SCOTUS: School Prayer, Section 1983, Veterans Benefits, And Habeas Corpus – The National Law Review
Wednesday, January 19, 2022
On Jan. 14, the Supreme Court agreed to hear five cases, which present the following questions:
Does the First Amendment permit a school to bar a coach from praying on the field after games?
Can a plaintiff bring a Section 1983 damages claim based on a police officers failure to provide aMirandawarning when the interrogation results in self-incriminating statements used against the suspect at trial?
When a veterans benefits claim is denied based on a regulation later deemed invalid as contrary to the statutes plain meaning, is the denial based on a clear and unmistakable error such that the veteran can challenge the otherwise-final denial?
When, if ever, should a death-row inmates as-applied method-of-execution challenge be raised via a habeas petition rather than via a Section 1983 claim, and if it should be raised in habeas is such a challenge subject to the bar on successive habeas petitions?
May federal habeas courts use the All Writs Act to order the transportation of state prisoners for reasons other than testifying or for trial, and may such courts allow habeas petitioners to develop new evidence without first determining whether such evidence would be admissible?
After granting three cert. petitions and relisting several more following its first conference of 2022, this week the U.S. Supreme Court filled out this years docket by granting cert. petitions in five additional cases.
The Court agreed to hear cases involving: 1) the application of the First Amendment to public school coaches postgame prayers, 2) the availability of Section 1983 claims based on police officers failure to provideMirandawarnings, 3) the ability of veterans to challenge otherwise-final benefit denials on the grounds the denials violated plain statutory meaning, 4) the procedural rules that apply to death-row prisoners method-of-execution challenges, and 5) the limits on federal courts authority to issue orders allowing state prisoners to develop evidence for their claims for habeas relief.
The First Amendment case drew 10 cert-stage amicus briefs and will undoubtedly receive the most public attention of this batch of cases. All five cases received some cert-stage amicus attention and likely will find interested audiences especially among governments, civil-rights litigators, veterans-advocacy groups, and criminal-law and habeas practitioners.
InKennedy v. Bremerton School District, the Court will address a football coachs claim that his public school employer violated his First Amendment rights when it terminated him for kneeling at midfield to say brief prayers at the end of football games. This case has made its way up to the Court once before three years ago, when the coach sought review of the lower courts denial of his preliminary-injunction motion. At that time, four justices wrote separately to indicate that while they found the lower courts reasoning troubling, the ongoing factual dispute over the schools precise reason for terminating the coach weighed against the Courts hearing the case.
The Washington district court and the U.S. Court of Appeals for the Ninth Circuit have resolved the factual dispute in question, concluding that the schools sole reason for its decision was its belief that the prayers presented a risk of liability under the Establishment Clause. And the Supreme Court has now agreed to take the case.
The schools Establishment Clause rationale could lead the Court to use this case to give public schools additional clarity on how the Establishment Clause and Free Exercise Clause interact in the educational context (its recent decision inEspinoza v. Montana Department of Revenueaddressed this issue, as will its upcoming decision inCarson v. Makinlater this term). Yet this case also raises an important Free Speech Clause question, and the Court could use it as an opportunity to clarify the private-speech/official-speech distinction it drew inGarcetti v. Ceballos, where it upheld governmental regulation of public employee speech made pursuant to official responsibilities an issue of interest to all public employers.
In any event,Kennedyis a case to watch for public schools and public employers more broadly.
Another set of public employers police departments will be watchingVega v. Tekoh, where the Court will consider whether a police officers failure to give a suspect a Miranda warning can itself give rise to a Section 1983 claim if the un-Mirandizedstatements are later used against the suspect in a criminal trial. InMiranda v. Arizona, the Court applied the Fifth Amendment to hold that a self-incriminating statement made by a criminal defendant while he was in custody cannot be admitted as evidence against that defendant unless the defendant first received the You have the right warnings specified inMiranda. The question inVegais whetherMirandasexclusionary rule constitutes a constitutional right the violation of which gives rises to a damages claim under Section 1983 (which authorizes a cause of action for deprivation of any rights . . . secured by the Constitution).
To answer this question, the Court will need to address a tension in its Fifth Amendment precedents. On the one hand, the Court has repeatedly characterizedMirandasexclusionary rule as a prophylactic measure that goes beyond what the Fifth Amendment requires. Yet, inDickerson v. United States, the Court held that the Fifth Amendment barred a federal statute that purported to override the evidentiary ruleMirandaestablishes.
Accordingly,Vegawill give the Court a chance to clarify the foundation and limits of theMirandarule, as well as an opportunity to address the contours of Section 1983 claims more generally. Given how common police interrogations and Section 1983 claims are, this case will be of interest to police departments and civil-rights lawyers around the country.
InGeorge v. McDonough, the Court agreed to decide a question that affects many veterans of Americas armed forces: Can a veteran challenge the otherwise-final denial of a benefits claim if the denial is based on a regulation later deemed invalid as contrary to the governing statutes plain meaning? This question arises from a provision of federal law that permits a veteran to challenge a decision denying a claim for benefits at any time after that decision is made even long after the ordinary appellate process has been exhausted so long as the veteran can show that the decision was based on clear and unmistakable error. InGeorge, the Court will decide whether it is a clear and unmistakable error to rely on a then-applicable regulation that a federal court later determines violated the clear meaning of the governing statute.
The veteran argues that such reliance is such an error because when a federal court interprets an unambiguous statute, it is declaring what the law has always meant, not announcing a change in meaning. The federal government, meanwhile, argues that the clear and unmistakable standard is met only when the agencys original decision is inconsistent with the prevailing view of the law at the time, and insists it is irrelevant whether that prevailing view is later held to have been incorrect (on the theory that decisions invalidating agency regulations change the law).
The parties arguments will give the Court occasion to address the difficult and recurring distinction between decisions changing the law and decisions proclaiming what the law has always been. Accordingly, whileGeorgehas obvious importance for the veterans-benefits system, it may turn out to be significant for the law more broadly as well.
The Court will address the applicable procedures for Eighth Amendment challenges to execution protocols inNance v. Ward. In this case, it will decide when, if ever, an as-applied method-of-execution challenge should be raised via a habeas petition rather than via a Section 1983 claim and if it should be raised in habeas whether such a challenge is subject to the bar on successive habeas petitions. Previously, inBaze v. ReesandGlossip v. Gross, the Court held that a death-row prisoner seeking to challenge a method of execution under the Eighth Amendment must allege a feasible alternative method.
InNance, the petitioner, a Georgia death-row prisoner, filed a Section 1983 suit that alleged that lethal injection (Georgias sole statutorily authorized method of execution) would be unconstitutionally painful for him, and he identified firing squad as an alternative method. The U.S. Court of Appeals for the Eleventh Circuit held that this challenge should have been brought as a habeas petition, not as a Section 1983 claim, reasoning that because the proposed alternative method of execution was not permissible under current law, the suit necessarily sought relief that can be obtained only in habeas an injunction that would imply the invalidity of the prisoners death sentence. And it further held that if a prisoner has already filed one habeas petition, any subsequent petition raising a method-of-execution challenge would be subject to federal laws stringent requirements for successive habeas petitions.
The Supreme Court has now agreed to review the Eleventh Circuits two holdings, and its decision will have obvious importance for death row prisoners, as it will clarify how method-of-execution challenges should be brought and may have significant effects on the practical availability of such challenges.Nancecould have significance beyond the context of capital punishment as well, for the Court could go some way toward clarifying the often-hazy distinction between relief that can be obtained in Section 1983 suits and relief that can only be sought via habeas petitions and that is a distinction that affects countless criminal defendants and incarcerated persons, not just death-row prisoners.
The Courts consideration of habeas procedures continues withShoop v. Twyford, a case involving state prisoners requests for court orders to assist them in developing evidence for use in their federal habeas proceedings. InShoop, the U.S. Court of Appeals for the Sixth Circuit approved an order requiring Ohio to transport a death-row prisoner to a hospital for a brain scan that the prisoner argues will produce evidence relevant to his habeas case.
Ohio contends this order suffers from two independent problems and therefore raises two separate questions. First, Ohio notes that the federal habeas statute allows federal courts to order the transportation of a state prisoner only if necessary to bring him into court to testify or for trial, and it argues that the catch-all All Writs Act does not expand federal courts authority to include ordering transportation for the sake of developing evidence. Second, Ohio argues that federal law authorizes an order allowing a habeas petitioner to develop evidence for his case only when the sought-after evidence would be admissible in the habeas proceeding; it is not enough, Ohio maintains, that the evidence in question plausibly relates to the petitioners claims.
The Supreme Court has agreed to address both of these questions, and while the Courts answers will be of greatest importance to habeas practitioners, its discussion of the All Writs Act should draw broader attention. Since the All Writs Act is used in a variety of contexts, criminal and civil litigators will do well to consider what the Court says on this score.
Read more:
SCOTUS: School Prayer, Section 1983, Veterans Benefits, And Habeas Corpus - The National Law Review
- The Equal Rights Amendment and the First Amendment: A Roadmap for a Feminist Future - Ms. Magazine - July 1st, 2026 [July 1st, 2026]
- Expressive Governance Is a First Amendment Threat Hiding in Plain Sight - Tech Policy Press - July 1st, 2026 [July 1st, 2026]
- Supreme Court Strikes Down Limits on Party Spending in Federal Elections, Backing Republican Appeal - First Amendment Watch - July 1st, 2026 [July 1st, 2026]
- Another New York Resident Says He Was Warned by Officers After Criticizing ICE - First Amendment Watch - July 1st, 2026 [July 1st, 2026]
- Gateway Church wins tithing lawsuit dismissal as federal judge cites First Amendment - The Roys Report - June 28th, 2026 [June 28th, 2026]
- ACLU raises First Amendment concerns over Hartland library boards decision to reshelve LGBTQ+ books - News From The States - June 28th, 2026 [June 28th, 2026]
- Weakening Government Coercion by Strengthening Government Regulation - | Knight First Amendment Institute - June 28th, 2026 [June 28th, 2026]
- Former Executive Sues Meta Over Attempts To Silence Her Memoir, Careless People - First Amendment Watch - June 28th, 2026 [June 28th, 2026]
- ACLU raises First Amendment concerns over Hartland library boards decision to reshelve LGBTQ+ books - Iosco County News Herald - June 28th, 2026 [June 28th, 2026]
- New York City Council Candidate Is Accused of Forgery Over AI-Generated Posts - First Amendment Watch - June 28th, 2026 [June 28th, 2026]
- Why the Prairieland case is more about disproportionate justice than it is the First Amendment - Media Nation - June 28th, 2026 [June 28th, 2026]
- Reflecting on Americas 250th anniversary: The First Amendment - Princeton University Press - June 24th, 2026 [June 24th, 2026]
- How does the First Amendment apply to AI? - FIRE | Foundation for Individual Rights and Expression - June 24th, 2026 [June 24th, 2026]
- 8 Convicted in Texas Immigration Center Shooting and Protest Are Sentenced to Decades in Prison - First Amendment Watch - June 24th, 2026 [June 24th, 2026]
- Justice Department Withdraws Subpoenas That Sought Reporters Grand Jury Testimony, Sources Say - First Amendment Watch - June 24th, 2026 [June 24th, 2026]
- Fence surrounding Eugene Federal Building to be removed within 48 hours, judge rules violation of First Amendment rights - Daily Emerald - June 24th, 2026 [June 24th, 2026]
- Addressing Power Concentration: What to Do About the Office of Management and Budget? - | Knight First Amendment Institute - June 24th, 2026 [June 24th, 2026]
- Pro-life non-profit to stand trial in first of its kind First Amendment lawsuit - Pregnancy Help News - June 24th, 2026 [June 24th, 2026]
- 'Relentless, UN-AMERICAN': Trump escalates attacks on the First Amendment to STARTLING new level - Yahoo - June 24th, 2026 [June 24th, 2026]
- Judge orders release of Palestinian rights advocate, citing likely First Amendment violation - Muslim Network TV - June 24th, 2026 [June 24th, 2026]
- Colberts the Beginning, The First Amendment Battle Continues | Opinion - Newsweek - June 22nd, 2026 [June 22nd, 2026]
- IAFF-backed First Amendment lawsuits advance toward trial - IAFF - June 19th, 2026 [June 19th, 2026]
- Revisiting the First Amendment, which created the architecture of state control in India - The Indian Express - June 19th, 2026 [June 19th, 2026]
- CCIA Files Brief Arguing that Texas App Store Law Likely Violates First Amendment - CCIA - June 19th, 2026 [June 19th, 2026]
- Knight Institute, Sen. Welch, and Mohsen Mahdawi Warn Against Weaponization of Immigration Law - | Knight First Amendment Institute - June 19th, 2026 [June 19th, 2026]
- The First Amendment can be expressed in countless ways, such as painting a crosswalk. - Monterey County Weekly - June 19th, 2026 [June 19th, 2026]
- American opinion: Protecting the First Amendment - Grand Forks Herald - June 19th, 2026 [June 19th, 2026]
- UNs Albanese faces uphill battle with First Amendment case seeking to end sanctions against her - Washington Examiner - June 19th, 2026 [June 19th, 2026]
- Bill Introduced in Congress To Codify the First Amendment Right To Film the Feds and Sue for Violations - Yahoo - June 12th, 2026 [June 12th, 2026]
- Of Slop and Swarms: The First Amendment's Next Test - | Knight First Amendment Institute - June 12th, 2026 [June 12th, 2026]
- Will the First Amendment Affect the Midterms? Government Pressure to Control Speech and AI Tools Worries Americans - American Enterprise Institute -... - June 12th, 2026 [June 12th, 2026]
- Fort Wayne Death Doula Secures Final Victory in First Amendment Lawsuit Challenging States Restrictions on Discussing End-of-Life Care - The Institute... - June 12th, 2026 [June 12th, 2026]
- NJ reproductive health bill raises First Amendment concerns - The Jersey Vindicator - June 12th, 2026 [June 12th, 2026]
- Roll Call. Clicks and confrontation are the real goal of First Amendment auditors - Shaw Local - June 12th, 2026 [June 12th, 2026]
- Southern Baptists Want to Shrink First Amendment Protections - Word&Way - June 12th, 2026 [June 12th, 2026]
- Armstrong responds to backlash over his endorsements I didnt give up my first amendment rights when I became governor - WDAY Radio - June 12th, 2026 [June 12th, 2026]
- On Mormons, The Pentagon, And The First Amendment - Patheos - June 12th, 2026 [June 12th, 2026]
- Philly Cops Admit That Theyre Tracking First Amendment Activity Critical of AI - The Intercept - June 3rd, 2026 [June 3rd, 2026]
- Free Speech Unmuted: The First Amendment and Privacy Rights - Reason Magazine - June 3rd, 2026 [June 3rd, 2026]
- Join the Conversation: The First Amendment and the American Flag - WSHU - June 3rd, 2026 [June 3rd, 2026]
- What Is the Equal Opportunities Rule? FCC Regulation Explained as ABC Claims First Amendment Violation - Freedom Forum - June 3rd, 2026 [June 3rd, 2026]
- VICTORY! Tennessee man jailed 37 days for Trump meme wins $835,000 settlement after First Amendment lawsuit - FIRE | Foundation for Individual Rights... - May 27th, 2026 [May 27th, 2026]
- 'If you can frighten people, you can control them': Journalist Alex Berenson warns about fear-based tactics after securing $150K First Amendment... - May 27th, 2026 [May 27th, 2026]
- The First Amendment exists to protect speech we dont want to hear - CT Mirror - May 27th, 2026 [May 27th, 2026]
- ACLU of Indiana reaches settlement in First Amendment lawsuit against Ball State University - WTHI-TV - May 27th, 2026 [May 27th, 2026]
- Justice Department Appeals Federal Judges Ruling That First Amendment Protections Apply to Sanctioned UN Special Rapporteur - Foundation for Defense... - May 27th, 2026 [May 27th, 2026]
- Q&A: Anna Gomez Is the Sole Democrat on the FCC. She Has a Warning for Big Media Companies - First Amendment Watch - May 27th, 2026 [May 27th, 2026]
- How does the First Amendment apply to protesters at church? Onondaga County lawmakers consider question raised by new bill - AOL.com - May 27th, 2026 [May 27th, 2026]
- A free press is for all of us. Why I cover the First Amendment - The Tennessean - May 17th, 2026 [May 17th, 2026]
- First Amendment rights at center of clash between Pa. schools and students over ICE walkouts - LancasterOnline - May 17th, 2026 [May 17th, 2026]
- Letter to the Editor: An assault on the First Amendment - Brattleboro Reformer - May 16th, 2026 [May 16th, 2026]
- Re-Aligning Incentives in the Democratic Public Sphere - | Knight First Amendment Institute - May 13th, 2026 [May 13th, 2026]
- In Legal Dispute Over The View, ABC Argues Trump Administration Is Trying To Chill Free Speech - First Amendment Watch - May 13th, 2026 [May 13th, 2026]
- Appeals Court Spares Trump From Paying $83 Million Defamation Award to E. Jean Carroll For Now - First Amendment Watch - May 13th, 2026 [May 13th, 2026]
- Online Speech and Jawboning Hypocrisy: Does an Inglorious First Amendment Legacy Await Bondi and Noem? - American Enterprise Institute - AEI - May 13th, 2026 [May 13th, 2026]
- First Amendment rights at center of clash between Pa. schools and students over ICE walkouts - The Daily Item - May 13th, 2026 [May 13th, 2026]
- ABC accuses FCC of violating its First Amendment rights over its scrutiny of "The View" - CBS News - May 9th, 2026 [May 9th, 2026]
- ABC Accuses Government of Violating First Amendment - The New York Times - May 9th, 2026 [May 9th, 2026]
- Jane Fonda, Patti Smith, Rufus Wainwright to Gather in Celebration of the First Amendment in NYC - Rolling Stone - May 9th, 2026 [May 9th, 2026]
- FCC's warnings on political interviews 'chill' First Amendment, ABC says - Politico - May 9th, 2026 [May 9th, 2026]
- ABC Says FCCs Equal Time Crackdown On The View Chills Its First Amendment Rights - Deadline - May 9th, 2026 [May 9th, 2026]
- ABC accused the U.S. government of violating the First Amendment in a dispute with the FCC over The View. The networks argument is the most aggressive... - May 9th, 2026 [May 9th, 2026]
- ABC accuses government of violating First Amendment - Editor and Publisher - May 9th, 2026 [May 9th, 2026]
- ABC Accuses Trump Administration of Violating First Amendment with FCC's Pointed Attacks on The View - People.com - May 9th, 2026 [May 9th, 2026]
- Sen. Kelly First Amendment Case: Government Cannot Be Arbiter of Its Own Speech Restrictions - Cato Institute - May 9th, 2026 [May 9th, 2026]
- DCYF warning to union leader raises First Amendment concerns, ACLU says - Rhode Island Current - May 9th, 2026 [May 9th, 2026]
- ABC accuses the FCC of violating its first amendment rights - WQAD - May 9th, 2026 [May 9th, 2026]
- Local news and the First Amendment: Whats at stake - Roswell Daily Record - May 9th, 2026 [May 9th, 2026]
- Mark Kelly lawsuit: impact on First Amendment rights of retired veterans - KTAR News 92.3 FM - May 9th, 2026 [May 9th, 2026]
- ABC and Disney accuse Trump admin of violating First Amendment rights - The Verge - May 9th, 2026 [May 9th, 2026]
- ABC accuses FCC of violating the First Amendment in their attacks on 'The View': An overreach that "threatens to upend decades of settled... - May 9th, 2026 [May 9th, 2026]
- ABC alleges the FCC violated its First Amendment rights over 'The View' criticism - KBAK - May 9th, 2026 [May 9th, 2026]
- Disney-Owned ABC Accuses U.S. Government of Violating First Amendment - WDW News Today - May 9th, 2026 [May 9th, 2026]
- ADL Reports a Sharp Drop in US Antisemitic Incidents in 2025, Driven by a Steep Fall on Campuses - First Amendment Watch - May 9th, 2026 [May 9th, 2026]
- Bette Midler and Jane Fonda to Headline Protest Concert for the First Amendment in New York - TheWrap - May 9th, 2026 [May 9th, 2026]
- Rutgers University Withdraws Invite to a Graduation Speaker Over His Criticism of Israel - First Amendment Watch - May 9th, 2026 [May 9th, 2026]
- ABC alleges the FCC violated its First Amendment rights over 'The View' criticism - WKRC - May 9th, 2026 [May 9th, 2026]
- Patti Smith to take part in Rise Up, Sing Out: A Concert for the First Amendment - Everett Post - May 9th, 2026 [May 9th, 2026]
- ABC accuses FCC of chilling The View's First Amendment rights to be The View - AV Club - May 9th, 2026 [May 9th, 2026]
- James Comey Faces New Indictment With First Amendment Implications: What You Need to Know - Freedom Forum - May 5th, 2026 [May 5th, 2026]