The news reached us this morning that the Supreme Court has asked the Solicitor General to weigh in before they reach a decision on whether to grant certiorari in the Michigan case of Does v Snyder. Questions immediately began pouring in, and one question seemed to sum up the concerns. The answer is written by Larry Neely.
I don’t understand all the confusion. Wouldn’t it be a good thing if the Supreme Court grants the state of Michigan’s Petition for Certiorari in the case of Does v Snyder?
I will begin by explaining what action the court took today. The court did not grant Michigan’s request to review nor did they agree with the prevailing party in the case that the petition lacked merit and should be denied. Rather, the court invited the government of the United States to weigh in on the controversy. Thus, the answer to this question depends on one’s perspective. I am quite certain that all registrants living within the boundaries of the 6th Circuit would prefer that the favorable decision in Does v Snyder remain undisturbed. On the other hand, registrants living in other states would prefer that the reach of Does v Snyder be extended to them, so they are hoping that the Supreme Court decides to review and affirm the 6th Circuit’s decision.
If the Supreme Court rejects the Petition for Certiorari (request for review) filed by the state of Michigan, the 6th Circuit’s decision in Does v Snyder stands as the controlling authority within the 6th Circuit. This means the Circuit Court’s opinion would be the controlling authority for Michigan and all the other states within the boundaries of 6th Circuit. Beyond that, litigants in other courts will likely cite the 6th Circuit case as persuasive authority although it would not be binding. On the other hand, if the Supreme Court grants Michigan’s request and agrees to review the 6th Circuit’s decision, anything could happen, some of which would be very bad for us.
I agree that should the Supreme Court declines to review the case, the 6th Circuit decision does mean that a significant number of people will be freed from Michigan’s registry. However, I would caution against irrational exuberance here. There is nothing that would preclude Michigan’s Legislature from going back to the drawing boards and attempting to create a registration scheme that is not punitive. This is because the 6th Circuit did not find that the mere act of registration is in and of itself punitive. The Court found that the many enhancements added in 2008 and 2011 had transformed what had been a regulatory scheme into one that now inflicts punishment. Nothing would prevent the Michigan Legislature from modifying its registration scheme and peeling back the enhancements that resulted in tipping the analysis.
The Supreme Court is definitely an unknown, and one cannot predict the outcome; however, I am fearful of what they may do based on the court’s current composition. The case of Smith v Doe was decided in favor of Alaska on a vote of 6-3. Three of the six in the majority are still on the court, which is not encouraging. In addition, the chief justice (John Roberts) represented the state of Alaska. Assuming he has not had a change of heart, that would be a fourth vote. Then there is Samuel Alito, who generally tends not to side with those raising this type of challenge, and the likely addition of Neil Gorsuch to the court later this year. You can be the eternal optimist and hope that Gorsuch, Alito, and Roberts will side with us, which would produce a 6-3 vote to uphold the 6th Circuit. Or you can be the pessimist and believe that the Department of Justice under Attorney General Jeff Sessions will vigorously fight to preserve the duly enacted laws of the United States as he has vowed to do in his Senate confirmation hearings. Only time will tell.