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The Supreme Court today issued an orders list and one opinion. The opinion in Ali v. Federal Bureau of Prisons is an exercise in statutory interpretation on the federal government's waiver of sovereign immunity in 28 U.S.C. § 1346(b)(1) and an exception to that waiver in 28 U.S.C. § 2680(c). The interpretation question had split the Courts of Appeals 6-5, and today it split the Supreme Court 5-4. The lineup was a little unusual, with Justice Kennedy in the dissent and Justice Ginsburg joining Justice Thomas's majority opinion. The bottom line is that the government does not waive sovereign immunity for a claim arising out of detention of property by any federal law enforcement officer, not just those enforcing customs and excise laws. There is an administrative remedy for prisoner Ali's claim, but it was decided against him.

The orders list, as expected, consists of "vacate and remand in light of..." orders and denials of certiorari. The grants for full briefing and argument were announced Friday. Among the denials are Jones v. Jennings, No. 07-654, on excessive force on a resisting arrestee and Gilmer v. Mississippi, No. 07-183, on that state's "video voyeurism" statute.

On the March argument calendar, the most important case for general criminal law practice is Indiana v. Edwards, No. 07-208, scheduled for Wednesday, March 26. In this case, the Supreme Court will finally answer the question raised 33 years ago when it constitutionalized the right of the defendant to represent himself in Faretta v. California, 422 U.S. 806 (1975). Many states have interpreted this case to extend that right to anyone mentally capable of making an intelligent waiver of counsel, even if he is not capable of making a coherent defense. This view of Faretta produced the circus in Panetti v. Quarterman, decided last June. See CJLF Panetti brief here. CJLF will file a brief in Edwards asking the Court to clean up this mess of its own making.

Also on the calendar are the D.C. gun case March 18, Rothgery v. Gillespie County on when the Sixth Amendment right to counsel attaches on March 17, two federal sentencing cases on March 24 and 25, and a pair of citizen detainee cases on March 25.

Tony Mauro has this post at Blog of the Legal Times on the grammatical disputes in the present Supreme Court term. He closes with this amusing comment on Justice Breyer's amusing comment in his dissent today in the Ali case:

Footnote: Breyer's separate dissent focuses on the word "any" in the statute, and he offers an amusing illustration for his point that "any" is not a universal word, but has context. Breyer writes, "When I call out to my wife, 'There isn’t any butter,' I do not mean, 'There isn’t any butter in town.' The context makes clear to her that I am talking about the contents of our refrigerator." In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: "The butter is staring me in the face, but because I am a man, I can't find it."


Kent, what's your view on the correctness of Faretta?

"This case, like Herring v. New York, post, P. 853, announced today, is another example of the judicial tendency to constitutionalize what is thought 'good.'" (Burger, C.J., dissenting)

I think Faretta was mistaken to read into the federal constitution a question that is better decided at the state level. Even so, I am not going to ask the Court to overrule it. Instead, we need to put some reasonable limits on it so that fiascos like Panetti's trial don't happen.

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