Most of the cases this week are focused on technical issues that would not be terribly interesting or easily accessible to most casual observers.  The exception if the first case on Monday, Ayestas v. Davis.

In federal death penalty cases, the law requires that when counsel is appointed for indigent defendants, there also be funding for “investigative, expert, or other services [that] are reasonably necessary for the representation.”  18 USC § 3599(f).  This case is a habeas case — an appeal to the federal courts of a verdict in state court — and the Fifth Circuit has interpreted “reasonably necessary” to mean that the defendant must show that there is a “substantial need” for the investigation by presenting “substantiated argument, not speculation, about what the prior counsel did or omitted doing.”  The concern is that this standard requires defense counsel to prove what an investigation would uncover before there can be an investigation.  A very useful article about the case is on Scotusblog.  The Court has accepted cert. on “whether the U.S. Court of Appeals for the 5th Circuit erred in holding that 18 U.S.C. § 3599(f) withholds ‘reasonably necessary’ resources to investigate and develop an ineffective-assistance-of-counsel claim that state habeas counsel forfeited, where the claimant’s existing evidence does not meet the ultimate burden of proof at the time the Section 3599(f) motion is made.”

The second case today, Wilson v. Sellers, is also a federal death penalty case, but the question is more arcane.  The Antiterrorism and Effective Death Penalty Act (AEDPA) creates high barriers to federal courts overturning state court sentences of death.  A key concept is deference to adjudications “on the merits.”  Sometimes, various appeals in the state courts will result in some opinions that provide a full reasoning and others that offer only a summary affirmance of the decision.  Courts historically have “looked through” one-sentence decisions to the last full opinion as being the one for consideration as a decision on the merits, but a 2011 Supreme Court case seemed to hold that even summary decisions are “on the merits” in some circumstances.  This is an important issue, but very tied up in civil procedure matters that can be hard to follow.  If you plan to attend, read this article and, if you have time, a couple of amicus briefs — intriguingly, a group of retired state supreme court justices are on the opposite side from a group of state governments.

[Looking ahead, there is a voting rights case on November 8,* a Dodd-Frank whistleblower case on Nov 28, NCAA cases on Dec 4, and the much-anticipated Masterpiece Cakeshop case on Dec 5.  I will provide full descriptions of these cases in various posts as the oral argument dates for each get closer.]

* The voting rights case has been removed from the docket due to a medical issue with one of the lawyers who was going to argue the case.  We expect it to be argued early in 2018.