No Supreme Court justices dissented Monday from the court’s refusal to hear an appeal from Mississippi death row prisoner Tony Terrell Clark, who argued that he was forced to meet an “impossible” standard.

Clark had claimed that his right to an impartial jury was violated when Black people were kept off the jury because of their race. But to vindicate his rights on appeal in Mississippi state court, he said, he had to prove that the outcome of his trial would have been different without the jury violation.

Yet even though Justice Sonia Sotomayor agreed with her colleagues that Clark’s appeal didn’t merit high court review, she penned a separate statement to call out what she deemed the “problematic” standard that the state’s top court applied against him, in the context of his claim that his trial counsel ineffectively challenged the prosecution’s strikes of prospective jurors.

Clark’s case involved an interplay between two types of legal claims: a “Batson” claim and a “Strickland” claim, both of which are named for the 1980s-era Supreme Court cases from which they came. Batson claims (from the case of Batson v. Kentucky) are when a defendant argues that a potential juror was illegally kept off the jury because of their race. Strickland claims (from the case of Strickland v. Washington) are when a defendant argues that their lawyer was ineffective. Defendants bringing Strickland claims must show two things: 1) that their lawyer was deficient and 2) that the defendant was prejudiced by the deficiency.

The “impossible” Mississippi standard, as Clark put it, was that to prove on appeal that he was prejudiced by his counsel’s mishandling of a Batson challenge, the state high court said he needed to show that the outcome of his trial would have been different had the lawyer performed effectively.

Sotomayor took issue with that. “The Mississippi Supreme Court’s approach, to the extent it requires a criminal defendant to show that a competently presented Batson challenge would have produced a different trial outcome, is almost certainly wrong,” the Obama-appointed justice wrote.

She noted that other courts have taken a different approach: They make the narrower inquiry of whether the Batson challenge itself would have been successful if the lawyer had handled it properly, rather than looking at whether the resulting trial would have turned out differently, as Mississippi does.

In his Supreme Court petition, Clark explained that his post-conviction counsel tried to meet the “impossible” standard by talking to a potential Black juror who was kept off the jury. “As common-sense dictates,” his petition said, the struck juror “could not offer an opinion on whether she would have voted guilty or for a death sentence if she was on the jury.”  

In her statement Monday, Sotomayor said her colleagues “should one day resolve” the issue and decide “that Strickland does not require the kind of prejudice analysis that the Mississippi Supreme Court has adopted for Batson-related ineffectiveness claims.”

But the justice conceded that Clark’s appeal didn’t present the proper case for doing so. She recalled that the state high court found that Clark failed to satisfy not only the prejudice prong but also the deficiency prong, and that he didn’t argue the deficiency issue to the justices. “Given the independent basis on which Clark’s Strickland claim failed below, I concur in the denial of Clark’s petition for a writ of certiorari,” she wrote.

Seeking to uphold Clark’s conviction and death sentence for the 2014 murder of 13-year-old Muhammed Saeed during a robbery, Mississippi’s lawyers likewise emphasized that the state court ruled against Clark on both the deficiency and prejudice prongs of the Strickland test.

When Clark’s case was previously before the high court in 2023, Sotomayor wrote a dissent, joined by Justices Elena Kagan and Ketanji Brown Jackson, that said the court’s rejection of what was then his latest appeal meant that “a Black man will be put to death in the State of Mississippi based on the decision of a jury that was plausibly selected based on race.”

Monday’s denial also follows a recent 5-4 ruling from the justices in favor of another Mississippi prisoner, Terry Pitchford, who also raised a Batson claim and argued that the state high court wrongly ruled against him, too. The Supreme Court decision in Pitchford’s favor was authored by Justice Brett Kavanaugh, who has long taken an interest in Batson claims, joined by Chief Justice John Roberts and Justices Sotomayor, Kagan and Jackson. Pitchford’s case didn’t raise the complication that Clark’s case did of the Strickland issue being layered on top of the Batson issue (though the Pitchford case raised other procedural issues that, as the 5-4 vote indicates, made it a close one).  

Sotomayor’s statement Monday appeared on the court’s order list, a routine document on which the justices announce the latest action in pending appeals. In line with the court’s typical practice, the justices didn’t explain why they denied Clark’s petition. There usually isn’t any comment from any of the justices accompanying denials. Therefore, Sotomayor’s statement made the case stand out and included a rare explanation for why at least one of the justices agreed to pass on the petition.

It takes four justices to grant review, giving the court’s six-justice GOP-appointed majority significant power not only over how cases are decided but over which cases are decided.

On that note, Monday’s order list also included a case in which Sotomayor and Jackson noted their dissent from the court’s decision to vacate a lower court ruling that sided with a defendant. The high court majority sent the case back to the lower court, ordering further review in light of the justices’ latest sentencing-related rulings that made it harder for prisoners to win compassionate release.

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A new lawsuit seeks to halt the “UFC Freedom 250” event that is scheduled for this coming weekend, calling it “deeply corrupt” and arguing that it runs afoul of federal regulations.

The plaintiffs are activist Susan Douglas and Vietnam War veteran Paul Romano. Represented by lawyers with the Public Integrity Project, they said in their complaint that they brought the case “to seek judicial relief for their injuries, uphold the rule of law, and protect our nation’s most cherished monuments from corrupt exploitation.”

Their complaint focuses on the relationship between UFC head Dana White and President Donald Trump. The plaintiffs argue that the event is poised to benefit the two men personally rather than benefit the country, a distinction the plaintiffs maintain has legal significance in their favor.

White said the goal is to “celebrate the 250th birthday of America” when he puts on the cage fights among professional mixed martial artists on the South Lawn of the White House in a massive structure known as “the Claw.”

The plaintiffs cast the card in a less patriotic light.  

While observing that the event coincides with Trump’s 80th birthday, they noted that White is a close friend and ally of the president, who is giving White and his company “what none have enjoyed before: unfettered access to the White House and Lincoln Memorial to stage a private, for-profit sports event, with all the promotional and branding opportunities that accompany such access.”

The plaintiffs added that Trump stands to benefit directly too, citing reporting that earlier this spring he bought up to $50,000 stock in the company that owns the UFC.

They said White “has good reason to stick to his story” about the event being a celebration of America because, they observed, federal law “tightly restricts private use of the national capital’s most sacred monumental spaces, which are national parklands.”

They said the plan for the event “is for fighters to conduct the ceremonial weigh-ins and face-offs at the Lincoln Memorial, make pre-fight walkouts from the Oval Office, and do combat in a massive structure now under construction just steps from the Executive Residence.”

Under the usual permitting regime, no special events can be held on the South Lawn or at the Lincoln Memorial, and structures can’t be built on the South Lawn without express authorization from Congress and a thorough environmental review. The plaintiffs conceded that there is a temporary regulation authorizing events that celebrate the country’s 250th anniversary. But they said the UFC Freedom 250 event fails to satisfy even that relaxed rule because it would still require the event to be “for the celebration of the 250th anniversary of American Independence” and “planned, organized, and executed” by the federal government. The plaintiffs contend the UFC event is neither of those things.  

Their specific legal claims include alleged violations of National Park Service regulations, erecting structures on federal parkland without congressional authorization and failure to conduct environmental review.

When the government responds in court, one of its arguments may be that the plaintiffs don’t have legal standing to bring the case — that is, that they aren’t uniquely harmed by the spectacle such that a successful suit would heal them. The government has raised the standing issue in other recent pending challenges against high-profile executive actions like the White House ballroom and the “anti-weaponization” fund.

According to the plaintiffs’ complaint in the UFC case, Douglas is a retired government employee who frequently organizes and attends protests and other events on the National Mall, at the Lincoln Memorial and near the White House. Romano, they said, is a retired Air Force sergeant and former police officer with the Department of Defense who frequently travels along the National Mall and past the White House and Lincoln Memorial as part of his part-time work as a ride-share driver. They have both “protested and testified against alterations to DC’s monumental landscape,” per their complaint.

In an accompanying filing seeking a temporary restraining order against the government, Douglas and Romano argue that they “are suffering aesthetic injuries from the erection of ‘the Claw’ on the South Lawn” and that Douglas in particular “will suffer aesthetic injury if the UFC Freedom 250 weigh-ins are permitted to occur at the Lincoln Memorial.”

They said Douglas “regularly travels to the affected areas for protests and has specific plans to visit on four occasions between now and the conclusion of UFC Freedom 250, including on the nights of both the weigh-ins, June 13, and the June 14 fights.”

They said Romano “has no choice but to see the offending aesthetics, as he must frequently travel through the area for work. He therefore has no choice but to observe the desecration of these sites.”

They added that Romano in particular, being a Vietnam War veteran, suffers “the dignitary and emotional harms that come from national memorials being used for corrupt purposes.” And they said they would have submitted public comments if the “massive construction project” were submitted for environmental review as required.

In response to the suit, the White House released a statement:

This is an obstructionist, baseless, and dilatory lawsuit brought simply to prevent President Trump from hosting what will undoubtedly go down as one of the most historic sporting events in our Nation’s history during our semiquincentennial celebration. This iconic event is no different than the various other White House-hosted events on the South Lawn and properly permitted events on the Ellipse and National Mall throughout the year.

This article has been updated to include the White House’s statement.

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