U.S. Supreme Court
As always, the end of the U.S. Supreme Court’s term was filled with important cases that received a great deal of media attention. On June 27 alone, the high court handed down rulings ending nationwide injunctions, creating a constitutional right of parents to opt their children out of material that they find to be objectionable on religious grounds, upholding a Texas law that required age verification for websites with sexually explicit content, and rejecting a challenge to a federal law as being an excessive delegation of legislative power.
But the term also had a number of significant decisions that received much less media attention. Two of these sleeper cases were Andrew v. White, which concerned prejudicial evidence in criminal cases, and Lackey v. Stinnie, which involved attorney fees in civil rights cases.
Due process protections
In Andrew v. White, decided in January, an Oklahoma jury convicted Brenda Andrew of murdering her husband, Rob Andrew, and sentenced her to death. Rob Andrew purchased a $800,000 life insurance policy, with Brenda Andrew named as the beneficiary. Brenda Andrew and James Pavatt then began an affair, and Brenda Andrew initiated divorce proceedings.
On Nov. 20, 2001, Rob Andrew came to pick up his two children at Brenda Andrew’s home, and Brenda Andrew asked him to help her light a pilot light in the garage. As Rob Andrew walked into the garage, two men shot and killed him with a 16-gauge shotgun. Brenda Andrew was superficially shot in the arm by a .22-caliber gun, and she told the police that two armed assailants had committed the shooting.
Pavatt, Brenda Andrew and her children traveled to Mexico together, but after three months, the couple ran out of money and returned home to the United States, where they were arrested. Pavatt confessed to committing the shooting with a friend, but he denied that Brenda Andrew had been involved.
The state charged Pavatt and Brenda Andrew with capital murder. A jury convicted Pavatt and sentenced him to death. At Brenda Andrew’s trial, the prosecution sought to prove that she had conspired with Pavatt, an insurance agent, to murder her husband for the proceeds of his life insurance policy.
The prosecution elicited testimony “about [Brenda] Andrew’s sexual partners reaching back two decades,” as well as clothing that she wore and her sexual habits. In its closing statement, the prosecution again invoked these themes, displaying Brenda Andrew’s “thong underwear” to the jury and reminding them of her alleged affairs during college and with Pavatt. The jury convicted her and sentenced her to death.
After exhausting her state appeals, she filed a petition for a writ of habeas corpus in federal court. The lower courts ruled against her, but the Supreme Court in a per curiam opinion reversed and ruled in her favor. Justice Samuel Alito concurred in the judgment, while Justice Clarence Thomas wrote a dissent, which was joined by Justice Neil Gorsuch.
Brenda Andrew sits with one of her attorneys, Greg McCracken, as the penalty phase of her trial begins in Oklahoma City in July 2004. Andrew was convicted of murdering her husband in what prosecutors said was a plot with her lover to collect on his $800,000 life insurance policy. (Photo by Sue Ogrocki/The Associated Press)
The majority noted that Payne v. Tennessee announced the legal principle that due process is violated by the “introduction of unduly prejudicial evidence at a criminal trial.” The Supreme Court said although Payne was in a different context—it concerned when victim impact statements are permissible—it is a principle well established in the law.
Also, the high court explained that “Payne did not invent due process protections against unduly prejudicial evidence. The court had several times before held that prosecutors’ prejudicial or misleading statements violate due process if they render a trial or capital sentencing fundamentally unfair. … By the time of the [Oklahoma Court of Criminal Appeals’] decision in this case, it was clear that the introduction of unduly prejudicial evidence could, in certain cases, violate the due process clause.”
The Supreme Court said the 10th U.S. Circuit Court of Appeals at Denver erred in concluding that there was not clearly established law and remanded the case for it to apply due process to the facts.
The court’s decision in Andrew v. White holds that the introduction of unduly prejudicial evidence violates due process. That is important, in holding that Payne v. Tennessee, which is usually thought of as a case about victim impact statements and the Eighth Amendment, also establishes a rule under due process.
Also, the Supreme Court found that this is sufficiently established to be able to be raised on federal habeas corpus. This will be an important case for criminal defendants, as well as those bringing habeas corpus petitions.
Changes for attorney fees in civil rights cases
The law in the United States is that generally each side—winning and losing—pays its own attorney fees. Congress, in 1976, adopted the Civil Rights Attorney’s Fees Awards Act, which provides that under federal civil rights laws, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” The law, codified in 42 U.S. Code Section 1988, was adopted to encourage lawyers to represent civil rights plaintiffs.
Lackey v. Stinnie, decided in February, involved the question of “whether the term ‘prevailing party’ in [Section] 1988(b) encompasses a party who is awarded a preliminary injunction, if the case becomes moot before the court reaches a final judgment.”
The case involved a lawsuit in Virginia challenging a law that allowed for revoking driver’s licenses without due process. The plaintiffs sued and received a preliminary injunction against enforcing the Virginia law. While the case was pending, the Virginia legislature repealed the challenged law, making the suit moot. The plaintiffs sought attorney fees, and the issue was whether they could receive them having won a preliminary injunction—but with the case having become moot.
Chief Justice John Roberts, writing for the court in a 7-2 decision, held that attorney fees were not available to the plaintiffs.
He wrote: “Because preliminary injunctions do not conclusively resolve the rights of parties on the merits, they do not confer prevailing party status. A plaintiff who secures a preliminary injunction has achieved only temporary success at an intermediary ‘stage[ ] of the suit.’ … It cannot yet be said that he will ‘ultimately prevail[ ] when the matter is finally set at rest’ or that he will have ‘successfully maintained’ his claim ‘at the end.’ And external events that render a dispute moot do not convert a temporary order designed to preserve the status of the parties into a conclusive adjudication of their rights.”
Justice Ketanji Brown Jackson wrote a dissenting opinion, joined by Justice Sonia Sotomayor. She disagreed with the majority’s reading of the statutory language, and she argued that it undermined the goal from Congress of providing attorney fees to plaintiffs who substantially prevail. Plaintiffs who receive a preliminary injunction and whose suit becomes moot because the legislature changes the law in their favor should be deemed prevailing parties.
Jackson wrote: “Stated simply, the majority’s categorical preclusion of fee awards for any plaintiff who successfully obtains preliminary injunctive relief is unwarranted. It lacks any basis in the text of [Section] 1988(b) and is plainly inconsistent with that statutory provision’s clear objective, which is to encourage attorneys to file civil rights actions on behalf of the most vulnerable people in our society. The court has now eliminated fee eligibility for all preliminary injunctions—even those that effectively resolve the case.”
Jackson concluded: “There is no persuasive reason to believe that Congress meant to preclude fee awards for every plaintiff who secures preliminary injunctive relief but not a final judgment, no matter the context.”
There is no doubt that this decision will be harmful to civil rights plaintiffs in precluding them from recovering attorney fees in situations like this, where they prevail with a preliminary injunction, but then the case becomes moot. Preliminary injunctions can last for months or even years. They can bring about tremendous change in the law.
Roberts expressly defended the result for creating a bright-line rule. But it is a bright-line rule that will very much favor defendants and limit the ability of plaintiffs to recover attorney fees in these situations.
Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including No Democracy Lasts Forever: How the Constitution Threatens the United States and A Court Divided: October Term 2023 (2024).
