It probably came as no surprise that in 2024 West High formed a “little libraries” club, given the lack of free book distribution sites in the surrounding area and the school’s need to raise students’ reading skills.Read more

Think again if it seemed a new law giving Kern County environmental clearance to permit local oil-field work would end California lawmakers’ years-long battle over in-state oil production.Read more

While one of Kern County’s Congressional races is among the most competitive in the nation, its neighbor, the 20th Congressional district, is decidedly not.Read more

The Bakersfield Police Department asked for the public’s help Wednesday in identifying people responsible for a commercial burglary March 10 in the 4600 block of Planz Road.Read more

The Supreme Court on Wednesday was divided in Mullin v. Doe over the Trump administration’s efforts to strip citizens of Haiti and Syria of their protections under a federal program that allows foreign citizens to remain in the United States when the U.S. government believes that it is not safe for them to go home. After roughly one hour and 45 minutes of oral arguments, it was not clear whether a majority of the justices would allow the challengers’ claims to go forward, or whether the challengers would ultimately prevail if they did.The program at the center of the case is known as the Temporary Protected Status program. Enacted by Congress in 1990, it authorizes the Department of Homeland Security to designate a country’s citizens as eligible to remain in the U.S. and work if they cannot return safely to their own country because of a natural disaster, armed conflict, or other “extraordinary and temporary” conditions there.Then-Secretary of Homeland Security Janet Napolitano designated Haiti under the TPS program in 2010, shortly after a powerful earthquake rocked the country, killing more than 300,000 people and causing extensive damage.Two years later, Napolitano made a similar designation for Syria, citing “deteriorating conditions” in the country after a “brutal crackdown” by Syrian dictator Bashar al-Assad against anti-government dissenters. The initial designations of Haiti and Syria lasted for 18 months but were repeatedly extended until 2025, when Kristi Noem – then the Secretary of Homeland Security – announced that the Trump administration planned to end both designations.Noem indicated that a new Syrian government was attempting to “move the country to a stable institutional governance,” and that she had determined that “there are no extraordinary and temporary conditions in Haiti that prevent Haitian nationals … from returning in safety.” And in both cases, she indicated that it would be “contrary to the national interest” to allow the countries’ TPS designation to remain in place.A group of Haitian nationals with TPS went to federal court in Washington, D.C., to challenge Noem’s efforts to end the program, while a group of Syrians with TPS did the same in New York. Federal judges in those cities blocked the Trump administration from ending the TPS program for Haiti and Syria, and two federal appeals courts declined to step in.That prompted the Trump administration to come to the Supreme Court earlier this year, asking the justices to put the lower courts’ orders on hold and hear oral arguments in the disputes now, without waiting for the federal appeals courts to weigh in. The request came less than a year after the Supreme Court twice paused rulings by a federal district judge in San Francisco that would have temporarily blocked the Trump administration from ending a TPS designation (as well as an extension of that designation) for Venezuela.In an order on March 16, the Supreme Court agreed to take up the Haiti and Syria disputes, but it left the lower courts’ rulings in place, so that the Trump administration could not end the TPS designations for Haitian and Syrian nationals while the case moved forward at the Supreme Court.Representing the Trump administration, U.S. Solicitor General D. John Sauer told the justices on Wednesday that under the statute creating the TPS program, courts cannot review any determination by the DHS secretary with regard to the designation or termination of a foreign nation for protected status. “That provision means what it says,” Sauer stressed: It bars review of both the ultimate decision to terminate and each step that leads to it. Moreover, he added, the Haitian and Syrian nationals’ claims in this case challenge the kinds of foreign-policy decisions that political branches normally make.Representing the Syrian challengers, UCLA law professor Ahilan Arulanantham countered that although the DHS secretary “can terminate TPS, … he must turn square corners, follow the rules Congress set.” Arulanantham warned the justices that the government was asking for a “blank check” that could ultimately turn into a “double-edged sword”: a future DHS secretary, he suggested, could use it to provide sweeping relief to all undocumented immigrants, but on the government’s reading, “the courts could do nothing.”Geoffrey Pipoly represented the Haitian challengers. He told the justices that Noem’s “termination of Haiti’s TPS was different. It was not the result of the mandatory review process but was instead a preordained result driven by the President’s resolve to end TPS for Haiti, no matter what.” Indeed, Pipoly continued, the termination was the result of President Donald Trump’s “racial animus towards non-white immigrants and bare dislike of Haitians, in particular.”The court’s three Democratic appointees were all skeptical that, as Sauer contended, Congress had barred courts from considering claims – like the challengers’ – that the DHS secretary had not followed the appropriate procedures in terminating TPS status.Justice Ketanji Brown Jackson, for example, emphasized that, in the TPS statute, “Congress has clearly required … certain statutory steps, to include, for example, consultation.” Could courts review a claim alleging, Jackson asked Sauer, that the DHS secretary had made a determination “without following the statutory steps?”When Sauer responded that they could not, Jackson expressed puzzlement. Why, she asked, would Congress enact this statute and require the DHS secretary to take specific steps “if there was no ability for anyone to challenge the Secretary’s compliance?”Justice Sonia Sotomayor had a similar question, asking Sauer whether courts could review a termination of TPS announced on X, “effective tomorrow.” When Sauer again answered that they could not, Sotomayor pressed him, noting that the DHS secretary in doing so would not have complied with several of the statutory requirements, such as the mandate to publish the announcement in the Federal Register and to give TPS holders 60 days’ notice of the termination.Sauer continued to maintain that courts could not weigh in.Justice Elena Kagan acknowledged that courts may not be able to review the substance of the DHS secretary’s decision to designate or terminate a designation. “But that’s a different thing than to say that all the things that the statute says that the Secretary is supposed to do in order to determine” that substance “are themselves unreviewable,” she posited.Justice Amy Coney Barrett had tough questions for both sides. On one hand, she hinted that she might agree with the Democratic appointees that at least some claims are reviewable: if they are, she asked Sauer, what standards should a court then apply to determine whether the DHS secretary had sufficiently consulted with federal agencies before designating a country or terminating a designation under TPS?But on the other hand, Barrett asked Arulanantham whether allowing courts to review the procedural aspects of the DHS secretary’s decision but not the substance was just a “box-checking exercise” that would not ultimately help TPS holders very much. Why, she queried, “would Congress permit review of the procedural aspect when, really, what everybody cares about much more is the substance?”Arulanantham responded that it was “because Congress and us too and the millions of people who live with TPS holders have some faith in government, and they believe that if there is consultation, the decisions will be better.”When the debate turned to the challengers’ claims that Noem had violated the federal law governing administrative agencies when she terminated the TPS designations, much of the focus was on whether Noem had met the requirement that she consult with other agencies before terminating the TPS designations.Sauer told the justices that the obligation to consult imposed only a minimal requirement. “If she sought input from State,” Sauer stressed, “she has consulted.” “[T]his is the sort of discretionary call that for very good reasons the statute” gives the DHS secretary the power to make.Kagan was skeptical. “[I]f Congress says to consult about a particular subject matter,” she told Sauer, “then it seems as though what Congress said was you should ask somebody and they should give an answer.”Justice Samuel Alito appeared unpersuaded. “[I]t’s always going to be possible to … raise objections about the adequacy … of the consultation and the words that the State Department comes back with,” he said.But Arulanantham tried to assure the court that the challengers’ consultation claim was “extremely narrow.” “All we say is it has to be about a subject, deliberation about a subject,” he emphasized.Chief Justice John Roberts, whose vote could prove pivotal in the case, appeared to express doubt about the government’s reliance on the court’s 2018 decision in Trump v. Hawaii, in which the justices upheld Trump’s restrictions on immigration from eight countries, several of which were predominantly Muslim, to defend against the Haitian challengers’ claim that the termination of the TPS designation for Syria also violated the Constitution’s guarantee of equal protection because it was grounded in racial animus. In Trump v. Hawaii, the government argued, the Supreme Court applied a relatively low bar, making clear that such restrictions could pass muster as long as the government’s actions “plausibly relate[] to the Government’s stated objective.” And in this case, the government argued in its brief, the termination of Haiti’s TPS designation “is plausibly related to the national-interest and foreign-policy justifications the Secretary provided.”Roberts told Sauer that Trump v. Hawaii involved the president’s efforts to restrict who could enter the United States. “Here, we’re concerned with the Secretary and … aliens that … are already present” in the United States. “Your argument,” Roberts asked, “is a significant expansion of Trump v. Hawaii, isn’t it?”Sotomayor pointed to derogatory remarks that Trump made about nonwhite immigrants and Haitian immigrants in particular, noting that Trump had called Haiti a “filthy, dirty, and disgusting S-hole country” and “complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark.” “I don’t see how that one statement is not a prime example of” how “a discriminatory purpose may have played a part in this decision,” she said.Sauer characterized the statement as “unilluminating,” and suggested that, in any event, Trump’s statements were “less relevant” than Noem’s.Alito questioned Pipoly’s contention that all of the countries whose TPS designations Noem had terminated were non-white countries, telling him that he had “a really broad definition of who’s white and who’s not white. As I said,” Alito continued, “I don’t like dividing the people of the world into these groups.”A decision in the case is expected by late June or early July.Read more

Today is the last day of oral argument for the term, capping a very busy week for the justices.On Tuesday evening, six justices and their spouses attended the White House state dinner for King Charles III and Queen Camilla. It was the six Republican-appointed justices. We don’t know for certain that the president didn’t also invite the three Democratic-appointed justices, but to paraphrase a bit used by Bill Maher on his HBO show, we just know it’s (probably) true that he didn’t.Indeed, when Politico reported a tip that Justice Samuel Alito was spotted in a Georgetown formalwear shop, the news outlet had framed it as part of its discussion of the White House Correspondents’ Association dinner. I thought the chances of Alito attending that event were quite slim. If the tip was true, it seems more likely he was getting fitted for white tie and tails, the dress code for men at the state dinner.And earlier on Tuesday, retired Justice Stephen Breyer attended the king’s speech to a joint session of Congress, where he was able to get Charles’ attention for a quick word as the king left the chamber. Perhaps it was to thank him for the reference to how many times the Supreme Court has mentioned the Magna Carta. (The king cited figures from the Supreme Court Historical Society, which sent out an appreciative email today.)In the packed courtroom this morning, Jaime Santos of Goodwin Proctor’s Supreme Court and appellate practice is in the bar section near me, and we speculate about which decisions might be coming down. She predicts that Louisiana v. Callais, the major Voting Rights Act case, will be the one. I say no, not on the same day as the consolidated cases in Mullin v. Doe about whether then-Secretary of Homeland Security Kristi Noem violated federal law when she terminated temporary protected status designations for Haiti and Syria. (This will not turn out to be my day to play the lottery.)The justices take the bench, none wearing formalwear. Chief Justice John Roberts announces that Justice Neil Gorsuch has the opinion for the court in First Choice Women’s Resource Centers v. Davenport.Gorsuch is pretty quick with his summary of the decision that the faith-based pregnancy center has established a present injury to its First Amendment associational rights to confer standing to challenge a New Jersey subpoena demanding documents about its donors.“Today, we unanimously reverse,” he says, revealing the vote count near the very beginning.Next, and much to my surprise, the chief justice announces that Alito has the opinion for the court in Callais, which holds that the Voting Rights Act did not require Louisiana to create an additional majority-minority congressional district, and that no compelling interest justified the state’s use of race to create its redistricting map.Alito cites the “complicated history” of the case, adding, “I will try not to burden you with too many details.”But while his preference for opinion summaries is normally quick and concise, not so here. Rather, he goes on for about 12 minutes, explaining what in his view the ruling decides and does not decide. He then spends the last few minutes responding to the dissent, an almost sure sign that an oral dissent is coming. And it does: After Alito announces the lineup, the justice on Alito’s left, Elena Kagan, begins the first oral dissent of the term.With this decision, she says, “this court’s effort to dismantle and, indeed, destroy the Voting Rights Act is complete.” The Voting Rights Act was “one of the most consequential, efficacious, and amply justified exercises of federal legislative power in our Nation’s history,” she continues, quoting from Shelby County v. Holder, which dealt a prior blow to the Voting Rights Act. “It was born of the literal blood of Union soldiers and civil rights marchers.”She goes on for 14 minutes, concluding that the majority’s gutting of Section 2 puts the achievement of African-Americans attaining public office in record numbers in great peril.Modifying the final words of her dissent to encompass her colleagues Sonia Sotomayor and Ketanji Brown Jackson, Kagan says, “We dissent because Congress elected otherwise. We dissent because the court betrays its duty to faithfully implement the great statute Congress wrote. We dissent because the court’s decision will set back the foundational right Congress granted of racial equality in electoral opportunity.” She does not say she is dissenting “respectfully.”When Kagan is finished she leans back, and the chief justice moves on to the admission of a few individual bar members (no groups today) before calling the TPS cases, which concern whether the Trump administration acted properly in revoking temporary protected status for Haitian and Syrian nationals.The tension will hang in the air throughout the morning, as U.S. Solicitor General D. John Sauer seeks to defend the TPS determinations by now-former DHS secretary Noem.Early on, Sotomayor asks a prolonged series of questions, leading the chief justice to try another tactic in what seems to be his efforts to rein her in a bit.“Counsel, excuse me,” Roberts says, interrupting Sotomayor. “You said a moment ago that there were three points in response to my colleague’s question. Could you just briefly mention those?”But this only leads Sotomayor to sharpen up her questioning. Discussing possible motivating factors and potential discriminatory purposes, she raises past remarks by President Donald Trump, telling Sauer, “Now we have a president saying at one point that Haiti is a ‘filthy, dirty, and disgusting S-hole country.’ I’m quoting him. And where he complained that the United States takes people from such countries instead of people from Norway, Sweden, or Denmark, … [while] he declared illegal immigrants, which he associated with TPS, as poisoning the blood of America.”Sauer does his best to try to set aside comments by Trump and Noem cited by Sotomayor or the challengers. “All the statements that they cite as to the secretary and as to the president – obviously, there’s an issue there about which one you’re going to weigh more heavily – none of them, not a single one of them, mentions race or relates to race in any way,” he says.Sauer has a momentary lapse when the chief justice thanks him at the end of his regular argument time, and he quickly sits down. But there is still the seriatim round, and several justices pass before Roberts turns to Sotomayor, who has another question.Sauer scurries back to the lectern, saying “I’m sorry.”The chief justice says, “Party’s over. No, you’ve got to stay there.”“I’m very sorry,” Sauer says.The debate around the president’s comments will get either more graphic or just more uncomfortable as the argument goes on. Geoffrey Pipoly, representing the Haitian TPS holders, will open his argument with an unexpurgated citation of Trump’s “s-hole” comment.Alito, questioning the challengers’ view that all countries for which TPS designations have been canceled were predominantly non-white, tells Pipoly, “I don’t like dividing up the people of the world arbitrarily into three racial groups, but you say they’re all non-white. … Do you think that if you put Syrians, Turks, Greeks, and other people who live around the Mediterranean in a lineup, do you think you could say those people are – that all of them, are they all non-white?”After some back and forth on that, Alito asks, “How about southern Italians?” The topic is fraught with racial, or ethnic, tension, yet Alito’s reference to his own heritage prompts some laughter in the courtroom. Even Alito is smiling as the laughter seems to release some of the tension surrounding this fraught topic. Pipoly replies, “Certainly 120 years ago when we had our last wave of European immigration, southern Italians were not considered white. So I think our concept of these things evolves over time.”Thankfully, the argument soon veers back to more mundane topics such as the Administrative Procedure Act. The case, which started at 10:35 a.m. after the prolonged opinions of the day is submitted at 12:21 p.m. Not too long for such a big case. The second case for argument today, the patent dispute Hikma Pharmaceuticals USA Inc. v. Amarin Pharma Inc. (which I did not attend), clocks in at a tidy one hour and one minute.From here on out, it’s just orders and decisions.Read more

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.Since our last post, the Supreme Court has been showing real restraint at the relist window. Of last week’s seven new relists and 10 returning relists, the justices acted on exactly one: They granted review in one-time relist Department of Labor v. Sun Valley Orchards, LLC, the government petition asking whether Article III allows the Department of Labor to use administrative adjudication to impose civil penalties and back wages on employers accused of violating the conditions of participation in the H-2A visa program. The case revisits the constitutional limits on agency adjudication and the scope of “public rights” in the wake of SEC v. Jarkesy, which held that persons fined by the Securities and Exchange Commission were entitled to a jury trial.But on to new business. There are 101 petitions and applications on the docket for this Friday’s conference. Four are being considered for a second time.Hostess with the mostestNo one will be surprised to learn that this week’s likeliest grant reminded me of The Week magazine’s aptly named former feature “Boring but important,” which apparently was cancelled for excessive truthfulness. There’s a reason why the Wuthering Heights posters didn’t exclaim, “Two hours you will never get back.”To all the parents who stopped packing Twinkies in your kids’ lunches: Behold what your healthy choices have wrought. In 2021, as part of the American Rescue Plan, Congress created the Special Financial Assistance program to provide taxpayer-funded lump-sum bailouts to severely underfunded multiemployer pension plans. To be eligible, a plan must have been “in critical and declining status (within the meaning of [29 U.S.C. § 1085(b)(6)]) in any plan year beginning in 2020 through 2022.” The Bakery Drivers Local 550 pension fund – whose participants are bakery drivers who lost major contributing employer Hostess (the maker of Twinkies) to bankruptcy in 2012 – terminated the plan through a mass withdrawal from it in 2016.Pension Benefit Guaranty Corp. v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund asks a wonderfully niche but potentially expensive question: whether a multiemployer pension plan that terminated by mass withdrawal in 2016 can still qualify for the American Rescue Plan Act’s Special Financial Assistance program under ERISA Section 1432(b)(1)(A), which covers plans “in critical and declining status” during 2020-2022. The Pension Benefit Guaranty Corp. denied the fund’s SFA application on the ground that, because the plan terminated by mass withdrawal in 2016, it could not have been “in critical and declining status” during the 2020-2022 window. The fund arranged for a new employer to join and resume contributions in 2022, applied for SFA, and lost in the district court. But the U.S. Court of Appeals for the 2nd Circuit held that Section 1432(b)(1)(A)’s cross-reference to Section 1085(b)(6) imports only that provision’s definition of “critical and declining status” – essentially, whether the plan is projected to become insolvent within the current year or the next 14 years. The court also rejected the PBGC’s argument that because a separate provision (Section 1081(c)) provides that Section 1085 only applies to plans until their termination, the cross-reference to the definition incorporated a requirement that the fund not have been terminated. The government now seeks review, not claiming any circuit split but saying that the PBGC disagrees and the 2nd Circuit’s holding is “as legally flawed as it is counterintuitive,” and “will likely result in the payment of hundreds of millions of dollars in taxpayer funds to terminated pension plans that Congress intentionally excluded from the SFA program.” The fund says the government’s claims are overblown and the 2nd Circuit’s decision is correct. But first, people have to read a stack of opinions and briefs every bit as engaging as a corporate tax return. My sympathies to everyone involved.Administrative channeling dust-upMargolin v. National Association of Immigration Judges is the sort of separation-of-powers food fight that only a true connoisseur of administrative law could love. The case began with National Association of Immigration Judges’ challenge to a policy adopted in 2022 by the Executive Office for Immigration Review, which runs the immigration courts and Board of Immigration Appeals. The policy generally treats public speech about immigration or EOIR as official-capacity speech requiring supervisory approval, effectively preventing immigration judges from speaking about those subjects in their personal capacities.The district court held that the challenge had to be channeled through the Civil Service Reform Act’s administrative machinery. The U.S. Court of Appeals for the 4th Circuit agreed under ordinary circumstances, the CSRA would route claims like this one through the Office of Special Counsel, the Merit Systems Protection Board, and ultimately the Federal Circuit. But the panel concluded that recent events – including President Donald Trump’s removal of the special counsel and MSPB members, the resulting loss of an MSPB quorum, and the government’s position that statutory removal protections are unconstitutional – may have so undermined the system’s “functionality and independence” that the district court would on remand have to “consider whether the text, structure, and purpose of the Civil Service Reform Act has been so undermined that the jurisdiction stripping scheme no longer controls.” The en banc court voted 9-6 to deny rehearing, with three concurring and one dissenting opinions. Judge J. Harvie Wilkinson, who voted to deny rehearing, nevertheless wrote that the panel’s opinion “plants the seeds of real mischief” and that “only the Supreme Court can bring an effective halt,” because a court should not decide whether a statute is “functioning as Congress intended.” The government sought a stay of the 4th Circuit’s mandate, but the Supreme Court denied the application without prejudice, holding that the government had not established irreparable harm.The government’s petition says that the case is “a clear candidate for summary reversal twice over.” NAIJ had conceded that ordinary CSRA preclusion was settled and argued only that its own claims fell outside the scheme, yet the 4th Circuit “sua sponte and without notice to or input from the parties then derailed the case based on post-oral argument events,” namely that the president had removed a member of the MSPB, so that body lacked a quorum on the date the opinion issued. The government thus claims that summary reversal is warranted both for departing drastically from the principle of party presentation (that courts may rely only on arguments presented to them, and which was the basis for the Supreme Court summarily reversing the 4th Circuit just five months ago), and for failing to adhere to Supreme Court precedent that is directly on point in holding that the CSRA channels federal personnel claims to the MSPB. NAIJ responds that the 4th Circuit’s remand is merely interim and that if the adjudicators Congress counted on to supply meaningful and independent review have been brought under presidential control, the premise for implied jurisdiction-stripping starts to wobble.NAIJ filed a cross-petition in National Association of Immigration Judges v. Margolin arguing that a pre-enforcement challenge to a broad prior restraint on federal employees’ speech need not be funneled through the CSRA at all, given that the policy is not, in NAIJ’s telling, a conventional CSRA-covered personnel action; that the CSRA offers no guarantee of judicial review because the Special Counsel may simply decline to proceed; and that any eventual review would come too late to remedy the “here-and-now” First Amendment injury from a speech restriction that chills public comment before it happens. NAIJ says that the 4th Circuit’s contrary conclusion squarely conflicts with the D.C. Circuit’s decision in Weaver v. U.S. Information Agency, which held that a federal employee may bring “a simple pre-enforcement attack on a regulation restricting employee speech” in district court, so long as that challenge stands independently of any later covered sanction for noncompliance. And NAIJ argues the decision sits uneasily with other Supreme Court precedents suggesting that plaintiffs need not raise their claims administratively if there is no guarantee of judicial review at the end of the road. The government argues “that question is manifestly not certworthy,” because it involves only a splitless application of settled law. Sequential confessions in a notorious “cold case”McCarthy v. Hernandez arises from one of the most infamous “cold cases” in American history – the 1979 kidnapping and murder of six-year-old Etan Patz, who vanished walking to his school bus stop in lower Manhattan. This is one of the first cases to establish the practice of putting photos of missing children on milk cartons. The case against respondent Pedro Hernandez rested entirely on his own statements (to police and others). In 2012, after Hernandez’s brother-in-law contacted police, detectives brought Hernandez to the Camden County Prosecutor’s Office in New Jersey, where they questioned him for nearly seven hours in a windowless room without giving Miranda warnings or turning on the video camera concealed in the room. After Hernandez confessed, police read him his rights and then recorded a second videotaped confession. Later that same day – after a walk-through of the alleged crime scene, food, and intermittent sleep – Hernandez gave a third confession to an assistant district attorney. Hernandez had also made incriminating statements to members of a prayer group, a friend, and his ex-wife over the preceding decades. After a five-month retrial (the first ended in a mistrial), a New York jury convicted Hernandez of felony murder and kidnapping. During deliberations, the jury sent a note asking whether, if it found the initial pre-Miranda confession involuntary, it “must disregard” the subsequent videotaped confessions to both law enforcement and civilians. The trial court answered simply “no,” essentially because applying the fruit-of-the-poisonous-tree doctrine was not the jury’s function. The Appellate Division affirmed, finding the response correct and, in the alternative, that any error was harmless given the extensive evidence of guilt.Hernandez sought habeas corpus review, and the federal district court denied relief. The 2nd Circuit reversed, holding that the trial court’s response was contrary to Missouri v. Seibert. Under Seibert, when police deliberately question a suspect without Miranda warnings, obtain an initial confession, and only then administer warnings before eliciting the same confession again – a tactic designed to make the warnings feel like a formality the suspect has already talked past – any resulting post-warning confession must be suppressed unless curative measures are taken to ensure the suspect genuinely understood his rights. The 2nd Circuit held that the trial court’s one-word “no” in response to the jury’s question about whether it should disregard the post-warning confessions if it found the initial pre-warning confession involuntary was contrary to Seibert, and that the error was not harmless because the confessions were the only evidence against Hernandez.New York asks the Supreme Court to summarily reverse, pressing two independent grounds. First, the state courts did not violate clearly established federal law because Seibert – which addressed pretrial suppression rulings by a judge – has never been held to apply to jury deliberations at all, and the Antiterrorism and Effective Death Penalty Act permits habeas relief only when a state court contradicts or unreasonably applies precedent that is “clearly established” by the Supreme Court. Second, even assuming some error, the state courts’ harmless-error finding deserved deference under AEDPA: Hernandez’s confession to the ADA came roughly eleven hours and ninety miles removed from the initial interrogation, and was corroborated, New York argues, by details only the killer would know; and Hernandez’s multiple statements to civilians provided independent, wholly untainted evidence of guilt. Hernandez counters that the 2nd Circuit’s decision is merely a straightforward application of Seibert. He adds that the first jury hung, the second deliberated nine days and sent three notes about the confessions and taint from the initial interrogation, and the pre-Miranda interrogation bore all the hallmarks of the “deliberate two-step strategy” Seibert condemned.That’s all for this week. Check back Monday to see whether the court serves up a grant, a summary reversal, or just another helping of relist purgatory.New RelistsPension Benefit Guaranty Corporation v. Board of Trustees of the Bakery Drivers Local 550 and Industry Pension Fund,25-701Issue: Whether a multiemployer pension plan that terminated through mass withdrawal before the 2020 plan year is eligible for Special Financial Assistance under 29 U.S.C. 1432(b)(1)(A).(Relisted after the Apr. 24 conference.)McCarthy v. Hernandez, 25-748Issues: (1) Whether the Second Circuit violated the Antiterrorism and Effective Death Penalty Act by finding a state jury instruction invalid under Missouri v. Seibert; and (2) whether the 2nd Circuit violated AEDPA by finding that a single response by a state trial judge to a jury note necessarily infected the jury verdict, when the state courts found that there was more than sufficient evidence of the defendant’s guilt that was unaffected by the response.(Relisted after the Apr. 24 conference.)Margolin v. National Association of Immigration Judges, 25-767Issues: (1) Whether the decision below – in which the court of appeals held, without notice to or briefing by the parties, that the Civil Service Reform Act of 1978 does not preclude suit in district court when “a factual record” shows that the CSRA is not “function[ing] as intended” – should be summarily reversed for violating the party-presentation principle; and (2) whether the decision below should be summarily reversed for failing to adhere to this court’s precedents holding that the CSRA generally precludes challenges to federal personnel actions in district court.(Relisted after the Apr. 24 conference.)National Association of Immigration Judges v. Margolin, 25-1009Issue: Whether the Civil Service Reform Act impliedly strips federal district courts of jurisdiction over a pre-enforcement challenge to a broad prior restraint on the speech of federal employees, even where: (a) the challenge could not be raised at all under the CSRA’s review scheme; (b) the CSRA’s review scheme would not guarantee judicial review of the challenge in any event, because the availability of judicial review would turn entirely on agency officials’ unfettered and unreviewable discretion; and (c) any judicial review would come too late to remedy the “here-and-now” injuries caused by the prior restraint.(Relisted after the Apr. 24 conference.)Returning RelistsFields v. Plappert, 23-6912Issue: Whether the requirement that a verdict be based only on the evidence presented in the courtroom at trial satisfies 28 U.S.C. § 2254(d)(1)‘s “clearly established” requirement, and if so, whether a jury’s consideration of and reliance on extrinsic evidence as part of a jury experiment violates this rule.(Relisted after the Dec. 5, Dec. 12, and Jan. 9 conferences; now being held for consideration of response to Fields’ rehearing petition.)Gator’s Custom Guns, Inc. v. Washington, 25-153Issue: Whether ammunition feeding devices with the capacity to hold more than ten rounds are “Arms” presumptively entitled to constitutional protection under the plain text of the Second Amendment.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)Duncan v. Bonta, 25-198Issue: (1) Whether a ban on the possession of exceedingly common ammunition feeding devices 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.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)Viramontes v. Cook County, 25-238Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess AR-15 platform and similar semiautomatic rifles.(Relisted after the Dec. 5, Dec. 12, Jan. 9, Jan. 16, Jan. 23, Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)National Association for Gun Rights v. Lamont, 25-421Issue: Whether a ban on the possession of AR-15-style rifles and firearm magazines with a capacity in excess of 10 rounds violates the Second Amendment.(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)Grant v. Higgins, 25-566Issue: Whether the Second and Fourteenth Amendments guarantee the right to possess semiautomatic rifles that are in common use for lawful purposes, including the AR-15.(Relisted after the Feb. 20, Feb. 27, Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)Reinink v. Hart, 25-179Issues: (1) Whether, in the Fourth Amendment’s reasonableness-of-a-seizure context, a law enforcement officer’s intended level of force is relevant to determining whether an officer’s use of force should be analyzed under a deadly-use-of-force standard or a general use-of-force standard; and (2) whether, in analyzing an excessive force claim brought under 42 U.S.C. § 1983, an officer’s mistaken use of force being higher than what he or she intended entitles the officer to qualified immunity, so long as the mistake is reasonable under the circumstances.(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)Whitton v. Dixon, 25-580Issues: (1) Whether in determining if a constitutional error had a prejudicial effect on the outcome of a trial a court must consider only that evidence that was presented to the jury at the trial; and (2) whether the prejudice from the Giglio v. United States violation in this case met the standards for relief under Giglio and Brecht v. Abrahamson.(Relisted after the Mar. 6, Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)Florida v. California and Washington, 22-O-162Issue: Whether the court should bar California and Washington from issuing commercial learner’s permits and commercial driver’s licenses “to applicants who are not United States citizens or lawful permanent residents” and from issuing “non-domiciled CDLS to applicants who do not meet the requirements of 49 C.F.R. § 383.71(f).”(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)City of Los Angeles v. Estate of Hernandez, 25-538Issue: (1) Whether the U.S. Court of Appeals for the 9th Circuit disregarded this court’s precedents, including Graham v. Connor and Plumhoff v. Rickard, by artificially parsing a six-second event into discrete segments, finding the first four shots reasonable, but the final two unconstitutional based on a split-second gap and slow-motion video review; (2) whether the 9th Circuit effectively adopted a new and more extreme “moment-of-threat” rule that this court unanimously rejected in Barnes v. Felix; (3) whether, in denying qualified immunity, the en banc 9th Circuit evaluated whether the right at issue was “clearly established” at an impermissibly high level of generality, contrary to this court’s repeated warnings in Kisela v. Hughes, City & County of San Francisco v. Sheehan, and Ashcroft v. al-Kidd; and (4) whether this case presents a novel opportunity to clarify Fourth Amendment guidance that while officers should be encouraged to continue to reassess a situation, they must also be judged in light of the rapidly evolving and life-threatening circumstances they confront.(Relisted after the Mar. 20, Mar. 27, Apr. 2, Apr. 17, and Apr. 24 conferences.)Florida v. California and Franchise Tax Board of California, 22O163Issue: Whether Title 18, Section 25137(c)(1)(A) of the California Code of Regulations violates the Constitution’s commerce clause, import-export clause, and due process clause.(Relisted after the Apr. 17 and Apr. 24 conferences.)New York Football Giants v. Flores, 25-790Issue: Whether an arbitration agreement governing disputes in a professional sports league is categorically unenforceable under the Federal Arbitration Act because it designates the league commissioner as the default arbitrator and permits the commissioner to develop arbitral procedures.(Relisted after the Apr. 17 and Apr. 24 conferences.)Alabama v. Sykes, 25-847Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.(Relisted after the Apr. 17 and Apr. 24 conferences.)Alabama v. Powell, 25-848Issue: (1) Whether courts must reverse for Griffin v. California error without examining a prosecutor’s comment in context and without finding prejudice; or (2) whether Griffin should be overruled.(Relisted after the Apr. 17 and Apr. 24 conferences.)E.D. ex rel. Duell v. Noblesville School District, 25-906Issue: Whether Hazelwood School District v. Kuhlmeier applies (1) whenever student speech might be erroneously attributed to the school; (2) when student speech occurs in the context of an “organized and structured educational activity”; or (3) only when student speech is part of the “curriculum.”(Relisted after the Apr. 17 and Apr. 24 conferences.)Smith v. Kind, 25-943Issue: Whether, when a government official acts in an obviously unconstitutional manner, that is sufficient for the violation to be clearly established, or it is a violation clearly established only if there is binding precedent in a factually indistinguishable case.(Relisted after the Apr. 17 and April 24 conferences.)Read more