Today the Supreme Court issued three opinions and a new Order List.  A short summary follows:

OPINIONS

(1) Rippo v. Baker:  By a vote of 8-0, the judgment of the Nevada Supreme Court is vacated and the case remanded.  Per curiam:  "A Nevada jury convicted petitioner Michael Damon Rippo of first-degree murder and other offenses and sentenced him to death. During his trial, Rippo received information that the judge was the target of a federal bribery probe, and he surmised that the Clark County District Attorney’s Office—which was prosecuting him— was playing a role in that investigation. Rippo moved for the judge’s disqualification under the Due Process Clause of the Fourteenth Amendment, contending that a judge could not impartially adjudicate a case in which one of the parties was criminally investigating him. But the trial judge declined to recuse himself, and (after that judge’s indictment on federal charges) a different judge later denied Rippo’s motion for a new trial. The Nevada Supreme Court affirmed on direct appeal, reasoning in part that Rippo had not introduced evidence that state authorities were involved in the federal investigation.... In a later application for state postconviction relief, Rippo advanced his bias claim once more, this time pointing to documents from the judge’s criminal trial indicating that the district attorney’s office had participated in the investigation of the trial judge.... The state postconviction court denied relief, and the Nevada Supreme Court affirmed.... We vacate the Nevada Supreme Court’s judgment because it applied the wrong legal standardUnder our precedents, the Due Process Clause may sometimes demand recusal even when a judge 'ha[s] no actual bias.' Aetna Life Ins. Co. v. Lavoie, 475 U. S. 813, 825 (1986). Recusal is required when, objectively speaking, 'the probability of actual bias on the part of the judge or decisionmaker is too high to be constitutionally tolerable.' Withrow v. Larkin, 421 U. S. 35, 47 (1975); see Williams v. Pennsylvania, 579 U. S. ___, ___ (2016) (slip op., at 6)...."

(2) Beckles v. United States:  By a vote of 7-0, the judgment of the U.S. Court of Appeals for the Eleventh Circuit is affirmed.  Per Justice Thomas' opinion for the Court:  "At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a 'crime of violence' as an offense that 'involves conduct that presents a serious potential risk of physical injury to another.' United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG). This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vaguenessBecause we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument."

Justice Thomas' opinion was joined by the Chief Justice and Justices Kennedy, Breyer, and Alito. Justice Kennedy also filed a concurring opinion.  Justice Ginsburg and Sotomayor filed opinions concurring in the judgment. Justice Kagan was recused.

(3) Pena-Rodriguez v. Colorado:  By a vote of 5-3, the judgment of the Supreme Court of Colorado is reversed and the case remanded.  Per Justice Kennedy's opinion for the Court:  "A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations. This principle, itself centuries old, is often referred to as the no-impeachment rule.  The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict.... This case lies at the intersection of the Court’s decisions endorsing the no-impeachment rule and its decisions seeking to eliminate racial bias in the jury system.  The two lines of precedent, however, need not conflict....  All forms of improper bias pose challenges to the trial process. But there is a sound basis to treat racial bias with added precaution.  A constitutional rule that racial bias in the justice system must be addressed—including, in some instances, after the verdict has been entered—is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.... For the reasons explained above, the Court now holds that where a juror makes a clear statement that indicates he or she relied on racial stereotypes or animus to convict a criminal defendant, the Sixth Amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror’s statement and any resulting denial of the jury trial guarantee.... For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury’s deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror’s vote to convict.  Whether that threshold showing has been satisfied is a matter committed to the substantial discretion of the trial court in light of all the circumstances, including the content and timing of the alleged statements and the reliability of the proffered evidence."

Justice Kennedy's majority opinion was joined by Justices Ginsburg, Breyer, Sotomayor, and Kagan.  Justice Thomas dissented.  Justice Alito dissented, joined by the Chief Justice and Justice Thomas.

ORDER LIST

N.C. transgender bathroom case:  "GLOUCESTER COUNTY SCH. BD. V. G.G. The judgment is vacated, and the case is remanded to the United States Court of Appeals for the Fourth Circuit for further consideration in light of the guidance document issued by the Department of Education and Department of Justice on February 22, 2017." 

CVSG:  Loomis v. Wisconsin

Other Orders of Note:  

-Grant of Acting SG's motions for leave to participate in oral argument as amicus curiae and for divided argument issued in the following cases:

-Justice Thomas issued a statement respecting the denial of cert in two cases:

  • Leonard v. Texas: "Unfortunately, petitioner raises her due process arguments for the first time in this Court. As a result, the Texas Court of Appeals lacked the opportunity to address them in the first instance. I therefore concur in the denial of certiorari. Whether this Court’s treatment of the broad modern forfeiture practice can be justified by the narrow historical one is certainly worthy of consideration in greater detail."
  • Baston v. United States: "The Constitution, through the Foreign Commerce Clause, grants Congress authority to 'regulate Commerce with foreign Nations.' Art. I, §8, cl. 3. Without guidance from this Court as to the proper scope of Congress’ power under this Clause, the courts of appeals have construed it expansively, to permit Congress to regulate economic activity abroad if it has a substantial effect on this Nation’s foreign commerce. In this case, the Court of Appeals declared constitutional a restitution award against a non U.S. citizen based upon conduct that occurred in Australia. The facts are not sympathetic, but the principle involved is fundamental. We should grant certiorari and reaffirm that our Federal Government is one of limited and enumerated powers, not the world’s lawgiver."

-Justice Sotomayor issued a statement concurring in the denial of cert in Perez v. Florida: "Instead of being instructed to weigh this evidence to determine whether Perez actually intended to convey a threat—or even whether a reasonable person would have construed Perez’s words as a threat—the jury was directed to convict solely on the basis of what Perez 'stated.' In an appropriate case, the Court should affirm that '[t]he First Amendment does not permit such a shortcut.' Black, 538 U. S., at 367 (plurality opinion). The Court should also decide precisely what level of intent suffices under the First Amendment—a question we avoided two Terms ago in Elonis."