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A Civil Day at SCOTUS

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Today is all civil cases at the U.S. Supreme Court.  The oral argument calendar is three consolidated EPA cases.  The two decisions announced today were in civil cases.  Still waiting on Elonis.

The most controversial case, by far, will be the racial gerrymandering case, Alabama Black Legislative Caucus v. Alabama.   Part IV of the opinion deals with when race is the "predominant motivating factor," an issue that comes up in Batson cases.  Not sure if there will be any spillover.

In dissent, the ever-entertaining Justice Scalia takes aim at the way the majority bends over backwards to allow the plaintiffs to change their theory of the case after they were losing.

However, rather than holding appellants to the misguided legal theory they presented to the District Court, it allows them to take a mulligan, remanding the case with orders that the District Court consider whether some (all?) of Alabama's 35 majority-minority districts result from impermissible racial gerrymandering....  It does this on the basis of a few stray comments, cherry-picked from district-court filings that are more Rorschach brief than Brandeis brief, in which the vague outline of what could be district-specific racial-gerrymandering claims begins to take shape only with the careful, post-hoc nudging of appellate counsel.
Well, I know how I'm going to title my next pleading:  "Rorschach Brief in Support of Motion for Leave to Take a Mulligan."
The Attorney Discipline section of the U.S. Supreme Court's regular Monday orders list is not often interesting.  Mostly it's lawyers who have been disbarred by their home state courts getting routinely booted by SCOTUS as well, and that is rarely newsworthy.  But see In re Clinton, 534 U.S. 1016 (2001).

Today's list has an interesting item, though.  The Court ordered a lawyer who had submitted an unintelligible petition to show cause why he should not be disciplined.  Today they let him off with a finger wag.

A response having been filed, the Order to Show Cause, dated December 8, 2014, is discharged. All Members of the Bar are reminded, however, that they are responsible--as Officers of the Court--for compliance with the requirement of Supreme Court Rule 14.3 that petitions for certiorari be stated "in plain terms," and may not delegate that responsibility to the client.
Lyle Denniston has more on SCOTUSblog.
Yesterday the U.S. Supreme Court took up once again the question of whether its decision in Miller v. Alabama, that LWOP sentences for under-18 murderers must be discretionary and not mandatory, applies retroactively to overturn sentences that were correctly decided on appeal under the law existing at the time.  The previous case on this question, Toca v. Louisiana, became moot when Toca's sentence was commuted. 

The new case is Montgomery v. Louisiana, No. 14-280.  This case is a better vehicle than Toca, as the facts are more typical of an LWOP case.  Montgomery murdered Deputy Sheriff Charles H. Hurt in 1963, when Montgomery was 17.  He could have been executed in the electric chair at the time, but the jury granted him leniency.

The question presented as phrased by the petitioner/defendant is, "whether Miller adopts a new substantive rule that applies retroactively on collateral review to people condemned as juveniles to die in prison?"  The Court added its own question, "Do we have jurisdiction to decide whether the Supreme Court of Louisiana correctly refused to give retroactive effect in this case to our decision in Miller v. Alabama, 567 U. S. ____ (2012)?"

Note the "die in prison" phrasing.  Apparently death is no longer different.

My initial impression is that the answers are "no" and "yes."  Since the parties are agreed on the jurisdictional point, the Court may appoint an amicus to argue the "no."

In other action, Court decided two civil cases today.  Still waiting on the Facebook threats case, Elonis v. United States.  Possibly tomorrow.

Yesterday the Court turned down the Wisconsin voter ID case, Frank v. Walker, No. 14-803.

On February 5, the U.S. Supreme Court stayed the execution of Texas quadruple murderer Lester Leroy Bower while it considered his petition to take up his case for full briefing and argument.  Today the high court denied the petition, and the stay automatically terminates, giving Texas the green light to proceed (if they can find some pentobarbital).

In order to accept Bower's claim, the Court would need to further extend what is possibly the worst of all the errors in its capital sentencing jurisprudence, the Lockett/Penry rule that the defendant must be allowed to introduce "mitigating" evidence that has nothing to do with the crime and that the jury must be instructed to consider it.  The rule is wrong for the reasons explained by Justice White in Lockett v. Ohio, Justice Scalia in Penry v. Lynaugh and Walton v. Arizona, and Justice Thomas in Graham v. Collins.

Justice Breyer, joined by Justices Ginsburg and Sotomayor, dissents from today's order.  Interestingly, Justice Kagan does not join this opinion.

The Theocracy Brief

I've written a lot of amicus briefs in the U.S. Supreme Court.  Indeed, at this point I suspect there are few, if any, people who have written more.  My arguments have shown up in the opinions on a good many occasions, sometimes attributed but generally not.

The number of amicus briefs has risen in recent years, and their usefulness to the Court, on average, has declined.  Many are submitted just so the submitters can say they were in the case.  CJLF never does that.  If we have nothing of value to add, we don't file.  That rarely happens, but it has happened.

Some briefs are just downright weird.  In Glossip v. Gross, the midazolam lethal injection case, the National Catholic Reporter has submitted an amicus brief purporting to explain the teachings of the Catholic Church on the subject.  I have no opinion on whether what they say is correct.  I know nothing about it.  I do have an opinion on whether what they say has any relevance.  It does not.

Last time I checked, the United States of America was not a theocracy.  Quite the contrary, one of the cornerstones of the foundation of our government was a rejection of the mingling of church and state that had caused such enormous trouble in the Mother Country.

If Islamic teachings say it's okay to behead people,* would that make beheading constitutional under the Eighth Amendment?  Of course not.  So why would the teachings of the Catholic Church have any greater relevance?  Because five of the current Justices of the Supreme Court happen to be Catholic?  I am quite sure all five have the integrity not to let such an argument influence them.

* I don't know if they do, and truth of the "if" is not necessary to the point being made.
Guest post by Ian:

Today the U.S. Supreme Court granted review to determine the constitutionality of Florida's capital sentencing procedure because that procedure involves findings as to aggravating circumstances by the court after a majority of the jury recommends a sentence in a capital case. The U.S. Supreme Court specified the question for review as: "Whether Florida's death sentencing scheme violates the Sixth Amendment or the Eighth Amendment in light of this Court's decision in Ring v. Arizona, 536 U.S. 584 (2002)." Hurst v. Florida, 2015 WL 998606 (no. 14-7505) (March 9, 2015); opinion below, 147 So.2d 435 (Fla. 2014).

The U.S. Supreme Court only rarely specifies the question for review itself and that often occurs when the Court wants the latitude to consider overruling prior precedent. This case is on direct appeal from a re-sentencing trial at which Hurst challenged the constitutionality of Florida's capital sentencing procedure. Therefore, there is no limitation on the Court's authority to create new law in this case. The Florida capital sentencing procedure is substantially different from the procedure employed by most death penalty States. Therefore, the Court's ruling in this case is not likely to affect death penalty cases in those other States. However, we can expect that attorneys representing prisoners in capital cases will argue the contrary.

April Supreme Court Arguments

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The US Supreme Court has announced its April oral argument calendar.  This is the last session for the term.  Here are the criminal and related cases:

Monday, April 20:  Johnson v. United States, No. 13-7120 will be reargued. The case deals with possession of a sawed-off shotgun as a "violent felony."  The case was argued Nov. 5, but on Jan. 9 the Court restored it to the calendar and asked for supplemental briefing on "Whether the residual clause in the Armed Career Criminal Act of 1984, 18 U. S. C. ยง924(e)(2)(B)(ii), is unconstitutionally vague."

Tuesday, April 21:  McFadden v. United States, No. 14-378, deals with controlled substance analogues and the defendant's knowledge.

Monday, April 27:  Kingsley v. Henderson, No. 14-6368, is a civil case on the use of allegedly excessive force against a pretrial detainee in jail.

Wednesday, April 29:  Glossip v. Gross, No. 14-7955, deals with Oklahoma's three-drug execution protocol using midazolam as the first drug.  A similar protocol is used in Florida.

Same day:  Mata v. Holder, No. 14-185 is an immigration case, but it deals with issues of equitable tolling and ineffective assistance that often come up in habeas corpus cases.
Today the Supreme Court heard argument in Ohio v. Clark.  The Confrontation Clause of the Sixth Amendment limits the use of out-of-court statements of people who do not testify as witnesses in the criminal trial, but exactly where that line is drawn has been a problem for a long time.  From the 1980 decision in Ohio v. Roberts until the 2004 decision in Crawford v. Washington, the focus was on the reliability of the statement.  Crawford threw that overboard and asked if a statement was "testimonial."  Under this rule, the reliability of the statement is at best irrelevant to whether it is excluded by the Confrontation Clause, and often the rule operates perversely, letting less reliable statements in while excluding more reliable ones.

Some of the Justices have been uncomfortable with that ever since, and that discomfort showed in today's argument over the statement of an abused child to his teacher.

So far, Justice Thomas has been alone in his view that the Confrontation Clause applies narrowly to the kinds of practices it was specifically aimed at, such as the use of depositions in lieu of live testimony.  In this view, the admissibility of most hearsay statements would be questions of state evidence law, not a federal constitutional mandate.

I think Justice Thomas has it right, and my brief takes a historical view consistent with his thesis.  There was no discussion of this view in today's argument, but the Justices seem uncomfortable with the status quo, and CJLF's arguments sometimes appear in the opinions without having been featured at oral argument.  We'll see.

US Supreme Court Today

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The U.S. Supreme Court is in session and is hearing oral argument in Ohio v. Clark, regarding whether the Confrontation Clause allows a teacher to testify as to what a preschool child said about who abused him.  CJLF's brief is here.  My post at the time of filing is here.

The Court also released its orders list from last Friday's conference.  It took up a case on the interpretation of the federal extortion law.  The Question Presented follows the break.

Fisherman Wins SarbOx Case

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By the narrowest of margins, the U.S. Supreme Court has spared a fisherman from the overbroad drafting the Sarbanes-Oxley Act, a law that was supposed to be about corporate financial accountability, not throwing fish overboard.  The vote in Yates v. United States is 4-1-4, with Justice Ginsburg writing the plurality opinion and Justice Alito concurring in the judgment in a separate opinion.  These split results typically produce a lot of head-scratching as lawyers and lower courts try to figure out what the heck the law is.

Update:  On an initial quick read, the plurality and concurrence don't seem all that different to me.  The SarbOx law prohibits destroying etc. "any record, document, or tangible object."  Is "tangible object" limited to information-containing objects along the lines of documents and records, or does it extend to any objects whatever?  The plurality and concurrence invoke the standard rules of statutory construction of considering words in their context and considering words in a list to be in the same general category as the others in the list.  The concurrence also notes the title of the section, "Destruction, alteration, or falsification of records in Federal investigations and bankruptcy."  Yep.  Titles should get more attention than they do.  I especially dislike the old rule that too many lawyers write into documents that you should ignore the titles.  They are important clues into the genuine intent of a document.

Justice Kagan in dissent insists that "A fish is, of course, a discrete thing that possesses physical form," citing the renowned lexicographer Theodor Geisel by his better-known pen name.*  Pretty sure that's a first.

Jennings v. Stephens Podcast

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The Federalist Society has this podcast by CJLF's Legal Director Kent Scheidegger on the U.S. Supreme Court's January 14 decision in Jennings v. Stephens.

SCOTUS Tuesday

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Only one decision from the U.S. Supreme Court today.  It is an "original jurisdiction" case, states suing each other over river water:  Kansas v. Nebraska.  Still waiting on Elonis v. United States.

Today's criminal law argument has to do with the disposition of firearms seized from a defendant when the criminal case is over and the now-convicted defendant can no longer legally possess them: Henderson v. United States, No. 13-1487.


The U.S. Supreme Court begins its February-March argument session today.  The big news will be on the last day, Wednesday, March 4, the Obamacare subsidy case, King v. Burwell.

The main issue of that case is, of course, off-topic for the blog, and CJLF takes no position on it.  Yet the law is a seamless web, and we always watch Supreme Court cases for points that may spill over and have an effect on our cases.  Adam Liptak reports for the NYT that the issue of standing may pop up in this case.

Standing is an issue in two of CJLF's current cases, HCRC v. USDoJ and Winchell & Alexander v. Beard.  See this post two weeks ago.  Liptak's article begins:

The Supreme Court has developed elaborate tests to determine if plaintiffs have standing to sue. But their essence, Justice Antonin Scalia once observed, is a four-word question: "What's it to you?"

To get into court, it is not enough to be unhappy about something. Only people with a direct stake in a dispute have standing to sue.
But a very complex body of law lies beneath that seemingly simple question.
Juan Williams has this article with the above title at the WSJ.  "This black history month is an opportunity to celebrate the most influential thinker on racial issues in America today...."

Ignorance At The Top

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You can't expect the average Joe on the street to understand precisely what a case pending before the U.S. Supreme Court is about.  I do expect the press to get it right, but I'm not shocked at an occasional error.

What is shocking, though, is for the Attorney General of the United States to completely misunderstand what a case before the high court is about. 

Sari Horwitz reports in the WaPo:

Attorney General Eric H. Holder Jr. said Tuesday that he would support a national moratorium on lethal injections until the Supreme Court reviews the protocol used in a botched execution in Oklahoma last year.
*                                              *                                           *

"The Supreme Court's determination as to whether or not lethal injection is consistent with our Constitution is one that ought to occur," Holder said after reiterating his personal opposition to the death penalty.

"I think a moratorium until the Supreme Court made that determination would be appropriate."

That is the most ignorant statement I have ever heard from an Attorney General.

The Supreme Court is not determining whether lethal injection generally is consistent with the Constitution.  There is no serious question that the single-drug pentobarbital method that Texas has used without incident nearly 40 times is constitutional.  The case of Glossip v. Gross does not involve any question that would call that method into question.  That case involves the three-drug method used in Oklahoma, with midazolam as the first drug and with additional drugs to follow that would surely cause extreme pain if the inmate is not anesthetized by the first one.

To call for a national moratorium on all lethal injections, including those not implicated by the method involved in the case, is irresponsible and ignorant.  If Mr. Holder is concerned about the method being used in Oklahoma, he should show some leadership in helping to break down the barriers to the states' acquisition of pentobarbital.

The sooner he is gone the better.

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