The next block of SCOTUS arguments includes some extremely important issues that have not received much public attention: among others, the right to demand DNA testing after being sentenced to death, “reverse discrimination” standards and showings, and gun-maker liability.

Monday, February 24

A really interesting death penalty case involving DNA testing, with an odd standing issue, is the only case scheduled for argument today. In Gutierrez v. Saenz, Mr. Gutierrez admitted to being part of a robbery that resulted in a person’s death but maintains that he did not know the others would kill and that he remained outside during the robbery. Under Texas law (termed the “law of par­ties,” which is a version of the felony murder rule), Gutierrez would be culpable for murder but might not be eligible for the death penalty if not sufficiently involved in the killing. He has sought DNA testing to confirm he was not in the trailer at the time of the murder, but Texas law entitles a convicted person to obtain DNA testing only if such testing could result in them not being convicted – not if it would merely result in a lesser sentence. That obstacle, according to Gutierrez, makes other Texas laws purporting to provide for post-conviction proceedings to show that the person was ineligible for the death penalty so illusory that it arises to a violation of the federal constitutional guarantee to due process. But Gutierrez also faces a standing obstacle to challenging the DNA testing law. The state argues that even if it were a violation of due process to deny DNA testing where it could at most result in a change of sentence, the state still would not have to allow DNA testing in Gutierrez’s case because, the Fifth Circuit held, regardless of whether DNA evidence showed him to be in the trailer or not, “other evidence sufficiently supported that Gutierrez was still legally subject to the death penalty.” Accordingly, the Fifth Circuit reasoned, since DNA evidence would not necessarily result in a lesser sentence for Gutierrez, he lacks standing to challenge the state law that bars it in instances where only sentence would be impacted. For more details about the case and challenger’s arguments, see this article from the Death Penalty Information Center.

Tuesday, February 25

Two cases today concerning judicial authority and criminal sentencing. Both will be a little arcane, so just short notes and links. The first case, Esteras v. United States, concerns what factors a judge may consider when imposing sentence. The second case, Perttu v. Richards, concerns the Prison Litigation Reform Act and asks whether “prisoners have a right to a jury trial concerning their exhaustion of administrative remedies where disputed facts regarding exhaustion are intertwined with the underlying merits of their claim.”

Wednesday, February 26

The only case today, Ames v. Ohio Department of Youth Services, is a Title VII employment discrimination case alleging that an employee was denied a promotion because she is straight. In 2020, the Supreme Court held in Bostock v. Clayton County that discrimination on the basis of sexual orientation will, in most cases at least, also constitute discrimination on the basis of sex in violation of the Civil Rights Act; this will be the first case in which the Court considers a claim of “reverse sexual orientation discrimination.” The standard McDonnell Douglas burden-shifting framework requires an employee to show, at the first step (prima facie stage) that they were a member of protected class, eligible for a position, and a similarly situated person who was a member of a different demographic class was instead selected for that position (or the position remained open). [The burden then shifts to the employer to articulate a legitimate non-discriminatory reason. And if they do, then at the third step of the framework the employee would have a carry the burden of convincing the jury that this purported reason was pretext for a true discriminatory motive.] And although it has always been true that majority groups are protected under the Civil Rights Act, some courts treat claims by majority and minority employees differently. In those Circuits, members of traditionally discriminated against groups can rely on that social history at the prima facie showing to shift the burden to the employee for the second step, but employees from majority groups need to first show that this particular employer discriminates against their majority group. In their arguments, the state employer here ties this to the underlying rationale for the burden-shifting framwork — the whole reason we have that framework is to identify where there are “facts that, ‘if otherwise unexplained,’ suggest that an employment decision was ‘more likely than not based on the consideration of impermissible factors.’” That inference does not arise, the argument goes, in the absence of either a social history (the “background circumstances” faced by traditionally discriminated against groups) or a reason to think that this specific employer is one that discriminates against majority groups. See this useful explainer from the National Constitution Center. I also recommend reviewing the amicus brief from the NAACP LDEF, arguing that “Consideration of the context in which an employment action was taken fits within Title VII’s purpose and the individualized analysis the statute requires.”

[Two procedural issues on Monday the 3rd are not ones I’d recommend for the casual observer: FSIA and minimum contacts and FRCP 60(b)(6)]

Tuesday, March 4 — Gun Maker Liability

An extremely important and legally complex case today, in which Mexico is suing gun manufacturers and a distributor, alleging, as the First Circuit summarized, that approximately half a million guns are trafficked into Mexico each year from these defendants (often to cartels) and “that defendants know that their guns are trafficked into Mexico and make deliberate design, marketing, and distribution choices to retain and grow that illegal market and the substantial profits that it produces.” The case is complicated by the Protection of Lawful Commerce in Arms Act (PLCAA), which largely immunizes gun makers and distributors from liability but, by its terms, does not apply to “an action in which a manufacturer or seller of a qualified product knowingly violated a State or Federal statute applicable to the sale or marketing of the product, and the violation was a proximate cause of the harm for which relief is sought.” 15 U.S.C. § 7903(5)(A)(iii). The First Circuit held that PLCAA does apply extraterritorially (to events that occur outside the US) but also held that Mexico’s complaint fell within that “predicate exception” to immunity. See this useful explainer from the Columbia Undergrad. L. Rev. I also call your attention to the amicus brief from March For Our Lives, expressing concern that the gun makers’ “view of PLCAA and proximate cause would close the courthouse doors to individuals who are foreseeably harmed by gun companies’ misconduct and allow such bad actors to operate with impunity.”

Wednesday, March 5

The case today, Nuclear Regulatory Commission v. Texas, is a factually important one but too procedural for the casual observer:  

• (1) Whether the Hobbs Act, which authorizes a “party aggrieved” by an agency’s “final order” to petition for review in a court of appeals, allows nonparties to obtain review of claims asserting that an agency order exceeds the agency’s statutory authority; and (2) whether the Atomic Energy Act of 1954and the Nuclear Waste Policy Act of 1982 permit the Nuclear Regulatory Commission to license private entities to temporarily store spent nuclear fuel away from the nuclear-reactor sites where the spent fuel was generated.