The Supreme Court on Monday morning issued orders from the justices’ private conference last week. Although they did not grant any new cases, the justices denied review in two high-profile cases: the sexual-assault case involving disgraced comedian Bill Cosby and a lawsuit seeking to hold Facebook accountable for sex trafficking.
In Pennsylvania v. Cosby, justices rebuffed a request from Pennsylvania prosecutors to revive sexual assault charges against Cosby. Cosby was convicted of three counts of aggravated indecent assault for the 2004 drugging and molesting of Andrea Constand. But the Pennsylvania Supreme Court threw out Cosby’s conviction, reasoning that he had relied on a 2005 press release in which a prosecutor, citing lack of evidence, had declined to file charges. Based on that statement, Cosby provided evidence in a civil lawsuit brought against him by Constand; a new prosecutor then used that evidence to bring criminal charges against him. A jury found Cosby guilty in 2018, and he served three years in prison before the state court threw out his conviction. The Pennsylvania prosecutors urged the justices to take up the case, arguing that the press release had not said that they would never bring charges, but the justices turned them down without comment.
The justices also declined to take up the case of Melvin Knight, an inmate on Pennsylvania’s death row who argued that he cannot be executed because he has an intellectual disability. However, the jury that sentenced Knight to death for the 2010 murder of Jennifer Daughtry, when Knight was 20 years old, was not allowed to consider Knight’s intellectual disability because he had not provided any evidence of an intellectual disability before he turned 18. Knight asked the Supreme Court to decide whether states can impose this kind of threshold requirement, calling it “clearly wrong as a matter of both precedent and science.” The Supreme Court, he contended, “has repeatedly disapproved of IQ cutoffs that would bar” consideration of an intellectual-disability claim. The justices requested the lower-court record in Knight’s case and considered it at 12 consecutive conferences, which often suggests that the court plans to issue some sort of written opinion, but on Monday the justices denied Knight’s petition without comment.
Justice Clarence Thomas issued a statement regarding the court’s decision to deny review in Doe v. Facebook, a lawsuit filed against Facebook by Jane Doe, a victim of sex trafficking who met her trafficker on Facebook. Facebook argued that Doe’s claims were barred by Section 230 of the Communications Decency Act, which protects internet platforms from liability for content posted on their sites by someone else. The Texas Supreme Court agreed for all but one of Doe’s claims.
Thomas urged his colleagues to step in to clarify exactly what kind of immunity Section 230 provides. He suggested that such immunity is not as sweeping as some courts have interpreted it. Stressing that Facebook has “failed to take any reasonable steps to mitigate the use of Facebook by human trafficking,” Thomas wrote that it “is hard to see why the protection” that Section 230 “grants publishers against being held strictly liable for third parties’ content should protect Facebook from liability for its own ‘acts and omissions.’” However, Thomas continued, because Doe’s case is not yet final in the state courts, he agreed with the decision to deny review.
The justices called for the Biden administration’s views in Kinney v. HSBC Bank, involving whether a in Chapter 13 bankruptcy can obtain a discharge when making a late mortgage payment after the due date for the last payment under the plan. There is no deadline for the solicitor general to file her brief.
The justices also rejected a motion to file a late petition for review in the case of Steven Donziger, a human rights attorney who has been in a long and contentious dispute with Chevron. Donziger won a settlement of nearly $10 billion in a battle over oil spills by the company in Ecuador, but he was also found guilty of criminal contempt and disbarred. Donziger came to the court last month, asking the justices to review the state court decision in his disbarment proceedings, but his request was filed too late.
In a three-page motion, Harvard Law professor Charles Nesson pleaded with the justices to excuse the late filing. Nesson attributed the mistake to the court’s decision to revert to its normal filing deadlines after extending them in 2020 and early 2021 in response to the COVID-19 pandemic. When Nesson first began representing Donziger, he wrote, a petition for review was due (under the extended deadline) 150 days after the lower-court judgment became final, but when the time came to actually file Donziger’s petition, the Supreme Court had rescinded its order extending the deadline and returned to the normal 90-day deadline. Nesson told the court that the “lateness of the filing is plainly my fault”: “Though I checked the rules when I began representing Mr. Donziger in his disbarment, I did not become aware of the Court’s return from the extraordinary measures it took in response to the pandemic until after the petition was submitted and served.”
This post is also published on SCOTUSblog.