With four decisions today, the Court has now cut its backlog down to the mid-teens. And with decisions likely tomorrow as well, the Court is well on its way to clearing the docket as the term ends.

Still, we have no decisions in the Harvard and North Carolina affirmative action cases. The betting there seems to be that opinions will be written by the Chief Justice and by Justice Alito, but you can easily go broke betting on what the Court is going to do. Stereotypes and statistics often are illusive, as last week’s Alabama voting rights case demonstrates. Today’s alignments are not typical either. One thing you can bet on, however, is that Justice Gorsuch will side with Indian tribes and nations in virtually every case involving Indian rights. Today, he is in dissent in such a case, but however one leans in these matters, one must acknowledge that, in the words of a SCOTUSblog correspondent, Gorsuch “is the most pro-Indigenous justice in the last century, period.” However, in the case of Arizona v. Navajo Nation, Justice Gorsuch’s great knowledge of Indian history and treaty law did not carry the day.

Justice Kavanaugh, writing for himself, the Chief Justice, and Justices Thomas, Alito, and Barrett (with Justices Sotomayor, Kagan, and Jackson joining the Gorsuch dissent), opined that an 1868 treaty between the tribe and the government contains no language imposing a duty upon the federal government to help the Navajo Nation secure water rights.

The peace treaty in question settled a conflict between the United States and the Navajo Tribe and, among other things, set up the Navajo Reservation, which implicitly included the right of the tribe to use needed water from the numerous sources on the 17-million-acre reservation. However, this has proved insufficient for the tribe, which sued the government, asserting a breach of trust in not taking affirmative steps to secure additional water for the tribe.

The Court’s majority holds that the text of the treaty and related records do not support this claim for affirmative relief. Besides joining the majority, Justice Thomas also filed a concurring opinion questioning whether the Court should recognize the “breach-of-trust” concept at all. The eloquent Gorsuch dissent argues that the case is “not about compelling the federal government to take ‘affirmative steps to secure water for the Navajos’ . . . [but] is far more modest.” He thus suggests that the case is about no more than formulating a plan to identify the specific water rights that the United States holds in trust for the tribe and to stop misappropriating them. In a sense, Gorsuch is asking the Court to consider a detailed historical background, while the majority, applying usual conservative textual analysis, focuses entirely upon the operative document—the 1868 treaty—and finds no specific language in it that grants the right that the tribe seeks. One easily can see why the three liberals joined Justice Gorsuch.

Justice Kavanaugh also wrote the Court’s opinion in Pugin v. Garland (disposing of two related cases) holding that an offense may “relat[e] to obstruction of justice” under 8 U.S.C. §1101(a)(43)(S) even if the offense does not require that an investigation or proceeding be pending. The result of the two cases in which the petitioners were convicted of aggravated felonies—dissuading a witness from testifying and being an accessory after the fact—that did not relate to pending official matters is their being subject to removal from the United States. Having amended the law in 1996, Congress provided that noncitizens convicted of a federal or state crime constituting an “aggravated felony” are removable from the United States. Congress expanded the definition of “aggravated felony” in 1996 to include offenses “relating to obstruction of justice.” The majority turned to dictionary definitions, federal laws, state laws, and the Model Penal Code to show that federal or state obstruction offenses “relat[e] to obstruction of justice” even if the offense does not require that an investigation or proceeding be pending. Interestingly, the dissenters in Pugin somewhat mirrored the roster of dissenters in the Navajo Nation case, with Justice Gorsuch joining Justice Sotomayor along with Justice Kagan. Justice Jackson concurred with the majority opinion of the Court, which affirmed a judgment of the Fourth Circuit and reversed a judgment of the Ninth Circuit.

The Roberts/Kavanaugh alliance that we saw last week in the voting rights case again was present in today’s decision in Yegiazaryan v. Smagin, in which, along with Justice Barrett, they joined Justice Sotomayor, who wrote the Court’s majority opinion, which also was joined by Justices Kagan and Jackson. Justices Thomas, Alito, and Gorsuch dissented in whole or part.

The decision itself is an important one in its expansion of a plaintiff’s right to bring a civil suit under the Racketeer Influenced and Corrupt Organizations Act (RICO). Respondent Smagin had filed a civil suit under RICO, which provides a private right of action to “[a]ny person injured in his business or property by reason of a violation of” RICO’s substantive provisions. 18 U. S. C. §1964(c). He alleged that the petitioner and others had worked together to frustrate Smagin’s collection on a California judgment (confirming a foreign arbitration award) through a pattern of wire fraud and other RICO predicate racketeering acts, including witness tampering and obstruction of justice. The majority held that a plaintiff sufficiently alleges a domestic injury, albeit to intangible property (a court judgment) for purposes of §1964(c) when the circumstances surrounding the injury indicate that it arose in the United States. Here, a great deal of the racketeering conduct occurred outside of the United States, but the effects of the vast majority of the injurious acts, directed at frustrating a California judgment, were manifested in the United States. Thus, looking to context, the majority sees no problem posed by any presumption against extraterritoriality or international comity. The dissenters argue that an injury to intangible property does not qualify as a “domestic injury” under RICO. The opposite holding by the majority strengthens the ability of U.S. domestic parties to combat attempts to hide assets to which those parties have valid legal claims when their adversaries are conspiring with foreign banks.

While the alignment of Justices in the three cases previously discussed might strike at some preconceptions, there should be no surprise at the stark conservative/liberal division in Jones v. Hendrix.

Writing for the six jurisprudentially conservative members of the Court (with the three liberals—Sotomayor, Kagan, and Jackson—dissenting) Justice Thomas opined that the limitation on second or successive habeas corpus motions under 28 U.S.C. §2255 does not make the statute “inadequate or ineffective” such that the prisoner may proceed with his statutory claim under §2241. Therefore, a federal prisoner may not file a second or successive §2255 motion based solely on a more favorable interpretation of statutory law adopted after his conviction became final and his initial §2255 motion was resolved.

The facts of the case are interesting. Jones was convicted in 2000 of unlawful possession of a firearm by a felon and of making false official statements. He appealed to the Eighth Circuit and lost. He then filed a §2255 action which, in 2006, resulted in vacating one of his concurrent sentences but no other relief. Thirteen years later, when the Court abrogated an Eighth Circuit precedent as to the knowledge element of the gun crime, Jones tried to leverage this decision into a new collateral attack on his conviction. However, he could not satisfy the prerequisites for a new §2255 action—newly discovered evidence or a new rule of constitutional law. Instead, he argued that he was entitled to relief under §2241 because the remedy available under §2255 was “inadequate or ineffective to test the legality of his conviction.” The majority refused to apply this saving clause to a case where a prisoner, having exhausted an earlier §2255 motion, would assert a change in mere statutory interpretation as grounds for a subsequent such motion.

Given the little time left in the term, it is likely that you’ll hear again from this blog very soon.

Back to Commercial Litigation Update Blog

Search This Blog

Blog Editors


Related Services



Jump to Page


Sign up to receive an email notification when new Commercial Litigation Update posts are published:

Privacy Preference Center

When you visit any website, it may store or retrieve information on your browser, mostly in the form of cookies. This information might be about you, your preferences or your device and is mostly used to make the site work as you expect it to. The information does not usually directly identify you, but it can give you a more personalized web experience. Because we respect your right to privacy, you can choose not to allow some types of cookies. Click on the different category headings to find out more and change our default settings. However, blocking some types of cookies may impact your experience of the site and the services we are able to offer.

Strictly Necessary Cookies

These cookies are necessary for the website to function and cannot be switched off in our systems. They are usually only set in response to actions made by you which amount to a request for services, such as setting your privacy preferences, logging in or filling in forms. You can set your browser to block or alert you about these cookies, but some parts of the site will not then work. These cookies do not store any personally identifiable information.

Performance Cookies

These cookies allow us to count visits and traffic sources so we can measure and improve the performance of our site. They help us to know which pages are the most and least popular and see how visitors move around the site. All information these cookies collect is aggregated and therefore anonymous. If you do not allow these cookies we will not know when you have visited our site, and will not be able to monitor its performance.