who had withdrawn approximately $11 billion from the company, agreed to contribute approximately $4.5 billion to fund the plan; in exchange, the Sackler family would be released from liability.

In Sept. 2021, a bankruptcy court in the Southern District of New York confirmed the reorganization plan, over the objection of (among others) the U.S. Trustee, the division of the Department of Justice that oversees the administration of bankruptcy cases. U.S. Bankruptcy Judge Robert Drain called the confirmation a “bitter result,” but said that the settlement was the only way to provide funding for communities to address the problems caused by opioids. However, a federal district judge rejected the plan a few months later.

Purdue appealed to the 2nd Circuit, which in May of this year reversed the district court’s order and approved the plan. The court of appeals declined to put its judgment on hold to give the federal government time to seek review in the Supreme Court, prompting the U.S. Trustee to come to the justices to seek a stay of that ruling at the end of July.

Representing the U.S. Trustee, Prelogar told the justices that the plan provides the Sackler family with a “release from liability that is of exceptional and unprecedented breadth.” If the plan is approved, Prelogar warned, it will create a back door that will allow the “wealthy and powerful” to evade liability for wrongdoing without having to declare bankruptcy themselves. But more broadly, Prelogar cautioned, nothing in the Bankruptcy Code gives bankruptcy courts this kind of “sweeping power.” Moreover, she added, allowing the plan to go forward would “raise serious constitutional questions by extinguishing private property rights” – potential claims against the Sackler family – “without providing an opportunity for the rights holders to opt in or out of the release.”

Prelogar acknowledged that the government’s appeal could postpone the implementation of the plan, which would in turn delay funding for state and local governments and opioid victims. But the “delay is of the Sacklers’ own making,” Prelogar wrote, and in any event the government’s appeal would have relatively limited impact on the payments, which are scheduled to be spread out over several years. She suggested that the court could expedite the appeal by treating the government’s request to freeze the 2nd Circuit’s ruling as a petition for review.

Calling the government’s request “baseless,” Purdue Pharma countered that there is no need for the Supreme Court to intervene. There is no chance, the company assured the justices, that the reorganization plan will be substantially carried out before the Supreme Court can act on the government’s petition for review. Even after the 2nd Circuit’s ruling upholding the confirmation plan, Purdue Pharma explained, there are still additional steps to be taken when the case returns to the lower courts, so that “the earliest the Debtors could emerge from bankruptcy is January 2024, well after this Court is likely to act on the Trustee’s certiorari petition.”

Purdue Pharma downplayed the reorganization’s benefits to the Sacklers, describing them as the “only individuals who have benefitted from the two-year-and-counting delay in implementing the plan.” Instead, the company stressed, there is “overwhelming victim and governmental support for the plan.”

The company suggested that the U.S. Trustee is acting as a “rogue” agent, and it questioned whether the government actually has any interest in the case that would justify the trustee’s request, particularly when the federal government has itself already settled with Purdue. But in any event, it agreed with the government that the “best course” would be for the justices to treat the government’s request for a stay as a petition for review – and then quickly deny it. “[E]very day of delay in distributing” benefits to the victims, the company contended, “exacerbates the harms and literally risks lives.” 

A group of individual victims also opposed the government’s request to block the plan from taking effect, telling the justices that the “notion that the U.S. Trustee speaks on behalf of Personal Injury Victims could not be further from the truth.” The victims, they write, acknowledged that releasing the Sacklers from liability was “necessary to a global settlement that delivers critical value to all opioid-affected communities in America through direct payments to those injured and billions of dollars of abatement funds to prevent further injuries.”

In an order issued on Thursday afternoon, the justices granted the Biden administration’s request to temporarily freeze the 2nd Circuit’s ruling and set the case for oral argument in December. A decision is likely to follow sometime next year. 

This article was originally published at Howe on the Court.

Correction (Aug. 10 at 5:30 p.m.): An earlier version of this article said the bankruptcy court that confirmed the reorganization plan in 2021 was in Delaware. 

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The Supreme Court on Tuesday allowed the Biden administration to temporarily reinstate a rule by the Bureau of Alcohol, Tobacco, Firearms, and Explosives regulating “ghost guns” while a challenge to the rule continues in a federal appeals court. In June, a federal judge in Fort Worth, Texas, had barred the ATF from enforcing the rule anywhere in the United States. Urging the justices to intervene, U.S. Solicitor General Elizabeth Prelogar had told the justices that the order by U.S. District Judge Reed O’Connor was “irreparably harming the public and the government by reopening the floodgates to the tide of untraceable ghost guns flowing into our Nation’s communities.”

The vote was 5-4, with Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh indicating that they would have denied the government’s request and allowed the ban on enforcement of the rule to continue. The ATF issued the rule at the center of the dispute in 2022 to make clear that federal laws governing the sale of firearms – requiring, for example, background checks for purchases and imposing recordkeeping obligations – apply to “ghost guns,” firearms without serial numbers that virtually anyone can assemble with parts that they purchase, often in a kit.

Manufacturers and sellers of ghost gun kits and parts went to court to challenge the rule, arguing that its application to ghost guns was inconsistent with federal firearms laws. On June 30, O’Connor vacated the rule nationwide. The 5th Circuit agreed to fast-track the government’s appeal but rejected the government’s plea to put O’Connor’s ruling on hold, although it did limit his ruling to the parts of the rule that the manufacturers and sellers had specifically challenged. Oral argument in the 5th Circuit is scheduled for Sept. 7.

The Biden administration came to the Supreme Court on July 27, asking the justices to intervene. Prelogar told the justices that while O’Connor’s order remains in effect and ghost guns can be sold without being subject to federal firearms laws, “the damage is done”; law-enforcement officials will not be able to trace those ghost guns in the future. By contrast, she reasoned, allowing ATF to enforce the rule while the appeal continues will not harm the manufacturers of ghost gun kits and parts, who will simply have to comply “with the same straightforward and inexpensive administrative requirements that apply to commercial sales of all other firearms.”

At the very least, Prelogar continued, O’Connor should not have issued a universal injunction barring enforcement of the regulation anywhere in the United States. Universal injunctions, she emphasized, create a range of problems. Because just one judge can invalidate an agency’s actions, she observed, it encourages plaintiffs to seek out judges who might give them a favorable ruling. “And it operates asymmetrically,” she added: Only one set of challengers needs to prevail to block the agency action nationwide, while the government needs to defeat all of the challengers. The ability to issue a universal injunction also effectively gives a single district judge “veto power” over any other pending challenges – of which, in the case of the ghost-guns rule, there are several.

The District of Columbia, joined by 20 states with Democratic attorneys general – filed a brief supporting the Biden administration’s request to freeze O’Connor’s order. They described the 2022 rule as a “vital backstop to states’ efforts to stem the flow of ghost guns and combat the violence engendered by prohibited persons possessing untraceable weapons.”

Calling the phrase “ghost gun” a “propaganda term that appears nowhere in federal law,” the challengers urged the justices to leave O’Connor’s order in place. The Biden administration had not shown, they wrote, “that firearms made by individuals for their own personal use are fueling an increase in crime,” much less that the justices needed to intervene on an emergency basis. But in any event, the challengers continued, ATF went too far when it issued the rule, which “regulate[s] items that are not firearms and which Congress never envisioned it regulating.”

The challengers defended O’Connor’s decision to vacate the rule nationwide. They dismissed the Biden administration’s arguments against universal injunctions as “policy concerns” that cannot supplant Congress’s decision to allow courts to vacate actions by agencies that exceed their authority. “Congress created a cause of action for private litigants under” the federal law governing administrative agencies, they emphasized, “Congress made the judgment that on balance vacatur should be allowed, and Congress remains free to revisit that judgment at any time.” At the very least, the challengers insisted, the justices should let the appellate process play out, particularly when the court of appeals has scheduled oral argument for early September.

In Tuesday’s order, the justices granted the government’s request to put O’Connor’s decision on hold until its appeal in the 5th Circuit and, if necessary, to the Supreme Court, is resolved.

Four members of the court’s conservative bloc – Thomas, Alito, Gorsuch, and Kavanaugh – indicated that they would have rejected the government’s request and allowed O’Connor’s order to remain in place. They did not explain the reasons for their votes.

This article was originally published at Howe on the Court. 

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The Supreme Court on Tuesday left in place a federal appeals court ruling that bars the city of Tulsa from enforcing municipal ordinances against Native Americans. In a brief unsigned order without any public dissents, the justices rejected the city’s request to put a decision by the U.S. Court of Appeals for the 10th Circuit on hold to give the city time to appeal.  

The order came in a case arising from a nearly five-year-old traffic ticket and a dispute over the interpretation of an 1898 law. Justin Hooper, a Tulsa resident and a member of the Choctaw Nation, was driving on the Muscogee Creek Nation, but within the Tulsa city limits, in 2018 when he received a speeding ticket.

Hooper paid the $150 fine. But two years later, the Supreme Court ruled in McGirt v. Oklahoma that a large portion of eastern Oklahoma remains an Indian reservation, so that state and local governments cannot prosecute Native Americans who commit crimes on the reservation. Hooper sought to have the ticket thrown out after the court’s decision in McGirt, arguing that the city does not have the power to prosecute Native Americans for crimes that they commit within city limits but on reservations.

The city countered that the Curtis Act of 1898, a federal law that provided a path for cities and towns in what was then known as “Indian Territory” to incorporate themselves, made clear that the laws and ordinances of those cities and towns applied to all residents, “without regard to race.” That provision is still in effect today, the city contended, giving it the power to prosecute violations of city ordinances by Native Americans, even when they occur within the boundaries of Native American reservations.

But on June 28, the 10th Circuit rejected Tulsa’s argument. It agreed with the city that, when it was enacted, the Curtis Act gave the power to prosecute violations of municipal ordinances to municipalities in Indian Territory, like Tulsa, that were organized under a pre-statehood process base on the laws of neighboring Arkansas. But once Oklahoma became a state in 1907 and Tulsa reorganized under Oklahoma law, the court of appeals explained, the Curtis Act’s grant of power over violations of municipal laws committed by its Native American residents no longer applied to Tulsa.

The city asked the court of appeals to put its ruling, which was scheduled to go into effect on July 26, on hold to give it time to go to the Supreme Court, but the 10th Circuit declined to do so.

The city came to the Supreme Court on July 24, asking the justices to intervene. Two days later, Justice Neil Gorsuch, who fields emergency appeals from the 10th Circuit, issued a temporary stay of the lower court’s decision while the justices considered the city’s request.

Kristina Gray, a lawyer in the city attorney’s office, told the justices that the 10th Circuit’s ruling “creates a potentially dangerous situation” for Tulsa residents, because the city can enforce its laws “against some citizens but not others.” Indeed, Gray said, the lower court’s decision “has already caused Indian residents to challenge and confront Tulsa Police officers at traffic stops” about their “perceived lack” of authority.

The 10th Circuit’s ruling will also make traffic stops longer and more complicated, Gray suggested. Police officers will now have to ask whether the driver is a Native American, she explained. If the driver is a Native American, police will then have to confirm that fact, determine whether the stop occurred within the boundaries of a reservation, determine which tribal law applies, and then write a paper citation.

Hooper urged the justices to leave the 10th Circuit’s decision in place. He emphasized that the lower court “got it exactly right in concluding” that the Curtis Act no longer gives cities like Tulsa the power to prosecute municipal violations by Native Americans that occur on reservations.

A “friend of the court” brief from several Native American tribes echoed Hooper’s plea. It dismissed the city’s claims “of widespread municipal disruption” if it cannot prosecute Native Americans for violations of city ordinances as “conjectural, anecdotal, and hyperbolic.” The city, the tribes stressed, “has been aware since” the court’s decision in McGirt “that it lacks jurisdiction over Indians.” And in any event, the tribes added, the city has agreements in place to refer crimes to the tribes for prosecution – something it could presumably do for traffic violations as well.

Justice Brett Kavanaugh penned a short opinion, joined by Justice Samuel Alito, regarding the court’s decision to deny the city’s request. Kavanaugh acknowledged that the city’s “application for a stay raises an important question.” But, he observed, the dispute is only in its preliminary stages and will now return to the district court. When it reaches that court, he noted, the city can raise an argument made by Oklahoma in a “friend of the court” brief in the court of appeals – that under the Supreme Court’s 2022 decision in Oklahoma v. Castro-Huerta there is a presumption that city has the power to prosecute violations of its laws.

This article was originally published at Howe on the Court. 

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The Supreme Court on Tuesday night refused to stay the execution of Johnny Johnson, scheduled for 6 p.m. CDT. The court’s liberal justices dissented from the decision to allow the execution to go forward, with Justice Sonia Sotomayor arguing that Johnson was entitled to a hearing to determine whether he is mentally competent to be executed. “There is no moral victory,” Sotomayor wrote, “in executing someone who believes Satan is killing him to bring about the end of the world.”

Johnson was executed by lethal injection and pronounced dead at 6:33 p.m. CDT.

Johnson was sentenced to death for the 2002 attempted rape and murder of six-year-old Casey Williamson. Johnson argued that executing him would violate the Eighth Amendment’s ban on cruel and unusual punishment because he suffers from serious mental illness and does not understand the reason for his execution.

After the Missouri Supreme Court declined either to put his execution on hold or to give him a hearing to develop his claims, Johnson went to federal court. The U.S. Court of Appeals for the 8th Circuit initially put his execution on hold, but the state appealed to the full court, which lifted the stay on Saturday.

Johnson came to the Supreme Court on Monday, asking the justices to put his execution on hold and take up his appeal. In a pair of brief unsigned orders issued shortly before 5:30 p.m. CDT, the justices declined to do so.

In a 10-page opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, Sotomayor contended that, under the Supreme Court’s case law, Johnson was entitled to a hearing on his competency to be executed because he had provided “extensive threshold evidence of incompetency — including voluminous medical records documenting his decades-long struggle with mental illness and a 55-page report from his psychiatrist.” Instead, she complained, the court’s orders “pave[] the way to execute a man with documented illness before any court meaningfully investigates his competency to be executed.”

This article was originally published at Howe on the Court. 

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The Supreme Court on Thursday cleared the way for the completion of the Mountain Valley Pipeline, a controversial $6.6 billion natural-gas pipeline spanning just over 300 miles, from West Virginia’s northwestern border to southern Virginia. In a brief unsigned order, the justices lifted orders by the U.S. Court of Appeals for the 4th Circuit that had put construction in the Jefferson National Forest, in southern Virginia, on hold while challenges from environmental groups to the construction continue. There were no recorded dissents.

Thursday’s order by the Supreme Court was the latest chapter in the long-running dispute over construction of the pipeline, which began in 2018 and is – according to the pipeline company – nearly finished. The company contends that finishing the pipeline will provide a more reliable supply of natural gas at reasonable prices, while environmental groups counter that the project will harm waterways that are the home of endangered fish species.

As the dispute came to the Supreme Court, it centered on legislation enacted earlier this year by Congress to expedite the pipeline’s completion. On June 3, President Joe Biden signed the Fiscal Responsibility Act of 2023, a law passed to raise the federal debt ceiling. As a concession to Sen. Joe Manchin, a West Virginia Democrat, the act also included a provision that ordered federal agencies to issue any permits needed to complete the pipeline. That provision, Section 324 of the act, also stripped federal courts of the power to review challenges to those permits and channeled all challenges to the constitutionality of the act to the U.S. Court of Appeals for the District of Columbia Circuit.

But on July 10, the U.S. Court of Appeals for the 4th Circuit put construction on hold while litigation over the project continued; the 4th Circuit heard oral arguments in that challenge beginning at 10 a.m. on Thursday morning.

Mountain Valley Pipeline came to the Supreme Court on July 14. It asked the justices both to lift the 4th Circuit’s “extraordinary” orders stopping the company from completing construction on the pipeline and to make clear that the 4th Circuit did not have the power to issue those orders in the first place.

Time was of the essence, Mountain Valley Pipeline told the court, because the company has only “three months to complete the Pipeline before winter weather sets in and precludes significant construction tasks until the spring of 2024.” Keeping construction on hold, the company warned, will actually harm the environment because the earth is already disturbed; completing it will allow the environment to be “fully restored.”

And there is no dispute, the company insisted, that under Section 324, these challenges to the construction should be dismissed. The environmental groups’ only real argument, the company said, is that Section 324 is unconstitutional. But Section 324 specifically tasked the D.C. Circuit, rather than the 4th Circuit, with making that decision, the company emphasized.  

The Biden administration agreed with the company that the 4th Circuit’s orders should be lifted. Section 324, Solicitor General Elizabeth Prelogar wrote, makes clear that the 4th Circuit did not have the power to temporarily block action by federal agencies allowing construction to go ahead. The court of appeals also lacked the power even to decide whether Section 324 is constitutional – which, Prelogar insisted, it is.

The environmental groups seeking to stop the pipeline urged the justices to leave the lower court’s orders in place. Emphasizing that the “effects of construction activities could be disastrous,” particularly for endangered species in the area where construction will take place, the groups stressed that, by contrast, the only harm to Mountain Valley Pipeline from allowing the process to play out in the court of appeals would be a “temporary financial loss.”

The groups maintained that Section 324 does not preclude the 4th Circuit from putting the pipeline construction on hold. Characterizing Section 324 as the product of a back-room deal brokered by lobbyists, the groups argued that the law violates the constitutional separation of powers – that is, it improperly infringed on the power of the courts. Congress, the groups wrote, cannot instruct federal courts “to reach particular results in particular pending cases,” but that is precisely what Congress did with Section 324.

The groups rejected any suggestion that Section 324 also bars the 4th Circuit from weighing in on its constitutionality. Section 324, they told the justices, only channels claims alleging that it is unconstitutional to the D.C. Circuit; it does not preclude the 4th Circuit, in this case, from considering their argument that the statute is unconstitutional – particularly when the text of Section 324 makes clear that it only applies to cases filed after the law was enacted.

In a one-paragraph order issued after the arguments in the 4th Circuit had already begun, the Supreme Court granted the pipeline’s request to lift the stay orders imposed by the lower court. The court did not grant the pipeline’s plea to direct the 4th Circuit to dismiss the environmental groups’ challenges altogether, but the justices left open the possibility that the pipeline could renew that request in the future.

This article was originally published at Howe on the Court.

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On Friday morning the Supreme Court declined to block the execution of James Barber, who was sentenced to death in 2003 for the brutal murder of 75-year-old Dorothy Epps. Barber died by lethal injection at a prison in southern Alabama a few hours later. Barber’s execution followed a trio of botched lethal injections in 2022, two of which went so badly that they were eventually called off.  

The court’s three liberal justices dissented from the decision to allow Barber’s execution to proceed. In an 11-page opinion joined by Justices Elena Kagan and Ketanji Brown Jackson, Justice Sonia Sotomayor wrote that the court’s “decision denying Barber’s request for a stay allows Alabama to experiment again with a human life.”

Barber came to the Supreme Court on Thursday afternoon, asking the justices to block Alabama from executing him by lethal injection. In the wake of the three botched executions in 2022, Alabama Gov. Kay Ivey had ordered a moratorium on executions by lethal injections, as well as a review of the state’s lethal injection protocol. However, Barber contended, that review “led to no meaningful changes” in the protocol other than an extension of the time to set an IV line for the lethal injection.

Barber argued that executing him by lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment. He had a “history of medical personnel being unable to access his veins, as well as physical conditions that” increase his risk for experiencing additional pain. In light of the botched 2022 executions and the failure by the Alabama Department of Corrections in its review to take any real steps to address the problems in its lethal injection protocol, Barber contended, he faced a substantial risk of serious harm at the state’s hands, and should be executed by nitrogen gas instead.

In a brief unsigned order issued shortly after 1 a.m. on Friday morning, the Supreme Court turned down Barber’s request to intervene.

Emphasizing that the “Eighth Amendment demands more than the State’s word that this time will be different,” Sotomayor criticized Alabama’s lack of transparency in its internal review of its lethal injection protocol. “Clearly,” she wrote, “something went wrong in Alabama in 2022.” But the state’s “top-to-bottom review” did not produce a published report; instead, she noted, it yielded only a “one-and-a-half page letter to the Governor, without reporting any flaws or explanations for the prior failures.”

The “piecemeal changes” that the corrections department did make in response to the review, Sotomayor added, “appear designed only to ensure that” it “has an even greater period of time in which to search the bodies of its prisoners for IV access. They do not address the unnecessary pain those prisoners may experience.” “Without any evidence about what went wrong and only the State’s word that it has been fixed,” Sotomayor concluded, “Barber’s allegations that he will experience the same ‘needless suffering’ as” the prisoners in the 2022 executions “are more than justified.”

Sotomayor also flagged what she characterized as a broader problem with the court’s decisions allowing executions to go forward. In particular, she suggested, when the Supreme Court lifts stays of execution that the lower courts have granted, the lower courts rely on those rulings, even when they are only brief, unsigned orders that do not contain any legal reasoning, to reach erroneous conclusions. If the Supreme Court continues to do so, she wrote, some questions arising from executions “may never be answered.”

John Hamm, the commissioner of the Alabama Department of Corrections, said after Barber’s execution that medical personnel were able to set two IV lines – one in each of his hands – within six minutes.

Steve Marshall, the state’s attorney general, said in a statement that Barber was pronounced dead at 1:56 a.m. central time on Friday. “Justice has been served,” Marshall said.

This article was originally published at Howe on the Court.

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The Supreme Court put the execution of Richard Glossip on hold on Friday afternoon to give the justices time to consider the Oklahoma man’s appeals. Glossip was scheduled to be executed on May 18. The court’s brief unsigned order came four days after Oklahoma Attorney General Gentner Drummond filed a highly unusual brief supporting Glossip’s request to stay his execution. Drummond explained that state officials now believe that Glossip’s conviction should not stand and that it would be “unthinkable” to allow his execution to go forward – but that the Oklahoma courts nonetheless refused to block the execution.  

Glossip was sentenced to die for the 1997 murder of Barry Van Treese, who owned the Oklahoma City motel where Glossip worked as a manager. Justin Sneed, a handyman at the motel, told jurors that Glossip paid him $10,000 to kill Van Treese. Sneed’s testimony was the only evidence implicating Glossip; in exchange, prosecutors assured Sneed that he would not be sentenced to death.

In March of this year, Glossip filed a new petition for post-conviction relief, seeking to set aside his conviction and sentence. He pointed to new information – primarily notes from prosecutors – that he had received for the first time in January, indicating that Sneed had testified falsely about whether he had seen a psychiatrist. In fact, Sneed had been treated by a prison psychiatrist for bipolar disorder and had been prescribed lithium. 

On April 3, an independent counsel appointed by Drummond to review Glossip’s case urged the state to vacate his conviction. Rex Duncan, a former district attorney in Oklahoma, wrote that he believed that “Glossip was deprived of a fair trial in which the State can have confidence in the process and result.” There were so many errors in that process, Duncan stressed, both at trial and on appeal, that a new trial was necessary.

In the wake of Duncan’s report, Drummond joined Glossip in asking the Oklahoma Court of Criminal Appeals, the state’s highest court for criminal cases, to set aside Glossip’s conviction, but that court rejected the request on April 20. Less than a week later, by a vote of 2-2, the state’s Pardon and Parole Board turned down Glossip’s request for clemency, which the attorney general – apparently for the first time in the state’s history – had also supported.

Glossip came to the Supreme Court last week, asking the justices to put his execution on hold to give them more time to consider his appeals.

In an 11-page filing on May, Drummond – joined on the brief by Paul Clement, who served as the U.S. solicitor general during the George W. Bush administration – noted that he “does not agree with everything Glossip has said in this case or in this Court and [he] continues to oppose” an earlier petition for review, filed in January. But, Drummond continued, he was “troubled” by the state’s failure to correct Sneed’s false testimony about whether he had seen a psychiatrist. Because he had “reached the difficult conclusion that the conviction of Glossip was obtained with the benefit of material misstatements to the jury by the State’s key witness,” Drummond explained, he planned to agree with Glossip that the court should review the most recent ruling by the Oklahoma Court of Criminal Appeals, rejecting Glossip’s request to set aside his sentence.

Friday’s order was not the first time that the Supreme Court has agreed to put Glossip’s execution on hold. In 2015, the court blocked his execution so that it could consider a challenge to Oklahoma’s lethal-injection protocol. In that case, Glossip v. Gross, the court eventually rejected the challenge by a vote of 5-4.

Justice Neil Gorsuch did not participate in Friday’s order, presumably because he was part of the panel that ruled on Glossip’s lethal-injection challenge while he was still a judge on the U.S. Court of Appeals for the 10th Circuit.

This article was originally published at Howe on the Court.

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The Supreme Court on Friday night granted a request from the Biden administration and a drug manufacturer to put on hold a ruling by a federal judge in Texas that suspended the Food and Drug Administration’s approval of mifepristone, part of a two-drug protocol used to end pregnancies in their early stages. The battle over medication abortions, which account for over half of all abortions performed in the United States each year, now returns to the U.S. Court of Appeals for the 5th Circuit, which is scheduled to hear oral argument in the case next month. The order means that the drug will remain widely available while litigation continues.

Two justices indicated that they would have denied the requests. Justice Clarence Thomas did not elaborate on his reasoning, but Justice Samuel Alito penned a four-page dissent in which he questioned the need for the court to act now.

The FDA originally approved mifepristone, which is also known as RU-486 or Mifeprex, in 2000. In the United States, the drug is used in conjunction with the drug misoprostol: Mifepristone blocks the effects of the hormones necessary to maintain a pregnancy, while misoprostol causes the uterus to contract, expelling the pregnancy. 

A group of doctors and medical groups opposed to abortion went to a federal district court in Texas last year. Arguing that the drug regimen was “unsafe,” they sought to have the FDA’s approval of mifepristone rescinded.

Based on where it was filed, the case was automatically assigned to Judge Matthew Kacsmaryk, who has issued a number of conservative rulings since he was appointed to the federal bench by President Donald Trump in 2017. Kacsmaryk agreed with the challengers. Finding that the FDA approved mifepristone despite “legitimate safety concerns,” Kacsmaryk suspended the agency’s approval of the drug, as well as the FDA’s later changes to the conditions on the use of the drug, which included allowing the drug to be used through the 10th week of pregnancy, reducing the number of in-person clinic visits, and allowing health-care providers who are not physicians to prescribe the drug. He put his order on hold for seven days, until April 14, to give the government time to appeal. 

When the Biden administration asked the 5th Circuit to put Kacsmaryk’s order on hold, that court blocked only the part of the judge’s order suspending the FDA’s initial approval of mifepristone. But it refused to disturb the rest of Kacsmaryk’s order, which invalidated the FDA’s subsequent changes to the conditions on the drug’s use to expand access to it. 

The Biden administration went to the Supreme Court immediately, asking the justices to keep Kacsmaryk’s order entirely on hold to preserve the status quo while the government’s appeal continues in the 5th Circuit. 

U.S. Solicitor General Elizabeth Prelogar called the lower courts’ orders “unprecedented,” complaining that they “countermand[ed] FDA’s scientific judgment and unleash[ed] regulatory chaos by suspending the existing FDA-approved conditions of use for mifepristone.” 

And although the 5th Circuit’s order partially blocked Kacsmaryk’s order, Prelogar explained, even allowing that aspect of the ruling to remain in effect would effectively keep the drug off the market as well, because (among other things) neither the current labeling nor the generic version would be approved. 

Danco Labs, the company that distributes mifepristone, filed its own request to block Kacsmaryk’s order. It described itself as being in an “untenable limbo”. Without the FDA approvals of mifepristone in place, it explained, it cannot legally market and distribute the drug. But at the same time, it noted, an order by a federal judge in Washington state bars the FDA from withdrawing mifepristone from the market. 

The challengers countered that, for decades, the FDA “has stripped away every meaningful and necessary safeguard on chemical abortion, demonstrating callous disregard for women’s well-being, unborn life, and statutory limits.” The lower courts’ orders suspending approval of mifepristone and the conditions on its use, they say, do not “second-guess the agency’s scientific determinations” but instead “merely require the agency to follow the law.” 

The challengers also pushed back against the suggestion that keeping the 5th Circuit’s order in place will lead to chaos and effectively remove mifepristone from the market. Allowing the Fifth Circuit’s order to remain in place, they wrote, would simply mean that “women will still have access to chemical abortion drugs under the same restrictions that existed for the first 16 years of mifepristone’s use.” And in “a world where drug manufacturers can take a new vaccine from laboratory to market in a matter of months, it is disingenuous to say labels and documents that already exist cannot speedily be deployed,” they concluded.  

On Friday, April 14, Alito had issued an administrative stay – that is, an order that continues to keep Kacsmaryk’s ruling on hold to give the court time to rule on the Biden administration’s request. The administrative stay was scheduled to expire at 11:59 p.m. on Wednesday. But on Wednesday afternoon, Alito extended the existing administrative stay until 11:59 p.m. on Friday.

In a brief, unsigned order issued just after 6:30 p.m. on Friday, the court granted the request to freeze Kacsmaryk’s ruling until the proceedings in the 5th Circuit and, if necessary, the Supreme Court have concluded.

Alito would have left the 5th Circuit’s ruling in place while the appeal continued. Doing so, he reasoned, would “not remove mifepristone from the market” but instead “simply restore the circumstances that existed (and that the Government defended) from 2000 to 2016.” And with oral argument in the 5th Circuit scheduled in less than a month, he added, “there is reason to believe that they would get the relief they now seek—from either the Court of Appeals or this Court—in the near future if their arguments on the merits are persuasive.”

Alito criticized the FDA, accusing it of trying to “leverag[e]” the order in the Washington state case to create the “chaos” it said would ensue if even the 5th Circuit’s order were allowed to go into effect. Although the Washington court prohibited the FDA from withdrawing the drug from the market, Alito observed, “the FDA had never hinted it was contemplating” doing so. Moreover, Alito added, the FDA did not appeal the Washington court’s order, while at the same time opposing a request by seven states that might have appealed to intervene.

Alito was equally dismissive of Danco’s argument that, under the 5th Circuit’s order, it could not market mifepristone with its current labeling. That would only be a problem, Alito wrote, if “the FDA elected to use its enforcement discretion to stop Danco,” and there is “no reason to believe the FDA would make that choice.”

This article was originally published at Howe on the Court.

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The Supreme Court on Wednesday revived the case of a man on death-row in Texas who is seeking DNA testing to provide evidence that he asserts will clear him. By a vote of 6-3, the justices reversed a ruling by the U.S. Court of Appeals for the 5th Circuit that Rodney Reed had filed his challenge to the Texas law governing DNA testing too late.

Justice Brett Kavanaugh wrote the court’s six-page opinion, which was joined by Chief Justice John Roberts, Justice Amy Coney Barrett, and the court’s three liberal justices – Justices Sonia Sotomayor, Elena Kagan, and Ketanji Brown Jackson. Justice Clarence Thomas dissented in a solo opinion; Justice Samuel Alito dissented in an opinion joined by Justice Neil Gorsuch.

Reed was sentenced to death for the 1996 rape and murder of Stacey Stites. He has insisted that he was in a secret relationship with Stites and did not kill her. Instead, he suggested, Stites’ fiancé, a white police officer, had found out about her relationship with Reed, who is Black, and was actually responsible for her death.

Reed went to state court, seeking to have DNA testing conducted on several items found on or near Stites’ body and in the truck she often drove. When those efforts were unsuccessful, Reed then went to federal court in Texas, where he argued that the Texas law governing post-conviction DNA testing violates his right to due process by requiring him to comply with unconstitutional procedures before he can use the testing.

The U.S. Court of Appeals for the 5th Circuit ruled that Reed should have filed his lawsuit within two years of the trial court’s decision denying his request for DNA testing. On Wednesday, the court reversed that decision.

Both Reed and Texas agree, Kavanaugh observed, that the statute of limitations for his claim is two years. The question before the Supreme Court is when the clock on that two-year statute of limitations began to run. Normally, Kavanaugh explained, that occurs when a plaintiff has a “complete and present cause of action” – that is, when the plaintiff can actually file a lawsuit and obtain relief.

Reed contends that the state’s process to consider his request for DNA testing was fundamentally unfair, Kavanaugh wrote. Therefore, Kavanaugh continued, in this case, Texas’s “alleged failure to provide Reed with a fundamentally fair process was complete,” and the statute of limitations began to run, only once “the state litigation ended and deprived Reed of his asserted liberty interest in DNA testing.” That end, Kavanaugh wrote, came when the Texas Court of Criminal Appeals denied Reed’s motion for rehearing on his request for DNA testing, making Reed’s federal lawsuit timely.

Such a rule, Kavanaugh reasoned, makes sense, particularly when compared with the consequences of the state’s proposed rule. If the statute of limitations began to run after the state court denied a request for DNA testing, then the plaintiff would likely file his federal claim even while his state appeals continued, leading to “senseless duplication.” And allowing the state appeals process to play out could focus or even eliminate the need for a federal lawsuit, Kavanaugh added.

Thomas argued in dissent that, even if Reed had filed his federal challenge on time, the district court did not have the power to review Reed’s claim because his lawsuit boils down to an appeal of the judgment of the Texas Court of Criminal Appeals – which does not fall within the federal courts’ jurisdiction.

Alito, joined by Gorsuch, disagreed more directly with the core of the majority’s decision. He conceded that there is “room for debate about exactly when Reed’s DNA testing claim accrued.” But Alito was unconvinced in particular that the statute of limitations begins to run when a state’s highest court refuses to rehear and overturn its interpretation of the state testing statute. At the very least, Alito concluded, the limitations period begins to run when the highest state court issues that interpretation in the first place. “One need not have ‘supernatural foresight,’” Alito posited, “in order to predict that rehearing is unlikely to be granted. And it is hard to see how requiring” plaintiffs like Reed “to sue within two years after a state high court decision is issued is unfair.”

This article was originally published at Howe on the Court.

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In a brief order, the Supreme Court continued to place on hold a trial judge’s ruling blocking the FDA’s approval of mifepristone, one of two drugs used in medication abortions. Wednesday’s order extends the court’s “administrative stay” – i.e., a stay designed to give the justices time to consider the request – of the trial judge’s ruling until Friday at midnight. The justices are extremely likely to issue a further ruling before the administrative stay expires.

A court of appeals already put part of the trial judge’s ruling on hold. But the Biden Administration and the drug’s manufacturer asked the Supreme Court to block it entirely. That is the request now pending before the justices.

The court’s extension of its administrative stay is unusual. That suggests that exchanges are ongoing between the justices. For example, the court could be preparing its own opinion or nuanced stay order. Or one or more justices may be writing opinions supporting or dissenting from a stay ruling. 

The court has several options before it, both with respect to the stay and with how the appeal of the trial court’s ruling proceeds. Regarding the stay, the Supreme Court could entirely block the trial judge’s ruling or permit it to go forward, or adopt some middle ground as the court of appeals has. Regarding the appeal, the justices could allow the case to proceed in the court of appeals or take the case up themselves immediately.

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