Turtle Talk

With no fanfare, the Supreme Court denied cert in Thunderhorse v. Pierce (order list here). Given that it was an unpublished per curiam opinion, we never even knew about it until SCOTUSblog listed it as a petition to watch, and then the Court asked for the views of the Solicitor General on the petition.

In relatively rare circumstances, the Supreme Court will grant certiorari in a case where the lower court has committed what the Court sometimes calls a “gross error.” The classic case is the application of the wrong standard or legal rule in deciding the case. This case is noteworthy because the SG argued (the invitation brief is here) that the Fifth Circuit applied the wrong law, and suggested that the Court could summarily reverse the lower court and remand for application of the correct standard.

Here is the key portion of the Solicitor General’s invitation brief:

Although petitioner fails to identify a general conflict about the standard applicable to inmates’ RLUIPA claims, he is correct that the court of appeals failed to apply the correct standard in this case.  In its unpublished, per curiam opinion affirming the dismissal of petitioner’s RLUIPA challenge to TDCJ’s grooming policy,the court of appeals concluded that the challenge was foreclosed by prior Fifth Circuit decisions rejecting similar challenges brought by prisoners in other TDCJ facilities.  Pet. App. 8a-10a (citing Diaz and Longoria, supra).  But petitioner in this case raised arguments and evidence not addressed in Diaz or Longoria:  that other prison systems (including the federal Bureau of Prisons) permit long hair, and that TDCJ enforces its grooming policy in an inconsistent manner.  Id. at 10a n.3. The courts below, however, never required respondents to explain why the alternative, less restrictive practices utilized in other prison systems would not work in the Polunsky unit.  Nor did they require prison administrators to explain why the previous inconsistent application of the grooming policy to petitioner and to others (including Texas’s female inmate population) did not indicate that a less restrictive alternative was appropriate. See  ibid.  Although respondent acknowledges (Br. in Opp. 14-15 (citing Odneal, supra)) that the Fifth Circuit requires prison officials to justify application of a challenged policy under the facts of a particular case, respondent notably does not even attempt to justify the court of appeals’ refusal to hold officials to that standard in this case.

But summary reversals are rare, and in this instance, it would appear that the rights of a prisoner are not so terribly important as to require the expenditure of additional judicial resources that in all likelihood would result in the same outcome. And so the case is denied. But it is a shame.