Tuesday, March 28, 2017

SCOTUS blog report on Moore v Texas Atkins decision


Opinion analysis: A victory for intellectually disabled inmates in Texas

Posted: 28 Mar 2017 10:51 AM PDT

A Texas death-row inmate will get a shot at a new sentence after the Supreme Court ruled today that a state court applied the wrong standards to conclude that he was not intellectually disabled and therefore could be executed. Bobby James Moore was convicted and sentenced to death for shooting a supermarket employee during a 1980 robbery. But Moore argued that he was exempt from execution because he was intellectually disabled – for example, he failed first grade twice, still did not grasp basic principles like telling time at the age of 13, and had suffered a "debilitating" injury when he was hit in the head with a chain and a brick during the battle over integrating public schools.

The Texas Court of Criminal Appeals – the state's court of last resort for criminal cases – rejected Moore's challenge to his death sentence. It relied on its 2004 decision in another case, Ex parte Briseno, involving an inmate's intellectual disability. Briseno used a set of 1992 standards for evaluating intellectual disability, along with several "evidentiary factors" that take into account, among other things, whether the people who knew the inmate best when he was growing up regarded him as intellectually disabled. Moore asked the Supreme Court to weigh in; today the justices, by a vote of 5-3, vacated the Texas court's ruling and sent the case back for a new look.

Justice Ginsburg with opinion in Moore v. Texas (Art Lien)

In an opinion by Justice Ruth Bader Ginsburg that was joined by Justices Anthony Kennedy, Stephen Breyer, Sonia Sotomayor and Elena Kagan, the court acknowledged that its recent decisions on intellectual disability and the death penalty assign to the states the primary responsibility for "the task of developing appropriate ways to enforce" the Constitution's bar on executing intellectually disabled inmates. But, the court explained, those decisions do not give the states free rein: Although states do not have to follow every detail of the most recent medical guide on intellectual disabilities, they cannot disregard the standards in those guides either.

In this case, the court concluded, the Texas court's ruling was wrong in multiple respects. First, the justices reasoned, the Texas court should not have focused just on Moore's IQ score of 74. Instead, the Texas court should have also considered the standard error of measurement – that is, the amount that scores could fluctuate around a "true" score. Looked at that way, Moore's score would range from 69 to 79, which would have required the Texas court to consider other evidence of his possible intellectual disability.

The Texas court's decision was also flawed, the Supreme Court continued, because it did not consider current clinical standards when evaluating how well Moore could handle the demands of everyday life, which is a key factor in determining whether someone is intellectually disabled. For example, the Texas court emphasized Moore's strengths – such as that he "lived on the streets, mowed lawns, and played pool for money" – when clinical standards indicate that it should have focused on his deficits.

The Texas court made the problem even worse, the justices reasoned, when it looked to the "evidentiary factors" outlined in the Briseno case. Those factors were essentially invented by the Texas court, without any basis in either medicine or law; indeed, even Texas itself does not use them to determine whether someone is intellectually disabled in other contexts. Instead, the court stressed, the factors rely on inaccurate stereotypes of the intellectually disabled by laypeople and are intended to reflect a consensus by Texans as to which defendants should or should not be subject to the death penalty. But even if an inmate has a relatively mild disability, the court emphasized, such that the Briseno factors would suggest that he is not exempt from execution, the Constitution bars the states from executing anyone with an intellectual disability.

Chief Justice John Roberts dissented from today's ruling, in an opinion joined by Justices Samuel Alito and Clarence Thomas. As an initial matter, Roberts agreed with the majority that the Texas court's reliance on the Briseno evidentiary factors was "incompatible with the Eighth Amendment." But, in Roberts' view, that conclusion was irrelevant, because he would have let stand the Texas court's conclusion that, based on his IQ, Moore was not intellectually disabled. More broadly, Roberts complained that the court's ruling today does not give states enough guidance about how to proceed in similar cases going forward: "States have 'some flexibility' but cannot 'disregard' medical standards. Neither the Court's articulation of this standard nor its application sheds any light on what it means."

After the oral argument, today's decision was not entirely unexpected. But it still represents a big victory for Bobby James Moore and other intellectually disabled inmates on death row in Texas. And it will likely lead to new litigation in the other states that have not adopted legal definitions of intellectual disability that are not specifically based on the current medical standards. Whether it will lead to the confusion at which Roberts hints remains to be seen.

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Argument transcript

Posted: 28 Mar 2017 10:46 AM PDT

Argument transcript

The transcript in Lee v. United States is here.

The post Argument transcript appeared first on SCOTUSblog.

Argument analysis: Justices hesitant about extending ERISA to church-affiliated pension plans

Posted: 28 Mar 2017 08:43 AM PDT

Monday's argument in Advocate Health Care Network v. Stapleton took the justices back to their roots, with a straightforward textual question about the breadth of coverage under the Employee Retirement Income Security Act. ERISA imposes a variety of requirements on the plans to which it applies. Churches seeking to avoid that regulatory burden were able to obtain an exemption from ERISA for their pension plans. Organizations affiliated with churches operate a large share of the hospitals in this country. For more than 30 years, the three federal agencies that administer ERISA have treated the pension plans of those hospitals as exempt from ERISA. In each of the three cases consolidated for this oral argument, employees of health-care providers filed suit alleging that the pension plans provided by their employers do not qualify for the church-plan exemption. Specifically, the question is whether ERISA's rules apply to pension plans operated by affiliates of churches, such as hospitals, if the church itself did not create the pension plan.

Deputy Solicitor General Malcolm L. Stewart (Art Lien)

The text of ERISA directly addresses the question. The only problem is that, at least until the justices decide these cases, it is unclear what ERISA has to say about it. For now, two phrases of the statute are relevant. First, ERISA does not apply to any plan "established and maintained for its employees by a church." Second, a 1980 amendment provides that a "plan established and maintained for its employees … by a church … includes a plan maintained by an organization … controlled by or associated with a church." The question is whether that revision means that a plan "maintained by an [affiliated] organization" is automatically treated as one "established … by a church."

By the end of the argument, several of the justices seemed to coalesce around a likely outcome, reflecting an unwillingness to extend ERISA to cover plans that have been treated as exempt by the Internal Revenue Service and other federal agencies for 30 years. As a textual matter, each party's position has an obvious weakness, and the justices explored those weaknesses when questioning the advocates.

Lisa S. Blatt for petitioners (Art Lien)

For Lisa Blatt, representing the health-care providers, the obvious problem is that the revision her clients need in order to qualify for the church-plan exemption could have been crafted much more directly. Justice Elena Kagan went to that point early on:

There would be a simple way of accomplishing what you think this provision accomplishes. You know, something along the lines of just saying any plan maintained by a church-affiliated organization is a church plan or something like that. It's … very odd language, this statutory language, and I'm wondering why you think that Congress chose to do what you think it chose to do in this perplexing way rather than in a straightforward way.

Justice Sonia Sotomayor weighed in on the same point, noting that Congress had proposed an amendment that treated a plan "established and maintained" by an affiliated organization as one "established and maintained" by a church. She suggested that the case would have been much simpler for Blatt had Congress adopted that revision. Blatt seemed to satisfy Kagan and Sotomayor, however, by pointing out that one group seeking relief at the time of the 1980 amendment was comprised of plans established by churches but maintained by affiliated organizations; an amendment covering only plans "established and maintained by affiliated organizations" would not have exempted those plans.

James A. Feldman for respondents (Art Lien)

The justices also took issue with Feldman's reading because it did not seem to exempt several categories of organizations that had been pushing most vociferously for an amendment at the time Congress stepped in to amend the statute. Sotomayor, for example, raised the problem directly:

Let's go to … 1982. Tell me how your reading of the statute includes the organizations that were clamoring and … whom the IRS has said were covered by this provision: The pension boards that were separate from the church, and … the nuns, who were also seeking coverage. How does your reading take care of those two situations facing Congress?

Hearing Feldman's response, Kagan interjected that she found his reading difficult because "you would be taking out some of these church pension boards that I thought were the sort of quintessential group that this was designed to include."

The justices were also troubled by the adverse financial consequences of a ruling against the health-care providers. During her argument, Blatt asserted that the employees' complaints sought penalties from her clients of $66 billion. Although the point did not seem to impress the justices at the time, it became a major focus of Feldman's presentation when he suggested that the justices should not be overly concerned about reliance interests because the "cases are about primarily overwhelmingly forward-looking remedies." That comment struck a nerve with Justice Samuel Alito, who interrupted to ask whether Blatt had been correct "when she said that the complaints seek billions of dollars in penalties?" Feldman started to respond that it was too early to be sure what the total amount of any penalties might be, but Alito would not let go: "What is the answer to my question?" When Feldman replied that he didn't think the complaints named "a dollar figure for the penalty," Alito asked: "Well, … if you figured out the penalties, would they be billions of dollars?" After Feldman demurred again, Alito switched to another tack: "[Y]ou said … don't worry about the penalties; this is primarily about forward-looking things. And yet the complaints asked for the penalties. Are you willing on behalf of your clients to disavow any requests for penalties?" When Feldman predictably declined to waive any claim for penalties, Alito concluded: "Then how can you say it's primarily about forward-looking things?"

In a similar vein, several of the justices seemed to find it inequitable to bring the affiliated-organization plans under ERISA given the widespread dissemination of the IRS's view that the plans were exempt. Kennedy, for example, noted that the agency's interpretation "led to hundreds of letters from the IRS. Is … that an exaggeration or … aren't there hundreds of IRS letters approving [these plans]? … [I]t shows that an entity that had one of these plans … where there was some doubt was proceeding in good faith with the … assurance of the IRS that what they were doing was lawful."

In the end, then, it seems quite likely that the affiliated organizations will retain their exemptions. The justices might not like the way the amendment is written, but they do not seem likely to reject the IRS's reading of it.

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Argument preview: Court to weigh suppression of evidence in notorious D.C. murder

Posted: 28 Mar 2017 07:19 AM PDT

Christopher Turner (photograph provided by the Mid-Atlantic Innocence Project)

In 1984, there were 175 murders in the District of Columbia. But the October 1984 murder of Catherine Fuller, a 48-year-old mother of six, was particularly infamous. When she was found in a pool of her own blood in a garage off an alley, Fuller had been robbed, badly beaten, and sodomized with an unknown object. Prosecutors put ten defendants on trial for Fuller's murder. After a week of deliberations, the jury convicted eight of them. One of those men died in prison; the remaining seven defendants who were convicted have always maintained that they did not commit the crime. Tomorrow the justices will hear oral argument in their challenge to their convictions, which is based on allegations that prosecutors failed to turn over important evidence that might have cleared them.

There was no physical evidence supporting the prosecutors' case against the ten defendants. Instead, prosecutors relied instead on three witnesses who claimed to have seen the group attack. Each of the ten defendants was represented by a different lawyer; each lawyer's main defense strategy seemed to be to throw his or her client's co-defendants under the bus.

After the trial was over, a Washington Post story revealed that prosecutors had failed to provide defense lawyers with a statement about a possible alternative suspect. That story prompted the defendants to initiate post-conviction proceedings, during which they learned of other new evidence that might have helped them. For example, witnesses had told police that on the afternoon of the murder they had seen another man, James McMillan, "acting suspiciously" and with "something under his coat" in the alley where Fuller's body was found. McMillan was convicted of two other assaults on middle-aged women in both the same month and the same neighborhood in which Fuller was murdered. Shortly after he was released from prison for those crimes, in 1992, McMillan killed another woman in the same area; the details of that crime resemble those of Fuller's murder.

Yet another witness identified James Blue, who had a lengthy criminal record, as the man who killed Fuller. And the men learned that one key eyewitness had originally told police that she had not seen the crime at all, and had later been high on PCP when she met with detectives to identify suspects. During post-conviction proceedings, experts also testified that the crime scene and Fuller's injuries were more consistent with an assault by an individual or a very small group of people than the much larger group that prosecutors had blamed for her death.

The Supreme Court's 1963 decision in Brady v. Maryland requires prosecutors to provide a criminal defendant with all evidence that is favorable or material to his defense, even if the defendant does not ask for it. When prosecutors fail to do so, they violate the defendant's constitutional right to due process, even if they were acting in good faith. There are three parts to the Brady test: The evidence must be favorable to the defendant, it must be suppressed, and it must be material – that is, create a reasonable likelihood that it affected the outcome. The evidence is considered collectively, against the whole record. There is no dispute that the evidence was favorable to the defendants in this case and was suppressed; the only question is whether the suppressed evidence was material.

The convicted men argue that if they had had access to the information that was withheld, the trial would have been very different. They could have offered the jury a competing theory – one that was consistent with both McMillan's record and the crime-scene evidence. That could in turn have given rise to reasonable doubt by the jury about the prosecution's theory, particularly when even prosecutors acknowledged that the case "easily could have gone the other way." Russell Overton, who was convicted only after the jury had told the trial court that it was hopelessly deadlocked and taken dozens of votes, contends that this is especially true in his case, given what he describes as "the substantial weaknesses in the government's case against" him.

The government counters that the evidence that was suppressed "does not undermine confidence" in the convicted men's "guilt of the brutal slaying of Catherine Fuller." The men had "ample opportunity and incentive" to come up with an alternative theory of the case, the government notes, but they just didn't do so. Knowing about James McMillan would not have made a difference, the government continues, in part because the links between McMillan and the assault on Fuller were tenuous at best. And any evidence relating to the 1992 murder for which McMillan was convicted could not have been suppressed, because it did not exist when the defendants in this case went to trial. Moreover, an alternative theory that sought to pin the blame on McMillan or some other small group of perpetrators would not have made much sense, given that two of the government's witnesses had pleaded guilty to participating in a group assault.

When the convicted men asked the Supreme Court to take on their appeal, their two petitions presented three questions, all related to Brady, for the justices' possible review. But in their order granting certiorari, the justices asked the men and the government to brief one, simpler question: whether the men's convictions "must be set aside under Brady." That change in the question presented, especially when combined with the highly fact-bound nature of the case, at least suggests that the justices granted review to reverse the men's convictions. But we will know more about that after the oral argument tomorrow.

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Live blog of opinions (Update: Completed)

Posted: 28 Mar 2017 06:30 AM PDT

Live blog of opinions (Update: Completed)

We live-blogged this morning as the court released opinions. The transcript is available at this link.

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Tuesday round-up

Posted: 28 Mar 2017 03:48 AM PDT

Tuesday round-up

Today the court will hear oral argument in Lee v. United States, an ineffective assistance of counsel case in which the lower court held that the defendant could not prove that he was prejudiced by his attorney's erroneous advice to plead guilty, which resulted in mandatory deportation, because the evidence of his guilt was overwhelming. Amy Howe previewed the case for this blog. Karen Smeda and Natalia San Juan preview the case for Cornell University Law School's Legal Information Institute.

Yesterday the court agreed to review two cases and asked for the views of the acting solicitor general in a third. Amy Howe covers the orders list for this blog.

Yesterday the court also heard oral argument in Advocate Health Care Network v. Stapleton (consolidated with two other related cases), which asks whether the Employee Retirement Income Security Act's exemption for church plans applies to pension plans maintained by church-affiliated organizations. Mark Walsh covers the argument for Education Week, noting that hundreds "of religious schools and their employees are watching" the case "with intense interest," and that the "justices had tough questions for both sides in the hospitals' case before them." Commentary comes from Jessica Mason Pieklo in Rewire, who points out that if "the Roberts Court sides with the businesses, that could mean approximately 95,000 employees would have less savings and fewer comprehensive benefits than the law would normally require."

The second oral argument yesterday was in TC Heartland LLC v. Kraft Food Brands Group LLC, a case about the venue rules for patent infringement lawsuits. In The National Law Journal (subscription or registration required), Tony Mauro reports that the justices "did not appear eager to upset the patent litigation landscape by drastically limiting where infringement lawsuits can be filed."

Last Wednesday, the court issued a unanimous decision in Endrew F. v. Douglas County School District, holding that the Individuals with Disabilities Education Act requires a school to offer an "individualized education program" reasonably calculated to allow the student to progress appropriately in light of the child's circumstances. Coverage comes from Christopher Tidmore in The Louisiana Weekly, Patty Miller in The Edmond Sun, Anya Kamenetz and Cory Turner at WJCT, Commentary comes from Walt Gardner at Education Week, Helen Moss at The Huffington Post, and the editorial board of the New Hampshire Union Leader.


  • The World and Everything in It (podcast) features discussions of last week's arguments in Murr v. Wisconsin, Howell v. Howell and Microsoft Corp. v. Baker.
  • At his eponymous blog, Ed Mannino discusses the pending cert petition in Masterpiece Cake Shop v. Colorado Civil Rights Commission, a case filed by a Colorado man with religious objections to creating a cake for a same-sex wedding celebration, questioning whether it is "legally justifiable to subordinate sincerely held and constitutionally protected religious beliefs to a same sex couple's statutory rights when the discrimination undoubtedly creates at least psychic or dignitary harm to the couple, but is devoid of any economic impact on them, and leaves them with easy access to the product elsewhere."
  • At the Associated Press, Curt Anderson reports on a pending cert petition in the case of a litigant who "won an improbable longshot victory when the U.S. Supreme Court agreed with him that his floating home was a house, not a vessel subject to seizure by a Florida city" and who now "is asking the justices to enforce their ruling by forcing the city pay him legal fees and reimburse him for the home's value after it was seized and destroyed."
  • In Supreme Court Brief (subscription or registration required), Tony Mauro reports that a lawyer appointed by the court for the second time in less than a year to "represent an orphaned position in a case before the court" this time in a habeas case from Georgia learned yesterday that his appointment had been revoked after the Georgia attorney general changed positions.
  • At FiveThirtyEight, Kevin Cope and Joshua Fischman "reviewed more than 900 Tenth Circuit cases decided during [Judge Neil]Gorsuch's tenure, including 119 in which he participated," focusing on "immigration and employment discrimination law," concluding that Gorsuch "looks relatively centrist in these areas."
  • At Empirical SCOTUS, Adam Feldman examines voting patterns on the court since the death of Justice Antonin Scalia, noting that "the middle of the Court may have shifted slightly and it will be interesting to see if there continue to be new unifications between some Justices as well as polarizations between others."
  • In an op-ed at Law360 (registration required), Douglas Lindholm weighs in on a pending cert petition in two state tax cases that ask when retroactive tax legislation is "so patently unfair that it violates the due process clause of the U.S. Constitution," arguing that upholding "retroactive tax legislation subject only to a state's unfettered discretion to behave reasonably undermines the rule of law and makes a mockery of due process protections afforded to taxpayers under the U.S. Constitution."
  • At the Academy of Achievement's What It Takes podcast, Justice Sonia Sotomayor shares her personal story in an interview with NPR's Nina Totenberg.

Remember, we rely exclusively on our readers to send us links for our round-up.  If you have or know of a recent (published in the last two or three days) article, post, or op-ed relating to the Court that you'd like us to consider for inclusion in the round-up, please send it to roundup [at] scotusblog.com.

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Petition of the day

Posted: 27 Mar 2017 08:23 PM PDT

Petition of the day

The petition of the day is:


Issues: (1) Whether a district court's refusal to permit the petitioner to amend the proposed pretrial order to assert a profits claim – thereby restoring the petitioner's right to a jury trial in the wake of the respondent's eleventh-hour withdrawal of its consent to a jury trial on all other claims – is reviewed for abuse of discretion or under the more exacting standard typically applied to orders that effectively deny the right to a jury trial; and (2) whether, under the logic of Dairy Queen, Inc. v. Wood – and as several lower courts have held, in conflict with several others – claims seeking a trademark infringer's profits are legal in nature and thus give rise to a Seventh Amendment right to a jury trial.

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Argument transcripts

Posted: 27 Mar 2017 12:46 PM PDT

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