Big news today: two grants for cases that will be heard next fall, including one potential blockbuster out of Texas, two CVSGs that may be of interest to the business community, two opinions in argued cases, and two summary reversals.
First up, the big news in grants. The Court granted cert in Fisher v. University of Texas at Austin, 11-345, from the Fifth Circuit, after two (at least nominal) relists. The case presents the question whether the University of Texas at Austin’s use of race in undergraduate admissions decisions is constitutional. This may be the case that launches 1,000 amicus briefs.
If Fisher is an interesting and high-profile case, Lozman v. Riviera Beach, FL, 11-626, from the Eleventh Circuit, is, well, the opposite. It presents the question whether a floating structure that is indefinitely moored, receives power and other utilities from shore, and is not intended to be used in maritime transportation or commerce constitutes a “vessel” under 1 U.S.C. § 3, thus triggering federal maritime jurisdiction.
The Court called for the views of the Solicitor General in Vance v. Ball State University, 11-556, from the Seventh Circuit. The case presents the question whether the “supervisor” liability rule established by Faragher v. City of Boca Raton (1998) and Burlington Industries, Inc. v. Ellerth (1998) (i) applies to harassment by those whom the employer vests with authority to direct and oversee their victim’s daily work, or (ii) is limited to those harassers who have the power to “hire, fire, demote, promote, transfer, or discipline” their victim. (Note that the UVA Clinic that I’m affiliated with represents petitioner Vance, although I haven’t participated in the case.) The Court also CVSGd in Rubin v. Islamic Republic of Iran, 11-431, also out of the Seventh Circuit. It presents the question whether Section 1609 of the Foreign Sovereign Immunities Act of 1976, which provides that the property of a foreign state and its agencies and instrumentalities is immune from execution and attachment unless that property falls within a statutory exception to immunity, permits discovery in aid of execution only with respect to specific property identified by the plaintiff as potentially subject to attachment. Both Justices Scalia and Kagan have recused themselves.
One last bit of action on the order list before we head on to the merits: on Friday, the Court granted a stay in American Tradition Partnership v. Bullock, Att’y Gen. of Montana. That case involves a challenge to a Montana statute that bans corporate spending in state elections, which seems hard to square with the Supreme Court’s decision in Citizens United, which held that uncoordinated corporate and union spending is protected by the First Amendment. The Montana Supreme Court nonetheless upheld the statute, writing that it “concerns Montana law, Montana elections and it arises from Montana history.” The plaintiffs sought a stay of the Montana Supreme Court’s decision, which the U.S. Supreme Court promptly granted. The stay had the effect of reinstating a lower court ruling that the state statute is unconstitutional under Citizens United. The stay will remain in place pending further action of the U.S. Supreme Court.
Justice Ginsburg, joined by Justice Breyer (both Citizens United dissenters) issued a statement respecting the grant of the stay, saying that she voted for the stay because Citizens United remains the law of the land (suggesting that she believes the decision below is controlled by and inconsistent with Citizens United). But she said that, basically, granting a petition would give the Court the opportunity to reconsider Citizens United “in light of the huge sums currently deployed to buy candidates’ allegiance,” noting that “Montana’s experience, and experience elsewhere since this Court’s decision in Citizens United . . . make it exceedingly difficult to maintain that independent expenditures by corporations ‘do not give rise to corruption or the appearance of corruption.’”
Now on to the opinions. First up is Kawashima v. Holder, 10-577, an immigration case out of the Ninth Circuit that presented the question whether aliens who file a false tax return or aid and abet the filing of a false tax return are subject to deportation as aliens who have been convicted of an “aggravated felony.” The Supreme Court, by a 6-3 vote in an opinion by Justice Thomas, agreed with the Ninth Circuit that both offenses were “aggravated felon[ies]” because they involved “deceit” (thus bringing it within the scope of the statutory definition). The Court also rejected the argument that specific inclusion of one tax offense among the list of deportable offenses implicitly excluded all others from that category. Justice Ginsburg dissented, joined by Justices Breyer and Kagan, concluding that the provision in question did not include tax offenses and termed the majority’s reading “dubious.”
Second is Howes, Warden v. Fields, involving a prisoner who was taken from his cell and questioned about a crime (other than his crime of conviction) for 5-7 hours in a conference room, with the door intermittently open and closed, and told more than once that he was free to go (several times he said he no longer wanted to talk and clammed up). And of course, just to make things interesting, he was not read his Miranda rights. Fields was convicted and the state courts affirmed his sentence. The district court granted him habeas relief, and the Sixth Circuit affirmed, concluding that it was “clearly established” that isolation of a prisoner from the general prison population, combined with questioning about conduct occurring outside prison, makes any such interrogation custodial per se and thus subject to Miranda warnings.
The Sixth Circuit may be the most-reversed court of appeals in the country in habeas cases, and today was no exception. The Court reversed 6-3ish, saying that the Sixth Circuit’s categorical rule that questioning a prisoner in private about events outside the prison created a custodial situation was “simply wrong.” The Court noted that “questioning who is already serving a prison term does not generally involve the shock that very often accompanies arrest” such that he ordinary restrictions of prison life do not involve the same “inherently compelling pressures” that often accompany interrogation, and isolation does not necessarily mean removing the person questioned from a supportive environment given how un-supportive the prison environment is. Under the circumstances, the majority concluded that Fields was not in “custody” for Miranda purposes; Justice Alito delivered the opinion of the Court.
Justice Ginsburg concurred in part and dissented in part, joined by Justices Breyer and Sotomayor. She agreed that custody was not “clearly established” under existing law (and thus that habeas relief was not warranted), but disagreed that Fields was not in custody. (Seems to me that should have been captioned a concurrence in the judgment, but no one ever asks me.)
Now on to the summary reversals. First up is a remarkable group of arbitration cases, Marmet Health Care Center v. Brown, 11-391, and Clarksburg Nursing Home v. Marchio, 11-394, from the Supreme Court of Appeals of West Virginia, which is actually a group of three cases. In each of the cases, a family member of a patient who had died sued a nursing home in West Virginia state court, alleging negligence. The West Virginia state court held that “as a matter of public policy under West Virginia law, an arbitration clause in a nursing home admission agreement adopted prior to an occurrence of negligence that results in a personal injury . . . shall not be enforced to compel arbitration of a dispute concerning the negligence.” The state court found unpersuasive the U.S. Supreme Court’s conclusion that the FAA preempts contrary state public policy, calling that interpretation “tendentious” and “created from whole cloth.” That is all very interesting, folks, but you do realize that they’re above you in a hierarchical court system? The Supreme Court summarily reversed, holding the West Virginia court’s interpretation of the FAA to be both incorrect and inconsistent with clear instruction in previous cases, most recently AT&T Mobility v. Concepcion. The opinion was unanimous.
Second up is Wetzel, Secretary, Pennsylvania Dept of Corrections v. Lambert, 11-38, in which the Third Circuit held that a truly ambiguous piece of evidence was exculpatory and required a grant of habeas relief in a 30-year-old murder case. The Court reversed today by a 6-3 vote in a per curiam opinion, noting the Third Circuit’s failure to address the state courts’ conclusion that the evidence was ambiguous, and that a federal court should not upset a three-decade-old conviction unless each ground supporting the state court decision is examined and found to be unreasonable under AEDPA. Justice Breyer, joined by Justices Ginsburg and Kagan, dissented, saying that they could not agree that the evidence in question was “entirely ambiguous.” The case had been relisted a whopping ten times while the respective sides were drafting their opinions.
The Court may be back tomorrow with more opinions. Until then, that’s today’s baseball
