Reply To: In denying Snyder petition, Supreme Court upholds Sixth Circuit ruling


Robin Vander Wall

The outcome in Snyder certainly doesn’t harm NARSOL’s posture in the North Carolina case. Having the matter closed clears the air of speculation over what the Supreme Court was planning to do. I would stop short, however, in presuming too much about the high court’s rejection. It was a procedural decision, not a decision on the merits of the underlying claims. The effect of a denial can be described as sustaining the lower court’s ruling, but only strictly. It does NOT mean that SCOTUS necessarily agrees with the outcome or the analysis used to arrive at that outcome. That wasn’t the question before the Court in considering whether or not to grant the petition.

At this point in time, there is no way to amend the complaint in NC. Surely the Eighth Amendment door is pushed further ajar, but I think we’d better wait and see how the Tenth Circuit handles the appeal before we get too far ahead of ourselves in advancing this argument. Winning on an Ex Post Facto claim is far less challenging at this point and just as useful for most of the people who populate the registry in NC (and, depending on how it is received in the Fourth Circuit, SC, VA, WV and VA, as well). Plus, in order to win an Ex Post Facto claim, the courts who consider the question have to find certain aspects of registration and notification punitive. That lays the groundwork.

Litigation about constitutional questions touching on new facts and circumstances is a game of finesse. It’s a bit like chess. It’s important to think a few steps (cases) ahead rather than take the risk that a single bad move loses the entire game.