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First Monday in October

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Here are some scheduled events and some predictions for the Supreme Court's opening in the fall.

Tuesday, September 26: Look for an orders list from the conference of the day before, with grants of certiorari.

Monday, October 2: The traditional opening day of the First Monday in October coincides with Yom Kippur, which caused a bit of a flap a few years back. The Great Compromise, which we see again this year, is that the Court formally opens its term and will probably announce an orders list, but will hear no arguments. There will likely be a long list of cert. denials and no grants, the grants having been announced the week before.

Tuesday, October 3: (1) Lopez v. Gonzales and Toledo-Flores v. United States. The questions presented in both cases deal with the classification of state drug offenses for the purpose of federal immigration law.

(2) Warden of the Month v. Belmontes. The Big Q has had some turnover problems. The calendar lists the certiorari petitioner as Ornaski, but the state's brief (and CJLF's) list him as Robert Ayers, Acting Warden. No prediction on who it will be by the time the opinion comes out.

The outcome of the case is easier to predict. Look for another spanking of the naughty Ninth as the high court considers, for the third time, whether the standard instruction used in California capital cases in the 1980s adequately informs jurors they can consider all the defendant's mitigating background evidence. In this case, that evidence includes the defendant's religious conversion before he beat a 19-year-old girl to death with a dumbbell bar just to steal her stereo to buy beer. CJLF's brief is here.

Wednesday, October 4: Civil cases.

Monday, October 9: Columbus Day.

Tuesday, October 10: United States v. Resendiz-Ponce: "Whether the omission of an element of a criminal offense from a federal indictment can constitute harmless error." Also two civil cases.

Wednesday, October 11: (1) Cunningham v. California asks whether the Apprendi line of cases invalidates the California triad system of sentencing. Each crime has three possible sentences, and the sentence must be the middle term unless the judge finds aggravating or mitigating circumstances to justify the upper or lower term, respectively.

(2) Carey v. Musladin further explores the meaning of Congress's command to the federal courts not to overturn state judgments merely because they disagree with them, but only when contrary to or unreasonably applying Supreme Court precedents. The specific question is whether a murder conviction must be overturned because the deceased's family wore buttons with his picture during the trial. The California Court of Appeal ruled that this was not desirable, but not an inherently prejudicial practice requiring automatic reversal. This ruling was in accord with the weight of authority but arguably contrary to a Ninth Circuit precedent. CJLF's brief is here.

1 Comment

Great brief in Musladin. With respect to the inartful language, I think that one of the Supreme Court per curiam reversals of the Ninth has a discussion about a "readiness to attribute error" and seizing on imprecise shorthand as a justification for reversal.

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