In just under seven weeks, the justices will meet for the “long conference,” at which they will consider the thousands of petitions for review that have accumulated since their last conference in late June. The justices will grant only a few of these petitions. This post is the first in a series that will take a closer look at some of the petitions that have been distributed for the September 28 conference.
In January, the Supreme Court granted the Biden administration’s request to be allowed to temporarily enforce a vaccine mandate for health care workers at facilities that receive federal funding. In Missouri v. Biden, the group of 10 states challenging the mandate have returned to the court, asking the justices to weigh in again.
The Department of Health and Human Services issued the mandate, which requires nearly all health care workers at facilities that participate in the Medicaid and Medicare programs to be fully vaccinated against COVID-19 unless they qualify for a medical or religious exemption, in November 2021. Federal district courts in Missouri and Louisiana quickly put the ruling on hold in roughly half the states.
By a vote of 5-4, the Supreme Court allowed the Biden administration to enforce the mandate nationwide. In an unsigned opinion, the majority emphasized that to protect the health and safety of patients, HHS has long placed conditions on funding for Medicare and Medicaid patients. Because HHS determined that a COVID-19 vaccine mandate was necessary to protect patients, the court concluded, the mandate “fits neatly within” the power given to HHS by Congress.
The dispute returned to the U.S. Court of Appeals for the 8th Circuit, which in April lifted the injunction that the district court had issued and sent the case back to the district court. The states came to the Supreme Court in May, seeking review of that decision. Citing what they described as the mandate’s “devastating consequences,” they contended (among other things) that the mandate violates the Constitution by enlisting states to enforce it – or risk losing funds for their health care facilities. The states asked the justices to grant review before their summer recess and fast-track the case for oral argument in October.
The Biden administration urged the justices to stay out of the dispute. It is well established, it stressed, that the federal government can impose conditions on the receipt of federal funds. And it rebuffed the states’ suggestion that the vaccine mandate had led to staffing shortages, telling the court that the state was relying on “stale evidence” that it had “recycle[d]” from earlier in the litigation, which had not proven true.
The justices declined to act on the states’ petition before their summer recess; instead, the case has been distributed for consideration at the September 28 conference.
In Turkiye Halk Bankasi v. United States, a Turkish bank owned and controlled by the Turkish government has asked the justices to weigh in on whether criminal charges against it can go forward. The charges stem from an alleged scheme to divert billions of dollars from Iranian accounts held by the bank so that the funds could be used in ways not authorized by U.S. sanctions.
In October 2019, federal prosecutors indicted the bank on charges that included money laundering and bank fraud. The bank asked the federal district court in New York to dismiss the charges, arguing that U.S. courts did not have the jurisdiction to bring a criminal prosecution against it because of its relationship with the Turkish government. The district court rejected that contention, and the U.S. Court of Appeals for the 2nd Circuit upheld that ruling.
The bank came to the Supreme Court in May, asking the justices to decide whether federal district courts can hear criminal charges against it. Allowing the prosecution to continue would violate “bedrock norms of international law and two centuries of Supreme Court precedent,” the bank contended. Because it would also create the prospect of retaliation against U.S. companies by foreign governments, the bank added, courts should not take that “significant step” without express authority from Congress.
The federal government told the justices that they should deny review. The district court clearly has jurisdiction over a criminal prosecution like this one, Solicitor General Elizabeth Prelogar wrote, because federal law gives district courts jurisdiction over “all offenses against the laws of the United States,” which includes the offenses with which the bank has been charged. Moreover, the government added, the Foreign Sovereign Immunities Act, which generally bars lawsuits against foreign governments in U.S. courts, only applies to civil cases – not to criminal ones.
In Smith v. Ward, a Georgia inmate has asked the justices to weigh in once again in a dispute pitting religious rights against prison officials’ security concerns. Seven years ago, in Holt v. Hobbs, the Supreme Court ruled that an Arkansas prison policy that prevented a Muslim inmate from growing a half-inch beard violates the Religious Land Use and Institutionalized Persons Act, a federal law that protects the religious rights of inmates.
The inmate now before the court, Lester Smith, is challenging the refusal by Georgia officials to allow him to grow a full beard in accordance with his religious beliefs. The U.S. Court of Appeals for the 11th Circuit upheld the state’s decision, finding that it was enough that untrimmed beards create “plausible” security concerns.
Smith came to the Supreme Court in April, asking the justices to review the 11th Circuit’s ruling. The court of appeals, he contended, should have given more weight to the fact that 37 states, the District of Columbia and the federal Bureau of Prisons all allow untrimmed beards. Moreover, he argued, the courts should not simply defer to prison officials’ assertion that an untrimmed beard could be dangerous.
Eight different “friend of the court” briefs support Smith’s request for review, including briefs from Christian, Jewish, Muslim and Sikh groups. Among other things, they urged the justices to take up the case not only because of the effect of Georgia’s policy on inmates’ ability to exercise their religious rights, but also because “[i]nmates’ rights to religious expression in prisons directly correlate with lowered recidivism and disciplinary infractions.”
Georgia told the justices that the 11th Circuit’s ruling should stand because Smith “remains an acute security risk.” Smith, who is serving a life sentence for murder, has assaulted both a correctional officer and a fellow inmate, the state noted, and he has been found with a prohibited cell phone and weapons. Because of this history, the state asserted, Smith might not be able to have an untrimmed beard anywhere – even in the prison systems that might otherwise allow them.