The Short List from the Long Conference

The U.S. Supreme Court today released this short orders list with the partial results of the “Long Conference” on Monday. The Court took up one federal criminal case on the First Step Act and a few civil cases.

The new criminal case on deck is Conception v. United States, No. 20-1650. The Question Presented as restated in the Government’s brief in opposition is:

Whether the district court was required to consider all legal and factual developments since the defendant’s original sentencing—whether or not related to the Fair Sentencing Act of 2010, Pub. L. No. 111-220, 124 Stat. 2372—in connection with his motion for a reduced sentence under Section 404 of the First Step Act of 2018, Pub. L. No. 115-391, 132 Stat. 5222.

One would think that the answer is no. In the Fair Sentencing Act of 2010, Congress decided that the 100/1 crack-powder sentencing ratio sponsored by then-Senator Joseph Biden et al. back in the 1980s was too harsh and changed it prospectively only. Later, in the First Step Act of 2018, Congress took the drastic step of reopening old judgments to apply that change. It does not follow that reopening is in order for every development since then.

Boecher, P.C. v. CIR, No. 20-1472 is a tax case. For those readers still awake after reading the preceding sentence, the question presented in one familiar to habeas corpus practitioners: whether a time limit is jurisdictional or subject to equitable tolling.

Cassirer v. Thyssen-Bornemisza Found., No. 20-1566, is another case on foreign sovereign immunity and Nazi-stolen art.

Shurtleff v. Boston, No. 20-1800, involves public forums and religious speech.

From that narrow category of cases where litigants can actually appeal to the Supreme Court (rather than ask for a discretionary review via writ of certiorari) comes the campaign finance case of FEC v. Cruz, No. 21-12. Does the Court have jurisdiction to hear this case? Echoing Scarlett O’Hara, they said “We’ll think about it tomorrow. Tomorrow is another day.” Okay, actually they said, “Further consideration of the question of jurisdiction is postponed to the hearing of the case on the merits.”

Finally, we have a rare denial of a motion for leave to file an amicus brief in Hemphill v. New York, No. 20-637. The original trial prosecutor, no longer with the office, sought to file a brief at the request of the victim. The DA declined consent, citing a rule that a former government attorney cannot represent a client in a case in which he participated in an official capacity. Hence, I suspect, the rare thumbs-down from SCOTUS.

The Hemphill case involves the question of whether a defendant who introduces evidence that opens the door to hearsay under state evidence rules also thereby waives a federal constitutional Confrontation Clause objection. However, there is a genuine jurisdictional question in this case.

The Supreme Court’s jurisdiction is more limited in cases from state courts than it is in cases that have been within the federal system from the beginning. Within one system, there is a general rule that a higher court will not consider an objection that was not presented to the lower court, but that rule can be waived when the issue is important enough. For state court -> SCOTUS review, though, it is a jurisdictional requirement that the federal right was “specially set up or claimed” in the state court. Bronx DA says Hemphill did not check that box. The Court granted certiorari anyway, but jurisdictional objections aren’t over ’till they’re over, paralleling an observation by a famous New Yorker.

The Court will issue another list on the first day of its term, the First Monday in October, i.e., next Monday. This list typically is a long list of denials of certiorari and perhaps some summary reversals, but no new grants for full briefing and argument. We will be watching for Deck v. Blair, No. 20-8333, a Missouri capital case we briefed successfully in USCA8 on behalf of the victims’ family. See this post.

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