The Court began the day with 29 outstanding cases to be decided, well behind the curve for announcing opinions this late in the year. The court’s end-of-term workload: A historical perspective.

Commenters on SCOTUSblog noted a heavy police presence in Washington, D.C. this morning and major traffic issues, likely related to the January 6 Committee hearings, but also because this is the usual time of year for large protests in Washington, D.C.

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The Court issued five opinions on Monday dealing with procedural due process and jurisdictional issues.

The first opinion is Denezpi v. United States, a 6-3 decision with the majority opinion by junior Justice Barrett. Justice Gorsuch dissents, joined in part by Justices Sotomayor and Kagan.

This is a criminal justice double jeopardy case. The issue is whether a prosecution in the Court of Indian Offenses – a trial court that operates in areas where tribes have jurisdiction over Native Americans, but where there are not tribal courts to fully exercise that jurisdiction – is a prosecution by a “federal agency” that can trigger the Constitution’s double jeopardy clause, barring a later prosecution by a federal district court for a crime arising out of the same incident.

The Court rejected Denezpi’s argument that his prosecution is violated by the Double Jeopardy Clause.
The Court holds that the double jeopardy clause “prohibits separate prosecutions for the same offense; it does not bar successive prosecutions by the same sovereign. So even assuming that [Denezpi’s] first prosecutor exercised federal rather than tribal power, the second prosecution did not violate the Constitution’s guarantee against double jeopardy.” Denezpi’s “single act led to separate prosecutions for violations of a tribal ordinance and a federal statute,” Barrett writes. “Because the Tribe and the Federal Government are distinct sovereigns, those ‘offence[s]’ are not ‘the same.'”

Justice Gorsuch in his dissent says that he believes that the dual sovereignty doctrine on which the Court relies “is at odds with the text and original meaning of the Constitution.” “But even taking it at face value,” Gorsuch writes, “the doctrine cannot sustain the Court’s conclusion.”

Justices Sotomayor and Kagan do not join Part II of the Gorsuch dissent, which questions the dual-sovereignty doctrine.

The second opinion is ZF Automotive v. Luxshare, a unanimous opinion by Justice Barrett.

This case is about whether private adjudicatory bodies (i.e., arbitration panels) count as “foreign or international tribunals” for purposes of a federal law that allows federal courts to help with gathering evidence. The Court answers no.

“The statute,” Barrett writes, “reaches only governmental or intergovernmental adjudicative bodies, and neither of the arbitral panels involved in these cases fits that bill.”

The third opinion is Johnson v. Arteaga-Martinez, a near unanimous opinion by Justice Sotomayor. Justice Breyer filed an opinion concurring in part and dissenting in part. Justice Thomas filed a concurring opinion.

The issue before the Court is whether a provision of federal immigration law requires the government to give non-citizens in immigration custody a bond hearing after six months of detention in which the government must show by clear and convincing evidence that the non-citizen is a flight risk or a danger to the community. The Court answers no.

The Court sends this case back to the lower court for further proceedings. In particular, the lower court did not reach Arteaga-Martinez’s constitutional claims because it ruled that the statute provides for a bond hearing.

Justice Thomas in his concurring opinion makes three points. First is that the Court does not have the power to hear the case. The second is that the due process clause does not apply to non-citizens, and that at the very least it doesn’t protect the non-citizen in this case because he is not challenging his final removal order. The third argument is that the Court should overrule one of its prior precedents, Zadvydas v. Davis, a Justice Breyer opinion holding that the plenary power doctrine does not authorize the indefinite detention of immigrants under order of deportation whom no other country will accept. To justify detention of immigrants for a period longer than six months, the government was required to show removal in the foreseeable future or special circumstances.

The Takeaway: The Court believes that non-citizens do not have any constitiutional due process rights, and Justice Thomas believes that immingrants can be held by INS indefinitely.

Justice Sotomayor noted in a footnote in her majority opinion that the Court granted certiorari in a companion case presenting the same question in Garland v. Gonzalez, 594 U. S. ___ (2021).

This companion case is the fourth opinion, Garland v. Gonzalez, an opinion by Justice Alito, joined by Justices Roberts, Thomas, Gorsuch, Kavanagh, and Barett. Justice Sotomayor filed an opinion concurring in the judgment in part and dissenting in part, in which Justice KAGAN joined, and in which Justice Breyer joined as to Parts II–A–2, II–B–2, and III.

The question is whether the District Courts had jurisdiction to entertain respondents’ requests for class-wide injunctive relief under the INA. The Court holds that Section 1252(f )(1) of the INA deprived the District Courts of jurisdiction to entertain respondents’ requests for class-wide injunctive re- lief.

Justice Sotomayor in her dissent writes “The Court reaches its decision “in a purportedly textualist opinion that, in truth, elevates piecemeal dictionary definitions and policy concerns over plain meaning and context. I respectfully dissent from the Court’s blinkered analysis, which will leave many vulnerable non-citizens unable to protect their rights.”

The case also involved the issue of the bond hearings from Johnson v Arteaga Martinez, but it was brought as a class action case. The district court entered class-wide injunctive relief and the Ninth Circuit affirmed, but today the Supreme Court reversed.

The fifth and final opinion is Kemp v. United States, an 8-1 decision with the majority opinion by Justice Thomas, Justice Gorsuch dissented.

The question before the Court was whether a judge’s error of law qualifies as the kind of “mistake” under Federal Rule of Civil Procedure 60(b)(1) that will allow the judgment to be reopened. The Court answers yes. As a matter of text, structure, and history, a “mistake” under Rule 60(b)(1) includes a judge’s errors of law.

This leaves 24 cases yet to be decided. The Court will be back on Wednesday.

Link to the orders list: https://www.supremecourt.gov/orders/courtorders/061322zor_j5fl.pdf

h/t SCOTUSblog.




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