Friday, March 12, 2021
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 allowed a free speech suit seeking nominal damages to go forward despite the removal from the policy of the restriction on speech. The plaintiff sued his college over its public speaking policies, asking for nominal damages. The college revised its policy and removed the overly-restrictive limits on speech and the lower court rule the case moot. The Court reversed, finding “[t]his case asks whether an award of nominal damages by itself can redress a past injury. We hold that it can.” The decision was 8 to 1 with Justice Roberts dissenting. Justice Roberts's dissent warns that the decision will result in court’s having to issue the equivalent of advisory opinions. He wrote: “Until now, we have said that federal courts can review the legality of policies and actions only as a necessary incident to resolving real disputes. Going forward, the judiciary will be required to perform this function whenever a plaintiff asks for a dollar.” See the order and reports from The New York Times, ABC News, and the Associated Press.
The Supreme Court ruled that immigrants bear the burden to prove that they have not been convicted of a disqualifying crime when trying to cancel a deportation. Although the attorney general has the discretion to stop a deportation, that discretion does not apply under certain circumstances, like in this case, where the immigrant has been convicted of a “crime of moral turpitude.” The issue here was whether the crime qualified as one of moral turpitude and who bore the burden to prove it. The Court ruled that the immigrant bore the burden and that he had not met the burden of demonstrating that the crime was not a disqualifying crime. See the order and reports from NPR and Bloomberg.
Federal Appellate Court Opinions and News
The Second Circuit ruled unconstitutional Connecticut’s “special circumstances” rule, which imposes unique confinement rules for former death row inmates. The rule was created when the legislature abolished the use of the death penalty for future crimes (the inmate, who had been sentenced to death before the abolishment, was re-sentenced when the Connecticut Supreme Court determined that the death penalty was unconstitutional). The rule applied to inmates formerly on death row and imposed confinement conditions more onerous than those of the general population. The Second Circuit agreed that the special terms of confinement were unconstitutional. See the order and reports from US News and the CT Mirror.
The Second Circuit reversed a lower court ruling denying an injunction against abortion protesters in New York City. The ruling determined that the tactics used by the protestors may violate federal, state, and city laws, like those that prohibit obstructing entrance to a clinic. The ruling recognizes the conflict between the right to protest and the right to be free from harassment: “The right to protest is a fundamental right central to the First Amendment. The right to be free from harassment and threats from protestors is an equally fundamental right. Properly protecting both sets of rights presents some of the most challenging work courts are called upon to do.” See the order and reports from Courthouse News and Law.com.
State Appellate Court Opinions and News
The Washington Supreme Court overturned automatic life sentences for younger adult defendants. The case involved the sentencing of two young adults, aged 19 and 20, and determined that the court could not be required to impose the mandatory sentence and must consider their youth in sentencing. See the ruling and a report from the Associated Press.
- On March 10, the Senate Judiciary Committee’s subcommittee on Federal Courts, Oversight, Agency Action, and Federal Rights hosted a hearing titled “What’s Wrong with the Supreme Court: The Big-Money Assault on our Federal Judiciary.” Find the recorded hearing at this link.