By Mridula Raman
April 27, 2022
at 9:15 p.m.
“John the Tiger Man,” a hypothetical dangerous prisoner invented by Judge Stephen Breyer, featured prominently in Tuesday’s closing argument in Shoop vs. Twyford. If a federal district court orders a state to transport John the Tiger Man, can the state immediately appeal that order? What if John the Tiger Man’s attorneys cover the transportation costs so the state doesn’t incur any expense? What if there are no security concerns and the state cannot claim a risk to public security? The justices spent much of the closing argument considering such assumptions, suggesting that the decision may ultimately hinge on the Supreme Court’s jurisdiction to hear the appeal of Ohio prison warden Tim Shoop. This is despite the court taking the case to answer questions about whether and when federal courts can use the All Writs Act in a habeas corpus proceeding.
This case arose because a federal district court issued an order under the All Writs Act ordering the warden to transport state prisoner Raymond Twyford to a secure medical facility for neuroimaging. Twyford seeks to investigate evidence of brain damage that may support his habeas corpus proceedings, which is his challenge to his state court conviction and death sentence. The United States Court of Appeals for the 6th Circuit upheld the district court’s order and the Supreme Court granted review to consider two issues. First, he granted review to determine whether the All Writs Act authorizes a federal court to compel a state official to transport a prisoner so that he can investigate evidence for later use in his habeas proceeding. Second, the court agreed to consider whether, before granting this order to help a prisoner develop evidence, a federal court must first find that the anticipated evidence could entitle the prisoner to habeas relief.
It should therefore be noted that much of the argument focused on a different issue: whether the director had the right to appeal the federal district court’s transportation order while the habeas de Twyford was in progress. In fact, the judges questioned Nicole Reaves, assistant to the United States Solicitor General, at length on jurisdiction, even though the United States had not previously taken a position. (She was pleading as an amicus on behalf of neither party, and she said the court had jurisdiction here.) The court generally considers obstacles to the merits of a case, such as jurisdictional issues, before committing to examine the case. Consequently, these questions are not often the subject of oral arguments. This focus here signals a real concern, at least for some judges, that the court might not have the power to answer the All Writs Act issues at issue.
To quickly recap, mid-procedure orders — orders that don’t end proceedings in the district courts — are generally not appealable. However, some of these orders are immediately appealable under the collateral order doctrine. But the courts do not decide on a case-by-case basis whether an order complies with the doctrine. Instead, courts determine whether the order fits into a general category of orders that are immediately appealable.
The court struggled at length with the impact of the decision to deem the district court’s transportation order immediately appealable. Breyer attempted to determine the precise category of pending orders that would also become appealable. While the director’s attorney cited public safety concerns and state sovereignty to justify the call, Breyer relied on John the Tiger Man to determine whether no-transport orders that pose security risks would be likely. call. Judges Sonia Sotomayor and Clarence Thomas asked Reaves how she could distinguish the transportation order here from similar orders that are not immediately appealable. Sotomayor cited non-appealable civil orders for medical examinations of prisoners, who may require transportation. And Thomas, who has already of opinion that the court should not extend the collateral order doctrine, questioned non-appealable discovery orders to produce information. Meanwhile, Judge Samuel Alito seemed comfortable with the prospect of a wide range of transportation orders becoming appealable: “What’s the deal with that?
Despite prolonged questions about jurisdiction, the only judges whose positions seemed clear were Sotomayor (jurisdiction does not exist) and Alito (yes, it does).
With respect to the All Writs Acts, perhaps the most surprising feature of the argument was that the judges asked relatively few probing questions. On the question of whether the law allows for transportation orders in habeas proceedings, the judges mainly asked questions that allowed the lawyers to rehash their briefs. With the exception of one or two questions, the judges did not consider the central question of whether 28 USC § 2241(c)(5), one of the provisions governing habeas proceedings, prohibits any order to transport prisoners under the All Writs Act. The justices also declined to inquire into the potential implications of any rulings on the All Writs Act in contexts other than habeas proceedings.
The judges didn’t even address the second issue the case presents – under what circumstances can a district court issue an order to help a detainee uncover evidence? – until David O’Neil, who represented Twyford and was the third lawyer to appear, started. Even then, few judges participated. Thomas and Alito, who generally favor limiting the availability of habeas relief, prompted O’Neil to explain why a prisoner should be able to investigate without first demonstrating that the resulting evidence would be usable and useful. Thomas postulated that without such a demonstration, the investigations could easily become “a fishing expedition[s].” Alito suggested it wouldn’t be “so onerous” for a prisoner to have to explain, before obtaining new evidence, how the evidence could be considered by a court.
Overall, the closing argument shed remarkably little light on the judges’ view of the case. Should the court reach the All Writs Act, it is unclear whether the court will split along the same 6-3 lines as in other recent habeas cases, or if he will make a far-reaching decision with effects beyond habeas proceedings. If the court finds it lacks jurisdiction, it will remit the case to the 6th Circuit; this court may consider the custodian’s request for a form of waiver different from the transportation order. Then, depending on how the 6th Circuit rules, the same all-writ law issues could end up in the Supreme Court sooner rather than later.