U.S. Supreme Court Opens New Term

Today is the First Monday in October, the first day of the new term for the U.S. Supreme Court. As usual, the new cases the Court has taken up in its opening conference were announced last week, see this post, and today’s orders list contains a very long list of cases turned down. Along with shooting down the Stairway to SCOTUS suit against Led Zeppelin, there are a few other items of interest from the orders list.

Davis v. Ermold, No. 19-926, has nothing to do with criminal law, but it is worth noting because it is certain to come up in the confirmation hearing for Justice-nominee Amy Barrett. It is a free exercise of religion case by a former county clerk who had a religious objection to issuing marriage licenses to same-sex couples. Justice Thomas, joined by Justice Alito, made a statement respecting the denial of certiorari, lamenting the can of worms opened by constitutionalizing the issue five years ago rather than letting the democratic process take its course. CJLF takes no position on this case or the entire same-sex marriage issue.

Kaur v. Maryland, No. 19-1045, is a case involving the extent to which a defendant attacking the effectiveness of his prior lawyer waives the confidentiality of communications with that lawyer. Justice Sotomayor wrote a statement on that problem, even though she did not dissent from the denial of certiorari in this case.

Henness v. DeWine, No. 20-5243, involves Ohio’s three-drug midazolam-based execution protocol, a protocol that exists only because (1) opponents of capital punishment pressured drug companies into cutting off supplies of the preferred drugs, pentobarbital and thiopental, and (2) the D.C. Circuit’s erroneous decision in Cook v. FDA cut off supplies from willing suppliers in Asia. Justice Sotomayor again writes to express her concerns, none of which involve the real reasons for the problem.

Today’s oral arguments are two civil cases. Carney v. Adams, No. 19-309, reviews a remarkable holding by the Third Circuit that Delaware violates the U.S. Constitution by requiring a partisan balance on its highest courts.

Texas v. New Mexico, Orig. 65, as the name implies, is a state v. state suit. This places it in the very small category of cases that are filed directly in the Supreme Court, as opposed to trying the case in a lower court and then bringing it up for review. As usual, a body of water is involved. This time it’s the water in the Pecos River.