The Week Ahead

Sunday, November 27, 2022

Tonight, we switch gears from Saturday’s post about the 11th Circuit to focus on the Supreme Court. The Court hasn’t heard oral argument on any of this term’s cases since it last sat on November 9. It picks back up Monday morning with three days of arguments this week. Then, next week, the Court will hear argument in one of this term’s marquee cases, Moore v. Harper, which involves the independent state legislature theory. It will have an important impact on future elections.

This week, we’ve got three days of arguments and three different topics:

• Monday: A pair of cases involving when the federal government can prosecute people for fraud. And not just any fraud. In Percoco v. United States, the Court will consider whether a private citizen who has the ability to influence government decision-making can be convicted of bribery charges. The defendant in that case, Joseph Percoco, was the executive deputy secretary to former New York Governor Andrew Cuomo. The subject of the bribes he was convicted of taking involve the appellant/defendant in the companion case, Ciminelli v. United States. Ciminelli owned a construction company and was one of four defendants convicted of wire fraud in connection with a bid-rigging scam to obtain contracts that were part of Governor Cuomo’s “Buffalo Billion” project. The project involved using $1 billion in taxpayer dollars to develop the greater Buffalo area. The government used a “right to control” theory, alleging that the defendant’s failure to share information that would be valuable for those making decisions about which bids to accept was a legitimate approach to prove wire fraud.

The issues are part of a decades-long trajectory in the Court’s decisions that restricts the tools prosecutors can deploy to address public corruption. The Court has often felt that prosecutors overreach in situations where vague laws mean public officials and those doing business with them were not on notice that their conduct violated the law. The Court has objected to what it views as overly expansive reading of criminal statutes by prosecutors.

A recent example in 2016 involved McDonnell v. United States, where the Supreme Court unanimously (8-0, during the time following Justice Scalia’s death when Republicans refused to vote on the Obama administration’s nominee, Merrick Garland) reversed the then-Virginia’s governor’s bribery conviction on appeal, holding that “merely” setting up a meeting, talking to another official, or organizing an event for a “gift-giver” didn’t qualify as the type of “official act” in return for payment (here it came in the form of lavish gifts from a friend that included paying for part of McDonnell’s daughter’s wedding) necessary to constitute a bribe. Prosecutors, obviously, dislike these decisions, while advocates believe it’s useful to send Congress a message that it should write clear, precise statutes setting guidelines that tell people what conduct they must avoid. We’ll likely get at least some sense of whether the Court is hostile, or more likely how hostile it is, to these prosecutions during the argument.

• Tuesday: United States v. Texas. This is an important, politically charged case that sets two different approaches to immigration enforcement at odds with each other and asks SCOTUS to decide how much latitude presidential administrations have to act. During the Obama administration, recognizing that law enforcement resources were not unlimited, priorities were set for deporting certain types of people who were illegally present in the United States—those who committed crimes, for instance. Others, those who’d been here for a long time or had American citizen family members, were lower-priority. The Trump administration adopted a different approach, one that targeted anyone law enforcement came in contact with. The desired effect was to keep all people who were here without legal status in fear of deportation at all times, by setting no priorities for enforcement, in hopes that people would be frightened and “deport themselves.” (This was the same strategy Alabama adopted in a 2011 law envisioned by the same then-academic, now Kansas Attorney General-to-be Kris Kobach, who also masterminded some of the pre-Trump Republican efforts to adopt restrictive voting laws justified by non-existent voter fraud, but I digress.)

Now, as the Biden administration tries to return to a more principled approach that prioritizes measures that make communities safer, Texas and Louisiana have challenged its right to do so, arguing Biden cannot prioritize the removal of certain categories of immigrants over others. In addition to that immigration policy issue, there are two procedural issues lurking in the case. The first involves whether states should be permitted to bring lawsuits like this. California brought over 100 challenges to Trump-era decisions, and Texas is already north of 20 cases involving the Biden administration. The second issue involves the remedy—namely, whether a district judge in one case should be permitted to vacate the administration’s policy, ending it not just for the parties to that case, but universally. So the three issues here are weighty and important, both substantively as to immigration, but also on the legal procedure side of things for how they will impact this and future cases.

• Wednesday: In Wilkins v. United States, two Montana landowners filed an action to “quiet title,” which means to resolve a dispute about property rights. In this case, it was about an easement held by the United States that runs across their land. This is a civil case, and the statute of limitations requires the property owners to bring a lawsuit within 12 years of when their claims arose. The question the Court will consider is the rather dry one of whether filing within that time period is “jurisdictional,” meaning that a failure to do so permits the trial court to dismiss the case without holding a hearing to resolve disputed facts.

The case falls within an important category of case that the Court hears. It is one that will resolve a split in the Circuits. That’s a situation where some Circuits, like the Ninth, where Wilkins arose, handle cases one way, while other Circuits have adopted a different rule. In this situation, some circuits treat the statute of limitations as a “claim-processing rule” and hear evidence on disputed issues before deciding whether a case should be dismissed. The Supreme Court hears cases like this where the courts of appeal have different views of the law in order to assure nationwide uniformity in how litigants are treated. This is an important part of the legal process in our country, and a split in the circuits is often a reason the Supreme Court will agree to hear a case, either civil or criminal, in order to resolve the split and create a uniform rule.

Much as we begin the week with the Court evaluating what constitutes fair treatment of defendants accused of bribery and fraud, we end it with this case, which will consider a fair and uniform nationwide rule that will apply to all similarly situated litigants. While not the sexiest of cases, Wilkins illustrates an important part of the appellate process.

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Undoubtedly we’ll have more to focus on this week than what’s happening at the Supreme Court, once it gets underway. But while the Monday and Wednesday cases may get less coverage than the politically-animated issues at stake on Tuesday, all three of these argument days demonstrate the kind of serious impact the Court has on our lives. And all too often, as we focus on other issues, with limited bandwidth, these issues get away from us. So it’s good to take time to understand what issues the Court is considering.

If you’re interested in older cases, you can go back and listen to audio from the arguments here. The Court live-streams oral arguments, beginning at 10 a.m. ET, at this link.

We’ll also be waiting on verdicts in the Oath Keepers case and, of course, on an opinion in the 11th Circuit Mar-a-Lago documents case that we discussed yesterday. Plenty of interesting developments to look forward to in the week ahead.

We’re in this together,

Joyce