This morning the Supreme Court issued orders from the justices’ private conference last week. The justices did not add any new cases to their merits docket for next term, nor did they act on petitions for review asking them to weigh in on an Indiana abortion law or an Oregon couple’s refusal to make a custom cake for a same-sex wedding.
The justices denied review in Dahne v. Richey, in which they had been asked to decide whether prisoners have a First Amendment right to include threatening, abusive and irrelevant language in their grievances. The case arose in 2011 when Thomas Richey, who is serving a 65-year sentence for murder, filed a grievance in a Washington state prison. Richey complained that “an extremely obese Hispanic female guard” had refused to give him access to the prison yard, a shower and a change of clothes. Richey added that, when “guards like this fat Hispanic female guard abuse their position as much as they abuse their caloric intake, it can make prisoners less civilized than myself to resort to violent behavior in retaliation.”
Dennis Dahne, the prison official responsible for prisoner grievances, instructed Richey to rewrite his grievance to remove “unnecessary and inappropriate language,” but Richey failed to do so. After Dahne refused to process Richey’s grievance, Richey went to court, claiming that Dahne had violated his rights under the First Amendment. The U.S. Court of Appeals for the 9th Circuit ruled for Richey, and the state (on Dahne’s behalf) asked the Supreme Court to weigh in.
Justice Samuel Alito dissented from the denial of review, in an opinion joined by Justices Clarence Thomas and Brett Kavanaugh. Alito emphasized that the court had “made it clear that prisoners do not retain all of the free speech rights enjoyed by persons who are not incarcerated.” “Even if a prison must accept grievances containing personal insults of guards” – which, Alito noted, “is not self-evident” – “does it follow that prisons must tolerate veiled threats?” “I doubt it,” Alito answered, but he added that “if the Court is uncertain, we should grant review in this case.” “Perhaps there is more here than is apparent on the submissions before us,” Alito concluded, “but based on those submissions, the decision of the Ninth Circuit defies both our precedents and common sense.”
The Supreme Court sent Myers v. United States back to the U.S. Court of Appeals for the 8th Circuit for further consideration in light of the federal government’s brief in the Supreme Court. As John Elwood explained in Relist Watch last week, the issue in the case centered on what crimes count as predicate offenses under the Armed Criminal Career Act, and the government told the justices in its brief that the 8th Circuit’s analysis was inconsistent with an earlier Supreme Court decision.
Chief Justice John Roberts dissented from the order, in an opinion that was joined by Justices Clarence Thomas, Samuel Alito and Brett Kavanaugh. He explained that U.S. Solicitor General Noel Francisco had asked the justices to send the case back to the 8th Circuit “because he believes” that the lower court “made some mistakes in its legal analysis, even if it ultimately reached the right result.” But, Roberts contended, unless “there is some new development to consider, we should vacate the judgment of a lower federal court only after affording that court the courtesy of reviewing the case on the merits and identifying a controlling legal error.”
The justices turned down a petition filed by the New Jersey town of Millburn, which had asked the justices to review a ruling in favor of Michael Palardy, who worked as a police officer for the township for over 25 years. In 2014, Palardy filed a lawsuit claiming that he was passed over for promotion to chief of police because he was an active member of two police unions – which, he contended, violated his First Amendment rights to free speech and association. The town had asked the justices to weigh in on whether and how the Supreme Court’s two-step framework for addressing First Amendment retaliation claims by government employees applies to claims alleging retaliation based on an employee’s association with a public-sector union. The U.S. Court of Appeals for the 3rd Circuit had ruled that the framework does not apply when a plaintiff alleges retaliation based on union membership.
The justices also denied review in the case of a Christian school in Ohio, which had argued that the city of Upper Arlington violated the Religious Land Use and Institutionalized Persons Act when it refused to give the school permission to operate on property that the school had purchased.
Tensions among the justices regarding the death penalty also resurfaced in a series of orders and opinions issued today; those orders and opinions will be the topic of a separate post.
The justices will meet again for their next conference on Thursday, May 16. Orders from that conference are likely on Monday, May 20, at 9:30 a.m.
This post was also published on SCOTUSblog.