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As the Senate Battles Over Gorsuch, the Court Stays Calm and Carries On

By Casey C. Sullivan, Esq. on April 04, 2017 | Last updated on March 21, 2019

When it comes to the Supreme Court, all eyes are on the Senate this week, as the battle over Neil Gorsuch's confirmation plays out. But just across the street, the work of the Court continues uninterrupted.

Yesterday, the Court issued two opinions -- one regarding EEOC subpoenas, the other on sentencing for drug offenses -- and granted cert in two new cases. Here's a quick roundup, in case you need a break from all the Senatorial drama.

Mandatory Minimums and EEOC Subpoenas

As the Senate split over Neil Gorsuch on Monday, the Court itself was in a largely concordant mood, issuing one unanimous opinion and one 7-1 ruling.

In Dean v. United States, the Court ruled unanimously that a trial court may consider mandatory minimums for the possession of firearms while sentencing a defendant for predicate offenses.

That case involved the two brothers who were arrested for robbing drug dealers. During two robberies, Levon Dean Jr.'s brother held the dealers at bay with a semiautomatic rifle, while Levon grabbed up the drugs and valuables. Under federal law, the use of a firearm in such robberies is a separate offense, requiring a mandatory minimum of five years for the first offense, 25 years for the second. These sentences must be consecutive and in addition to the time served for the underlying crime. Here, that left Dean facing a mandatory minimum of 30 years for the use of a firearm alone.

Dean had urged his trial judge to sentence him to one day for each of the predicate crimes, which would be served concurrently, resulting in a total sentence of 30 years and a day. The court said it would do so, if it could, as Dean was "clearly the follower" and had no prior history of violence, but that the law prevented such a sentence.

Not so, the Supreme Court ruled. The factors established by the federal law allow judges to consider sentences imposed on other counts and the need for a fitting punishment, the Court said, rejecting the government's argument that Congress did not want judges to "bottom out" sentences for predicate crimes. There's just no evidence in the text for that, Chief Justice Roberts explained for the unanimous Court.

In the second case, McLane Co. v. EEOC, the Court ruled 7-to-1 that the proper standard for reviewing a court's decision on whether to quash or enforce an EEOC subpoena is abuse of discretion, not de novo.

Most circuits had adopted the more deferential abuse of discretion standard, but not the Ninth. Yesterday's ruling brings the Ninth back into the deferential fold. Such deference to lower courts was justified by "the longstanding practice" of most circuits, Justice Sotomayor explained for the Court, as well as "basic principles of institutional capacity."

Coming Soon: Murder, Death, Terrorism

Finally, on Monday the court granted cert in two new cases. In Jesner v. Arab Bank, the Supreme Court will examine whether companies can be sued under the Alien Tort Statute for violations to international law. The case seeks to hold the Arab Bank liable for allegedly funneling funds to Hamas. The Second Circuit had ruled that the ATS does not allow for corporate liability for such acts.

The second case, Ayestas v. Davis, is also worth keeping an eye on. This dispute centers around when death-row inmates are entitled to federal funds for challenging their convictions.

The case involves Carlos Manuel Ayestas, who was sentenced to death in Texas for a murder committed in the course of a robbery. In an internal memo establishing reasons for pursuing the death penalty, Harris County Assistant District Attorney Kelly Siegler noted two aggravating circumstances. The first was that Ayestas had killed an elderly woman in her home.

The second? "The defendant is not a citizen."

When Ayestas sought funding for challenging his conviction, the district court refused, finding that Ayestas hadn't demonstrated a "substantial need," a standard Ayestas argues would require him to meet the burden of proof without actually having had the opportunity to develop the facts.

Now, back to the Senate ...

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