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 The Sacklers, who had withdrawn approximately $11 billion from the company, agreed to contribute approximately $4.5 billion to fund the plan; in exchange, the Sackler family would be released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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This article was updated on Aug. 10 at 11:10 a.m.

Lawyers for a self-appointed civil rights “tester” have asked the Supreme Court to dismiss her case as moot – that is, no longer a live controversy. Deborah Laufer, who has physical disabilities and vision impairments, told the justices that she has voluntarily dismissed her case in the district court after an attorney who represented her in other cases was disciplined by a federal court in Maryland. But lawyers for the hotel company that Laufer is suing urged the justices to go ahead and decide the case, telling them that they “should not pull the rug out from under” the company “when it is on the cusp of its day in this Court.”

In a brief unsigned order on Aug. 10, the court declined to dismiss the case. The justices indicated, however, that they could still consider whether the case is moot at the oral argument on Oct. 4. 

Laufer filed her lawsuit in federal court in Maine against Acheson Hotels, alleging that the website for an inn that Acheson operates there did not contain enough information about the inn’s accommodations for people with disabilities. That dearth of information, she contended, violated the Americans with Disabilities Act.

The district court threw out Laufer’s lawsuit, holding that she did not have a legal right to sue because she had no plans to visit the hotel and therefore was not injured by the lack of information on the hotel’s website. But when the U.S. Court of Appeals for the 1st Circuit reinstated her lawsuit, Acheson Hotels went to the Supreme Court, which agreed to decide whether Laufer can sue. The case is scheduled for oral argument on Oct. 4.

In its brief on the merits, filed on June 5, Acheson Hotels renewed its argument that Laufer does not have a legal right to bring the lawsuit. It argued that, in any event, the case should be dismissed because the hotel’s website now indicates that its rooms are not accessible for people with disabilities, so that Laufer has received the information she sought.

In a 10-page filing earlier this week, lawyer Kelsi Brown Corkran of the Georgetown University Law Center asked the justices to dismiss Laufer’s case as moot. Corkran cited recent disciplinary proceedings in a federal court in Maryland against Tristan Gillespie, who has filed over 600 lawsuits under the ADA on behalf of Laufer and other “testers.”

A report issued on June 30 by three federal judges recommended that Gillespie be suspended from practicing before the Maryland court for six months. It noted that Gillespie had filed as many as 16 “tester” complaints in one day, each seeking $10,000 in attorneys’ fees even though it was “highly improbable” that he had actually spent that much time on each lawsuit. The report found that Gillespie had violated the rules governing the conduct of lawyers “not once, or twice, but hundreds of times,” and that he had “litigated his cases with his clients as an afterthought” – failing, for example, to keep his clients up to date on settlement agreements or to inform them of his decision to dismiss over 100 cases when facing the prospect of disciplinary action.

In considering factors that might weigh in favor of a lighter sanction for Gillespie, the report acknowledged that Gillespie had not acted on his own, but instead “at the direction of his boss, Thomas B. Bacon,” who represented Laufer in the 1st Circuit and in opposing Supreme Court review. (Corkran’s filing indicates that Bacon no longer represents Laufer in the Supreme Court.) The panel believed that Gillespie had “joined a pre-existing scheme that raises serious ethical concerns—including repeat clients, a compromised investigator, and a method for extracting unwarranted attorneys’ fees from targeted hotels based on a well-worn settlement script.”

Gillespie was not involved in the dispute that is currently before the Supreme Court, Corkran told the justices, while Corkran and her team only became involved in the case after the justices granted review. But Laufer nonetheless opted to voluntarily dismiss her case in the district court so that the allegations against Gillespie do not become a distraction “from the merits of her ADA clams and everything she has sought to achieve for persons with disabilities like herself.” Because she has dismissed her district court case, Corkran contended, there is no longer a live controversy for the Supreme Court to decide. And because Laufer is responsible for the fact that there is no longer a case for the justices to decide, Corkran continued, the 1st Circuit’s decision in her favor should not stand.

Adam Unikowsky, the lawyer for Acheson Hotels, countered that it would be “extraordinarily unfair to” the company, as well as a “disaster for the rule of law,” to dismiss the case now. “Laufer’s litigation program,” Unikowsky contended, “was recently revealed to have been an unethical extortionate scheme, and the unapologetic purpose of Laufer’s effort to moot this case is to ensure that she or similar plaintiffs can continue pursuing similar schemes” by avoiding a ruling from the Supreme Court in Acheson’s favor, which would block all such “test” cases nationwide.

If Laufer’s case is dismissed, Unikowsky suggested, Acheson could be sued again, even though it has spent substantial resources defending against her lawsuit. And more broadly, he added, it will “set the precedent that it is perfectly fine for the plaintiff to abandon her case at the last minute to avoid an adverse ruling.”

There is no specific timetable for the justices to act on Laufer’s request. Laufer’s brief on the merits is due on Aug. 2.

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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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Just two weeks after the justices finished releasing their opinions from the 2022-23 term, the court is now looking ahead to next term. The Supreme Court on Friday released the calendar for its October oral argument session. The justices will hear just six cases over five days between Oct. 2 and Oct. 11. The session will, however, include several high-profile cases, such as the challenge to a purported racial gerrymander in South Carolina’s congressional map and a challenge to the constitutionality of the law providing funding for the Consumer Financial Protection Bureau.

The justices will hear argument in Consumer Financial Protection Bureau v. Community Financial Services Association on Oct. 3, the second day of the session. The case began as a challenge by the payday-lending industry to a CFPB rule that barred lenders from trying to withdraw payments from borrowers’ bank accounts after two unsuccessful attempts due to lack of funds in the accounts.

The U.S. Court of Appeals for the 5th Circuit struck down the rule. It explained that the CFPB was receiving its funding directly from the Federal Reserve, which collects fees from member banks, rather than through money allocated to it by Congress through the normal appropriations process. And that, the court of appeals reasoned, violates the Constitution’s appropriations clause, which directs that “[n]o Money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law.”

The CFPB asked the justices to take up the case, warning that the 5th Circuit’s ruling “calls into question virtually every action the CFPB has taken in the 12 years since it was created,” and the justices agreed to do so in February.

In Alexander v. South Carolina Conference of the NAACP, the justices will consider a challenge to the congressional redistricting map that South Carolina’s Republican-controlled legislature enacted after the 2020 census. A three-judge panel ruled earlier this year that the state’s 1st congressional district, which is now represented by Republican Nancy Mace, was an unconstitutional gerrymander because the legislators had deliberately moved tens of thousands of Black voters to a different district in order to make the district a safe seat for Republicans. The panel ordered the state to draw a new map.

The legislators appealed to the Supreme Court, telling the justices that that they had focused on politics, rather than race, in drawing the district. Allowing the lower court’s decision to stand, they said, would put future legislatures in an “impossible bind.” But the challengers countered that the legislators’ reliance on race was “impermissible even if mapmakers used race as a proxy for politics.”

Here’s the full list of cases scheduled for argument in the October 2023 argument session:

Pulsifer v. United States (Oct. 2) – How should courts interpret the federal sentencing law that allows a defendant convicted of some nonviolent drug crimes to avoid what would otherwise be a mandatory minimum sentence?

Consumer Financial Protection Bureau v. Community Financial Services Association (Oct. 3) – Whether the funding scheme for the CFPB is constitutional.

Acheson Hotels v. Laufer (Oct. 4) – Whether a civil rights “tester” can bring a lawsuit challenging a hotel’s failure to provide information about its accessibility for people with disabilities when the “tester” has no intention of actually visiting that hotel.

Murray v. UBS Securities (Oct. 10) – What showing must an employee alleging discrimination make under the whistleblower protection provision of the Sarbanes-Oxley Act, which bars publicly traded companies from discriminating against employees who report wrongdoing?

Great Lakes Insurance v. Raiders Retreat Realty (Oct. 10) – Whether, under federal admiralty law, a choice-of-law clause in a maritime contract can be rendered unenforceable if enforcement is contrary to the “strong public policy” of the state whose law is displaced.

Alexander v. S.C. Conference of the NAACP (Oct. 11) – Whether South Carolina’s congressional redistricting map constitutes an illegal racial gerrymander.

This article was originally published at Howe on the Court.

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The Supreme Court agreed to decide what protections Title VII of the Civil Rights Act of 1964 provides to employees who contend they were the victim of a discriminatory transfer. The justices announced on Friday that they had granted review in Muldrow v. St. Louis and six other cases, two of which will be argued together. (I covered one of those cases, United States v. Rahimi, in a separate article.)

The question comes to the court in the case of Jatonya Muldrow, a sergeant with the St. Louis Police Department. She filed a lawsuit against the department, alleging that she was the victim of sex discrimination because she was involuntarily transferred from her position in the Intelligence Division to a patrol position because her supervisor wanted to hire a man for her job. The U.S. Court of Appeals for the 8th Circuit ruled for the police department, reasoning that Muldrow’s transfer had not resulted in a significant employment disadvantage for her.

Muldrow went to the Supreme Court, asking the justices to take up her case. After considering the cases at a conference in early January, the justices sought the Biden administration’s views. In a brief filed last month, the Biden administration urged the justices to grant review. U.S. Solicitor General Prelogar told the court that the rulings by the U.S. Court of Appeals for the 8th Circuit had “no foundation in Title VII’s text, structure, or purpose.”

After considering the case again at two conferences in June, the justices agreed to take up the case. But they instructed Muldrow and the city of St. Louis to brief a slightly narrower question than Muldrow had asked them to decide – whether Title VII bars discrimination in transfer decisions if a court has not determined separately that the transfer decision caused a significant disadvantage.

The other cases (in addition to Rahimi) in which the court granted review are:

• Wilkinson v. Garland, in which the justices will consider whether federal courts have the power to review an agency’s determination that a noncitizen did not meet the “exceptional and extremely unusual” hardship requirement to cancel deportation;
• Campos-Chaves v. Garland and Garland v. Singh (consolidated for one hour of oral argument), in which the justices will consider notice requirements in immigration cases;
• McElrath v. Georgia, in which the justices will consider double jeopardy issues in the case of a Georgia man who was found not guilty by reason of insanity on one charge arising from the stabbing death of his mother, while he was found guilty but mentally ill on another charge. The Georgia Supreme Court threw out both of the jury’s verdicts and sent the case back for a new trial on both charges. McElrath argues that the Constitution’s ban on double jeopardy bars the state from trying him again on the charge on which he had been acquitted.
• SEC v. Jarkasy, in which the justices will review a ruling by the U.S. Court of Appeals for the 5th Circuit finding constitutional defects in the agency’s enforcement proceedings.

Several denials of review garnered separate writings by one or more justices.

In McClinton v. United States, the justices declined to decide whether the Constitution bars federal courts from basing a criminal defendant’s sentence on conduct for which he was acquitted. The question came to the court in the case of Dayonta McClinton, who was convicted for his role in the armed robbery of a CVS pharmacy. Although the jury found that McClinton was not guilty of the shooting death of one of his accomplices, Malik Perry, during a dispute over dividing up the drugs that they stole, the judge nonetheless relied on Perry’s death to increase McClinton’s sentence for the robbery charges. McClinton was sentenced to 19 years in prison – a sentence three times longer than he would have otherwise received. Justice Sonia Sotomayor wrote a statement in which she indicated that the denial of review in McClinton’s case and others presenting similar issues “should not be misinterpreted.” She explained that the U.S. Sentencing Commission will consider questions relating to acquitted-conduct sentencing next year. But if it “does not act expeditiously or chooses not to act,” she wrote, the court may need to step in.

Justice Brett Kavanaugh wrote a short statement that was joined by Justices Neil Gorsuch and Amy Coney Barrett. He echoed Sotomayor’s admonition that the denial of review “should not be misinterpreted.” But because the question is before the Sentencing Commission now, he stressed, the court should wait before granting review.

In a six-page opinion concurring in the denial of review, Justice Samuel Alito outlined some of the arguments against McClinton’s position. In particular, he noted, federal criminal laws in the late 18th century “often gave sentencing judges the authority to impose any sentence that fell within a prescribed range, and in exercising that authority, judges necessarily took into account facts that the jury had not found at trial.”

The court denied review in Roberts v. McDonald, a lawsuit seeking to bar New York and New York City from considering race or ethnicity in connection with the allocation of COVID-19 treatments. In a statement regarding the denial of review joined by Justice Clarence Thomas, Alito wrote that he agreed with that decision because there is no longer a shortage of such treatments. But if “any government again resorts to racial or ethnic classifications to ration medical treatment,” Alito said, “there would be a very strong case for prompt review by this Court.”

Alito, joined by Thomas, also penned a statement regarding the denial of review in Thompson v. Henderson, a case arising from a car accident in Washington state. The jury awarded the victim of the accident, who is Black, $9,200 in damages from the driver, who is white. The Washington Supreme Court awarded the victim a hearing on her motion for a new trial, concluding that the jury’s award may have been tainted by racial prejudice. Alito argued that the state supreme court’s “decision raises serious and trouble issues of due process and equal protection” and “threatens to inject racial considerations into every litigation decision parties make.”

Justice Ketanji Brown Jackson, joined by Sotomayor, dissented from the denial of review in Harness v. Watson, a challenge by two Mississippi men to the enforcement of a provision of the state’s constitution, adopted in 1890, that prohibits people convicted of eight crimes – bribery, theft, arson, fraud, perjury, forgery, embezzlement, and bigamy – from voting. In 1985, the challengers note, the Supreme Court struck down a similar provision in the Alabama constitution that had been enacted to disenfranchise African Americans. The same is true here, the challengers contend: “Just as in Alabama, in Mississippi the offenses set forth in the 1890 Constitution were those that the drafters believed were disproportionately committed by African Americans.”

The U.S. Court of Appeals for the 5th Circuit upheld the 1890 provision. Although the majority conceded that the 1890 state constitutional convention was “steeped in racism” and that the 1890 provision, as originally enacted, would be unconstitutional. But since 1890, the majority explained, Mississippi voters had re-enacted the disenfranchisement provision twice – in 1950 and 1968 – and the challengers do not contend that the 1968 amendment was motivated by an intent to discriminate. In so doing, the majority reasoned, the discriminatory intent behind the 1890 provision became “irrelevant” and “purg[ed] the original taint.”

The challengers came to the Supreme Court last fall, asking the justices to weigh in. After repeatedly rescheduling the case and then considering it at seven separate conferences, the justices on Friday denied review.

Jackson argued that the Supreme Court could have corrected what she characterized as the 5th Circuit’s “clear and constitutionally momentous errors” in a “straightforward and narrow (but significant) manner.” Quoting from the court’s decision on Thursday ending the use of race-conscious admissions at Harvard and the University of North Carolina, in which the court “declared that the Constitution deals with substance, not shadows, and the constitutional prohibition against racial discrimination is levelled at the thing, not the name,” Jackson contended that there “are no shadows in” the Mississippi provision, “only the most toxic of substances.”

Jackson also indicated that she would have granted review in Lombardo v. St. Louis, in a case brought by the family of a homeless man who died in 2015 in police custody. Nicholas Gilbert was arrested on charges that included trespassing and failing to appear in court for a traffic violation. For 15 minutes, six police officers applied pressure to Gilbert, who was face down on the floor of his cell with his legs shackled and his hands cuffed behind us back. Gilbert tried to lift his body up to breathe and pleaded with the officers to stop, saying “It hurts.” He was pronounced dead at a nearby hospital.

Gilbert’s family sued the city and the police officers, arguing (among other things) that the officers had used excessive force against Gilbert, which violated his constitutional rights. The 8th Circuit dismissed their claims, holding that the officers could not be held liable because no reasonable jury could find that the officers had used excessive force.

Over a dissent by Alito that was joined by Thomas and Gorsuch, the justices sent the case back to the 8th Circuit for another look. In a brief opinion, the Supreme Court explained that because the court of appeals had apparently either “failed to analyze such evidence or characterized it as ‘insignificant,’” it had not conducted the kind of “careful, context-specific analysis required by this Court’s excessive force precedent.”

When the case returned to the 8th Circuit, the court of appeals once again concluded that the officers were entitled to immunity. Gilbert’s family, the court of appeals concluded, had not met one of the criteria to overcome the police officers’ immunity – specifically, it had not shown that Gilbert had a clearly established right not to be restrained while lying prone on the floor and resisting.

The family returned to the Supreme Court late last year, once again asking the justices to review the 8th Circuit’s ruling. The justices denied review on Friday, over a dissent from Sotomayor. She wrote that she would have sent the case back to the 8th Circuit again for the court of appeals to “resolve the question of qualified immunity without assuming that Gilbert’s final movements were those of a dangerously non-compliant person posing a threat, rather than of a dying man struggling to breathe while adequately restrained by handcuffs and leg shackles and surrounded by six officers in a secure cell.” She added that courts should “give officers leeway to use judgment in close situations, but not so much leeway that we nullify the Constitution’s protections or permit officers to escape scrutiny by juries.”

Sotomayor dissented from the denial of review in another case involving immunity for police officers: a case brought by the family of Ryan Stokes, an unarmed Black man who was surrendering to police when a police officer shot him in the back and killed him. The 8th Circuit held in Stokes’ case that it was not clearly established that the officer had used excessive force. Sotomayor indicated that she would have summarily reversed – that is, ruled in the family’s favor without additional briefing or oral argument. “It is time,” she wrote, “to restore some reason to a doctrine that is becoming increasingly unreasonable. If this Court is unwilling to do so,” she concluded, “then it should reexamine its judge-made doctrine of qualified immunity writ large.”

Alito, joined by Thomas, dissented from the denial of review in Kincaid v. Williams, in which they had been asked to decide whether the Americans with Disabilities Act covers gender dysphoria – that is, the psychological distress caused by a conflict between a person’s gender identity and the sex that person was assigned at birth.

The question arose in a federal civil rights case filed by Kesha Williams, a transgender woman who suffers from gender dysphoria. By the time Williams was incarcerated at the Fairfax County Adult Detention Center, in northern Virginia, in 2018, she had been receiving hormone therapy for 15 years.

Williams was originally assigned to the women’s side of the detention center, but she was later moved to the men’s side of the prison and required to wear men’s clothing. She contends that she did not consistently receive her hormone therapy, and she was harassed by both prison deputies and male inmates.

After her six months in the detention center ended, Williams went to federal court, where she contended that the Fairfax County sheriff and other prison officials had violated (among other things) the Americans with Disabilities Act. A federal district court in Virginia dismissed Williams’ case, agreeing with the defendants that gender dysphoria is not a “disability” under the ADA. But the U.S. Court of Appeals for the 4th Circuit reversed that ruling, prompting the sheriff to come to the Supreme Court in January.

After considering the case at four consecutive conferences, the justices denied review. In his dissent, Alito described the question before the court as one “of great national importance that calls out for prompt review.” The court of appeals, he contended, “has effectively invalidated a major provision of the Americans with Disabilities Act (ADA), and that decision is certain to have far-reaching and highly controversial effects.” Moreover, he added, the ruling is likely to “raise a host of important and sensitive questions regarding such matters as participation in women’s and girls’ sports, access to single-sex restrooms and housing, the use of traditional pronouns, and the administration of sex reassignment therapy.”

And in Clark v. Mississippi, Justice Elena Kagan and Jackson joined Sotomayor’s dissent from the denial of review in the case of Tony Clark, who was sentenced to death for the 2014 shooting death of 13-year-old Muhammad Saeed. Saeed was working with his father at the family’s convenience store when Clark and his nephew attempted to rob the store.

Clark came to the Supreme Court in November, asking the justices to overturn his conviction and death sentence. Clark, who is Black, emphasized that although the pool of 38 potential jurors included 8 Black people, prosecutors struck all but one of those potential Black jurors, leaving a nearly all-white jury. In rejecting his challenge to the constitutionality of the jury selection process, Clark argued, the Mississippi Supreme Court should have reviewed the prosecutors’ strikes, and the circumstances in which they were made, collectively, rather than looking at each one in isolation.

Sotomayor noted that four years ago, the Supreme Court threw out the conviction of a Mississippi man, Curtis Flowers. Flowers, who is Black, was sentenced to death by a jury that included just one Black member after prosecutors struck five other potential Black jurors from the jury pool. By a vote of 7-2, the court held that the jury selection in Flowers’ case violated the Constitution. By denying review in Clark’s case, Sotomayor asserted, “this Court tells the Mississippi Supreme Court that it has called our bluff, and that this Court is unwilling to do what is necessary to defend its own precedent. The result is that Flowers will be toothless in the very State where it appears to be still so needed.”

This article was originally published at Howe on the Court.

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The court handed a major victory to business owners who oppose same-sex marriage for religious reasons on Friday. A six-justice majority agreed that Colorado cannot enforce a state anti-discrimination law against a Christian website designer who does not want to create wedding websites for same-sex couples because doing so would violate her First Amendment right to free speech.

Justice Neil Gorsuch wrote for the majority, in a decision joined by Chief Justice John Roberts and Justices Clarence Thomas, Samuel Alito, Brett Kavanaugh, and Amy Coney Barrett. He explained that Colorado cannot “force an individual to speak in ways that align with its views but defy her conscience about a matter of major significance.” And he indicated that the court’s decision would provide similar protection to other business owners whose services involve speech, such as artists, speechwriters, and movie directors.

But in her dissent, Justice Sonia Sotomayor – in an opinion joined by Justices Elena Kagan and Ketanji Brown Jackson – called the decision “a sad day in the American constitutional law and in the lives of LGBTQ people.”

The court’s decision came just over five years after its ruling in the case of another Colorado resident, Jack Phillips, a baker who refused to make a custom cake for a same-sex couple because he believed that doing so would violate his religious beliefs. By a vote of 7-2, the court gave Phillips a narrow victory, holding that the Colorado administrative agency that had ruled against him had treated him unfairly by being too hostile to his sincere religious beliefs. But the justices did not determine whether or to what extent a service provider’s sincere religious beliefs might have to yield to the state’s interest in protecting the rights of same-sex couples, nor did they decide whether compelling Phillips to bake a cake for a same-sex couple would violate his right to freedom of speech.

In the five years since the court’s decision in Phillips’ case, the composition of the court has changed significantly. Kennedy, who wrote for the majority in 2018, retired less than a month later. He was succeeded by the more conservative Brett Kavanaugh. And two years after that, the court’s senior liberal justice, Ruth Bader Ginsburg, died at the age of 87, allowing then-President Donald Trump to appoint another conservative jurist, Amy Coney Barrett, to replace her.

It was therefore a more conservative court that this term considered the case of Lorie Smith, a devout Christian who owns a website- and graphic-design business in Littleton, Colorado. Smith wanted to expand her business to include wedding websites – but only for heterosexual couples, and she wanted to post a message on her own website to make that clear. But such a statement would run afoul of Colorado’s public-accommodations law, which bars businesses that are open to the public from discriminating against (among others) LGBTQ people or announcing their intent to do so. Roughly half of U.S. states have similar laws.

Smith went to federal court, seeking a ruling that enforcing the law against her would violate her First Amendment right to freedom of speech. On Friday, the justices agreed.

The First Amendment, Gorsuch explained, “protects an individual’s right to speak his mind,” even when others may regard that speech as “deeply misguided” or it may cause “anguish.” And the First Amendment generally also protects an individual from being required by the government to voice a particular message.

In this case, Gorsuch observed, even the U.S. Court of Appeals for the 10th Circuit agreed that the websites that Smith wants to create are speech. But if Smith wants to speak, he stressed, she must choose between following her conscience, which means only creating wedding websites for opposite-sex couples, and violating Colorado law, or following the law and violating her religious beliefs. Under the Supreme Court’s cases interpreting the First Amendment, Gorsuch concluded, “that is enough, more than enough, to represent an impermissible abridgment of the First Amendment’s right to speak freely.”

Gorsuch conceded that in some cases it may be difficult for courts to determine “what qualifies as expressive activity protected by the First Amendment.” But this is not one of those cases, he insisted, because Colorado and Smith both agree that Smith’s wedding websites would be expressive activity.

And Gorsuch warned that Colorado’s position could lead to “dangerous” consequences. As Chief Judge Timothy Tymkovich noted in his dissent from the 10th Circuit’s decision, Gorsuch wrote, “governments could force ‘an unwilling Muslim movie director to make a film with a Zionist message,’ they could compel ‘an atheist muralist to accept a commission celebrating Evangelical zeal,’ and they could require a gay website designer to create websites for a group advocating against same-sex marriage, so long as these speakers would accept commissions from the public with different messages.”  

Sotomayor’s 38-page dissent argued that the Constitution “contains no right to refuse service to a disfavored group.” Colorado’s public accommodations law, she contended, only bars business owners from discriminating against members of the public based on (among other things) their sexual orientation. It does not regulate or compel speech at all. If a business owner like Smith “offers [her] goods or services to the public,” Sotomayor suggested, she “remains free under state law to decide what messages to include or not to include.” But what Smith can’t do, Sotomayor stressed, is “offer wedding websites to the public yet refuse those same websites to gay and lesbian couples.”

Sotomayor lamented that Friday’s decision “declares that a particular kind of business, though open to the public, has a constitutional right to refuse to serve members of a protected class.” More broadly, she continued, “the immediate, symbolic effect of the decision is to mark gays and lesbians for second-class status.”

The Alliance Defending Freedom, which represented Smith, hailed Friday’s decision. In a statement, lawyer Kristen Waggoner said that the court had “rightly reaffirmed that the government can’t force Americans to say things they don’t believe.” “Disagreement,” Waggoner continued, “isn’t discrimination, and the government can’t mislabel speech as discrimination to censor it.”

Colorado Attorney General Phil Weiser criticized the ruling, saying that it “threatens to destabilize our public marketplace and encourage all kinds of businesses — not just those serving weddings — to claim a First Amendment free speech right to refuse service to certain customers.” Colorado officials, he said, “will work hard to ensure that, within the confines of the Court’s opinion, we take action to hold accountable those who engage in unlawful discrimination.”

This article was originally published at Howe on the Court.

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