Capitol Comments

In a 5-3 decision in a capital case the Supreme Court rejected a Texas court’s reliance on a 1992 definition of intellectual disability and the use of a number of factors as indicators of intellectual disability which the Court described an “invention…untied to any acknowledged source.”

In Atkins v. Virginia (1992) the Supreme Court held that executing the intellectually disabled violates the Eighth Amendment’s prohibition against cruel and unusual punishment. The Court tasked states with implementing Atkins.

Generally, to be intellectually disabled for purposes of the death penalty a person must have an IQ of 70 or less (adjusted plus or minus five for the standard error of measurement) and “adaptive deficiencies” (an inability to learn basic skills and adjust behavior to changing circumstances) onset as a minor.

The Supreme Court held unanimously in Endrew F. v. Douglas County School District that public school districts must offer students with disabilities an individual education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The Court rejected the Tenth Circuit’s holding that an IEP must merely confer “some educational benefit” that is “more than de minimis.”

This ruling came down while Supreme Court nominee Judge Neil Gorsuch was testifying before the Senate Judiciary Committee. Judge Gorsuch was the author of a 2008 opinion which was the basis for the Tenth Circuit’s opinion in Endrew F.

The Supreme Court held unanimously in Endrew F. v. Douglas County School District that public school districts must offer students with disabilities an individual education plan (IEP) “reasonably calculated to enable a child to make progress appropriate in light of the child’s circumstances.”

The Court rejected the Tenth Circuit’s holding that an IEP must merely confer “some educational benefit” that is “more than de minimis.”

This ruling came down while Supreme Court nominee Judge Neil Gorsuch was testifying before the Senate Judiciary Committee. Judge Gorsuch was the author of a 2008 opinion which was the basis for the Tenth Circuit’s opinion in Endrew F.

In Manuel v. City of Joliet the Supreme Court held 6-2 that even after “legal process” (appearing before a judge) has occurred a person may bring a Fourth Amendment claim challenging pretrial detention. The State and Local Legal Center (SLLC) filed an amicus brief arguing that malicious prosecution claims cannot be brought under the Fourth Amendment. The Supreme Court didn’t address this issue in its decision.

Elijah Manuel was arrested and charged with possession of a controlled substance even though a field test and a lab test indicated his pills weren’t illegal drugs. A county court judge further detained Manuel based on a complaint inaccurately reporting the results of the field and lab tests. Forty-eight days later Manuel was released when another laboratory test cleared him.  

Confirmation hearings generally follow a predictable course; Judge Gorsuch’s hearings have been no exception. Senators from the other side of the aisle as the President ask the nominee pointed questions on controversial topics which the nominee does his or her best to politely avoid answering. As a result, many issues of interest to states and local governments receive little meaningful attention.

While a friendly Senator (Flake, R-AZ) asked Judge Gorsuch whether a particular case he ruled in was consistent with the “principle of states as laboratories of democracy” and another friendly Senator (Crapo, R-ID) asked Judge Gorsuch to discuss the Tenth Amendment, federalism was rarely discussed as such and preemption wasn’t discussed at all. Likewise, many of the issues of particular importance to local governments—qualified immunity and property rights—also were not discussed.

Judge Gorsuch did discuss numerous times that judges should not act as legislators. “I get four law clerks for one year at a time. If you were to make laws, you wouldn't design a system where you'd let three older people with four law clerks straight out of law school legislate for a country of 320 million people.”

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