Updated on June 15 at 4:15 p.m.
The Supreme Court on Monday added three new cases, on issues ranging from hearings for noncitizens in immigration detention to the constitutionality of Florida’s six-person juries and the exceptions to the general rule on second petitions for federal post-conviction relief. The announcement came as part of a list of orders from the justices’ June 11 conference, which also included two dissents by Justice Samuel Alito from the denial of review in cases involving student speech and the constitutionality of a prosecutor’s comments in a capital murder trial.
In Genalo v. Black, the court will weigh in on the case of Keisy G.M., a green card holder from the Dominican Republic who was taken into custody in October 2020 by immigration officials after he was convicted of assault and remained there for 21 months while the federal government sought to deport him. G.M. was eventually released under an order issued by another court, but his challenge to his detention continued. In 2024, the U.S. Court of Appeals for the 2nd Circuit ruled that when a noncitizen’s detention has been “unreasonably prolonged,” the government must hold a bond hearing to determine whether a noncitizen is either a flight risk or a danger to the community, and the government must justify the continued detention by “clear and convincing evidence.”
The Trump administration appealed to the Supreme Court in January. It noted that in 2018, in Jennings v. Rodriguez, the Supreme Court had rejected an argument that noncitizens held in detention while the government sought to deport them were entitled under federal law to periodic hearings to consider whether to release them on bail. But in that case, it did not resolve the two questions that the government was now asking it to decide: whether there is in fact a point at which a noncitizen’s detention becomes “unreasonably prolonged,” so that he has a constitutional right to a hearing; and whether, at such a hearing, a “clear and convincing evidence” standard applies.
The court agreed to take up the case on Monday, although it directed the litigants to brief an additional question (raised by G.M.’s lawyers in opposing review) – whether the case is moot (that is, no longer a live controversy) because G.M. was released from custody in 2022 and the government has told a lower court that he “remains free and at this point there is … nothing else for the Court to do.”
The justices also agreed to take up the case of Hamed Kian, who was convicted by a six-person jury of five counts of practicing chiropractic medicine with a suspended license. He was sentenced to one year and one day in prison on three of the counts and five years on probation for the remaining two counts.
Kian argued unsuccessfully in a state appeals court that under the Sixth Amendment he was entitled to a 12-person jury. He came to the Supreme Court in January, asking the justices to weigh in. He conceded that in 1970, in Williams v. Florida, the court ruled that the use of a six-person jury does not violate the Constitution. But Kian urged the court to overrule that decision. Williams, he said, acknowledged that the Constitution’s drafters may have expected a jury to have 12 members, but it believed that a six-person jury could be equally effective in carrying out the jury’s function – that is, allowing a group of ordinary citizens to determine a defendant’s guilt or innocence.
Kian argued that the current Supreme Court has discarded the reasoning on which the decision in Williams rested. In 2020, in Ramos v. Louisiana, he said, the court ruled that the Sixth Amendment requires a unanimous verdict, pointing to the meaning of the right to trial by jury when the amendment was adopted. “Ramos,” Kian wrote in his petition for review, “rejected the same kind of ‘cost-benefit analysis’ undertaken in Williams, observing that it is not for the court to ‘distinguish between the historic features of common law jury trials that (we think) serve “important enough functions to migrate silently into the Sixth Amendment and those that don’t.”’”
And in Guerrero v. Johnson, the court granted Texas’ request to decide a technical question in a death-row inmate’s effort to obtain federal post-conviction relief – specifically, whether his claim that he is intellectually disabled and therefore cannot be executed falls within one of the narrow exceptions in which a state prisoner can file a second petition for federal post-conviction relief when, the state argued, he could have raised the claim in an earlier petition. The U.S. Court of Appeals for the 5th Circuit allowed Dexter Johnson’s claim to go forward, agreeing with Johnson that he could not have made the claim earlier because the standards to evaluate intellectual disability claims had recently been revised.
Over Alito’s dissent, the court in Alabama v. Powell let stand a ruling by the Alabama Court of Criminal Appeals – the state’s highest court for criminal cases – that threw out the conviction and death sentence of Michael Powell. The state court interpreted a statement by a prosecutor at Powell’s trial as a “direct comment” on Powell’s failure to testify, which would violate both the bar in the U.S. and Alabama Constitutions on compelling a criminal defendant to testify against himself.
In a four-page opinion joined by Justice Clarence Thomas, Alito emphasized that the trial court had “interpreted the prosecutor’s statement as a reference to” a “false confession letter,” rather than a comment on Powell’s failure to testify. In Alito’s view, the state court’s ruling conflicted with United States v. Robinson, a 1988 decision in which the Supreme Court “found no violation of the Fifth Amendment right against compulsory self-incrimination in a case with very similar facts.” Therefore, Alito said, he would have reversed the state court’s ruling without additional briefing or oral argument.
Alito also penned a dissent (this time, a solo one) from the court’s denial of review in E.D. v. Noblesville School District, a challenge by an Indiana teenager to her school’s denial of her request to post flyers for “the student-run Noblesville Students for Life” club that contained pictures of students with “Defund Planned Parenthood” signs. The student, known as E.D. in court filings, contended that the denial (as well as a suspension of the club that followed) violated the First Amendment, but the lower courts rejected that argument, and on Monday the court refused to hear E.D.’s appeal.
In a three-page opinion, Alito observed that a “pivotal” question in the case was whether courts should apply the stringent standard outlined in the court’s 1969 decision in Tinker v. Des Moines Independent Community School District, in which the court held that the suspension of students for wearing black armbands to protest the Vietnam War violated the First Amendment, or instead the lower bar for “school-sponsored” speech and activities established in the 1988 case of Hazelwood School District v. Kuhlmeier. Since the Supreme Court’s ruling in Hazelwood, Alito continued, “lower courts have struggled to ascertain its precise limits, and in my view, clarification by this Court is in order.” In particular, Alito said, he would have granted E.D.’s petition for review to “clarify the relationship between Hazelwood” and the Supreme Court’s cases on government speech.
Additionally, the justices turned down an appeal from Charles Flores, who was convicted and sentenced to death in Texas in 1999. The prosecution’s case relied heavily on a witness who had initially been unable to identify Flores from a photo line-up, but then did so after she was put under “investigative hypnosis.” The use of such trial testimony was explicitly prohibited by Texas in 2023.
Flores sought to prove his innocence in state court, but the Texas courts turned down his request for post-conviction relief. He came to the Supreme Court in February, where he argued that there is “a disturbing pattern demonstrating that the” Texas Court of Criminal Appeals – the state’s highest court for criminal cases – “is violating death-sentenced prisoners’ due process rights by denying them any meaningful opportunity to prove innocence as state law allows.”
Among the “friend of the court” briefs supporting Flores’ petition for review was one from magicians Penn and Teller, who called investigative hypnosis “dangerous junk science” that “relies on the unscientific, erroneous assertion that a person’s brain makes a visual record of everything that has passed in front of that person’s eyes.”
The court on Monday also denied several notable petitions for review, including:
- Page v. Comey, a lawsuit by former Trump adviser Carter Page against former FBI Director Jim Comey and others contending that applications for warrants to surveil him under the Foreign Intelligence Surveillance Act were based on false and misleading information and that information from those warrants were leaked to the press. The lower courts dismissed his claims on the ground that they were filed too late, so the question that Page asked the court to take up relates to when the clock starts to run on a such claim. Justice Ketanji Brown Jackson did not participate in the decision to deny review; the case was originally assigned to her while she was still serving as a federal district judge in Washington, D.C.
- Newman v. Moore, a lawsuit by Pauline Newman, a 98-year-old judge on the U.S. Court of Appeals for the Federal Circuit challenging her suspension.
- National Shooting Sports Foundation v. James, a challenge to a New York law seeking to hold gun makers and sellers responsible for their role in gun violence. The challengers contend that the law is superseded by federal law.
- HTMX Industries v. United States, a challenge by businesses that import Chinese products to the U.S. Trade Representative’s power to expand existing tariffs imposed under Section 301 of the Trade Act of 1974, which gives the USTR authority to address another country’s unfair trade practices. The businesses told the justices that by allowing the tariffs to stand, the U.S. Court of Appeals for the “Federal Circuit provided a roadmap for how any administration can bypass the carefully crafted procedures laid out by Congress to wage a limitless trade war.” In particular, the businesses argued, in the wake of the court’s decision in February in Learning Resources v. Trump holding that the International Emergency Economic Powers Act does not give the president the power to impose sweeping tariffs, the Trump administration suggested that it would use Section 301 to impose tariffs in place of the IEEPA tariffs (which it has begun to put forward). According to the businesses, the Federal Circuit’s ruling allows the Trump administration to expand those tariffs without complying with the “procedural safeguards” normally required by Section 301.
The justices will meet again for another private conference on Thursday, June 18. Orders from that conference are expected on Monday, June 22, at 9:30 a.m. EDT.
