The Relist Watch column examines cert petitions that the Supreme Court has “relisted” for its upcoming conference. A short explanation of relists is available here.
Over the past couple of conferences, the Supreme Court has continued to clear out the rolls of relisted cases. Remarkably, the Supreme Court denied review without comment in the most recent newly relisted case
, Escobar v. Texas
, in which Texas conceded that erroneous DNA evidence had contributed to the defendant’s conviction for capital murder.
The court also denied review this week in Shockley v. Vandergriff
, which asked the justices to decide whether the fact that an actual judge considered a prisoner’s claim to be meritorious was enough to demonstrate that “reasonable jurists could debate” the claim — the showing necessary for a prisoner to obtain the “certificate of appealability” necessary under federal law to appeal the denial of the prisoner’s habeas corpus petition. Justice Sonia Sotomayor, joined by Justice Ketanji Brown Jackson, dissented from the denial of certiorari
.
That brings us to the upcoming conference. There are 96 petitions and motions on the docket for this Friday’s conference. Only one of them is on its first relist: Villarreal v. Texas
.
David Asa Villarreal was the only defense witness at his trial in Texas state court for murdering his boyfriend and methamphetamine supplier Aaron Estrada. His direct examination was interrupted at noon by a lengthy overnight recess. The trial judge, in an instruction whose limits could charitably be described as “not a model of clarity,” told defense counsel to act as though Villarreal were still “on the stand,” and thus not to confer with him about his testimony overnight. In a series of offhand comments, the judge suggested counsel might still confer about sentencing and trial logistics, just not about Villarreal’s testimony. Villareal’s attorney objected that such an instruction interfered with his client’s right to confer with his counsel. The next day, Villarreal finished testifying, was convicted, and drew a 60-year sentence.
Villarreal’s case implicates two aging Supreme Court criminal procedure precedents. Geders v. United States
, held that a trial court violates the Sixth Amendment by prohibiting the defendant from speaking with his counsel during an overnight recess between the defendant’s direct and cross-examination. But Perry v. Leeke
, 13 years later, held that a trial court does not violate the Sixth Amendment by prohibiting the defendant from consulting his counsel during a fifteen-minute recess between his direct testimony and cross-examination.
By a 2-1 vote, the court of appeals affirmed Villarreal’s conviction, though noting confusion among the lower courts on the subject. And Texas’s highest court for criminal appeals, the aptly named Texas Court of Criminal Appeals, likewise affirmed by a divided vote. It concluded that by placing off limits only discussion of the defendant’s ongoing testimony, the trial court had complied with the Sixth Amendment.
Villarreal now seeks review, asking the court for further guidance about the universe of circumstances not covered by Geders and Perry. Texas opposes review on the ground that, “[w]hile there is a split of authority concerning such orders,” orders restricting a defendant’s conferring with counsel during substantial recesses “are rarely issued
.” The state argues that the decision in Villarreal’s case comports with the Supreme Court’s Sixth Amendment precedents.
On the one hand, it has been a long, long time since the Supreme Court last weighed in on this issue: Most readers would consider me an old man
, I have been practicing for over 30 years, and I didn’t even begin law school until the year after Perry was decided
. But the current courts shows little appetite for weighing in on constitutional issues of trial practice. This case seems unlikely to result in more than an opinion dissenting from denial of review. I would be happy to eat crow on this.
New Relists
Villarreal v. Texas
, 24-557 Issue: Whether a trial court abridges a defendant’s Sixth Amendment right to counsel by prohibiting the defendant and his counsel from discussing the defendant’s testimony during an overnight recess.
Returning Relists
Apache Stronghold v. United States
, 24-291 Issue: Whether the government “substantially burdens” religious exercise under the Religious Freedom Restoration Act
, or must satisfy heightened scrutiny under the free exercise clause of the First Amendment, when it singles out a sacred site for complete physical destruction, ending specific religious rituals forever.
(Relisted after the Dec. 6, Dec. 13, Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
Ocean State Tactical, LLC v. Rhode Island
, 24-131 Issues: (1) Whether a retrospective and confiscatory ban on the possession of ammunition-feeding devices that are in common use violates the Second Amendment; and (2) whether a law dispossessing citizens without compensation of property that they lawfully acquired and long possessed without incident violates the takings clause of the Fifth Amendment.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
Snope v. Brown
, 24-203 Issue: Whether the Constitution permits Maryland to ban semiautomatic rifles that are in common use for lawful purposes, including the most popular rifle in America.
(Relisted after the Jan. 10, Jan. 17, Jan. 24, Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
L.M. v. Town of Middleborough, Massachusetts
, 24-410 Issue: Whether school officials may presume substantial disruption or a violation of the rights of others from a student’s silent, passive, and untargeted ideological speech simply because that speech relates to matters of personal identity, even when the speech responds to the school’s opposing views, actions, or policies.
(Relisted after the Feb. 21, Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
Neilly v. Michigan
, 24-395 Issue: Whether restitution ordered as part of a criminal sentence is punishment for purposes of the Constitution’s ex post facto clause.
(Relisted after the Feb. 28, Mar. 7, Mar. 21 and Mar. 28 conferences.)
The Trump administration came to the Supreme Court on Monday morning, asking the justices to block an order by a federal judge in Maryland that instructed the federal government to return a Maryland man erroneously deported to El Salvador, where he is being held in a maximum-security mega-prison, to the United States by Monday evening.
Shortly after the government came to the Supreme Court, the U.S. Court of Appeals for the 4th Circuit denied the Department of Justice’s request to block the order. “The United States Government has no legal authority to snatch a person who is lawfully present in the United States off the street and remove him from the country without due process,” the unanimous 4th Circuit wrote.
John Sauer, who was confirmed as the U.S. solicitor general last week, told the justices that U.S. District Judge Paula Xinis had “ordered unprecedented relief: dictating to the United States that it must not only negotiate with a foreign country to return an enemy alien on foreign soil, but also succeed by 11:59 p.m. tonight.” Sauer also asked the court to grant an administrative stay, which would freeze Xinis’s order long enough to give the justices time to consider his request.
Kilmar Armando Abrego Garcia was born in El Salvador and came to this country as an undocumented immigrant. In 2019, an immigration judge granted him withholding of removal, which means that he is protected against being removed to El Salvador because of the likelihood that he would be harmed if returned there. He has never been charged with or convicted of a crime.
On March 12, Abrego Garcia was taken into ICE custody and eventually moved to Texas and, from there, to El Salvador’s notorious Terrorism Confinement Center. The detainees who arrived there from the U.S. were stripped, shackled, and had their heads shaved. No one has heard from Abrego Garcia since he arrived in El Salvador.
Lawyers representing Abrego Garcia went to federal court in Maryland, where Abrego Garcia lived with his wife and three children, seeking his return to the United States. The federal government acknowledged that Abrego Garcia should not have been taken to El Salvador, but it countered that Xinis lacked the power to consider Abrego Garcia’s case because (among other things) he was now in El Salvador and because the U.S government lacks any ability to get him back.
In a brief ruling on Friday, followed by a longer written decision on Sunday, Xinis instructed the federal government to return Abrego Garcia by 11:59 p.m. on Monday. The government, she stressed, “had no legal authority to arrest him, no justification to detain him, and no grounds to send him to El Salvador—let alone deliver him into one of the most dangerous prisons in the Western Hemisphere.”
Xinis declined to put her ruling on hold to give the government time to appeal, and the U.S. Court of Appeals for the 4th Circuit (in an order that appeared on the docket after the Trump administration submitted its filing to the Supreme Corut) did the same.
In his 25-page filing
, Sauer contended that “[e]ven amidst a deluge of unlawful injunctions” – apparently referring to other court orders blocking Trump administration policies – “this order is remarkable” because even Abrego Garcia had not asked the federal courts “to force the United States to persuade El Salvador to release” him “on a judicially mandated clock.” The federal government, Sauer maintained, “cannot guarantee success in sensitive international negotiations in advance, least of all when a court imposes an absurdly compressed, mandatory deadline that vastly complicates the give-and-take of foreign-relations negotiations.”
Sauer also repeated the government’s contention that Abrego Garcia was a member of the international criminal gang Mara Salvatrucha, commonly known as MS-13, which the United States has designated as a terrorist organization. Abrego Garcia disputes this, and in her written order Xinis noted that “the ‘evidence’ against Abrego Garcia consisted of nothing more than his Chicago Bulls hat and hoodie, and a vague, uncorroborated allegation from a confidential informant claiming he belonged to MS-13’s ‘Western’ clique in New York—a place he has never lived.”
Sauer conceded that Abrego Garcia’s “removal to El Salvador was an administrative error.” But that, he continued, does not give district courts the authority to “seize control over foreign relations, treat the Executive Branch as a subordinate diplomat, and demand that the United States let a member of a foreign terrorist organization into America tonight.”
The Supreme Court on Monday morning added two new cases, involving the Sixth Amendment right to counsel and restitution orders, to its docket for the 2025-26 term. The announcement came as part of a list of orders
from the justices’ private conference on Friday, April 4.
The court did not act on several requests for emergency relief, including in cases involving President Donald Trump’s effort to end birthright citizenship and his administration’s use of the 18th-century Alien Enemies Act, that are also pending at the court. Orders in those cases could still come at any time.
The Constitution’s ex post facto clause prohibits laws that retroactively increase the punishment for a crime or criminalize conduct that was legal when it occurred. The Supreme Court agreed on Monday to decide whether a restitution order, imposed as part of a criminal sentence, is the kind of “punishment” that can violate the clause.
The question came to the court in two separate cases. The justices agreed to hear the case of Holsey Ellingburg
, who was sentenced to nearly 27 years in prison and ordered to pay restitution for his role in a bank robbery in Georgia. Under the federal laws in effect when he committed the crime, he was required to make his restitution payments for 20 years, until 2016. During that time, he paid approximately $2,000.
In 1996, Congress enacted a new law that extends defendants’ liability until the later of two dates: 20 years after the judgment is entered against them or when they are released from prison. The law also requires defendants to pay interest on the restitution.
After 2016, the government continued to try to collect restitution from Ellingburg – including after he was released from prison. Ellingburg went to court, arguing that he should not have had to pay restitution after November 2016 and that the 1996 law violated the Constitution.
The U.S. Court of Appeals for the 8th Circuit rejected his argument, ruling that restitution is a civil remedy. Ellingburg came to the Supreme Court in October, asking the justices to take up his case. After considering his case at five consecutive conferences, they granted his petition for review on Monday.
The justices did not take up the case of William Neilly
, who had also asked the justices to weigh in on a similar question. Neilly’s petition for review will presumably be put on hold until the justices rule sometime next year on Ellingburg’s case.
Nearly a half-century ago, the Supreme Court ruled unanimously that a trial court infringed on a defendant’s Sixth Amendment right to be represented by an attorney when it prohibited him from meeting with his lawyer during an overnight break in his testimony. The Supreme Court on Monday agreed to decide a related question – whether a court can allow a defendant and his lawyer to meet, but nonetheless ban them from discussing his testimony.
The question comes to the court in the case of David Villareal
, who was convicted and sentenced to 60 years in prison for the stabbing death of his boyfriend, Aaron Estrada. Villareal insisted that he was only acting in self-defense.
Villareal came to the Supreme Court in November, telling the justices that the lower courts are divided over whether such a bar is constitutional.
Texas acknowledged that the lower courts have reached different conclusions regarding the propriety of such orders. But they are “so rarely issued that” the Supreme Court does not need to weigh in, the state insisted. And in any event, the state added, such orders are “compatible with the Sixth Amendment’s original meaning.”
After considering the case at two consecutive conferences, the Supreme Court granted Villareal’s petition for review.
The justices also turned down, without comment or relisting it for consideration at a second conference, a request to weigh in now on the constitutionality of the concealed-carry licensing scheme that New York enacted in the wake of the court’s 2022 decision in New York State Rifle & Pistol Association v. Bruen, which struck down the law then in effect.
As the case came to the court, it hinged in particular on what time period courts should look at to determine the original meaning of the Second Amendment’s right to bear arms and the law’s requirement that an applicant have “good moral character.” New York officials had stressed that the ruling by the U.S. Court of Appeals for the 2nd Circuit allowing the state to enforce most of the law was only a preliminary one “and may change” as the litigation continues.
Lawyers for alleged members of the Venezuelan gang Tren de Aragua urged the Supreme Court on Tuesday
to leave in place an order by a federal judge in Washington, D.C., that prohibits the federal government from removing them, or anyone else, from the United States under the Alien Enemies Act, an 18th-century law that until now has only been invoked during wartime.
In a 39-page filing, the plaintiffs noted that “it is becoming increasingly clear that many (perhaps most) of the men” who were sent to El Salvador on March 15 “were not actually members of” TdA, “and were instead erroneously listed” as TdA members largely because of their tattoos. The order by U.S. District Judge James Boasberg, the plaintiffs say, “is thus essential to ensure that more individuals who have no affiliation with the gang will not be sent to a notorious foreign prison.”
President Donald Trump issued the executive order at the center of the case on March 15. It targets Tren de Aragua, a large Venezuelan gang that began in that country’s prisons and then expanded into other parts of Latin America. The order directs government officials to quickly remove, without a hearing, noncitizens who are designated as members of TdA.
Trump relied on the Alien Enemies Act, a 1798 law that authorizes the president to detain or deport citizens of an enemy nation without a hearing when Congress has declared war or when an “invasion” has occurred.
Five Venezuelans in immigration custody who believed they could be removed under Trump’s order went to federal court in Washington to challenge Trump’s use of the AEA. Boasberg prohibited the federal government from removing any of the individual plaintiffs for 14 days, as well as anyone else under the AEA. During a hearing, he directed any flights carrying noncitizens that had already taken off to return to the United States, although news reports later indicated that more than 200 noncitizens later landed in El Salvador, where they were taken to a maximum-security prison.
The U.S. Court of Appeals for the District of Columbia Circuit expedited the government’s appeal, and on March 26 it turned down the government’s request to put Boasberg’s order on hold.
The government came to the Supreme Court on March 28, asking the justices to step in. It told the court that Boasberg’s orders “jeopardize sensitive diplomatic negotiations and delicate national-security operations, which were designed to extirpate TdA’s presence in our country before it gains a greater foothold.”
The plaintiffs countered on Tuesday that there is no harm to the government from keeping Boasberg’s orders in place. Indeed, the plaintiffs noted, the government has, using other immigration laws and procedures, continued to remove alleged members of the Tren de Aragua.
But by contrast, the plaintiffs wrote, if Boasberg’s orders are lifted, the plaintiffs “will suffer extraordinary and irreparable harms — being sent out of the United States to a notorious Salvadoran prison, where they will remain incommunicado, potentially for the rest of their lives, without having had any opportunity to contest their designation as gang members.”
The plaintiffs stressed that the government agrees with them that individuals should have an opportunity to challenge their designation as TdA before they can be removed. Instead, they observed, the government simply contends that the plaintiffs were instead required to bring a habeas corpus case – that is, a case to challenge the legality of their detentions – and contests the decision to challenge the president’s use of the Alien Enemies Act in Washington, D.C., rather than in Texas, where the five named plaintiffs are being held. These kinds of questions “are procedural issues more appropriately decided by lower courts in the first instance,” rather than by the Supreme Court in an emergency appeal, the plaintiffs suggested.
Moreover, the plaintiffs continued, because the Trump administration concedes that some court somewhere can review their case, “its dire claims about the TRO amounting to intolerable judicial interference with national security reduce, at best, to technical disputes” about where that court should be, which can be determined by the district court.
And the government is in any event wrong on the merits, the plaintiffs concluded. The Alien Enemies Act does not justify the president’s March 15 order. The AEA was intended to “address ‘military’ hostilities directed at the United States, not criminal activity by a gang during peacetime.”
The plaintiffs are also not required to bring their claims as habeas cases, they insisted. This is particularly true, they say, when it will be a “practical impossibility” for most people subject to the AEA to bring a habeas claim in time to stave off their removals. Among other things, the plaintiffs noted, the government continues to contend that it is not obligated to notify individuals who are covered by the president’s order. “And when asked pointedly in the court of appeals whether it plans to load more individuals onto plans without notice the moment the TRO is dissolved, the government did not hesitate to take that position.” As a result, the plaintiffs said, Boasberg’s order “is the only thing preventing” the Trump administration “from invoking the AEA to send individuals to a prison in El Salvador,” “perhaps never to be seen again, without any kind of procedural protection, much less judicial review.”
The Supreme Court on Wednesday largely upheld the Food and Drug Administration’s denials of two companies’ applications to sell flavored liquids for use in e-cigarettes. In a unanimous ruling, the justices threw out a ruling by the conservative U.S. Court of Appeals for the 5th Circuit holding that the FDA had improperly pulled a “regulatory switcheroo” when it gave the companies instructions that they followed but then ignored those instructions and denied authorization while imposing new requirements. In a 46-page ruling by Justice Samuel Alito, the court sent the case back to the court of appeals so that it could take another look at one aspect of the dispute – specifically, whether it made a difference that the FDA had changed its position and failed to consider marketing plans that the companies had submitted as part of their applications.
E-cigarettes, also known as vapes, are battery-powered devices that heat a liquid, which in turn produce an aerosol that the user inhales. E-cigarettes normally contain nicotine, the addictive ingredient released by the burning of a traditional cigarette, but without some of the other chemicals that are released when tobacco is burned.
A 2009 law, the Family Smoking Prevention and Tobacco Control Act, requires manufacturers to get permission from the FDA before putting a new tobacco product on the market. The law requires the applicant to show, among other things, that marketing the product would be “appropriate for the protection of the public health” – a standard that the FDA applies by considering both the likelihood that people who currently use tobacco products will quit and the possibility that people who do not use tobacco products will start using them.
In 2021, the FDA denied applications from Triton Distribution and Vapetasia to sell flavored liquids with names like “Rainbow Road,” “Crème Brulee,” and “Jimmy the Juice Peachy Strawberry” for use in e-cigarettes. Young people are more likely to use e-cigarettes when these kinds of flavored liquids are available, the FDA reasoned, and it had not found any evidence that flavored liquids would benefit adult smokers.
The full U.S. Court of Appeals for the 5th Circuit set aside the FDA’s denial of the two companies’ applications. The companies had followed specific instructions that the FDA had provided, the court of appeals reasoned, but then the FDA ignored those instructions and instead imposed – without acknowledging it – new requirements.
On Wednesday, the Supreme Court unanimously rejected the 5th Circuit’s ruling. Alito explained that under the federal law governing administrative agencies, courts reviewing an agency’s actions can only set them aside if they are arbitrary and capricious – that is, if they lack a rational basis or are unreasonable. Courts, Alito stressed, “must exercise appropriate deference” in such cases and cannot “substitute their own judgment for that of the agency.”
At its core, Alito continued, the companies’ argument boils down to the idea that the “FDA told them in guidance documents that it would do one thing and then turned around and did something different when it reviewed their applications.” But federal administrative law, Alito emphasized, allows agencies to change their positions as long as they “provide a reasoned explanation for the change, display awareness that they are changing position, and consider serious reliance interests.”
Alito acknowledged that in the lead-up to its consideration of the companies’ applications to market their products, the FDA issued “voluminous and discursive documents” that “paint a picture of an agency that was feeling its way toward a final stance and was unable or unwilling to say in clear and specific terms precisely what” the companies “would have to provide.” But for three of the issues about which the companies complain – the FDA’s alleged failure to provide clear notice about the kind of scientific evidence that they would have to provide, the FDA’s requirement that manufacturers compare the health effects of their non-tobacco-flavored products with those of tobacco-flavored products, and the FDA’s alleged shift in enforcement priorities away from cartridge-based products to include other kinds of e-cigarettes – the justices concluded that the FDA’s orders denying the companies’ applications were “sufficiently consistent” with the guidance that it had provided that it had not violated federal administrative law.
The FDA did not challenge the holding by the court of appeals that it had changed its position on the significance of submitting marketing plans that outlined a manufacturer’s proposals and restrictions to keep e-cigarettes out of the hands of young people. The FDA had told manufacturers that the submission of such plans would be “critical” but then did not consider them, the companies complained.
The FDA argued in the Supreme Court that its failure to consider the marketing plans would not have made a difference for these companies, because it had later denied applications by other manufacturers with very similar marketing plans that it had reviewed. The justices sent the case back to the court of appeals for it to take another look and determine whether the case should return to the FDA or instead whether it should consider the argument itself.
Justice Sonia Sotomayor wrote a brief concurring opinion to “clarify” that, in her view, the FDA was not necessarily “feeling its way toward a final stance,” as Alito suggested. “Instead,” she said, “the record shows the agency reasonably gave manufacturers some flexibility as to the forms of evidence that would suffice for premarket approval of their products, while hewing to (and never suggesting it would stray from) its statutory duty to approve only those products that would be ‘appropriate for the protection of the public health.’”
The Supreme Court on Tuesday appeared inclined to allow a lawsuit by U.S. victims of terrorist attacks in Israel against the Palestinian Authority and the Palestine Liberation Organization to go forward. A majority of the justices appeared skeptical of contentions by the PA and the PLO that a law allowing those victims to sue them in U.S. courts violates the Constitution’s guarantee of due process, even if there was not necessarily any agreement on the bench on exactly how courts should reach that conclusion.
During nearly two hours of debate, the justices often seemed to be grappling with broader questions as well, such as the extent to which courts should defer to national-security and foreign-policy judgments made by the other branches of government.
At issue the case is the concept of personal jurisdiction – whether courts have the power to hear a case against certain defendants. In 2019, Congress passed the Promoting Security and Justice for Victims of Terrorism Act to give federal courts personal jurisdiction over cases by terrorism victims abroad. The law provides that the PLO and the PA “shall be deemed to have consented to personal jurisdiction” in any civil case brought under the Anti-Terrorism Act, no matter when the act of international terrorism occurred, if they make payments to the families of terrorists who injured or killed a U.S. citizen or engaged in any activities within the United States. The law carves out a few narrow exceptions to the latter criterion – for example, for conduct relating to official United Nations business or meeting with government officials.
The U.S. Court of Appeals for the 2nd Circuit ruled that the dispute now before the court, brought by U.S. citizens injured in terrorist attacks in Israel, as well as the families of U.S. citizens killed in such attacks, could not move forward. It reasoned that the Palestine Liberation Organization, which is the official representative of the Palestinian people for foreign affairs, and the Palestinian Authority, the governing body for parts of the West Bank and Gaza Strip, had not agreed to have U.S. courts exercise jurisdiction over them. Nor, the court of appeals added, is the conduct that the PSJVTA targets the kind of conduct from which it would be fair to infer consent.
After the full court of appeals, over a dissent by four judges, declined to reconsider the decision, the victims and families came to the Supreme Court, which agreed last fall to weigh in.
Representing the victims and families, Kent Yalowitz urged the court to reverse the 2nd Circuit’s decision and revive his clients’ lawsuit. The PSJVTA provided the PLO and the PA with “fair warning,” he said. “Their conduct was knowing and voluntary.” And the law “reasonably advances legitimate government interests in the context of our federal system.”
Much of the oral argument focused on whether the due process clauses in the 14th Amendment (which applies only to the states) and the Fifth Amendment (which applies to the federal government) impose the same limits on jurisdiction – and, if they impose different limits, what those limits are for cases under the Fifth Amendment.
Yalowitz insisted that the two amendments have different limits. He reasoned that the 14th Amendment has to account for the interests of the states involved, so that one state does not infringe on the sovereignty of another by exercising jurisdiction over a defendant with minimal contacts with the state. But the “federal government doesn’t suffer from that limitation,” Yalowitz maintained, because its “powers are more expansive.”
Justice Sonia Sotomayor asked whether Yalowitz was “basically saying there is no due process protection under the Fifth Amendment even for U.S. citizens?” Could Congress say, she enquired, that a U.S. citizen could face trial in California for an act in New York?
Yalowitz insisted that he was not advocating for a rule that would eliminate a requirement that the exercise of jurisdiction be fair or reasonable, to protect “citizens and non-citizens alike from arbitrary federal action.” But the PSJVTA meets such a requirement, he maintained.
Justice Amy Coney Barrett asked whether, if the court were to interpret the Fifth Amendment as requiring that the defendant have some connection with the United States, the justices would effectively be overruling some of the 19th century cases interpreting the Fifth Amendment’s due process clause more to provide fewer protections.
Yalowitz acknowledged that at the very least, such an interpretation would be “in tension” with the older cases.
Deputy Solicitor General Edwin Kneedler told the justices that the PSJVTA is “an integral part of the foreign policy and national security policy of the political branches, including the securing of compensation for victims of terrorism.” Both kinds of conduct that can trigger the PSJVTA’s jurisdictional provision are, he said, “knowing and voluntary. They have a clear nexus to United States territory and to United States nationals and to the compelling U.S. interests in deterring terrorism.” Moreover, he added, the jurisdiction triggered by the law “is narrowly limited to terrorism cases.” “Congress’s judgment on these issues, as in all issues of national security and foreign policy, are entitled to great deference,” Kneedler concluded.
But Chief Justice John Roberts was unimpressed by the rule that the government was advancing. “It sounds like it’s a grab bag,” Roberts scoffed. It’s just “a bunch of words.”
Justice Neil Gorsuch saw what he characterized as a “tension” in the government’s position. On the one hand, as Kneedler agreed, under the Fifth Amendment the Supreme Court should play almost no role in “saying that what Congress has done is improper” with a law like the PSJVTA. But on the other hand, Gorsuch complained, the federal government wants a “safety valve” for the Supreme Court “to overrule” Congress in some cases.
Justice Elena Kagan suggested that the federal government might be reluctant to take a position “where anything Congress says goes” – that is, that there is essentially no role for courts to play in reviewing laws creating personal jurisdiction – because, among other things, there would be foreign-policy implications from “extremely broad” assertions of jurisdiction over foreign nationals, which could in turn encourage other countries to retaliate against U.S. nationals and companies.
Justice Ketanji Brown Jackson made a similar point, observing that without limits imposed by the Fifth Amendment on what Congress and the president can do, it could open a Pandora’s Box of other problems. She posited that the court could simply rule that the 14th and Fifth Amendments do not impose the same requirements and then send the case back to the lower courts.
But Barrett pushed back against any suggestion that such concerns might lead to the court issuing a narrower ruling. “[T]hese judgments about foreign policy considerations are for Congress and the president to make,” she emphasized.
Justice Samuel Alito chimed in, telling Kneedler that if the court looks at the 19th-century Fifth Amendment cases “you don’t want us to adopt that fully” and “and say ‘anything goes,’” then the court would have to “say what the test is. And then,” Alito asked, “what is the test?”
Justice Brett Kavanaugh clearly believed that the role of the courts in reviewing laws like the PSJVTA should be very limited. This is a case involving national security and foreign policy, he stressed, in which Congress and the president have already agreed on the proper role of the courts and acted pursuant to their constitutional powers to regulate the conduct of the PLO and the PA. Courts can still weigh in, he acknowledged, “to make sure they’re not crossing some other constitutional line,” but it’s normally “a very sensitive judgment” for courts to make, because Congress and the executive branch are generally going to be responsible for determining whether a law like the PSJVTA is fair.
Representing the PLO and the PA, Mitchell Berger told the justices that his clients’ conduct does not “support a presumption” that they consented to be sued in the United States under the PSJVTA. “Among other things,” he noted, when Congress passed the PSJVTA, two courts of appeals had already held that the same kinds of conduct that can now trigger jurisdiction under the PSJVTA “are constitutionally insufficient to support jurisdiction” over the PLO and the PA. “Continuing to engage in jurisdictionally insufficient conduct is the exact opposite of submitting to the court’s jurisdiction,” Berger argued.
Alito had a more practical question. “What exactly,” he queried, “is the unfairness in this case? Is it too burdensome to litigate this in New York, where the PA and the PLO,” at the U.N., engage in some activities?
Berger countered that the “unfairness” is the idea that the PA and the PLO can lose “a liberty interest for engaging in activity previously held constitutionally insufficient to support jurisdiction.”
Alito was dubious, telling Berger that his answer didn’t “sound like a personal jurisdiction argument.”
Berger then compared the situation of the PLO and the PA to a situation in which someone is “on a train where it’s sitting still and another train is moving backwards.” “That’s what Congress keeps doing with these statutes,” Berger told the justices, “which is we’re doing the same thing, and Congress keeps moving the context around us. And that’s what makes this statute as applied” to the PLO and the PA unconstitutional, Berger concluded.
But by the time the justices left the bench a few minutes later, it seemed likely that Congress would not need to tinker further with the law, and that this dispute – which Yalowitz described as “old enough to go to law school” – would go forward.
We are expecting one or more opinions from the court this morning. Join us for the live blog starting at 9:45 a.m. EDT
. Following the opinion announcements, the court will hear oral arguments in Medina v. Planned Parenthood South Atlantic
. The case is a dispute over South Carolina’s attempt to exclude all Planned Parenthood services from the state’s Medicaid program because it provides abortions — specifically, whether Planned Parenthood and one of its clients even have a legal right to sue to enforce the Medicaid Act.
Each weekday, we select a short list of news articles and commentary related to the Supreme Court. Here’s the Wednesday morning read:
The Supreme Court will hear oral arguments on Wednesday in a case that, at first glance, appears to involve only a technical interpretation of the federal Medicaid Act. But the dispute has drawn widespread attention because of the context in which it came to the justices: an attempt by South Carolina to exclude Planned Parenthood from the state’s Medicaid program because it provides abortions.
Created in 1965, the federal Medicaid program provides medical care, in cooperation with the states, to more than 72 million lower-income Americans – including families, the elderly, and people with disabilities. The Medicaid Act was enacted pursuant to Congress’s power under Laws under the Constitution’s spending clause, which allows Congress to attach conditions to federal funds.
Under federal law, Medicaid funds cannot generally be used for abortions. Planned Parenthood provides other medical services to its patients, both Medicaid and non-Medicaid, including gynecological and contraceptive care but also screenings for cancer, high blood pressure, and high cholesterol.
At two clinics in Charleston and Columbia, Planned Parenthood has tried to make it easier to lower-income patients in South Carolina to use its services – by, for example, offering same-day appointments and extended clinic hours. One of those Medicaid patients is Julie Edwards, who suffers from diabetes. She went to Planned Parenthood for birth control and says she wants to return to receive other care in the future.
In 2018, South Carolina Governor Henry McMaster ordered the state’s Department of Health and Human Services to bar abortion clinics from participating in the Medicaid program. McMaster explained that because money is fungible, the use of Medicaid funds by abortion clinics “results in the subsidy of abortion and the denial of the right to life.”
Edwards and Planned Parenthood went to federal court in South Carolina. They argued that McMaster’s order violated a provision of the Medicaid Act that allows any patient who is eligible for Medicaid to seek health care from any “qualified” provider.
In a decision by Judge J. Harvie Wilkinson, who was reportedly once on the short list to fill a vacancy on the Supreme Court during the George W. Bush administration, the U.S. Court of Appeals for the 4th Circuit agreed with Edwards and Planned Parenthood that the Medicaid Act creates individual rights that can be enforced under federal civil rights laws, and it prohibited the state from excluding Planned Parenthood from its Medicaid program.
South Carolina – represented by the conservative advocacy group Alliance Defending Freedom – appealed to the Supreme Court last June, asking the justices to decide whether Edwards and Planned Parenthood have a legal right to sue to enforce the Medicaid Act. The justices agreed in December to weigh in.
In its brief at the Supreme Court, South Carolina argues that under the Supreme Court’s cases, because the Medicaid law was enacted pursuant to Congress’s spending clause power, it “must unambiguously confer individual federal rights.” The Supreme Court, it says, has made clear that this is a stringent test. The law must use words that explicitly create the right that a plaintiff seeks to enforce, and it must confer the right “directly on a class of persons that includes the plaintiff in the case.”
It is noteworthy, South Carolina contends, that until now the Supreme Court has only found four provisions that clearly create privately enforceable rights. Two years ago, in Health and Hospital Corporation of Marion County, Ind. v. Talevski, the court ruled (by a vote of 7-2) that nursing-home residents could use federal civil rights laws to enforce two provisions of the Federal Nursing Home Reform Act that clearly granted individual rights. The justices also ruled that two provisions in Title VI of the Civil Rights Act of 1964 and Title IX of the Education Amendments of 1972, providing that “[n]o person shall,” also create privately enforceable rights.
No such language, the state asserts, is present in the “any qualified provider” provision, which says only that “an individual eligible for medical assistance” “may obtain” it from a “qualified” provider”: Although that text may confer a benefit, the state acknowledges, it doesn’t say anything about a “right.” Moreover, the state continues, the provision is located in “a list labeled ‘Contents’ setting out 87 disparate items that plans must include.”
By contrast, the state observes, the laws at issue in Talevski repeatedly referred to “rights” and were “listed in a bill of rights.” Indeed, another provision of the law at issue in Talevski specifically protected the “right to choose a personal attending physician” – demonstrating that Congress knows how to create the right to choose a health-care provider when it wants to.
South Carolina also emphasizes that as a practical matter, the Medicaid Act focuses on the relationship between the states and the federal government, rather than on creating individual rights that would allow someone to bring a lawsuit. Congress, the state stresses, wanted to give states “substantial discretion” in implementing their Medicaid programs. By allowing individuals to sue when they disagreed with a state’s Medicaid decisions, the state argues, Planned Parenthood’s reading of the law would give that discretion to federal courts and pose the risk of “unanticipated (and expensive) lawsuits” for states to defend.
In a “friend of the court” brief supporting South Carolina, the Trump administration agrees with South Carolina that Congress did not intend to create a privately enforceable right in the “any qualified provider” provision. If it had, the Trump administration posits, it would not have “bur[ied]” it “deep within” the Medicaid law and omitted the “term ‘right’ or other equally unmistakable rights-conferring language.”
The Trump administration acknowledges that its position is an about-face from the one taken by the federal government in earlier litigation involving other laws, including Talevski. But the Supreme Court’s decision in Talevski, Acting Solicitor General Sarah Harris explains, “has elucidated just how unmistakable and unusual rights-conferring statutes must be within the broader statutory context. After the change in Administration and in light of Talevski, the United States has concluded that” the “any qualified provider” provision does not create rights enforceable under federal civil rights laws. Adopting Planned Parenthood’s reading, she notes, could “potentially greenlight private” federal civil rights suits “to enforce a dozen or more similar provisions.”
Another brief supporting South Carolina comes from the World Faith Foundation, a California-based nonprofit that describes its mission as preserving and defending the “customs, beliefs, values, and practices of religious faith and speech.” Pointing to the Supreme Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion, the group emphasizes that the court “has explicitly returned abortion regulation to the states.” Allowing private lawsuits to enforce the “any qualified provider” provision in cases like this one, and therefore provide Medicaid funding to Planned Parenthood, the group says, “would sneak forbidden funding through the back door into South Carolina and other pro-life states.”
In its brief at the Supreme Court, Planned Parenthood also relies on Talevski, asserting that the “any qualified provider” provision passes the test that the justices outlined in that case. The provision, the group says, contains the kind of “individual-focused, rights-creating language necessary to confer an individual right”: It explicitly refers to “individuals” and directs the state to allow each Medicaid beneficiary to receive care from any qualified provider. In doing so, Planned Parenthood insists, Congress did not simply provide Medicaid patients with a benefit, but instead recognized “an intensely personal right” that is “fundamental to patients’ autonomy and dignity.”
Moreover, Planned Parenthood adds, the “any qualified provider” provision is “materially similar” to the laws in Talevski that the justices concluded did create privately enforceable rights for nursing-home residents.
It doesn’t matter, Planned Parenthood explains, that the “any qualified provider” provision does not specifically use the word “rights” or provide that “no person shall” do something, as in earlier cases in which the court has agreed that the text of the laws conferred privately enforceable rights. The Supreme Court, the group emphasizes, “has repeatedly rejected a magic-words requirement.”
The context and history of the “any qualified provider” provision also indicate that Congress intended to create privately enforceable rights, Planned Parenthood continues. Not only does the provision appear in both Medicare and Medicaid, the group observes, but Congress specifically enacted the Medicaid version of the provision “after States attempted to restrict Medicaid patients’ choice of providers.”
And Planned Parenthood pushes back against South Carolina’s contention that allowing individuals to bring private lawsuits to enforce the “any qualified provider” provision will lead to a wave of lawsuits. They note that the U.S. Court of Appeals for the 6th Circuit first held almost two decades ago that the “any qualified provider” provision can be privately enforced. “In the years since then, most circuits have agreed with the Sixth Circuit, and yet there has been no explosion of litigation.”
A “friend of the court” brief by Medicaid beneficiaries emphasizes Planned Parenthood’s role in providing all kinds of health care that has “nothing to do with abortion,” particularly in parts of the country where lower-income patients may have few options for good primary care. Indeed, the beneficiaries write, Planned Parenthood may be “not only their provider of choice, but potentially the only source of life-saving care that meets their needs.”
A brief by a group of public health organizations and scholars focuses on the “considerable impact on maternal and child health” that it says would flow from a ruling for the state. More than 50% of South Carolina’s counties “are medically underserved, and nearly two in five counties are classified as contraceptive deserts,” the group writes. Even where there are other health care providers, the group continues, “there is no evidence that they are in a position to accept a mass influx of patients who find themselves suddenly without access to the doctors and nurses they know and rely on.”
