By Amy Howe
on April 5, 2021
at 3:23 p.m.
The Supreme Court announced Monday that it would add the case of a Michigan inmate convicted of willful murder for the next term in office. The judges gave Brown v. Davenport, a Michigan-based petition on the standard whether a constitutional error is “harmless” when a defendant seeks federal relief after conviction. Inmate Ervine Davenport was sentenced after a trial in which he was handcuffed. Michigan state courts agreed that shackling Davenport was against the Constitution, but concluded the flaw was harmless. A divided US appeals court for the 6th circuit granted him federal relief after the conviction. The state appealed to the Supreme Court in December, and judges granted a review on Monday.
The judges refused to review a case asking them to weigh up the extent to which federal civil rights laws require employers to respect their employers’ religious practices. The question came in the case of Jason Small, a Jehovah’s Witness, who argued that his employer had violated civil rights law when he was suspended for two days without pay when he went to church (among other things) on the following Good Friday His request to take time off for vacation was denied. Under Title VII of the Civil Rights Act of 1964, employers must accept religious workers as long as it does not cause “undue hardship”. Almost 45 years ago, in the Trans World Airlines, Inc. v. Hardison case, the Supreme Court interpreted the phrase “undue harshness” as “more than just de minimis costs”. Small asked the judges to take up his case and reconsider Hardison, but – after considering Small’s petition at six consecutive conferences – the judges declined on Monday.
Judge Neil Gorsuch contested the decision not to hear the Small case in a statement from Judge Samuel Alito. Gorsuch stated that he accepted Small’s petition because Hardison’s “de minimis cost test is not in the law” and was announced “in a single sentence with little explanation or supportive analysis.” Other civil rights laws passed since then, Gorsuch added, put a tighter burden on employers and leave Title VII “the weird man” when it comes to religious exercises. Because “[t]There is no obstacle to our review or other guilt here, “Gorsuch concluded.” The only flaw is in the Tribunal’s own decision – and it is time the Tribunal corrected it. “
Demands the views of the federal government
The judges asked the federal government to comment on two pending petitions for review by the court. The first is the New York Harbor Waterfront Commission v. Murphy, a lawsuit that arose out of New Jersey’s efforts by state law to withdraw from an interstate pact with New York to operate the region’s ports. The commission sued the New Jersey governor, but the U.S. 3rd Circuit Court of Appeals ruled that the lawsuit was precluded by sovereign immunity.
The second is Golan v. Saada, an international custody case. According to the Hague Convention on the Civil Aspects of International Child Abduction, abducted children must be returned to the country of their habitual residence so that the courts there can resolve any custody disputes. The Convention provides for some narrow exceptions to this general rule, including when there is a serious risk that the return of the child will expose the child to physical or psychological harm. The question that the judges should decide, and which the acting Attorney General will now ponder, is whether a court should consider measures to facilitate the return of a child if it determines that the return puts the child at serious risk of injury. There is no timetable for the government to express its views.
No action in high profile cases
The judges again failed to act against Dobbs v Jackson Women’s Health Organization, Mississippi’s call to the Supreme Court to consider the constitutionality of a state law banning abortion after the 15th week of pregnancy. The state came to the Supreme Court in June last year after the lower courts ruled the law unconstitutional. The judges have now examined the case at nine consecutive conferences without responding.
The judges also did not act against the New York State Rifle & Pistol Association against Corlett, which the judges considered for the second time at their conference last week. The case concerns an issue that remains open following the 2008 District of Columbia ruling v Heller and their 2010 McDonald v City of Chicago ruling that the second amendment protects the right to have a gun in the home for self-defense: whether and to what extent the second amendment protects the right to carry a pistol outside the home for self-defense.
The court is currently on hiatus. The judges will meet for their next private conference on Friday April 16. Orders for this conference are expected on Monday, April 19th.
This post was originally published on Howe on the Court.