What We’re Watching at the Supreme Court

With the United States Supreme Court in the second—and often most eventful—half of its term, the Project On Government Oversight is debuting a series of commentary on important cases and developments we’ve been tracking. We will provide updates and new analysis on these cases after the Court has acted.

From cases where lives hang in the balance to potentially sweeping changes to transparency and anti-fraud rules, these cases will likely have major ramifications.

Recent Ruling

Moore v. Texas

For the second time in less than three years, the Supreme Court overturned the death sentence of Texas inmate Bobby Moore because he is intellectually disabled. In its decision, issued February 19, the Court held that Moore cannot be executed. The Constitution Project (TCP) at POGO helped organize, and joined, an amicus brief in 2018 supporting Moore’s petition, marking the fourth time we have participated in the case.

In 2002, the Supreme Court held that the Eighth Amendment prohibits the execution of people with intellectual disabilities, but left it up to the states to develop systems for identifying who fits in this category. While most states developed criteria based on medical standards, judges in Texas came up with their own definition, based in part on Lennie, the character from Of Mice and Men.

In 2017, a 5-3 majority of the Court used Moore’s case to strike down Texas’s law—and ordered the Texas courts to reconsider Moore’s case using a modern medical standard understanding of intellectual disability (the majority opinion cited an amicus brief TCP had filed in support of Moore). In response, the Texas Court of Criminal Appeals again ruled that Moore was not intellectually disabled—a ruling made all the more surprising because the Harris County (Houston) district attorney took the rare step of siding with Moore and urged the Supreme Court to reverse his death sentence. The petition argued that the Texas appeals court failed to faithfully adhere to the Supreme Court’s instructions, repackaging its reasoning from its first, overturned, case instead of properly applying medical criteria. This raises serious rule-of-law concerns, because the concept of vertical stare decisis—lower courts’ obligation to obey the orders of higher courts—is fundamental to our multilayered judicial system.

Our 2018 brief argued that the Texas court’s defiance is intolerable and requires the Supreme Court to intervene to avoid setting a dangerous precedent of lower courts flouting orders. Also joining the brief were a number of prominent individuals, including former Solicitor General, Judge, and Independent Counsel Kenneth Starr, former Deputy Attorneys General Donald Ayer and Larry Thompson, and former Virginia Attorney General Mark Earley.

The Court agreed with this argument, summarily overturning the Texas ruling. It held that “the appeals court’s opinion, when taken as a whole and when read in the light both of our prior opinion and the trial court record, rests upon analysis too much of which too closely resembles what we previously found improper.” 

Chief Justice John Roberts, who dissented from the 2017 ruling, was in the majority this time, underscoring the importance of obeying precedent. In a short concurring opinion, he wrote that the Texas court’s ruling “did not pass muster under this Court’s analysis last time. It still doesn’t.”

Our brief in the case was supported by the pro bono services of the law firm Jones Day.

Current Cases

The Court has agreed to take these cases (and in one instance, already heard oral arguments), but has not yet issued rulings.

New York et al. v. Department of Commerce et al.

So far, this case has only been decided at the district court level, but the Supreme Court’s February 15 announcement that it would hear the case was not much of a surprise. The Southern District of New York ruled last month that the Commerce Department’s attempt to add a question about citizenship status to the 2020 census violated a law that defines how federal agencies must make decisions. According to the ruling, Commerce Secretary Wilbur Ross committed “a veritable smorgasbord of classic, clear-cut APA [Administrative Procedure Act] violations” in his decision to add the question. By agreeing to hear the case, the Supreme Court is accepting the Justice Department’s request to fast-track the proceedings. As a result, the case will bypass the Second Circuit Court of Appeals, which would typically be the next stop for cases out of New York (more on this unusual procedural tactic below). 

The fact that the census needs to be finalized for printing by this summer has added a sense of urgency to the litigation, with even the challengers saying that if the Court anticipated stepping in, it should do so now.

POGO has expressed concerns with the merits of the citizenship question separate from its legality. In a public comment we filed with the Census Bureau last summer, we noted that, unlike the citizenship question, questions are usually tested rigorously before being added to the census to make sure the content, wording, or instructions will not skew the outcome. Given the census’s crucial role in apportioning vast amounts of federal funding for ten years at a time, risking the accuracy of its results with a hasty and contentious question is a bad idea.

The Court has already weighed in on disputes related to earlier stages of the proceedings. The plaintiffs wanted to force Secretary Ross to give a deposition to determine what he was thinking when he ordered the question; the Court blocked the deposition while it prepared to hear arguments on the matter. Ultimately, the trial in the district court went on without Ross’s deposition, after the plaintiffs chose not to wait for the matter to be resolved. Oral argument in the deposition dispute, which could have set important precedent for access to top officials in cases involving challenges to agency decisions, had been scheduled for this month, but was removed from the Court’s calendar after the district court ruling.

Bucklew v. Precythe

This is another case where a state’s execution practices are likely to violate the Eighth Amendment’s prohibition on cruel and unusual punishment. We facilitated an amicus brief of former corrections officials for this case, which concerns an Eighth Amendment challenge to Missouri’s planned execution of death row inmate Russell Bucklew.  

Bucklew has a rare medical condition that causes large blood-filled tumors around his mouth and throat and, as a result, he argues, his condition will make an execution by lethal injection in his particular case unconstitutionally cruel and unusual. There is a strong likelihood that either he would choke on his blood while the drugs are administered or that the procedure would go awry because of the execution team’s unfamiliarity with his condition. The specific questions before the Court are fairly technical, dealing with what burden of proof Bucklew has to meet to show that lethal injection poses an unconstitutionally high risk. Underlying these issues is the fundamental question of what a government must do to avoid an unconstitutional act like inflicting cruel and unusual pain.

Our brief of former corrections officials drew on the experience of the officials, many of whom had directly participated in executions or have colleagues who had done so, and urged the Court to consider the fact that a botched execution would not only have constitutional implications, but would also subject the officers tasked with carrying out the procedure to trauma that can derail their lives. In a follow-up op-ed, two of the brief’s signers, Jerry Givens and Frank Thompson, who between them were involved in over 60 executions in Virginia and Oregon, recounted their own trauma and warned, “A botched procedure only heightens these psychological scars.”

During oral argument on November 6, 2018, Justice Brett Kavanaugh made news by appearing more skeptical of Missouri’s position than Bucklew’s. Hearing his first death penalty case, he challenged the Missouri solicitor general to articulate how much pain was too much for a state to inflict on an inmate. His vote could be the deciding factor in the ruling.

Our brief in the case was supported by the pro bono services of Goldstein and Russell, P.C.

Food Marketing Institute v. Argus Leader Media

The Court rarely takes on cases about the Freedom of Information Act (FOIA). So when it announced last month that it would hear this case, which could have a dramatic effect on how much information people can obtain from the government, it caught our attention. The dispute stems from a 2011 FOIA request by a South Dakota newspaper, the Argus Leader, for data from the Department of Agriculture on reimbursements to individual grocery stores for purchases through the Supplemental Nutrition Assistance Program (SNAP, often known as food stamps). The Department declined to provide all the information the Argus Leader wanted, claiming that several of the exemptions in FOIA meant that it didn’t have to release it. After losing in multiple trips up and down the court system, the Department decided to release the information, at which point an industry group, the Food Marketing Institute, stepped in to continue challenging the release.

When it hears oral argument on April 22, the Supreme Court will only be considering whether one FOIA exemption applies: Exemption Four, which protects “trade secrets and commercial or financial information obtained from a person and privileged or confidential.” The sticking point is what qualifies as confidential information. Based on precedent from a 1974 ruling by the DC Circuit Court of Appeals, courts around the country have generally held that this exemption only applies to information that would probably cause “substantial harm” to a company’s competitiveness if released. The Food Marketing Institute is urging the Court to considerably expand the exemption to cover what it says is the plain meaning of “confidential”: anything that is intended to be private.

That sort of ruling would exacerbate the current problem with Exemption Four. Currently, when federal agencies receive requests for information that could fall under the exemption, they consult with the affected businesses, which can claim that the information should be withheld from the public. This effectively results in companies deciding what the public can and cannot learn from government information requests. Experience has shown that, given the opportunity, companies seek to hide basic information that’s essential for oversight, such as the prices of goods provided under government contracts. Limiting the usefulness of the courts, which are among the few tools available for pushing back on these claims, would tip the balance even more against the public’s right to information.

Cochise Consultancy v. U.S. ex rel. Hunt

This case deals with the False Claims Act, a statute that lets the government recover damages from companies that defraud it. A key element of the Act is its qui tam provision, which lets private whistleblowers sue on behalf of the government, in exchange for a portion of the damages. The cases brought by those whistleblowers—known as “relators” in litigation—make up a large share of recoveries under the Act. In the 2018 fiscal year, $2.1 billion out of the $2.8 billion companies paid were from qui tam cases.

The Cochise case stems from the U.S. wars in Iraq and Afghanistan. An Army Corps of Engineers contractor, the Parsons Corporation, put out a bid for a subcontractor to provide security services. The relator in the case, Billy Joe Hunt, worked for Cochise Consultancy, which ultimately was awarded the contract. He alleges that Cochise bribed an officer in the Corps to force Parsons to switch from its original choice for the contract to Cochise.

The question before the Court has to do with whether Hunt waited too long to file his lawsuit. Under the Act, lawsuits must be filed within six years of the alleged fraud, or within three years of a government official becoming aware of the allegations, and in no case more than ten years after the alleged fraud occurred. Courts around the country have interpreted these requirements differently. In this case, the Eleventh Circuit Court of Appeals’ more generous interpretation allowed Hunt to proceed with his challenge, even though it had been more than six years since the incident in question. It held that the alternate three-year countdown began when Hunt made his fraud allegation to FBI agents.

We hope that the Supreme Court will recognize the importance of qui tam lawsuits as a tool to combat fraud against the government and decline to impose further limits on those suits. With recoveries at a nine-year low and the Justice Department throwing out qui tam cases at abnormally high rates, the Act needs all the help it can get.

Pending Petition

The Court is still considering whether it will hear this case.

In Re Grand Jury Subpoena

There isn’t much public information available about this case, but we know it is related to Special Counsel Robert Mueller’s investigation. From a December opinion from the DC Circuit, we know that a company owned by a foreign government is challenging a grand jury subpoena and claiming that sovereign immunity prevents U.S. courts from getting involved. Since grand jury proceedings are secret, the courts have gone to great lengths to conceal the identity of the parties. While we know the Special Counsel’s office is involved, the company and country are still a mystery. The case generated more buzz over the holidays, when Chief Justice John Roberts briefly blocked the $50,000-per-day fine the lower court had imposed on the company for refusing to comply with the subpoena.

After the Court opted not to grant the company’s emergency petition, it appeared the case might fade from view, but on January 22, the Court allowed the company to file a formal petition for certiorari under seal—in secret. However, it also ordered the company to file a redacted version that could be released publicly. In addition to that brief, attorneys filed a supplemental brief that was unredacted, though the names of the company and country remain a secret. Even though this case presents a fairly technical question, its status as the first of potentially many Supreme Court challenges stemming from the special counsel investigation guarantees it will continue to attract interest. It could be an opportunity to see how the justices view the investigation, which could prove important if some of the other legal controversies it presents, such as whether the President could be subpoenaed, make it to the Court.

Other Developments

Uncommon Procedural Maneuvers

One of the more unusual developments at the Court this term has come in the form of the Trump Administration’s use of a rare procedural maneuver called “petition for certiorari before judgment”—in other words, a request for the Court to hear a case before it’s been argued in a circuit court of appeals. The sheer volume of the Administration’s filings is highly unusual. In the current term, the Administration has filed seven of these petitions, after filing one in the previous term. The Obama Administration filed only three over eight years (all in cases with the unusual posture of the government having sided with petitioners challenging the constitutionality of the Defense of Marriage Act; in two of those cases, the individuals filed the petitions before the government did). The Bush Administration appears to have filed only one, in 2004. Perhaps even more unusually, the Court’s agreement to hear the census case marked the first time it has granted this kind of petition since then.

As law professor and Constitution Project Supreme Court Fellow Steve Vladeck has explained, the Supreme Court has the authority to hear a case at any time after a party files a notice that it intends to appeal in a circuit court, whether or not the appeals court has already ruled in the case. But the Court’s own rules make this an exceedingly uncommon occurrence. Its rules state that a petition for certiorari before judgment is to be granted “only upon a showing that the case is of such imperative public importance as to justify deviation from normal appellate practice and to require immediate determination.” The Trump Administration’s most recent petition for an expedited appeal, in the census case, seems to fit this category, as the census must be finalized by this June.

As Kevin Russell noted in SCOTUSblog, the other circumstance under which the Court typically grants these petitions is when they allow the Court to consolidate a case with a similar one that has come through the standard appeals process (this was the situation when the Bush Administration filed its petition for certiorari before judgment in a case challenging the constitutionality of the federal sentencing guidelines). According to Vladeck, the last time the Court granted certiorari before judgment other than as a way to consolidate cases or to issue a summary decision without a full argument and opinion was 1988.

Unlike the census case, the other cases where the Trump Administration has sought to expedite proceedings seem to lack exigent circumstances, and did not have companion cases that had gone through the standard process. It has filed these petitions in three separate challenges to the Pentagon’s proposed restrictions on transgender service members, and in threechallenges to the plan to end the Deferred Action for Childhood Arrivals (DACA) program. The petition in one of the DACA cases was actually the Administration’s second attempt to expedite the proceedings: it had filed a similar petition in Department of Homeland Security v. Regents of the University of California earlier last year. While the government asked the Court to consolidate the related cases in both the DACA and transgender service members restrictions challenges, none of them had gone through the standard process when the petitions were filed. The Ninth Circuit Court of Appeals ruled against the Administration in Regents in November 2018, a few days after the Administration filed its petition with the Supreme Court.

Several commentators have argued that the surge in petitions for certiorari before judgment, especially in relatively conventional, if high-profile, cases like these, veers into demonstrating a lack of respect for the Supreme Court’s institutional prerogatives. Law professor Charles Tiefer took particular issue with the government’s petition in Regents. The filing was especially notable because it was the second time the government had sought the Supreme Court’s intervention in the case before the Ninth Circuit had a chance to issue a ruling, raising the specter that the Administration could be attempting to bypass the lower court to avoid a potentially unfavorable ruling.

The Administration also attempted similar maneuvers on several occasions, petitioning the Supreme Court to step in and block proceedings in district courts before an appeals court ruled on the government’s requests. Last year, the Administration attempted to block proceedings in a lawsuit seeking to force the government to adopt stringent climate-change policies, and to block depositions of two top Commerce Department and Justice Department officials, including Commerce Secretary Wilbur Ross, in the challenge to the proposed census question.

The Administration, for its part, has at least partially justified some of its unusual petitions by pointing to another procedural development: lower courts’ increasing tendency to issue nationwide injunctions, which prevent the government from enforcing a policy against anyone, not just the parties who brought the lawsuit. While nationwide injunctions were unheard-of in U.S. law until the mid-twentieth century, they have become a fixture in recent years, thwarting policies by presidents from both parties (for instance, a federal judge in Texas blocked the Obama Administration’s effort to expand protections against deportation for undocumented immigrants). During the Trump Administration, lower courts have enjoined both the transgender-service restrictions and the DACA rollback.

The practice is controversial. In addition to drawing the government’s ire, some scholars argue these injunctions drag the courts too far into political disputes and encourage lawyers to seek out sympathetic judges. Others point out that sometimes the only way to protect specific plaintiffs is to block an entire policy, and argue that the injunctions are an important check on executive overreach.

As Vladeck notes, the Court’s response to these fast-track petitions may indicate if it views the Administration’s tactics as aggressive advocacy or inappropriate abuse of a safety valve. It’s worth noting that in addition to agreeing to take the census case, the Court delayed the deposition of Ross and allowed the military’s transgender service restrictions to go into effect while litigation is ongoing. However, the Court denied the petitions to fast-track the appeals of the restrictions, and has not yet decided whether to accept the DACA cases, suggesting it might not hear them this term.