Order lists from the Supreme Court so far this Term have been mostly free of short rulings or separate statements from the Justices. But this morning, the Court issued this order list full of comments in the form of a per curiam GVR in a First Amendment case from the Ninth Circuit and a number of statements about denials of review. One of the denials came in the delegation case involving sex offender registries from last Term, Gundy, and Justice Kavanaugh has a short comment in a companion case. Here is how it starts:
I agree with the denial of certiorari because this case ultimately raises the same statutory interpretation issue that the Court resolved last Term in Gundy v. United States, 588 U.S. ___ (2019). I write separately because JUSTICE GORSUCH’s scholarly analysis of the Constitution’s nondelegation doctrine in his Gundy dissent may warrant further consideration in future cases.
Criminal justice fans are likely to be most interested in a statement by Justice Sotomayor in a capital case from Arkansas in which cert was denied. Here are parts of her three-page statement:
After Isom was granted parole three years into his sentence, Prosecutor Pope met with the Office of the Governor to express his concern and to inquire whether Isom could somehow be returned to prison, but to no avail.
Seven years later, a jury convicted Isom of capital murder in a case presided over by Pope himself — now a Drew County judge. Isom sought postconviction relief, which was denied, also by Judge Pope....
The allegations of bias presented to the Arkansas Supreme Court are concerning. But they are complicated by the fact that Isom did not raise the issue of Judge Pope’s prior involvement in his prosecutions, either at his capital trial or for nearly 15 years thereafter during his postconviction proceedings. Although the Arkansas Supreme Court did not base its recusal decision on this point, it is a consideration in evaluating whether there was an “unconstitutional potential for bias” in this case sufficient to warrant the grant of certiorari. I therefore do not dissent from the denial of certiorari. I write, however, to encourage vigilance about the risk of bias that may arise when trial judges peculiarly familiar with a party sit in judgment of themselves. The Due Process Clause’s guarantee of a neutral decisionmaker will mean little if this form of partiality is overlooked or underestimated.
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