June 22, 2026 | Volume 33, Issue 16
This Report summarizes opinions issued on June 18, 2026 (Part I); and cases granted review on June 15, 2026 (Part II).
Opinions
United States v. Hemani, 25-1234.
Without dissent, the Court held that 18 U.S.C. §922(g)(3)―which “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use”―violates the Second Amendment. The government charged respondent Ali Hemani under §922(g)(3) for possessing a pistol while unlawfully using marijuana. Under that provision’s terms, “anyone who is an ‘unlawful user of’ or ‘addicted to’ a ‘controlled substance’ is automatically banned from possessing a gun.” Hemani moved to dismiss the indictment, arguing that the statute violates the Second Amendment. The district court granted Hemani’s motion and the Fifth Circuit affirmed, relying on circuit precedent that §922(g)(3) was unconstitutional as applied because there was “no historical justification for disarming a sober citizen not presently under an impairing influence.” In an opinion by Justice Gorsuch, the Court affirmed.
The Court started by explaining that the Second Amendment right to own firearms can be limited if the government meets its burden of showing its regulatory efforts are “consistent with the Nation’s historical tradition of firearm regulation.” See N.Y. State Rifle & Pistol Assn. v. Bruen, 597 U.S. 1 (2022). The government need not find a “historical twin” but may rely on analogous regulations or regulations that are “relevantly similar” to historical ones. Here, the government argued it met its burden by analogy with “habitual drunkard” laws that historically led to restrictions on firearm possession. The Court rejected that analogy, finding that the “historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways.”
The Court recognized “that drugs and guns can sometimes make for a dangerous mix,” but the statute here is not confined to the “categorically and unusually dangerous.” The Court then detailed the “culture of copious drinking” that existed at the time of the founding, describing how in those days a “habitual drunkard” was not a “regular or even frequent drinker” but someone who was intoxicated most of the time, to the point where they “lost self-control” and were “practically incapacitated.” A person who took 12 shots of hard liquor a day was only an “occasional drunkard.” In contrast, §922(g)(3) automatically disarms anyone who regularly uses any amount of any controlled substance for anything other than its “prescribed purpose.” The Court found that Hemani’s case illustrates the disconnect between §922(g)(3) and habitual drunkard laws, for the record lacks evidence he is ever incapacitated and the government’s interpretation applies even if he only uses “a mild gummy as a sleep aid a few times a week.” The Court also found that the government’s theory would extend “to a husband who regularly takes his wife’s prescription Ambien to sleep and a college student who routinely uses a friend’s Adderall to cram for exams.”
The Court also rejected the analogy because “early American vagrancy, civil-commitment, and surety laws” (which comprise the historic habitual drunkard laws) “had little to do with protecting the public from categorically violent and unusually dangerous persons”―the purpose supposedly behind §922(g)(3). Next, the Court found a critical difference between how §922(g)(3) operates when compared to the habitual drunkard laws. The habitual drunkard laws generally “provided some form of process before an individual lost any of his liberties, even temporarily.” In contrast, §922(g)(3) “automatically divests an individual of his constitutional right to bear arms the moment he becomes an unlawful user and until he ends his drug use―all without any pre-deprivation process.” Finally, the Court questioned the government’s contention that the actual purpose behind §922(g)(3) was to disarm violent or unusually dangerous people. First, the provision relies on the Controlled Substances Act, which was adopted to protect “the health and general welfare of the American people. . . . Drugs can be added to its schedules for a variety of reasons having little or nothing to do with their potential to induce violence.” Second, given the movement of some marijuana products to Schedule III and the states’ increasing legalization of marijuana under state law, it is “awkward[]” “to suggest that the millions of Americans who now regularly use marijuana are categorically and unusually dangerous.”
The Court noted that its opinion was a narrow one and did not address regulations that disarm felons or the institutionalized, which “involve some manner of pre-deprivation process before an individual’s Second Amendment rights are lost.” Nor did it address whether §922(g)(3) could be used if accompanied by “proof that a certain drug always renders its users dangerous because of its potency or for some other reason.”
Justice Thomas filed a concurring opinion suggesting that §922(g)(3) also exceeds Congress’s power to regulate interstate commerce. Justice Thomas asserted that the Commerce Clause does not authorize Congress to “regulate the possession of firearms solely on the ground that they crossed state lines at some point in the past.” He emphasized that “§922(g) criminalizes possession of firearms apart from any purchase or sale of goods,” yet the “mere possession of a firearm that long ago crossed state lines is not ‘economic activity’ in any sense.”
Justice Jackson, joined by Justice Sotomayor, filed a concurring opinion. Justice Jackson agreed that the Court correctly applied the rule set forth in in Bruen, but maintained her view that Bruen was wrongly decided. She charged that “Bruen is unworkable” and prevents legislatures from addressing problems facing modern society. Justice Jackson advocated for a “means-end” scrutiny to balance the government’s interest against the burden on the rights involved.
Justice Alito filed an opinion concurring in the judgment only, joined by Justice Kagan. Justice Alito agreed that the government’s historical analogues are not “relevantly similar” and also agreed that the opinion does not “cast doubt on the constitutionality of other provisions of §922(g)” such as criminalizing felons from possessing guns. Justice Alito noted that “marijuana use today is like alcohol use at the founding[:] . . . widespread and increasingly considered socially acceptable.” Justice Alito asserted that the Court could affirm on the ground that the government’s analogy is “too far afield to justify the application of §922(g) to a marijuana user like respondent” without needing to say more.
Hunter v. United States, 24-1063.
By an 8-1 vote, the Court held that an agreement, made as a part of a plea bargain, “not to appeal a sentence is unenforceable when it would result in a miscarriage of justice―meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.” In February 2024, petitioner Munson Hunter III entered into a written plea agreement with the United States after he was charged with ten counts of bank and wire fraud for a years-long scheme costing various financial institutions about half a million dollars. Under the agreement, Hunter pleaded guilty to one count of aiding and abetting wire fraud in exchange for dismissal of the remaining charges. His plea agreement contained a standard waiver of his right to appeal his sentence. At sentencing, the district court (over Hunter’s objection) imposed a mandatory-medication provision to his supervised release that provided he “take all mental health medications that are prescribed by [his] treating physician.” The district court also informed Hunter of his “right to appeal.” Despite the language in the plea agreement, the government voiced no objection. Hunter appealed the mandatory-medication condition, arguing that it “infringe[d] on [his] fundamental due process liberty interest in being free of unwanted mental health medication.” In doing so, he claimed his appeal waiver did not bar this constitutional claim and, alternatively, that the sentencing judge’s declaration that he possessed a “right to appeal,” coupled with the government’s non-objection, rendered the appeal waiver void. The Fifth Circuit dismissed the appeal, holding that Hunter’s claim was “barred by the waiver.” The court further held that the judge’s statement at sentencing “did not impact the validity of the appeal waiver.” In an opinion by Justice Kagan, the Court vacated and remanded.
The Court first addressed “the more case-specific argument Hunter makes for allowing him to appeal: that at his sentencing hearing, the District Court said he could, and the Government did not object.” The Court concluded that “[c]ontrary to Hunter’s arguments, the court’s remark did not modify the plea agreement, nor did the Government’s failure to object give up its ability to later enforce the agreement’s terms.” The oral proclamation by the district court did not evidence mutual assent by the parties to modify the agreement, and did not comport with the agreement’s express requirement that modification could occur only if “in writing and signed by all parties.” The government’s silence during the sentencing proceeding did not affirmatively waive its right to enforce the written terms of the agreement, and the argument was not forfeited because it was timely raised when Hunter actually attempted to violate the agreement by appealing.
The Court next focused on what limits exist regarding the enforcement of an appeal waiver for a defendant’s sentence. Under the Fifth Circuit’s rule, “the only permissible exceptions to a general appeal waiver are for claims of ineffective assistance of counsel or that the sentence exceeds the statutory maximum.” The government espoused “a stricter view, maintaining that knowing and voluntary appeal waivers are always enforceable.” The Court rejected both positions, instead adopting the “miscarriage of justice” standard applied in the majority of federal circuits. The Court explained that this result stemmed from “the special, and indeed pivotal, role of the judiciary in approving and implementing appeal waivers.” Because an agreement between the parties to waive an appeal must be accepted by the district court and enforced by the circuit courts, “the standard for enforcing appeal waivers implicates the interests not only of the agreement’s parties, but also of the judiciary.” Thus, notwithstanding a valid waiver by the parties, the judiciary possesses both an interest and obligation to correct “grossly prejudicial errors of law” that are so fundamental to a trial’s legitimacy that enforcing such waiver would “irreparably discredit[] the federal courts.” The Court emphasized that this standard sets a “high bar,” requiring the error to be both “obvious” and “of the type that would undermine public confidence in the judiciary.” The Court provided a few examples of such errors: sentences that are above the statutory maximum; where “a judge takes account of a constitutionally impermissible factor (like race) or imposes a constitutionally infirm condition of supervised release (like barring a defendant from becoming pregnant)”; and where a “sentence was imposed without ‘some minimum of civilized procedure.’” The Court declined to decide in the first instance whether Hunter’s claim satisfied these criteria, and instead remanded to the Fifth Circuit to decide the issue anew under the appropriate standard.
Justice Gorsuch wrote a concurring opinion joined by Justices Sotomayor and Jackson. He outlined the history of plea bargaining and appeals waivers in the criminal justice system, as well as the Court’s previous acquiescence in the proliferation of these practices. In his view, the Founders would have found it “unthinkable” and “abhorrent” that “almost every federal criminal case would be resolved by plea bargain” and that “defendants would be pressed to waive their statutory right to appeal sentences yet to be imposed.” He saw the Court’s opinion as “an important step toward reining in appeal waivers.” But Justice Gorsuch also called into question whether such waivers should ever be permitted. He argued that a defendant cannot knowingly and voluntarily waive the right to contest an unknown sentence that has yet to be imposed. He further pointed out that the Court has previously disallowed contractual waivers of other statutory rights, including the “right to remove an existing case to federal court or bring suit to vindicate a Title VII or antitrust injury.” Justice Gorsuch saw “no colorable explanation why a defendant’s prospective waiver of his statutory right to appeal his sentence should be treated differently.” Justice Gorsuch’s concurrence also offered additional guidance on how he believed the miscarriage of justice standard should apply in future cases, proposing a permissive view of the standard.
Justice Kavanaugh wrote a brief separate concurring opinion joined by Justices Alito and Barrett. He joined the majority opinion in full but wrote separately to note that he disagreed with the understanding of the “miscarriage of justice” standard set forth in Justice Gorsuch’s concurrence, and to state his belief that the opinion of the Court does not adopt the views expressed therein.
Justice Barrett also penned a concurring opinion to address issues raised in Justice Thomas’s dissent. She noted that she shared his skepticism “that the Supreme Court possesses an inherent, supervisory authority over inferior federal courts.” But she maintained that the majority opinion does not rest on this principle, but instead turns on “longstanding waiver principles” derived from “procedural common law.” And because “established waiver principles do not originate from the Court’s supervisory power,” she viewed the dissent’s concerns as misplaced here.
Justice Thomas authored a dissenting opinion. He first emphasized that Hunter received the benefit of a generous plea bargain—in which he was sentenced to just two percent of the prison time to which he was exposed from the indictment—yet is still permitted to challenge the portion of his sentence he dislikes. He further noted that the right to appeal a criminal conviction is statutory, not constitutional, and that no criminal appeals existed for a century after the founding. As Justice Thomas saw it, “[l]ike many constitutional and statutory rights, the right to appeal can be waived by the defendant, and once that choice is finally made, the defendant is bound by the decision.” Indeed, he noted that criminal defendants are routinely allowed to waive their right to silence, jury trial, or counsel despite uncertainty about the consequences of those decisions. He found no basis in the Constitution, statutory text, or common-law contract principles that would justify a “miscarriage of justice” exception. He therefore concluded that the majority must have implicitly relied on its “supposed ‘supervisory power’ . . . to override Hunter’s appeal waiver.” He then engaged in a lengthy criticism of this source of authority. Finally, Justice Thomas dismissed the Court’s concern about “egregious error that would bring the judicial system into disrepute” as an impermissible policy consideration.
T. M. v. University of Md. Medical System Corp., 25-1234.
By a 5-4 vote, the Court held that the Rooker-Feldman doctrine “bars suit when the state court judgment at issue is subject to further review in state appellate proceedings.” Petitioner T.M. suffers from a medical condition causing gluten-induced psychosis and was committed to a medical facility after one such episode. The facility sought to forcibly medicate T.M. with antipsychotic drug injections. Seeking to avoid such measures, T.M. and her parents filed several federal and state lawsuits, including a state habeas action. During that litigation, T.M. and the facility reached a settlement, and the state habeas judge entered a consent order allowing T.M.’s conditional release. Ten days later, T.M. filed suit in federal court seeking “a declaration that the consent order violated T.M.’s federal and state due-process rights, a declaration that the order was obtained under duress, and an injunction preventing the order’s enforcement.” Meanwhile, the Maryland state appeals court granted T.M.’s motion to stay her appeal of the consent order. Back in federal court, the judge dismissed the complaint for lack of subject matter jurisdiction, holding that T.M.’s claims were barred by the Rooker-Feldman doctrine. Under that doctrine, “federal district courts lack jurisdiction over cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments.” (Quotation marks omitted.) The Fourth Circuit affirmed. In an opinion by Justice Sotomayor, the Court affirmed.
The Court rejected T.M.’s contention “that Rooker-Feldman bars only federal suits seeking review and rejection of ‘[f]inal judgments’ that are ‘rendered by the highest court of a State in which a decision could be had.’” The Court explained that the doctrine is premised on the fact that “Congress in 28 U.S.C. §1331 granted federal district courts ‘original jurisdiction of all civil actions’ raising federal questions,” and not appellate jurisdiction. (Emphasis added.) Instead, only the Supreme Court has been granted appellate jurisdiction to review state-court judgments, jurisdiction that extends only to “[f]inal judgments or decrees rendered by the highest court of a State in which a decision could be had.” §1257(a). The Court noted that it has previously refused to expand the doctrine. See Exxon Mobil Corp. v. Saudi Basic Indus., 544 U.S. 280 (2005) (“The Rooker–Feldman doctrine, we hold today, is confined to cases of the kind from which the doctrine acquired its name.”). But the Court found that T.M.’s claim fit squarely within the doctrine and that she was seeking the adoption of a “new rule” to prevent her claim from being barred.
The Court rejected “T.M.’s view, endorsed by the dissent, [that] the Court should adopt a new rule specifying that Rooker-Feldman bars only federal suits seeking review and rejection of ‘[f]inal judgments’ that are ‘rendered by the highest court of a State in which a decision could be had,’ 28 U.S.C. §1257(a).” Under that theory, “Rooker-Feldman has never rested on any distinction between what, in substance, qualifies as original and appellate jurisdiction.” The Court disagreed, finding it required a “reimagining” of the doctrine. The Court insisted that its precedents “plainly adopted a different, more functional view of original and appellate jurisdiction.” For example, the Court found that T.M.’s “final judgment” rule is inconsistent with Feldman, where the Court rejected the plaintiff’s argument that Rooker did not apply because the state-court judgment couldn’t be reviewed by the Supreme Court because the plaintiff hadn’t raised the federal issue in state court.
Finally, the Court criticized T.M.’s proposed rule for its potential to “create anomalous outcomes and undermine the federalism principles upon which the doctrine rests.” On the former, the Court observed that under the position of T.M. and the dissent, “federal district courts could not exercise jurisdiction if a plaintiff seeks review of a state high-court judgment, but they could exercise jurisdiction if the plaintiff seeks the same review of a state lower-court judgment while that judgment is on appeal in the state court system.” On the latter, the Court stated that “allowing federal district courts to review state court judgments while they are on appeal in the state-court system would undermine the ‘[c]ooperation and comity’ on which our federal system is built.” The Court concluded that its opinion “neither expands nor constrains Rooker-Feldman [but] leaves the doctrine as it found it.”
Justice Thomas filed a concurring opinion, writing separately to explain why Rooker was “correct as an original matter.” He explained that, from the founding, it was understood that asking one court to revise another’s judgment was an invocation of “appellate jurisdiction” and if “a court exercises appellate jurisdiction, it does not exercise original jurisdiction.” See Marbury v. Madison, 5 U.S. 137 (1803); Ex parte Bollman, 8 U.S. 75 (1807). Justice Thomas noted that Congress has only given the Supreme court, not the district courts, “appellate jurisdiction to revise state-court judgments.” He concluded that state courts are “creatures of a distinct government,” and therefore “not, in any sense of the word, inferior” to federal courts, except the Supreme Court.
Justice Barrett filed a dissenting opinion in which Chief Justice Roberts and Justices Kagan and Gorsuch joined. The dissent focused on the statement in Exxon that the Rooker-Feldman doctrine is “confined.” Justice Barrett noted that seven circuit courts had followed the approach advocated by T.M., and that the suit brought in this case was a collateral attack, which “is not functionally equivalent to an appeal.” Justice Barrett criticized the majority’s reliance on §1331, a provision that “cannot explain why Rooker-Feldman has always been limited to collateral attacks on state-court judgments.” Further, she wrote, “Rooker-Feldman misses what is further down the page: Congress has told us how to treat state court judgments” in the Full Faith and Credit Act, 28 U.S.C. §1738. In Justice Barrett’s view, the doctrine rests of §1257(a). And “[i]f there is no final judgment from a state high court, §1257 does not confer jurisdiction in this Court; thus, there is nothing to ‘preclud[e]’ district courts from exercising the jurisdiction they would ‘otherwise’ have.” That’s why Exxon stated that “In ‘both’ Rooker and Feldman, the losing party sued in federal court ‘after the state proceedings ended.’” The dissent further argued that the doctrine brings little to the table as “[p]reclusion already bars parties from relitigating issues and claims that were decided in state court.” Yet because the doctrine is jurisdictional, “courts must analyze it, even if no one raises it.” Justice Barrett concluded that because the Rooker-Feldman doctrine “stands on shaky ground, we have consciously kept its footprint small. Its rationale has gotten no firmer, so we should make the doctrine no larger.”
Cases Granted Review
Kian v. Florida, 25-6623.
At issue is whether Williams v. Florida, 399 U.S. 78 (1970), correctly held that the Sixth Amendment does not require a jury to have 12 members. In Williams, the court discussed the history of the 12-person jury at common law and found that such “feature of the jury system appears to have been a historical accident, unrelated to the great purposes which gave rise to the jury in the first place.” And looking to the history of Congress’s debate on the Sixth Amendment, the Court noted that the original draft contained references to the “common-law features” of juries but the text as approved does not. At present, six states permit the use juries with less than 12 persons: Arizona, Connecticut, Florida, Indiana, Massachusetts, and Utah. Starting in 2022, several petitioners began asking the Court to reconsider Williams, prompting Justice Gorsuch to suggest in dissents from the denials of certiorari that Williams was wrongly decided. See, e.g., Khorrami v. Arizona, 143 S. Ct. 22 (2022); Cunningham v. Florida, 144 S. Ct. 1287 (2024). Petitioner Hamed Kian was charged with practicing chiropractic medicine with a suspended license. He was convicted by a six-person jury and sentenced to a year and a day in prison. The Florida Court of Appeals affirmed without an opinion. 421 So. 3d 439.
Kian argues that “since the time of Magna Carta, the word ‘jury’ had been understood to mean a body of twelve,” citing various founding-era authority such as Blackstone’s Commentaries on the Laws of England. Kian also asserts that the history of Florida’s six-person rule can be traced to the Jim Crow era. The same Florida legislature in 1877 that reduced the size of juries also reestablished a “judgment and intelligence” test for jury service, used to exclude African-Americans from juries into the 1950s. Finally, Kian argues that the decision in Williams cannot be squared with the Court’s recent ruling in Ramos v. Louisiana, 590 U.S. 83 (2020), that the Sixth Amendment’s “trial by an impartial jury” requirement encompasses what the term “meant at the Sixth Amendment’s adoption.” Ramos held that the right to jury unanimity, a feature present at common law, was required by the Sixth Amendment. Kian posits that the same logic of preserving the Sixth Amendment to its original meaning also requires a 12-person jury.
Florida counters that the Court’s opinion in Williams “devoted 13 pages to the history and development of the common-law jury and the Sixth Amendment” and is “thick with scholarly footnotes.” Florida criticizes Kian for making “no attempt to identify error in Williams’ analysis.” Moreover, Florida notes that a complete return to common-law juries would also require that a jury consist of 12 male landowners from the county of the alleged crime―yet such an interpretation would “be inconsistent with the Sixth Amendment’s drafting history.” Invoking stare decisis, Florida notes that 5,000 criminal convictions are on appeal in Florida which would need be retried if Williams were overturned. Florida also argues that this case is different from Ramos in that the precedent overturned there lacked a majority opinion and was entitled to little deference, whereas the Williams opinion was supported by seven justices with only Justice Marshall dissenting from the relevant part. Finally, Florida notes that in addition to the six states, federal trials permit fewer than 12 jurors to reach a verdict in certain instances. See Fed. R. Crim. P. 23(b)(3).
Guerrero v. Johnson, 25-1003.
At issue is “[w]hether a claim relies on a ‘a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable’ when the habeas petitioner could have asserted a claim based on the rule in a prior federal habeas petition.” The Antiterrorism and Effective Death Penalty Act (AEDPA) generally bars state prisoners from bringing multiple petitions for writ of habeas corpus in federal court, but (in relevant part) permits successive petitions for claims that “rel[y] on a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.” 28 U.S.C. §2244(b)(2)(A). In 2002, the Court decided Atkins v. Virginia, 536 U.S. 304, which established that the Eighth Amendment prohibits execution of the intellectually disabled. In 2007, Dexter Johnson was convicted of capital murder and sentenced to death for the kidnapping, rape, and execution of one victim and the additional killings of three others. Johnson did not raise an Atkins claim in his initial habeas petition because at the time, it was understood that his IQ score (between 74 and 88) surpassed the constitutional threshold for an intellectual disability which prohibited execution.
In 2019, Johnson raised a new Atkins claim via habeas, arguing that the American Psychiatric Association’s May 2013 publication of the fifth edition of the Diagnostic and Statistical Manual of Mental Disorders (DSM‑5) had (1) substantially revised the diagnostic approach to intellectual disability; (2) deemphasized IQ cutoffs; and (3) suggested that individuals with IQ scores above 70 may still meet diagnostic criteria based on documented adaptive‑functioning deficits. He asserted that his petition was permitted because before DSM‑5 he could not have prevailed under Atkins. The district court denied Texas’s motion to dismiss the successive petition, concluding that under the 2017 precedent In re Cathey, 857 F.3d 221, the Fifth Circuit had “read a futility exception into section 2244(b)(2)(A).” The Fifth Circuit affirmed the denial of the motion to dismiss and ruled that Johnson was authorized to assert an Atkins claim under §2244 because it “is correct to equate legal availability with changes in the standards for psychiatric evaluation of the key intellectual disability factual issues.” The panel also reaffirmed Cathey’s holding that “a claim must have some possibility of merit to be considered available” for purposes of §2244(b)(2)(A), even if the underlying rule of constitutional law was “technical[ly] availab[le]” at the time of the previous petition.
Texas argues that the Cathey rule, which has also been adopted by the Ninth Circuit, “conflicts with the plain text of AEDPA” and improperly imposes a “judicially created exception” to §2244(b)(2)(A)’s requirements. Texas further faults the Fifth Circuit for undermining “the structure of AEDPA“ by “blurring the line Congress drew between claims based on ‘new . . . law’ and those based on new ‘factual developments.’” As the state sees it, publication of new standards in the DSM-5 is a change in factual circumstances, which may not be raised successively under §2244(b)(2)(B)(ii) because the evidence concerns the legality of Johnson’s sentence, not his innocence of the underlying offense. Texas, joined by Louisiana and 22 other state amici, urge the Court to adopt the interpretation applied by the Eleventh and Fourth Circuits. Under their caselaw, “previously unavailable” “refers to the existence of the ‘new rule of constitutional law,’ not to a particular prisoner’s ability to utilize or prevail on it.” And it occurs when such a rule is made retroactive by the Supreme Court, not when an individual’s claim could have become meritorious. The states argue that to hold otherwise intrudes into their sovereignty over criminal proceedings and undermines their important interest in the finality of judgments.
Johnson argues that the Fifth Circuit’s Cathey rule is the correct interpretation of §2244(b)(2)(A). Citing dictionary definitions and a previous Supreme Court interpretation of “available” in the context of the Prison Litigation Reform Act, he contends that “[u]navailability must be interpreted functionally” and reasons that a claim for relief cannot “be obtained” when it has “no possibility of merit.” Thus, he asserts that because his Atkins claim was “functionally unavailable” prior to the publication of the DSM-5, “the Fifth Circuit correctly authorized his successive petition.” Finally, he argues that his petition was triggered by a substantive change in law because Texas courts “did not adopt the DSM-5 as the governing criteria for an Atkins claim until 2018.”
Genalo v. Black, 25-886.
At issue is (1) “[w]hether there is a point at which an alien’s detention under [8 U.S.C. §]1226(c), pending a decision on whether he is to be removed, becomes ‘unreasonably prolonged,’ such that due process requires a bond hearing”; (2) “[i]f so, whether, in such a bond hearing, due process requires placing the burden on the government to justify the alien’s continued detention by clear and convincing evidence”; and (3) “whether G.M.’s case is now moot.” Generally, the detention of noncitizens during removal proceedings is discretionary; the Secretary of Homeland Security may release them on bond or parole pending resolution of their case. But §1226(c) “expressly prohibits” the release of specified criminal aliens—those convicted of aggravated felonies, child abuse, terrorism, or crimes causing great bodily injury—except on witness-protection grounds. In Jennings v. Rodriguez, 583 U.S. 281 (2018), the Court held that under the statute criminal aliens “who are subject to mandatory detention” need not be “afforded bond hearings, with the possibility of release, if detention lasts six months.” The Court did not, however, resolve whether “the Constitution requires” such a remedy.
Respondents are two individuals subject to pre-removal detention under §1226(c). Carol Black is a Jamaican citizen convicted of first-degree sexual abuse of a minor under age 11, among other offenses. Keisy G.M. is a native of the Dominican Republic whose lawful permanent resident status in the United States was revoked following conviction of second-degree assault. Both were detained without the opportunity for bond for over seven months, and both petitioned for habeas corpus in federal district court in New York. The district court judges reached conflicting conclusions regarding whether respondents’ detention was “unreasonably prolonged” so as to require a bond hearing under the Constitution’s procedural and substantive due process requirements. The Second Circuit consolidated the cases on appeal and ruled that habeas should be granted in both. 103 F.4th 133. The panel held that §1226(c) detainees whose detention has become “unreasonably long” “have a due process right to a bond hearing in which the government bears the burden of demonstrating by clear and convincing evidence that they are either a flight risk or a danger to the community.”
The United States argues that the Second Circuit wrongly concluded that §1226(c) is unconstitutional as applied to aliens whose detention has become “unreasonably prolonged.” First, the United States faults the court for conflating procedural and substantive due process and applying an incorrect standard as a result. A procedural-due-process claim challenges the “adequacy of the procedures” for making substantive determinations that would justify a deprivation of life, liberty, or property. By contrast, a substantive-due-process claim challenges the substance of the determinations themselves, arguing that they are inadequate to justify the deprivation. The government argues that here, “[r]espondents do not challenge the adequacy of the procedures for determining whether an alien falls within one of Section 1226(c)’s enumerated categories.” Instead, they claim that the statute’s “affirmative prohibition on releasing” them is an impermissible deprivation of their liberty interests when detention is unduly “prolonged” absent “a determination that they pose a flight risk or danger to the community.” Thus, the government asserts that the claim at issue is substantive, not procedural, and the Second Circuit erred in applying the procedural- due-process test articulated in Mathews v. Eldridge, 424 U.S. 319 (1976).
The United States then asserts that respondents have no substantive-due- process right to a bond hearing because their detention “during the pendency of their removal proceedings does not implicate any fundamental rights.” Relying on Demore v. Kim, 538 U.S. 510 (2003), the government asserts that §1226(c) satisfies rational basis review because the challenged “detention bears a reasonable relation to legitimate immigration purposes―such as ‘preventing deportable criminal aliens from fleeing’ or ‘continu[ing] to engage in crime’ while their removal proceedings are pending.” Finally, the government claims that, even assuming a bond hearing was appropriate, the lower court erred in finding that DHS would bear the burden at such proceedings to establish a detainee’s dangerousness or flight risk by clear and convincing evidence. As the government sees it, this holding creates a “perverse effect of rewarding the alien for not sharing information” about their family, criminal, and employment history and ignores Congress’s “concern that such individualized hearings could not be trusted to reveal which ‘deportable criminal aliens who are not detained’ might ‘continue to engage in crime or fail to appear for their removal proceedings.’” The United States insists that the “burden should therefore be on the alien to show by a preponderance of the evidence that Congress’s concerns about flight risk and dangerousness do not apply to him.”
Respondents contend that due process required an individualized bond hearing given their prolonged immigration detention of seven and 21 months, respectively. They argue that the “paradigmatic” interest protected by the Due Process Clause “is freedom from physical restraint.” They insist that because “immigration detention is civil detention,” it necessarily implicated their “core liberty interest in their bodily freedom from detention.” And because this case involves substantive deprivation of a protected interest, they are entitled to adequate procedural process. Respondents further maintain that “[t]he court of appeals correctly applied the Mathews test to [their] particular circumstances.” As for the burden at such proceeding, respondents rely on prior case law for the proposition that “‘[w]here an individual’s liberty is at stake,’ the government is required to justify continued detention under a clear and convincing evidence standard.”
Finally, respondents argue that no Article III case and controversy remains for the Court to resolve. As conceded by the government in its reply, the case against Black has been mooted by the fact that he permanently left the country to reside in Trinidad and is no longer subject to reentry or detention in the United States. As for G.M., respondents assert that the issue is likewise nonjusticiable because he was released from custody years ago and faces only a speculative future re-detention that is not sufficiently imminent to support Article III jurisdiction.
NAAG Center for Supreme Court Advocacy Staff
- Dan Schweitzer, Director and Chief Counsel
- Kevin Morrow, Supreme Court Fellow
- Michael Butera, Supreme Court Fellow
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