Friday, May 22, 2020
Each week, the Appellate Advocacy Blog Weekly Roundup presents a few tidbits of news and Twitter posts from the past week concerning appellate advocacy. As always, if you see something during the week that you think we should be sure to include, feel free to send a quick note to either (1) Dan Real at DReal@Creighton.edu or on Twitter @Daniel_L_Real or (2) Catharine Du Bois at DuBoisLegalWriting@gmail.com or on Twitter @CLDLegalWriting.
US Supreme Court Opinions and News
The Supreme Court unanimously ruled that Sudan must pay the over-$10 billion judgement awarded to the victims of the 1998 al-Qaeda bombing of the U.S. embassies in Kenya and Tanzania. The ruling allows Sudan to be held liable for both punitive and compensatory damages. A 2014 appellate ruling had determined that a 2008 law that permitted retroactive application of compensatory damages to cases involving state-sponsored terrorism did not extend to punitive damages. The Supreme Court reversed that ruling and reinstated the 2012 judgment. See opinion and reports from Bloomberg, The Washington Post, and The Associated Press.
The Court refused to grant Idaho officials' request to block a transgender inmate’s surgery pending appeal. The ruling leaves in place a Ninth Circuit order ruling that, by failing to provide the inmate’s gender confirmation surgery, Idaho violated the Eight Amendment’s ban on cruel and unusual punishment. Idaho is appealing to the Supreme Court, which has not yet decided whether it will hear the case. See reports from The New York Times and NBC News.
The Court has refused to grant an “emergency” request by two Texas inmates to reinstate a district court order that had required a Texas prison to take measures to protect inmates against the threat of COVID-19. A federal appeals court stayed the order pending appeal and found that the measures required by the district court’s order went further than Centers for Disease Control and Prevention guidelines. Although agreeing with the ultimate decision to deny the request, Justice Sotomayor issued a statement, to which Justice Ginsberg joined, to “highlight disturbing allegations” in the case. She writes: "It has long been said that a society's worth can be judged by taking stock of its prisons. That is all the truer in this pandemic, where inmates everywhere have been rendered vulnerable and often powerless to protect themselves from harm. May we hope that our country's facilities serve as models rather than cautionary tales." See Justice Sotomayor’s statement and reports in The New York Times, CNN, The Wall Street Journal, and Bloomberg Law.
Federal Appellate Court Opinions and News
The Fourth Circuit has allowed an emoluments suit against the president to proceed. The case, by Washington D.C. and Maryland, alleges that Donald Trump violated the Constitution by profiting from foreign and state patrons at his Washington, D.C., hotel. The court found a genuine dispute over the definition of an “emolument,” writing “we can hardly conclude that the President’s preferred definition of this obscure word is clearly and indisputably the correct one.” See opinion and a sampling of the many reports at The New York Times, The Courthouse New Service, The Hill, Politico, and The Washington Post.
The Fifth Circuit has temporarily stayed a Texas district court’s May 19 ruling that would have allowed voters in Texas to vote by mail during the COVID-19 pandemic. The district court’s ruling found that the disability provision in the Texas vote-by-mail code applied to voters who “lack immunity from COVID-19 and fear infection at polling places.” See report at CNN, The Texas Tribune, and The Dallas Observer.
The Sixth Circuit granted rehearing en banc and vacated its decision finding that the “the Constitution provides a fundamental right to a basic minimum education” and defining that as an education that “plausibly provides access to literacy.” This column reported on the Sixth Circuit’s right-to-education decision a few weeks ago. See the order granting rehearing and reports from Bloomberg Law and Detroit Free Press.
State Court Opinions and News
- In Michigan, the court have upheld the governor’s right to extend a stay-at-home order. Michigan residents claimed that the stay-at-home measures infringed on their constitutional rights. The court recognized that the state has authority to enact policy when “faced with a public crisis” and determined that the policy was consistent with the law. The court further iterated that a citizen’s constitutional rights are “subject to reasonable regulation by the state.” See report by CBS News and The Hill.
- In Wisconsin, the state supreme court struck down the governor’s stay-at-home order, ruling that the governor had overstepped his authority by extending the quarantine measures without consulting the legislature. See the opinion and reports from The Associated Press, The Hill, and Wisconsin Public Radio.
- In Oregon, the state supreme court stayed a county judge’s ruling that declared the governor’s COVID-19 measures concerning church gatherings “null and void.” See report in The Oregonian.