The Nine have been active of late, with four opinions coming out late last week and another yesterday morning. There was also significant news yesterday on the orders docket. Here follows our harried (if not quite hurried) effort to bring you up to speed.

First up, in United States v. Tsarnaev (No. 20-443), the Court reinstated the death sentence of Boston Marathon bomber Dzhokhar Tsarnaev by a 6-3 vote, with outgoing death-penalty foe Justice Breyer leading the charge for the dissenters.

Surely, little background is needed on Tsarnaev’s crimes. In April 2013, he and his older brother, Tamerlan, detonated homemade bombs near the finish line of the Boston Marathon, killing three people (including an 8-year-old boy) and injuring hundreds more. Days later, they murdered an MIT police officer, carjacked another vehicle, and, as police closed in on them, engaged in a firefight that left Tamerlan dead (after Dzokhar ran over him as he attempted to flee). Suffice it to say, this is not a case where the principle argument against capital punishment was that the crimes were not serious. Instead, after he was convicted of 30 federal crimes and sentenced to death for 6 of them, the First Circuit vacated the conviction on two grounds. First, it held that the trial court abused its discretion during jury selection by declining to ask about the kind and degree of each prospective juror’s media exposure; and second, it held that the trial court abused its discretion during sentencing when it excluded mitigating evidence concerning Tamerlan’s possible involvement in a different triple murder, which might have demonstrated his dominance over Dzokhar.

The Supreme Court reversed, with Justice Thomas writing for the majority. With respect to the jury question, Thomas noted that trial judges have broad discretion over jury selection, including over what questions are necessary to ensure an impartial jury. The District Court did not abuse that discretion when, recognizing the significant pretrial publicity surrounding the Marathon bombings, it refused to ask a question that focused on what prospective jurors knew before coming to court, rather than on whether they would be able to set aside prior knowledge and render an impartial verdict based on the evidence presented. While defendants have a constitutional right to an impartial jury, that right does require that jurors know nothing about a case (a virtual impossibility in this instance). Here, the entirety of the jury-selection process dispelled any doubt that the District Court prudently exercised its discretion to empanel an impartial jury. While the First Circuit relied on its “supervisory authority” to require the District Court to ask the jurors the specific question about their prior media exposure, Justice Thomas maintained that the supervisory power of federal courts does not extend to the creation of prophylactic rules that circumvent or supplement the actual legal standards set by the Supreme Court.

Turning to the sentencing question, Justice Thomas again concluded that the District Court did not abuse its discretion in excluding evidence of Tamerlan’s potential involvement in an earlier set of murders. Though the Federal Death Penalty permits mitigating and aggravating evidence to be presented during sentencing, it also allows trial judges to exclude information “if its probative value is outweighed by the danger of creating unfair prejudice, confusing the issues, or misleading the jury.” Here, Thomas concluded that the District Court did not abuse the discretion by precluding evidence of the earlier (unsolved) murders based on its lack of probative value and potential to confuse the jury. Permitting this evidence would lead to a “confusing min-trial where the only witnesses who knew the truth were dead. The District Court did not abuse its discretion by declining to lead the jury into this evidentiary detour.”

In short, Justice Thomas concluded, “Dzokhar Tsarnaev committed heinous crimes. The Sixth Amendment nonetheless guaranteed him a fair trial before an impartial jury. He received one.”

Justice Barrett, joined by Gorsuch, concurred in that assessment, and the Court’s judgment, but wrote separately to express her skepticism about the First Circuit’s supposed “supervisory authority” to impose procedural rules on trial courts. Though Article III’s grant of “[t]he judicial Power” permits each federal court with the inherent authority to regulate its own proceedings, Barrett did not believe it extended to a court of appeals adopting blanket rules that that all district courts in its jurisdiction must follow. She acknowledged, however, that the Supreme Court has previously suggested courts of appeals do possess this supervisory authority, but urged that, “before we go further down this road, we should reexamine the map.”

Justice Breyer dissented, joined (mostly) by Sotomayor and Kagan. In his view, the First Circuit “acted lawfully in holding that the District Court should have allowed Dzhokhar to introduce [the] evidence” of his brothers’ involvement in three prior (brutal and ideologically inspired) murders, because the evidence tended to mitigate Dzokhar’s role in the Marathon bombing. Though Breyer recognized that the District Court had significant discretion to apply and weigh the factors governing the admissibility of mitigating evidence under the Federal Death Penalty Act, he stressed that abuse-of-discretion review is not “toothless,” especially “in the context of a matter so grave as the determination of whether ra human life should be taken or spared.” He proceeded to examine, with “particular judicial care,” the reasons given by the District Court for excluding the evidence, one by one, and concluded that the record did “not adequately support the exclusion for the stated reasons.” In a two-sentence section at the end of his opinion, Justice Breyer noted (again) “the problems inherent in a system that allows for the imposition of the death penalty.” This case, he concluded “provides just one more example of some of those problems.” Notably, neither Justice Sotomayor nor Kagan joined this small portion of the dissent.

Continuing on the criminal docket, the Court also issued two decisions involving the state-secrets doctrine. First, in United States v. Zubaydah (No. 20-827), a majority of the Court held that the state-secret privilege barred a Guantanamo Bay detainee from getting discovery as to the details of a former CIA detention facility in Poland at which the detainee had been subjected to waterboarding and other forms of torture. 

Following the aftermath of September 11, the CIA identified Abu Zubaydah as a senior al Qaeda lieutenant. He was captured in 2002 in Pakistani and handed over to the CIA. After a while, he was transferred to a CIA detention site where he was subjected to “enhanced interrogation,” better known as “torture.” While the location of that site is officially unconfirmed, we’re going to tell you a state secret: It’s in Poland. After several months of more enhanced interrogation, including dozens of waterboarding sessions, Zubaydah ended up in Guantanamo Bay, Cuba, where he remains to this day. In 2010, lawyers representing Zubaydah filed a criminal complaint in Poland asking Polish authorities to investigate. The Polish prosecutors sought information from the United States about the facility under a legal assistance treaty, but the U.S. refused to cooperate on national security grounds. Zubaydah and his lawyers then sought to aid the Polish investigation by filing discovery applications under 28 U.S.C. § 1782 for subpoenas directing two former CIA contractors to appear for depositions and to produce documents about the CIA facility in Poland and Zubaydah’s treatment there. The government then intervened, claiming the disclosure of this information would violate the state secrets privilege. The district court granted the government’s motion to quash the subpoenas entirely. On appeal, the Ninth Circuit largely agreed that the information Zubaydah’s subpoena sought was privileged. But it reversed the district court’s dismissal of the case, reasoning that the state secrets privilege should not protect the things that everybody already knew, namely that this facility was in fact in Poland and that Zubaydah was mistreated there. 

The Court reversed, in a slightly fractured majority opinion written by Justice Breyer. He began with a primer on the state-secrets privilege. Broadly speaking, it permits the government to prevent disclosure of information that would harm national security interests. To assert the privilege, the government must file a formal claim of privilege with the relevant court. That court then must balance the government’s justification for asserting the privilege against the litigant’s need for the information sought. While all members of the Court agreed with this summary of the law in broad terms, they disagreed both as to the details of how courts should do this and how to apply these rules in this case.

Justice Breyer (joined here by the Chief and Justices Kagan, Kavanaugh, and Barrett) then turned to the specific items of discovery the Ninth Circuit permitted. As noted, the Ninth Circuit would have allowed Zubaydah’s lawyers to question two CIA contractors about the existence of this facility in Poland and Zubaydah’s treatment there, because quite a few public reports and statements had already documented those facts, so what harm could there be to national security from talking about them? But the majority thought that analysis was too simplistic, because there’s a difference between these facts being “known” in an “everybody knows” sense and “known” in a “the U.S. government acknowledges it” sense. To be fair, the Ninth Circuit had recognized as much. But it concluded that because the two CIA contractors are just private individuals, their disclosure of information about the CIA facility was not equivalent to the government acknowledging its existence. The majority quickly dealt with that, though, reasoning that because these two contractors were central to the CIA’s operation, their testimony on these points would cause the same harm to national security as a formal acknowledgement from the CIA. Finally, the majority turned to the second part of the state-secrets balancing test: Zubaydah’s need for the information in question. And here, Zubaydah couldn’t really articulate one. The majority would thus reverse the Ninth Circuit’s decision to let the case go ahead at all, and remand with instructions to dismiss the discovery petition.

Justice Thomas, joined by Justice Alito, took another path to the same result. While they agreed that courts reviewing the assertion of the state-secrets privilege must balance the strength of the privilege claim against the litigant’s need for the information, they read the Court’s prior precedent as looking to the latter part first. Thus when a litigant fails to make out a strong case he needs the information in question in furtherance of some claim for relief, there is little reason to quibble with the details of the government’s privilege claim. Agreeing with the majority’s conclusion that Zubaydah had failed to articulate any concrete reason why he needed the information in question—it was not relevant to any relief he was seeking but at best might be helpful to Polish authorities investigating crimes in Poland—Justice Thomas would simply dismiss without getting into the weeds of the government’s interest in maintaining its privilege.

Justice Kavanaugh, joined by Justice Barrett, then provided his own short concurrence, trying to bridge the distance between Justices Thomas and Alito and the majority. In their view, courts should first examine whether the circumstances suggest a reasonable possibility state secrets are involved. If they do, the court should assume the government’s assertion of privilege is valid and proceed to examine the requester’s claim of necessity. Only when that claim is strong should the court investigate the government’s national-security interest more closely, an examination that may (but also sometimes need not) involve in camera review. (Justice Thomas, for his part, thought this was getting a bit cumbersome, preferring his two-part analysis to Justice Kavanaugh’s three.)

Next up was Justice Kagan, writing only for herself. She agreed with more or less all of the majority’s analysis, but not its conclusion. Specifically, while Zubaydah’s discovery requests as written would result in the disclosure of privileged information, she saw no reason why the lower courts could not pare back the scope of those requests to protect against this risk of overbreadth. That is particularly so given the substantial information already in the public domain about the CIA’s program of torturing detainees like Zubaydah, information that already included testimony from CIA contractors (including these very CIA contractors) about some of what Zubaydah sought. Because she thought there was some information responsive to Zubaydah’s requests that was likely not protected by the state secrets privilege, she would remand so the lower courts could narrow the subpoenas’ permissible scope.

Finally, we come to a full-throated dissent by Justice Gorsuch, joined by Justice Sotomayor. (You read that right.) He began by detailing the already extensive public information about the CIA’s interrogation program, much of which was found in government reports (including one from a Senate Select Committee), sworn public testimony, and books. He then turned to his main source of disagreement with the rest of the Court: how much deference is owed to the executive branch’s claim of privilege? While the majority thought quite a lot, Justice Gorsuch saw the history of the CIA’s secretive and abusive interrogation program as a prime example of why courts should conduct a more searching scrutiny. And under that scrutiny, he concluded the government had fallen short of its burden to show that national security would be harmed merely by allowing two former CIA contractors to testify about facts that everybody more or less already knew (and that had occurred nearly 20 years earlier, to boot). He would thus have voted to affirm the Ninth Circuit’s decision allowing Zubaydah to conduct discovery only as to the existence of the facility in Poland and the details of Zubaydah’s torture there.  

The Court piled on the state-secrets content with FBI v. Fazaga, (No. 20-828), concerning whether the Foreign Intelligence Surveillance Act (“FISA”) displaced the state-secrets privilege. As you might have guessed, it did not.

The background on this one is a bit simpler. In the aftermath of Nixon-era scandals, Congress enacted the FISA to address the unique problems of electronic surveillance in the national-security context. Among other things, it established a special court, the Foreign Intelligence Surveillance Court, to authorize and oversee surveillance for national security purposes. One section of FISA, 50 U.S.C. § 1806, authorizes and creates specialized procedures for using information obtained through FISA surveillance in criminal and administrative proceedings. Among other things, Section 1806(f) establishes a framework for courts to review surveillance information to be used in a proceeding in camera to determine whether it was lawfully obtained and to suppress it if not. In 2011, members of Muslim communities in southern California brought this lawsuit against the FBI, alleging that it had illegally surveilled them because of their religion. The government moved to dismiss the case based on the state secrets privilege, submitting declarations from government officials (including then-Attorney General Eric Holder) that disclosing information about the FBI’s investigation (which obviously would be necessary for the suit to proceed) would harm national security. Reviewing both public and classified information, the District Court agreed and dismissed the case. But the Ninth Circuit reversed in part, holding that Section 1806(f)’s procedures displaced the state secrets privilege and its dismissal remedy in the context of electronic surveillance. The Court granted cert to take up this statutory-interpretation question.

The Court reversed, in a unanimous opinion by Justice Alito. Before the Supreme Court, the parties spent most of their time debating the correct interpretation of Section 1806(f). Specifically, the Government argued it applies only when the it seeks to admit surveillance evidence against a person in a criminal or administrative proceeding. But the plaintiffs contended it also applies when a civil litigant seeks to obtain information obtained through FISA. After detailing these arguments, though, Justice Alito found it made no difference who was right, because Section 1806(f) did not displace the state-secrets privilege in either case. That was so for two reasons. First, nothing in the FISA even mentions the state-secrets privilege, a strong indication that Congress did not intend FISA to abrogate or narrow this longstanding privilege rooted in both common law and the Constitution. Second, and perhaps more important, the Court saw no conflict between Section 1806(f) and the state secrets privilege that would suggest the former displaced the latter. The basic question Section 1806(f) addresses is whether surveillance was lawfully obtained, with courts suppressing it if not. But the state secrets privilege addresses a different problem: whether disclosure of information in a lawsuit would harm national-security interests. Given their different focuses, Section 1806(f) and the state secrets privilege have different requirements (both substantively and procedurally).

For these reasons, the Court reversed the Ninth Circuit’s conclusion that Section 1806 displaced or limited the state secrets privilege and its dismissal remedy; they are separate regimes addressing separate problems. But the Court went no further. It thus did not decide which party’s reading of Section 1806 was better. Nor did it decide whether the district court properly dismissed the case based on the state secrets privilege, a question the Ninth Circuit did not address.

Of course, it can’t be a crim-law roundup without an ACCA case. The latest was yesterday’s ruling in Wooden v. United States (No. 20-5279), which somehow managed to be a unanimous decision with five separate opinions. The Justices all agreed that William Dale Wooden should not have been subject to a 15-year mandatory minimum sentencing enhancement for firearm offenders with three prior convictions for felonies “committed on occasions different from other;” but there was a fair amount of bickering over how (and with what tools of construction) that clause should be read.

First, another ACCA primer: The Armed Career Criminal Act is a federal statute that provides various mandatory sentencing enhancements for felons who commit crimes with firearms if they’ve previously been convicted of “violent felony” offenses of “serious drug offenses” three or more times. The statute has been a (very very very very very very) steady companion for Court Fans over the years. As Justice Gorsuch (in one of several concurring opinions yesterday) quipped, “Disputes over the statute’s meaning have occupied so much of this Court’s attention over so many years that various pieces of the law and doctrines associated with it have earned their own nicknames—the Elements Clause, the Residual Clause, the  Categorical Approach. Now comes the Occasions Clause.”

Wooden’s case provided a good test of the occasions clause. After he was convicted of being a felon in possession of a firearm in violation of 18 U.S.C. 922(g), the Government sought a 15-year sentencing enhancement based on his ten prior burglary convictions. Seems reasonable, except that those ten convictions all resulted from a single episode in 1997, when Wooden unlawfully entered a one-building storage facility and stole items from ten different storage units. Though he pled guilty to ten separate counts of burglary, was each really “committed on occasions different from one another”? The Sixth Circuit thought so, but the Supreme Court unanimously reversed.

Justice Kagan took the pen for the majority, joined in full by the Chief, Breyer, Sotomayor, and Kavanaugh and in part by Thomas, Alito, and Barrett. She maintained that Wooden’s successive burglaries occurred on just one “occasion” under a natural construction of that term. No ordinary person would say that his one-building crime spree involved ten separate occasions. Kagan therefore rejected the Government’s argument that an “occasion” ends at the discrete moment when an offense’s elements are established, as that would contravene ordinary usage. It also contravenes ACCA’s purpose, for it could (as here) make someone a career criminal in a matter of minutes. The Government’s approach would collapse ACCA’s separate statutory conditions—(1) three convictions for predicate felonies (2) committed on different occasions.

Kagan found it easier to reject the Government’s definition of “occasion” than to craft her own. Instead, she proposed a “multi-factored inquiry” that depends on the circumstances, including timing, location, and the character and relationship of the separate offenses. She insisted that this will usually be a straightforward and intuitive determination, but acknowledged that there may be hard cases. In those cases, “assessing the relevant circumstances may also involve keeping an eye on ACCA’s history and purpose.” Congress added the occasions clause in response to the Eighth Circuit’s decision in United States v. Petty (CA8 1986), which applied the 15-year enhancement to a defendant who’d been convicted of multiple predicate robbery offenses arising from a single criminal episode. When Petty sought cert, the Solicitor General confessed error and agreed that ACCA should not be construed to reach multiple felony convictions arising out of “a single criminal episode.” Congress then amended ACCA “to reflect the Solicitor General’s construction” by adding the occasions clause. While the Government was free now to disavow a prior solicitor general’s confession of error, ACCA’s amendment history still provided compelling evidence that Congress did not intend the occasions clause to cover separate offenses committed during a single criminal episode.

Justice Barrett didn’t care for that last bit. She joined the Court’s judgment and agreed with Justice Kagan’s analysis of the ordinary meaning of the word “occasion,” but wrote separately (joined by Justice Thomas) to express her disagreement with the majority’s view that Congress ratified the Solicitor General’s confession of error in Petty. She did not believe it was proper to infer from the subsequent amendment of ACCA that Congress intended to reject the Eighth Circuit’s decision in Petty or embrace the former Solicitor General’s reasoning. She especially decried “the Court’s jump from legislative history to litigation history” as an appropriate method of statutory interpretation, warning that the majority’s “elevat[ion of] the Solicitor General’s brief [confessing error in Petty] to the status of a governing test” would “likely have downstream effects.”

Justice Gorsuch also concurred in the judgment, but he joined no part of the majority opinion. (Justice Sotomayor bridged the gap somewhat, though, joining parts of Gorsuch’s concurrence and all of the Court’s opinion.) He took issue with the majority’s “multi-factored” balancing test, noting that tests of this sort “have supplied notoriously little guidance in many other contexts, and there is little reason to think one might fare any better here.” Instead, he arrived at the same conclusion—Wooden’s burglaries shouldn’t count separately under the occasions clause—through the rule of lenity. Under that rule, Gorsuch said, “any reasonable doubt about the application of a penal law must be in favor of liberty.” Here, because reasonable minds could differ on the question whether Wooden’s crimes took place on one occasion or several, the rule of lenity demanded judgment in his favor. Gorsuch acknowledged that “[c]ertain controversies and misunderstandings about the rule have crept into our law in recent years,” he provided a full-throated defense of an expansive application of the rule in any vague or ambiguous criminal statute.

Justice Sotomayor liked what Gorsuch had to say about the rule of lenity, and joined his opinion in part. But she wrote separately to express her agreement with the majority’s analysis as well. Why not both? she said, without actually saying that.

Justice Kavanaugh, on the other hand, did not care for Gorsuch’s ode to lenity. He joined the majority opinion in full, but wrote separately (and alone) to “explain why the rule of lenity has appropriately played only a very limited role in this Court’s criminal case law.” In Kavanaugh’s view, the rule of lenity only applies where a criminal statute is grievously ambiguous, not when a law merely contains some ambiguity or is difficult to decipher. When properly understood, the rule should hardly ever come into play because most ambiguities can be solved by other interpretive canons. Kavanaugh preferred “not [to] upset our rule of lenity case law by making the ambiguity trigger any easier to satisfy.” Instead, he proposed that the more deeply rooted “presumption of mens rea” in federal criminal statutes could address the concerns that Justice Gorsuch raised about fair notice in federal criminal law. (It would not, however, appear to have much to do with how ACCA’s occasions clause is construed.)  

Finally, we come to the civil side of the docket, where the Court issued an interesting (if possibly sui generis) ruling clarifying when one branch of government should be able to intervene to defend a law that another branch has stopped defending. In Cameron v. EMW Women’s Surgical Center (No. 20-601), the Court held (8-1) that the Sixth Circuit should have allowed Kentucky’s attorney general to intervene to defend a state law banning the “dilation and evacuation” method of abortion after the named defendant, the State’s Secretary of Health and Family Services, declined to continue defending it.

Following the enactment of HB 454, EMW Women’s Surgical Center sued both the Attorney General and the Secretary for Health and Family Services seeking to enjoin enforcement of the law. In Kentucky, the AG is elected and the Secretary is appointed by the Governor, so it is possible for them to be from different political parties. Indeed, when the law went into effect in 2018, the Secretary was an appointee of the Republican governor, while the Attorney General, Andrew Beshear, was a Democrat. EMW agreed to dismiss the claims against AG Beshear, pursuant to a joint stipulation that stated that the AG “agrees that any final judgment in this action concerning the constitutionality of HB 454 (2018) will be binding on the office of the Attorney General, subject to any modification, reversal or vacation of the judgment on appeal.” The Secretary continued to defend the law, which was permanently enjoined after a bench trial. The Secretary then appealed the decision, but while that appeal was pending, former AG Beshear, the Democrat, was elected Governor, while a new Republican, Daniel Cameron, was elected Attorney General. Governor Beshear’s new Secretary of Health and Family Services continued to defend the law during the initial appeal in the Sixth Circuit, but after that court affirmed the injunction, the Secretary filed a notice that he would not seek en banc review or certiorari. Two days later, AG Cameron moved to intervene as a party and filed a petition for rehearing en banc. The Sixth Circuit panel denied AG Cameron’s motion to intervene, concluding that it was untimely (having been filed after the panel’s decision), that there was no “substantial legal interest” at stake since Cameron was seeking “extraordinary” forms of review (rehearing en banc and certiorari), and that it would prejudice EMW because Cameron was seeking to make arguments that the Secretary had not raised. Undaunted, Cameron sought certiorari from the order denying his motion to intervene.

The Supreme Court concluded that the Sixth Circuit erred in denying the motion to intervene. Justice Alito wrote for the Court, joined by the Chief, Thomas, Gorsuch, Kavanaugh, and Barrett. He first disposed of EMW’s argument that AG Cameron was jurisdictionally barred from moving to intervene (and seeking certiorari) his office was bound by the District Court’s judgment and therefore should have filed a notice when the law was first enjoined. Quite simply, “no provision of law deprives a court of appeals of jurisdiction to entertain a motion for intervention that is filed by a non-party who is bound by the judgment that is appealed.” With respect to the merits of the Sixth Circuit’s decision, Alito noted that “[n]o statute or rule provides a general standard to apply in deciding whether intervention on appeal should be allowed.” However, considering the policies underlying intervention in the district courts, “including the legal interest that a party seeks to protect through intervention,” Alito concluded that intervention should have been permitted here. States have a legitimate interest in the continued enforceability of their own statutes. “The Sixth Circuit panel failed to account for the strength of the Kentucky attorney general’s interest in taking up the defense of HB 454 when the secretary for Health and Family Services elected to acquiesce.”

Justice Kagan filed a concurrence (joined by Justice Breyer) agreeing with the result, but not all of the court’s reasoning. In particular, she felt that the majority did not give serious enough consideration to EMW’s argument that AG Cameron’s motion to intervene was jurisdictionally barred because the AG had not appealed within 30 days from the District Court’s judgment. EMW characterized the AG’s motion to intervene as an end-run around a jurisdictional rule. Kagan agreed that this was a serious concern: parties who have declined (or otherwise failed) to appeal from a District Court’s judgment, shouldn’t be able to avoid a jurisdictional bar by just intervening in another party’s appeal in the same case. But Kagan did not believe “the anti-circumvention rationale for denying intervention” applied here “because of the change of circumstances between the time to appeal and the time of the motion to intervene.” When then-AG Beshear agreed to the dismissal of claims against him, he effectively handed off the defense of the challenged law to the Health Secretary, who filed an appeal. Even if the AG could have also appealed, there was no reason to. It was only when the Secretary ceased defending the law that the (now new) AG had an urgent reason to intervene and defend the law. Under these unique circumstances, “the attorney general’s motion to intervene was not an end-run around the timely-appeal rule,” making this a “textbook case for intervention.”

Justice Sotomayor filed the lone dissent, expressing a practical concern with the Court’s conclusion.  She explained that the Court gave “short shrift” to the fact that Cameron took a differing position with respect to the litigation than his predecessor did.  Permitting subsequent administrations to intervene in this way threatened to “open the floodgates for government officials to evade the consequences of litigation decisions made by their predecessors of different political parties, undermining finality and upsetting the settled expectations of courts, litigants, and the public alike.”

That does it for opinions, but there were two notable orders yesterday in closely watched election-law cases. In Moore v. Harper (No. 21A455), the North Carolina legislature adopted new congressional districting maps following the 2020 census, but the North Carolina Supreme Court rejected the legislative map, ordering that the 2022 congressional election take place based on a map the court itself had created to reduce partisan gerrymandering. North Carolina legislators sought certiorari and asked the U.S Supreme Court to stay the North Carolina Supreme Court’s ruling, meaning that the election would take place under the legislative map.

The Court denied the stay without explanation. But Justices dissented. Justice Alito, joined by Justices Gorsuch and Thomas, contended the case was the perfect time to address just how much authority do state courts have to regulate elections. As we discussed in a past update in the run-up to the 2020 presidential election, Article I, Section 4 of the Constitution states that the time, place, and manner of holding elections for federal office shall be “prescribed in each state by the Legislature thereof.” Four of the Court’s conservatives (these three, plus Kavanaugh) have voiced the view that this provision gives state legislatures the final say in election matters, precluding state courts from stepping in to hold legislative acts regulating elections to be illegal under state law or state constitutions. (This is sometimes called the “independent state legislature doctrine.”) Believing that these arguments were more likely than not to succeed in this case, these three dissenters would have granted certiorari and stayed the case while the Court considered the merits.

Although Justice Kavanaugh has previously agreed with his three more-conservative colleagues in somewhat similar stay cases, this time he sided with the rest of the Court, concurring in its denial of a stay. He briefly wrote to explain why. In his view, the case merited certiorari, but it did not merit extraordinary interim relief of requiring North Carolina to change its existing congressional electoral districts for an election that would take place in just a few short months.

More or less the same result played out in the second case, Toth v. Chapman (No. 21A457). There, Pennsylvania officials were unable to agree on a new congressional map following the 2020 census (with the governor vetoing the legislature’s proposed map). Litigation ensued. Eventually, the Pennsylvania Supreme Court stepped in, directing state election officials to conduct the 2022 congressional election on a map proposed by some of the litigants instead of using the map proposed by the legislature. In a two-sentence order, the Court denied Pennsylvania Republicans’ request to stay the use of that map, noting that the case had now been referred to a three-judge court, which should decide in the first instance whether injunctive relief was appropriate.

Okay, that’s more than enough for one Update. There are no more opinions days (yet) on the calendar this week, so we’ll take a breath and get back to you when there’s more to report.

Tadhg and Dave