The Supreme Court’s November argument calendar includes five criminal law-related cases, covering procedural disputes and constitutional questions that could alter how federal courts handle habeas petitions, immigration status, and civil rights claims. While election law petitions dominate public attention, the court’s regular docket remains busy, with arguments scheduled from November 2 through November 30.
The most closely watched case is Nielsen v. Watanabe, set for November 9. The dispute revolves around Bivens v. Six Unknown Federal Narcotics Agents, a 1970 precedent that allows individuals to sue federal officials directly for constitutional violations without requiring a statute to create a cause of action. A federal prisoner alleges his constitutional rights were violated when prison staff denied him medical care after a gang riot and later placed him in solitary confinement for months before treating a serious spinal injury.
The solicitor general suggests the court might wait for a Fourth Amendment case to reconsider Bivens, arguing that without congressional approval, such lawsuits violate separation of powers. Over time, and with changing personnel and views on the court, Bivens has thus repeatedly been limited, with the court declining to extend it to other circumstances over a dozen times. Yet the precedent remains controversial, with liberal justices likely to stress the need for remedies when constitutional rights are violated. Oral arguments may feature sharp exchanges over whether courts should create legal remedies when Congress has not acted.
Clashing Rulings on Judicial Remedies
In brief, the court ruled in Fernandez that doubts about a prior conviction must be pursued in habeas, not the federal compassionate relief statute. Two months earlier in Olivier, however, the court ruled that a prospective challenge to a statute under which a person was previously convicted need not be pursued under habeas but instead can be filed under §1983 – even though that challenge might well “imply the invalidity of Olivier’s conviction. Though these rulings are not directly conflicting, they reveal differing approaches to judicial remedies and constitutional enforcement.
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Another November case examines the limits of habeas corpus. William Maxwell, a mafia-affiliated fraudster who was sentenced in 2015 to 20 years in federal prison, filed a habeas petition claiming that he is entitled to “accelerated release” to a halfway house. The U.S. Court of Appeals for the 5th Circuit affirmed dismissal, ruling that habeas does not encompass a mere transfer between prison settings. As Cooke writes, the issue is “tricky” because prior cases have used various words to describe the reach of the federal habeas statute, including one (back in 1973) that habeas corpus can extend to a claim for “good conduct” time credits.
Statutes that regulate habeas petitions filed by both federal and state prisoners permit successive habeas petitions to go forward, even if a prior habeas petition has been filed and denied, if the new petition raises a “new rule of constitutional law… that was previously unavailable. A death row inmate in Texas contends that a 2017 change in the legal standard for intellectual disability made his Atkins v. Virginia claim viable for the first time. The 5th Circuit agreed, but the Supreme Court’s decision could limit the circumstances under which prisoners can raise new constitutional arguments.
Immigration Law Tests Asylum Status Rules
The court will also hear an immigration case on November 30, where the question is whether a noncitizen whose asylum status was terminated remains eligible for permanent residency under a statute that applies to “any alien granted asylum.” The 2nd Circuit ruled that “granted asylum” must mean “currently granted asylum,” but the case forces the court to balance textualist interpretations with practical policy concerns.
Finally, a civil procedure case involves a question about whether a district attorney can raise a statutory exemption to pregnancy discrimination laws for the first time after discovery. A fired supervisory prosecutor argues the delay prejudiced her case. The 11th Circuit upheld the dismissal, but other courts have blocked such late-raised defenses, creating a potential split in precedent.
ABA Publishes Supreme Court Criminal Case Review
The ABA’s Annual Review of the Supreme Court’s Term: Criminal Cases, now in its 30th edition, will be published next week on the Criminal Justice Section’s website. The document consolidates summaries of all 45 merits decisions and 26 separate writings from the justices on the orders docket from the prior term, alongside 14 criminal law and related cases granted for argument this term. While the author retains copyright, the document is freely downloadable and may be distributed without restriction. Legal scholars and practitioners interested in a detailed breakdown of the court’s criminal law jurisprudence are encouraged to review it.
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Two November cases examine the technicalities of habeas corpus, where statutory language and procedural history often determine outcomes. In one, the 5th Circuit ruled that transfers to halfway houses do not qualify as “custody” for habeas review, despite the supervised nature of these facilities. The federal habeas statute explicitly covers prisoners “in custody,” but prior rulings have used varied language to define its scope.
The claim hinges on whether halfway houses, though less restrictive than prison, remain within the statute’s boundaries. The solicitor general and the prisoner both criticized the 5th Circuit’s narrow interpretation, arguing that the transfer’s legal consequences should be reviewable. A former clerk for Justice Alito has been appointed to defend the 5th Circuit’s position, framing the debate as one of statutory precision.
The other habeas case centers on the phrase “new rule of constitutional law … that was previously unavailable” in the habeas statute. The 5th Circuit agreed, reasoning that the rule was “practically unavailable” before 2017 due to circuit precedent dismissing such claims as frivolous. Oral arguments will likely pit textualists, who insist “available” means “capable of being employed,” against those who interpret “unavailable” as “useless” under prior law. The case’s outcome may narrow the conditions under which prisoners can raise successive habeas petitions based on evolving constitutional standards.
The 2nd Circuit held that “granted asylum” must mean “currently granted,” excluding the individual, whose status was revoked after a criminal conviction. The solicitor general supports this interpretation, arguing that “common-sense” dictates the statute cannot apply retroactively. The individual counters with a strict textual reading, noting the law does not mention revocation. The case contrasts with the habeas case, where the government urged a “plain meaning” approach but now advocates for a “common-sense” exception in immigration law. The justices’ textualist leanings may shift depending on the context, though the court’s decision could clarify whether statutory phrases are interpreted uniformly across legal doctrines.
