Results matching “thomas”

Va. GOP File Lawsuit to Block Felons from Voting:  Virginia Republicans filed a lawsuit Monday in the state Supreme Court to block over 200,000 felons from voting in November, arguing that Gov. Terry McAuliffe abused his power when he restored the voting rights of convicts with completed sentences.  Alanna Durkin Richer of CNS News reports that the lawsuit, brought by House Speaker William Howell and Senate Majority Leader Thomas Norment along with four other Virginia voters, argues McAuliffe's executive order violates the separations of powers by suspending the state's ban on voting by felons and ignores the decades-old practice of governors being able to restore voting rights only on a case-by-case basis. McAuliffe's announced the sweeping order last month, which allows an estimated 206,000 felons who have completed their sentences and any supervised release by April 22 to vote, run for public office, serve on a jury or become a notary public.

OK Considering New Execution Method:  The state of Oklahoma is seriously considering nitrogen hypoxia as its primary method of capital punishment in lieu of the current method of lethal injection, which has come under Grand Jury investigation in the state. Grant Hermes of News 9 reports that the method works by pumping pure nitrogen gas into a face mask or sealed hood of the individual being executed and cause death by lack of oxygen.  According to an unnamed doctor and unnamed professor who testified in front of the jury, nitrogen hypoxia would be "easy and inexpensive," "simple to administer" and "quick and seemingly painless."  The method was signed into law last spring as an alternate execution procedure.

More Gitmo Detainees Set to be Transferred:  The Obama administration is preparing the transfers of up to 24 Guantanamo Bay detainees this summer.  Catherine Herridge and Lucas Tomlinson of Fox News reports that the announcement of more transfers comes as President Obama continues progression towards closing the camp, so far reducing the population from 242 detainees to 80.  An official could not state confidently whether the countries receiving the detainees would keep them locked up or track them.  Republican Sens. Mark Kirk, of Illinois, and James Lankford, of Oklahoma, have introduced an amendment to hold countries that accept transfers accountable.

When cases with ugly facts reach the U.S. Supreme Court, they sometimes cause damage that lasts a very long time.  Foster v. Chatman, No. 14-8349, decided this morning, is a case with ugly facts.  How much damage it will do to states seeking to preserve their judgments in other cases where the defendant's collateral attack is much weaker remains to be seen.

At the root of this case is a horrible crime, with no real doubt that Foster committed it.  Not only did he confess, but the victim's possessions were recovered from his home and from the homes of his sisters, to whom he had doled out some of the loot.

Until 1986, there was no constitutional prohibition against the prosecution taking race into account in exercising its peremptory challenges in jury selection in individual cases, although a pattern of such use that had the effect of excluding black veniremen from jury service overall was actionable.  That changed when the Supreme Court decided Batson v. Kentucky.  The Foster case was tried only four months later.

A perennial problem in criminal law, and the closely related area of deportation for crime, is the fact that the laws of one jurisdiction must take into account crimes prosecuted under the law of another jurisdiction.  What do we do when the elements of the crimes don't match up completely?

Federal immigration law provides for deportation, with no exceptions and expedited process, for aliens who commit an "aggravated felony."  The principle is sound, but the definition of "aggravated felony" needs a lot of work.  Congress really needs to pay some attention to this.

The definition refers to a list of federal offenses, many of which have elements of effects on interstate commerce because in many cases the federal government does not have the authority to make an act criminal without such a connection.  If a person is convicted in state court of an offense which is the same except for the interstate commerce element, is that an "aggravated felony" for deportation purposes?  Yes, that's one of the easier questions in this area.

Justice Kagan wrote the opinion of the court in Luna-Torres v. Lynch, No. 14-1096 (5-3).  Justice Sotomayor, joined by Justices Thomas and Breyer, dissented.  They would apply the words of the statute literally. 

There is something to be said for the view that if Congress screwed up the wording, and it did, it's up to Congress to fix it.  Even so, this is a good result in the case and for the law generally.  Luna is an arsonist, and we don't need him in this country.

For many of us who were less than enthused to see Donald Trump win the Republican nomination, the general election choice nonetheless seemed to be a clear one based on the kinds of judges the respective nominees would appoint, especially to the Supreme Court.  The Trump campaign apparently wants to reinforce that point by releasing a list of possible Supreme Court appointments.  Bill noted the release a few minutes ago, and Jill Colvin and Mark Sherman have this report for AP.  The list is:

Steven Colloton of the Eighth Circuit (Iowa)
Allison Eid of the Colorado Supreme Court
Raymond Gruender of the Eighth Circuit (Mo.)
Thomas Hardiman of the Third Circuit (Penn.)
Raymond Kethledge of the Sixth Circuit (Mich.)
Thomas Lee of the Utah Supreme Court
Joan Larsen of the Michigan Supreme Court
William Pryor of the Eleventh Circuit (Ala.)
David Stras of the Minnesota Supreme Court
Diane Sykes of the Seventh Circuit (Wis.)
Don Willett of the Texas Supreme Court

I am not familiar with the jurisprudence of all 11, but I do think that William Pryor would make a very fitting successor to Justice Scalia.  Confirmation would be a bloody fight, but if we hold the Senate it is a fight we would win.

The larger question is whether Mr. Trump can and will pivot from the crass bluster that got him this far into a man of serious policy, capable of winning the general election and then being an effective President.  Many have serious doubts, but this looks like a good start.

The U.S. Supreme Court, 5-3, upheld a conviction for conspiracy to violate the Hobbs Act, the federal extortion law, in a case involving a kickback scheme in which crooked police officers referred damaged cars to a particular body shop in return for payments.  The case is Ocasio v. United States.

Justice Alito wrote the opinion of the Court, joined by Justices Kennedy, Ginsbury, Breyer, and Kagan.  Justice Breyer wrote a separate concurrence saying that a key precedent, Evans v. United States, may well have been wrongly decided, but since the defendant did not ask the Court to overrule it, he loses.  Justice Thomas would go ahead and overrule Evans.  Justice Sotomayor, joined by Chief Justice Roberts, would rule for the defendant without overruling Evans.

The next scheduled public session, and therefore the next likely day for release of opinions, is two weeks from today, Monday, May 16.

Laurence Steinberg isn't someone I agree with often, but he, Thomas Grisso, Elizabeth Scott, and Richard Bonnie have this op-ed in the NYT opposing the crackpot notion of raising the juvenile court jurisdiction age to 21.

The proposal to expand the jurisdiction of the juvenile system to age 21, in addition to being based on ambiguous science, would also create two potentially serious policy problems. First, just as the adult correctional system is ill equipped to respond to the needs of adolescents, the juvenile justice system is poorly positioned to handle young adults. It is hard to imagine a juvenile facility that could appropriately house 20-year-olds and 14-year-olds, or a juvenile justice staff whose training would allow it to work effectively with young adults. And because a disproportionate number of serious violent crimes are committed by individuals between 17 and 21, the juvenile system would be overwhelmed by the number of young adults it would need to process, and its rehabilitative purpose could be seriously undermined.

Second, the juvenile justice system interacts with several other health and child welfare systems. Those agencies have created relatively separate systems for serving children and adults, in part because of important differences between these two ages. For example, some mental illnesses arise only in young adulthood, and professionals have long specialized in providing services either to children and adolescents or to adults. Creating a juvenile justice system that works well for both adolescents and young adults would require significant (and costly) restructuring of many other agencies.

Street Behavior in SF Worsens, Stirs Debate:  San Francisco is feeling the ramifications of its liberal ethos that has turned the city into a "consequence-free zone," with crime increasing sharply and city officials divided as to how to address it.  Thomas Fuller of the NY Times reports that since 2010, property crime in the city is up more than 60% and recent data shows it has the highest per-capita property crime of the nation's top 50 cities.  Nearly half of the cases are smash-and-grabs from vehicles.  Violent crime has also spiked 18% since 2010.  The city "is now divided over whether to respond with more muscular law enforcement or stick to its forgiving attitudes."  While the Chamber of Commerce and city tourist board call for harsher measures to improve the "condition of the streets" -- homelessness, public intravenous drug use, aggressive panhandling and the large population of mentally ill on the streets -- others criticize such solutions as a "punitive approach that is ineffective and inconsistent with the values of San Francisco."  However, despite the traditional "values of San Francisco," a recent Chamber of Commerce poll shows that the primary concern of the city's residents is the spike in "street behavior."

Lawyers Seek Clemency For GA Murderer:  Attorneys for a Georgia death row inmate set to die this week have filed a clemency petition asking the state parole board to spare his life.  The AP reports that Georgia's State Board of Parole and Pardons, the only entity authorized to commute a death sentence, will hold a clemency hearing Tuesday for 37-year-old Daniel Anthony Lucas, a convicted murderer scheduled to be executed on Wednesday.  Lucas was sentenced to death for the 1998 murders of a 37-year-old man and his two children, aged 11 and 15, who interrupted him and another man, Brandon Rhode, while they burglarized their home.  Lucas, then 19, received the death penalty for the slayings, as did Rhode, who was executed in September 2010.  Lucas' lawyers argue that his childhood was troubled and plagued by drugs and abuse, and his status as a model inmate should exempt him from the death penalty.  If his execution is carried out this Wednesday as scheduled, it will be the fifth in the state this year.

Steady Increase of Illegals an Omen of the Surge to Come:  Apprehensions of illegal immigrants at the southern border increased last month after a winter lull, and authorities are expecting the numbers to steadily rise during the summer.  Molly Hennessy-Fiske of the LA Times reports that the Border Patrol saw a 28% increase in illegal border crossers from February to March of this year, with a total of 33,335 people caught in March compared to 26,076 in February.  Of those apprehended, 4,452 were families traveling together, 46% more than the month before, and 4,240 were unaccompanied minors, 37% more than the month prior.  The figures reported are higher than in 2014, when a surge of Central American migrants prompted crisis-level emergency measures.  Last month, Homeland Security Secretary Jeh Johnson touted a month-to-month decrease in migration during the winter, attributing the decline to stepped-up enforcement, but the recent influx indicates it was likely seasonal.  This article authored by Breitbart's Brandon Darby and Bob Price delves deeper into the dangers of illegal immigration and the consequences of an open border.

A mostly off-topic note on yesterday's apportionment decision, Evenwel v. Abbott.

Today the U.S. Supreme Court decided Luis v. United States, No. 14-419.  Justice Breyer's plurality opinion begins:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.

Justice Thomas concurred in this result, making the decision 5-3.

With which political party do black lives matter?  It has to be the party that elected Maxine Waters, Charles Rangel, Elijah Cummings to Congress and the first black President, Barrack Obama.  It is no mystery that Jessie Jackson and Al Sharpton are Democrats.   But which political party supported the Eugenics movement, which sought to cull inferior breeds, including blacks, from the world's gene pool, spawning Planned Parenthood?   Which political party filibustered to block adoption of the Civil Rights Act of 1964, and which delivered the highest percentage of votes to finally allow its passage?  And what party's criminal justice policies have saved the most black lives?  Thomas Sowell answers these questions in this column from the Press Enterprise. 

The Federalist Society's Criminal Law Practice Group reports:

In a per curiam opinion, the Court vacated and remanded a decision by the Supreme Judicial Court of Massachusetts that upheld a state law prohibiting the possession of stun guns after considering "whether a stun gun is the type of weapon contemplated by Congress in 1789 as being protected by the Second Amendment." The Court held that the state court's opinion directly contradicted DISTRICT OF COLUMBIA v. HELLER (2008), in which the Court held "the Second Amendment extends, prima facie, to all instruments that constitute bearable arms, even those that were not in existence at the time of the founding." Alito, joined by Thomas, concurred in the judgment, noting that "[t]he lower court's ill treatment of HELLER cannot stand."

I see that Kent and Bill have posted their thoughts on the nomination of Judge Garland to replace Justice Scalia's seat on the Supreme Court.  Here are a few thoughts of my own.

 

It's often said that the Supreme Court is above the political fray that seems to consume so much of Washington.  But anyone who's paying attention knows that's just not the case.  For better or worse (certainly worse) the federal courts of our nation, and the Supreme Court most noteworthy, are modern political animals.  There are many reasons for this plain fact, including the vast regulatory nature of our country and the lifelong tenure that federal judges enjoy.  But, by far, by a country mile (to borrow a Bill Clinton expression), the central reason is that the courts have become the central stage where social change occurs; or rather is mandated on the populace instead of through the deliberative legislative process enshrined by our Constitution. 

There is no denying it, the Supreme Court is a political entity and should be subject to the political process most harmonious with a democratic republic:  The election of a president, which will take place in a short seven months.   Some might say that even if the Court is captured by politics we ought to try to keep it from becoming engulfed by partisan politics.  That train left the station when Judge Bork was denied his seat at the table and was out of sight when Justice Thomas endured his confirmation hearings.   When a government entity has the power to create rights not found in the constitution without any input from the electorate, it has become the most powerful government actor.  Not subjecting it to the political process makes it invincible.

I also share Kent's disappointment that if Judge Garland is successfully confirmed the Court will be comprised exclusively of graduates from two of the most elite law schools in our nation.  As a graduate of both SUNY Buffalo law school and Harvard law school I find it striking that it is assumed by so many that only a graduate of an elite school is qualified for the high court.  As best as I could discern, the main difference between these two institutions was money and political connections; not the acumen of the students.  The sterility that infects the legal academy is largely the result of the fact that so few schools are willing to consider anyone who is different than what they are accustomed to; whether that's political ideology, life experience, age, or most certainly, pedigree.   Whoever is confirmed next to the Court, I sure hope it's someone who's a bit different than what we already have who can bring a fresh perspective to the Court. 

Well, so much for predictions.  Merrick Garland was not the expected choice of many of those venturing a prediction.  Tom Goldstein had this handicapping at SCOTUSblog, and that blog's series of profile posts on potential nominees had not gotten around to Garland by announcement day.  Here at C&C, Bill Otis had this post early this morning.

I was hoping for a diversity pick.  Alas, confirmation of Judge Garland would leave us with nine Justices all of whom went to Harvard or Yale.

I have been browsing Judge Garland's criminal and related opinions and haven't found anything noteworthy either way yet.

Should the Senate confirm him?  Should Republicans even allow the machinery to start?

A "no" answer is, in effect, doubling down on the election.  A victorious President Hillary Clinton would likely nominate someone further into left-wing judicial activism, making the Scalia->X transition a even larger shift than the Marshall->Thomas transition, currently the largest single-appointment shift in modern history.  A victorious Republican candidate would likely appoint someone more aligned with Justice Scalia's views.

Is this a good hand to double down on?

Probably the leading spokesmen for sentencing "reform" are no longer on the Left  -- the Left having shown (in fits and spurts) that it realizes lower sentencing will produce more crime, but believing that Amerika has it coming because of its racist, classist, sexist and otherwise Really Mean ruling class.  The class consists of people like Mitch McConnell, Jeff Sessions, Tom Cotton, Clarence Thomas, Thomas Sowell, Heather MacDonald and anyone else who didn't have a poster of Che Guevara hanging in his or her dorm room. That the victims of increased crime are certain to be disproportionately minorities never seems to register with the Left.  I guess Black Lives Don't Matter that much.

Rumor has it that the Obama White House wants to nominate a successor to Justice Scalia who would be hard for Republicans to oppose.  One name that has been floated is Judge Jane Kelly of the Eighth Circuit.

Thomas Hopson has this post at SCOTUSblog.  He lists five capital cases that Judge Kelly participated in.  They are all cases decided en banc or denying rehearing en banc with a dissent.  In every one of five cases, a large majority of the court decides against the murderer or decides not to review a panel decision against the murderer, and in every one Judge Kelly joins the dissent.

While an honest judge faithfully applying the law may occasionally need to reverse a conviction or sentence or stay an execution in a case that has completed the full review cycle, these are the exceptions.  Most cases that have reached this stage are sound judgments, and execution should go forward.  A judge who votes this consistently for the murderer in cases where large majorities go the other way almost certainly has an agenda and is willing to bend the law in the murderer's favor to advance that agenda.  That willingness is disqualifying.

What kind of Bizarro World are the folks in the White House Counsel's office living in that they think a judge with this kind of record would be difficult for Republicans to oppose?

The facts that Senator Grassley supported her for the Eighth Circuit or that she was easily confirmed for that seat are now irrelevant.  She didn't have that record then, and in any event there is a fundamental difference between an intermediate appellate court and a court of last resort.

The U.S. Supreme Court summarily reversed a Louisiana state court's denial of habeas corpus relief to Michael Wearry, an inmate on that state's death row.

Generally, if one has prevailed in a lower court and wants the U.S. Supreme Court to deny review, arguing that the case is "fact-bound" is a good bet.  The Supreme Court's "reason for being" is to settle broad questions of law on which other courts disagree, not to police case-specific application of settled law to particular fact patterns.

In this case, Wearry claims he actually didn't do it, and he is one of the rare death row inmates with a "colorable claim" to that effect, to use Judge Friendly's famous term.  The specific constitutional violation claimed is that the prosecution failed to disclose exculpatory evidence.  The "application of law to fact" question is whether that evidence is "material," defined "new evidence [that] is sufficient to 'undermine confidence' in the verdict."  (See p. 7 of the slip opinion.)

Justice Alito, joined by Justice Thomas, finds summary disposition "highly inappropriate" and calls for the case to be given full briefing and argument instead.

This is the kind of case that should not have been capital in the first place.  In my opinion, trial prosecutors should not seek the death penalty in any case where the evidence of identity of the perpetrator is such that a jury would have any difficulty at all finding that the proof is beyond a reasonable doubt.  More discretion here would avoid a host of problems, and most prosecutors' offices do, in fact, screen out cases on that basis.

In our increasingly uncivil times, we have an example of how people can disagree, sometimes passionately, and still be friends.  Adam Liptak has this story in the NYT on the memorial service for Justice Scalia, and at the top is a touching video of Justice Ginsburg's tribute.

Justice Thomas also has a nugget for us:

But once, Justice Scalia was harshly critical of an important precedent. "'Just a horrible opinion,' he said. 'One of the worst,'" Justice Thomas related. It fell to Justice Thomas to break the bad news: "Nino, you wrote it."

Josh Blackman and Ilya Shapiro have this op-ed with the above title in the WSJ.  They recount the history* of Supreme Court vacancies and note that the Court has managed with short-handedness before.  A few cases are affirmed 4-4 without setting a precedent and a few are deferred for decision later, but there is no large-scale disruption.

One of the cases which may well be affected in the present term is Utah v. Strieff.  This is a Fourth Amendment case that could be decided on narrow grounds by applying existing "attenuation" case law to the facts of the case, or it could be a vehicle for the Court to take a bolder step to take another sizable chunk out of judicially fabricated Fourth Amendment exclusionary rule.  Orin Kerr had this preview on SCOTUSblog on February 3rd, before Justice Scalia's death.  CJLF's brief urged the bold approach, taking an originalist viewpoint that would have been right up Justice Scalia's alley. 

Alas, the argument on Monday lacked Justice Scalia's unique contribution.  The six Justices who spoke seemed divided 3-3.  Justice Thomas was characteristically silent, and Justice Breyer was uncharacteristically silent.  What to make of the latter?  We will have to wait and see.

A perfect example of the wrong way to think of the Supreme Court comes to us from President Obama's former White House Counsel.  Kathleen Hennessey and Mark Sherman report for AP:

"The Supreme Court has not reflected where the American people have been on issues," said Gregory Craig, who served as White House counsel early in Obama's first term. "This is the first opportunity in many, many years to bring the court more in line with the American people."

In this way of thinking, the Supreme Court is nothing but a third house of the legislative branch.  It's job is to take the pulse of current public opinion and be "in line" with current views, declaring as a constitutional mandate whatever that current view is.

That is not how it is supposed to work.  Fundamental rules are written into the Constitution when they are agreed by a strong national consensus to be so fundamental as to place them beyond the short-term reach of ordinary legislation.  They can be changed when (and legitimately only when) a strong enough consensus to the contrary has formed to clear the high hurdle for a constitutional amendment under Article V.

Bill noted yesterday the sudden death of Justice Antonin Scalia.  His passing is a great loss to the country and the Constitution.

The Great Question of constitutional law is not hard to state.  Is the Constitution a contract between the people and their government, with the power to change its terms reserved to the people, or is it an empty vessel for five unelected, unaccountable justices to pour their policy preferences into?

Legitimate judicial review is to prevent the legislature from crossing a line that the people wrote into the Constitution.  Illegitimate judicial review is creating lines that the people did not write into the Constitution, striking down laws enacted by the people's representatives or by the people themselves on a pretense that they violate the Constitution but actually just because the judges disagree with the people -- "substitute their own pleasure to the constitutional intentions of the legislature," as Hamilton put it in Federalist No. 78.

There are two primary dangers in appointing Justices to the Supreme Court:  appointing people with views on the wrong side of the Great Question and appointing people who have not thought much about it at all.