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The Supreme Court on Monday morning released a long list of orders from the justices’ private conference on Feb. 21 – the first regularly scheduled conference in nearly a month. Over dissents or statements from several justices, the court denied review in cases that they had considered repeatedly at their recent conferences.
The court did not add any new cases to their docket for the 2025-26 term. It also once again did not act on several high-profile petitions for review, including a challenge to Maryland’s ban on military-style assault weapons and a challenge to Rhode Island’s ban on large-capacity magazines. The justices will hold another conference on Friday, Feb. 28.
The justices declined to decide whether to limit or overrule its 1950 decision in Feres v. United States, which bars members of the military for suing the federal government for injuries that “arise out of or are in the course of activity incident to” military service.
Justice Clarence Thomas dissented from the decision not to take up the question, arguing that the court should “fix the mess that we have made.”
The question came to the court in the case of Ryan Carter, who was a member of the Air National Guard when he underwent spine surgery at Walter Reed National Military Medical Center in Bethesda, Md., in 2018. Three years later, Carter filed a medical-malpractice lawsuit against the federal government.
A federal district court dismissed Carter’s claims, relying on the court’s decision in Feres. It rejected his contention that Feres does not apply because his surgery occurred while he “was inactive and off-base.”
The U.S. Court of Appeals for the 4th Circuit upheld the district court’s dismissal. It emphasized that Carter had undergone surgery at Walter Reed, with military doctors, only “because he was a member of the military.” Moreover, the court of appeals added, although Carter was not an active member of the Air National Guard at the time of his surgery, “he was neither discharged from the military nor on leave substantially similar to discharged or veteran status.”
Carter came to the Supreme Court in June, asking the justices to take up his case. Carter, who has not walked since 2018 as the result of an injury suffered during his surgery and requires “24/7 assistance with all activities of daily living,” emphasized that at the time of his surgery he was simply an “inactive duty serviceman entitled to all the healthcare benefits of a military veteran.” Allowing his lawsuit or others like it to go forward, he said, will not implicate any of the “rationales underpinning Feres” – such as interfering with military affairs or the “military disciplinary structure.”
Elizabeth Prelogar, the solicitor general during the Biden administration, urged the justices to deny review, stressing that Carter has not identified other courts of appeals that have allowed similar lawsuits to go forward. And there is no reason for the justices to reconsider Feres more broadly, she continued. That decision “has been the law for more than 70 years,” she wrote, and “has been repeatedly reaffirmed by this Court.” Indeed, she noted, the Supreme Court has “consistently denied” other petitions for review asking the justices to overturn Feres.
In a 14-page dissent, Thomas contended that the Supreme Court “has never articulated a coherent justification for” the exception that it created in Feres, “and the lower courts for decades have struggled to apply it. The result,” he concluded, “is that courts arbitrarily deprive injured servicemembers and their families of a remedy that Congress provided them.”
The Sixth Amendment guarantees criminal defendants the right to trial “by an impartial jury.” More than two decades ago, in Apprendi v. New Jersey, the Supreme Court held that a jury must find, beyond a reasonable doubt, any fact that increases the penalty for a crime above the maximum established by law. In 2012, the court held that a similar rule applies to criminal fines – that is, the Sixth Amendment bars courts from ordering a criminal fine based on facts that the jury did not find beyond a reasonable doubt. In Rimlawi v. United States and Shah v. United States (along with Jacob v. United States), the justices declined to decide whether juries must also find any facts that are necessary to support a criminal restitution order.
Justice Neil Gorsuch dissented from the decision to turn down the petitions. He explained that he “would have granted review” to “resolve whether the Fifth Circuit’s decision comports with this Court’s precedents and the Constitution’s original meaning,” because there is evidence that juries in early U.S. history “found the facts needed to justify criminal restitution awards.”
The justices turned down a pair of cases asking them to reconsider their 2000 ruling in Hill v. Colorado, in which they rejected a challenge to the constitutionality of a Colorado law intended to protect patients and staff at abortion clinics from demonstrators. Abortion opponents who said that they wanted to engage in “sidewalk counseling” argued that the law violated their right to freedom of speech.
Three years ago, in Dobbs v. Jackson Women’s Health Organization, overturning the constitutional right to an abortion, Justice Samuel Alito cited Hill as an example of how the Supreme Court’s earlier decisions on abortion had “distorted First Amendment doctrines.”
In one case, a New Jersey woman who wants to engage in nonconfrontational “sidewalk counseling” challenged a “buffer zone” that the city drew outside health care facilities, including abortion clinics, that she is barred from entering.
The U.S. Court of Appeals for the 3rd Circuit upheld the buffer zone, relying on Hill. The woman, Jeryl Turco, then came to the Supreme Court this spring. She asked the justices to overturn Hill, calling it “wrong when it was decided” and “wrong today.”
The court rejected Turco’s petition in a brief unsigned order. Thomas and Alito indicated without explanation that they would have granted review.
In the Illinois case, the U.S. Court of Appeals for the 7th Circuit rejected a challenge to an ordinance enacted by the city of Carbondale that the city described as “modeled after and nearly identical to” the Colorado law upheld in Hill. Coalition Life, a group opposed to abortion that describes itself as “America’s largest professional sidewalk counseling organization,” conceded, and the 7th Circuit agreed, that it could only prevail if Hill were overruled. And although the Supreme Court “has questioned” Hill’s viability, the court of appeals explained, it “has not expressly overruled it,” and the lower courts therefore must continue to follow it.
Coalition Life came to the Supreme Court last summer, also asking the justices to overturn their ruling in Hill. Represented by former U.S. Solicitor General Paul Clement, it contended that, “as things stand, jurisdictions in which anti-abortion views are disfavored have a ready tool to try to silence those who advance them—and to do so precisely when and where their speech may matter most.”
The justices denied Coalition Life’s petition for review as well, with Alito indicating (without more) that he would have granted it.
Thomas penned an eight-page dissent from the denial of review. In his view, it was “clear at the time that Hill’s reasoning” was inconsistent with “more than a half century of well-established First Amendment principles.” Since then, he emphasized, the court had “long stopped applying” its decision in Hill. “Following our repudiation in Dobbs,” he concluded, he did “not see what is left” of the ruling.
The Supreme Court’s “refusal to provide clarity,” Thomas continued, “is an abdication of our judicial duty” because of the confusion that persists in the lower courts. He would have “taken this opportunity to explicitly overrule Hill.” Instead, he complained, “we leave lower courts to sort out what, if anything, is left of Hill’s reasoning, all while constitutional rights hang in the balance.”
Over a dissent by Alito, joined by Thomas, the justices refused to hear the case of a San Jose police officer, Michael Pina, who was found liable for the fatal shooting in 2017 of a suspect in an armed robbery.
Officers stopped Jacob Dominguez, who was the suspect in the armed robbery of a gas station several days earlier, while he was driving and ordered him to put his hands up. Pina and the other officers, however, testified that because Dominguez’s hands then disappeared from view and he leaned forward, they believed he was reaching for a gun. When Dominguez sat up again, Pina shot him twice. Dominguez died at the scene; there was no gun found in his car.
Dominguez’s family sued Pina under federal civil rights laws, arguing that he had used excessive force in violation of the Constitution. The lower courts determined that Pina was not entitled to immunity. Based on an assumption that Dominguez was not reaching for a gun, the U.S. Court of Appeals for the 9th Circuit explained, or “making any other furtive movement or gesture,” then it was clearly established – one of the criteria for immunity – that Pina was not justified in using deadly force without some reason to believe that Dominguez would soon use a weapon.
Pina came to the Supreme Court in August, asking the justices to reverse the 9th Circuit’s decision. That ruling, he contended, “effectively determined that every reasonable officer would understand he cannot shoot a suspect who stops complying with police and makes a motion as if to retrieve the gun officers are told the suspect is carrying. That,” Pina concluded, “cannot be the law.”
Dominguez’s family countered that what Pina has actually asked the Supreme Court to do is to “establish precedent that” evidence from an “anonymous informant” that Dominguez was armed provided the justification to kill him during his arrest, even though he was unarmed, and to shield Pina from suit. “Simply,” the family contended, “it is understood, since the inception of the Fourth Amendment, that a police officer cannot use deadly force on a surrendering suspect.”
Alito would reverse the lower court’s ruling without additional briefing or oral arguments. He emphasized that the lower courts “made more than a trifling mistake.” In cases involving allegations of excessive force, he explained, the requirement that an officer violate clearly established law “provides essential notice at the ‘hazy border between excessive and acceptable force.’” But when a court allows a lawsuit to go forward based on a case “issued after the events in question,” he contended, it runs “roughshod over this key notice-bearing feature of our qualified-immunity jurisprudence.”
The Fifth Amendment’s double jeopardy clause bars someone from being prosecuted twice for the same crime. In Woodward v. California, the justices turned down a request to weigh in on what it means for someone to be “acquitted” of a crime, so that they cannot be prosecuted for that crime again.
The question came to the court in the case of John Woodward, who was tried twice for murder. Both trials ended in hung juries, and after the second trial in 1996, a trial judge dismissed the case for “insufficient evidence.”
After prosecutors again charged Woodward with murder in 2022, he moved to dismiss the charge. He contended that prosecuting him violated his right under the double jeopardy clause. A trial court agreed with Woodward that the dismissal based on “insufficient evidence” was an acquittal that precluded a retrial, but the California Court of Appeal reinstated the charge, and the California Supreme Court declined to take up the case.
Woodward came to the Supreme Court, asking the justices to review his case. He contended that the California Supreme Court decision on which the state appeals court had relied defined acquittals too narrowly, holding that a dismissal does not count as an acquittal for double jeopardy purposes unless the trial court applied a “substantial evidence” standard – that is, even viewing the evidence to favor the prosecution, it concluded that no reasonable jury or judge could find guilt beyond a reasonable doubt.
Justice Sonia Sotomayor wrote a statement regarding the decision not to hear Woodward’s case. She agreed that his case involved an “important question about whether California’s approach to construing trial court dismissals” as acquittals is consistent with the double jeopardy clause. But she agreed with the court’s decision to deny review, suggesting that the California Supreme Court “should first address this question in light of” the Supreme Court’s “more recent double jeopardy precedent.”
Sotomayor, joined by Justice Neil Gorsuch, also wrote a statement regarding the decision not to weigh in on whether and to what extent the Fourth Amendment requires police officers to have a warrant to make an arrest for a misdemeanor that was not committed in their presence. Sotomayor suggested that “[t]here is reason to thing” that the Fourth Amendment might include the “‘in-the-presence’ limitation on warrantless misdemeanor arrests.” But the case in which they denied review on Monday was not a suitable one in which to consider that question, she acknowledged. The Supreme Court declined to decide whether a Texas family can sue the leader of a SWAT team that mistakenly raided their home in 2019 to execute a search warrant on a different house.
Lt. Mike Lewis of the Waxahachie, Tex., Police Department led a team that planned to execute a no-knock warrant on what police believed was a methamphetamine stash house, located at 573 8th Street. Lewis’s team assembled on the porch at 583 8th Street. But Lewis ordered the team to move into the house at 593 8th Street, without checking the house number and despite differences in the two homes’ appearances.
The SWAT team broke down the front door at 593 8th Street and detonated a flash-bang grenade. The team held the family that lived in the home – Karen Jimerson, James Parks, and their three young children – at gunpoint before another officer realized that Lewis had made a mistake.
Jimerson and her family sued Lewis under federal civil rights laws for violating their rights under the Fourth Amendment. In a divided decision, the U.S. Court of Appeals for the 5th Circuit ruled that although Lewis had acknowledged that he had violated the Fourth Amendment, he was still entitled to immunity from suit because he had not violated clearly established law.
The family came to the Supreme Court in October, asking the justices to take up their case. But after considering the case at four consecutive conferences, the justices denied review.
Sotomayor and Justice Ketanji Brown Jackson indicated that they would have granted the family’s petition, but did not provide any explanation.
In late January, the justices agreed to decide another case involving the right to sue over a mistaken SWAT raid. In Martin v. United States, which will likely be argued in April, the court will consider whether the homeowners’ claims against the Federal Bureau of Investigation under a federal law are barred by the Constitution’s supremacy clause. The family in that case is represented by the same public interest law firm, the Institute for Justice, as the Jimerson family.
This article was originally published at Howe on the Court.
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