Recently in U.S. Supreme Court Category

Criminal Insider Trading

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The U.S. Supreme Court today decided Salman v. United States, No. 15-628, yet another case in the continuing saga of when trading securities based on an insider tip is against the law.

What always struck me as very odd about insider trading is that we have this enormous body of law with both criminal and civil liabilities, and at the root of it all is a very broadly worded regulation, SEC Rule 10b-5, not a statute.  The statute in question, 15 U.S.C. § 78j(b), makes it a crime to trade securities using "any manipulative or deceptive device or contrivance in contravention of such rules and regulations as the Commission may prescribe ...."

Should insider trading be a crime?  Yes, under some circumstances.  But Congress should make it a crime, not the SEC.  Administrative agencies have a place in modern civil law, filling in gaps that the legislature will not get around to, but defining crimes should be a non-delegable legislative power.

Moore v. Texas Podcast

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The Federalist Society has this Courthouse Steps podcast on the Nov. 29 Supreme Court oral argument in Moore v. Texas.  The podcast is a recording of a December 2 teleforum with CJLF Legal Director Kent Scheidegger.
Two weeks ago, the U.S. Supreme Court summarily dumped a case brought by Visa, Inc. et al. because the petitioners got the court to take the case up saying it was about one issue and then relied on a different argument once they reached the merits stage.

It's not nice to bait-and-switch the nation's highest court.  Yet lawyers for a habitual criminal who blew the head off a store clerk during a robbery may get away with doing exactly that.  Capital defense lawyers are special, you see.  Rules don't apply to them.

Here is the Question Presented as drafted by lawyers for Texas murderer Bobby James Moore:

Whether it violates the Eighth Amendment and this Court's decisions in Hall v. Florida, 134 S.Ct. 1986 (2014) and Atkins v. Virginia, 536 U.S. 304 (2002) to prohibit the use of current medical standards on intellectual disability, and require the use of outdated medical standards, in determining whether an individual may be executed.
See any issue there about whether the Texas standard of Ex parte Briseno ever conformed to the subsequently "outdated" standards in the first place?  Nope.  It's not there.  But today's oral argument was nearly all about that.  The Chief Justice was not pleased, but he may not have a majority.
Newspaper editorials contain both opinions and factual assertions supporting those opinions.  Editorial writers, like everyone else, are entitled to their own opinions but not their own facts, as the saying goes.  Professionalism requires that the facts in an editorial be checked as carefully as those in a news story.

Last week the Los Angeles Times failed this standard and published an editorial that blatantly misrepresented the opinion of the U.S. Supreme Court in Calderon v. Thompson, 523 U.S. 538 (1998).  In so doing, the Times defamed the Court and, even worse, misled its readers on a vitally important public issue they will be voting on shortly.

Did anyone at the Times actually read the opinion before publishing this editorial, or did they just regurgitate the propaganda fed to them by the anti-death-penalty lobby?  It is difficult to believe they read it.

A Conversation With Justice Thomas

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Video of an hour-long conversation with Justice Clarence Thomas is available here.   The event is the annual Joseph Story lecture, presented in an unusual conversational form.  Former Attorney General Edwin Meese gives the introduction, and John Malcolm of Heritage conducts the interview.

Georgia Executes Cop Killer

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The State of Georgia executed Gregory Lawler last night for the murder of Atlanta police officer John Sowa in 1997.  Lawler wounded Officer Pat Cocciolone in the same incident.  Rhonda Cook has this story in the Atlanta Journal-Constitution on the execution and this earlier one on the denial of executive clemency.  The U.S. Supreme Court's "green light for the green mile" order is here.

Cook notes that the basis of the clemency petition was "Lawler's recently diagnosed autism."  Seriously, now.  The man was 63.  If he had autism in the severity that would justify clemency, everyone who knew him in his entire life would have known it.  It would not be a recent discovery.

Georgia evidently still has pentobarbital.

A Supreme Court that Takes Sides? Part II

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Paul Mirengoff of PowerLine saw the same zinger in Hillary Clinton's Supreme Court answer that I did.  With characteristic insight, Paul quotes the oath of office Supreme Court Justices are required to take, and notes that anyone appointed under the partisan, agenda-laden criteria Ms. Clinton set forth last night could not possibly be faithful to the oath, which is as follows (emphasis added):

I, _________, do solemnly swear (or affirm) that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as _________ under the Constitution and laws of the United States. 

The question, which Paul then addresses, is whether Clinton appointees are likely to be, not merely misguided, but illegitimate in a deeper sense when seen through the lens of the neutrality Americans historically (and rightly) demand of judges.

A Supreme Court that Takes Sides?

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I did not watch tonight's debate, but I have seen it reported in more than one source, e.g., here, that Hillary Clinton, when asked if she supported a Supreme Court that would adopt a strict reading of the Constitution, responded with no mention of that document, and said instead:

I feel strongly that the Supreme Court needs to stand on the side of the American people, not the powerful corporations and the wealthy.

I will put to one side Ms. Clinton's remarks (at $250,000 a  pop) to the powerful corporation known as Goldman Sachs, and her income last year, reportedly a bit over ten million dollars. The main takeaway from her comment is her breathtaking misunderstanding of both the Court and the Constitution.

As liberals used to know, an independent Court was created by the Constitution precisely to be anti-majoritarian, that is, to be a neutral, not a "side-taking," arbiter of the law. Giving effect to popular will is the job of the political branches, not the Supreme Court (or inferior courts).

Someone might also inform Ms. Clinton that corporate managers and the rich are also  -- ready now?  --  part of the American people, and deserve no more justice, and no less, than anyone else. 

More on Elmore

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In addition to the excerpts from the Attorney General's brief in the Clark Elmore case, noted here, readers may also wish to consider the following excerpts from the opinion of the Supreme Court of Washington:
The U.S. Supreme Court today declined to review the case of Washington State murderer Clark Elmore.  Justice Sotomayor, joined by Justice Ginsburg, dissented in an opinion castigating the defense lawyer at trial.  If the lawyer was so bad, one might ask, why did the Washington Supreme Court deny relief?  That court has certainly had no difficulty ruling in favor of murderers in past capital cases.  It is one of the country's more criminal-friendly forums.  If the lawyer was so bad, why did six of the eight Justices of the U.S. Supreme Court decline to join Justice Sotomayor's vigorous dissent?

There is, of course, more to the story.  After the break, I have copied an extensive portion of the Brief in Opposition written by Senior Counsel John Samson for the Washington AG's office.  See also the excerpt from the Supreme Court of Washington in the follow-up post.
The Florida Supreme Court has decided the case of Timothy Hurst on remand from the U.S. Supreme Court decision in Hurst v. Florida.  The majority wrongly interpreted the high court decision to require that the jury be unanimous in all of its decisions, not just the finding of the death-eligibility circumstance.

To insulate its error from a likely reversal by the high court, the Florida Supreme Court cynically added the state constitution as an additional ground for its holding, casually tossing out forty years of precedent from the restoration of capital punishment in the 1970s until the decision in Hurst.   Stare decisis?  We don't need no stinking stare decisis.

When Florida's Legislature was considering how to fix its statute in light of Hurst, the debate was all about whether to authorize a less-than-unanimous penalty verdict or go for the single-juror-veto law that lets one juror impose his will over the objection of the other 11.  I tried to tell them that the Arizona/California method of requiring the jury to be unanimous one way or the other was the way to go, and they blew me off.  Maybe now they will listen?
From 1987 to 1991, U.S. Supreme Court precedents created an atrocious and unjust imbalance in the penalty phase of capital cases.  Under the dubious rule of Lockett v. Ohio (1978), the defendant had (and has to this day) the unlimited right to bring in "any aspect of a defendant's character or record ...  that the defendant proffers as a basis for a sentence less than death."  So the defendant can bring in his family to offer real or fabricated stories of his childhood with little or nothing to do with the crime.  His mother can testify as what a very good boy he is (when he is not raping, torturing, and murdering children).  The Constitution requires this, the Supreme Court solemnly informed us, even though it never did prior to the 1970s and has not been amended in this respect.

Under the rule of Booth v. Maryland (1987), on the other hand, the victim's family was prohibited from testifying about the victim or about the impact of the murder on them.  The result was that they had to sit in silence as the defendant's family humanized him, while the victim remained nothing more than abstraction.

The high court saw the error of this injustice four years later and partially overruled Booth in Payne v. Tennessee (1991).  We at CJLF are proud to have played a rule in that badly needed correction.  However, Booth was not completely overruled.  Victim impact evidence is now admissible, but the opinions of the victim's family as to the appropriate sentence are not.

The Oklahoma Court of Criminal Appeals apparently needed to be reminded of that latter proviso, and the U.S. Supreme Court did so this morning, without dissent, in Bosse v. Oklahoma, No. 15-9173.  Justices Thomas and Alito concurred:

SCOTUS Next Week

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The U.S. Supreme Court has a one-day argument week next week.  Normal argument weeks are Monday through Wednesday.  Next week, Monday is a legal holiday, Columbus Day.  No arguments are scheduled for Wednesday, which is Yom Kippur.

So it's all about Tuesday.  The main action, for our purposes, is Peña-Rodriguez v. Colorado, asking whether the Constitution requires an exception to the time-honored rule that you can't impeach a jury verdict by calling the jurors to testify as to what was said during deliberations.  CJLF's brief, written by Kym Stapleton, is here.  Our press release is here.

Manrique v. United States is a technical question about restitution.  The Question Presented, as drafted by counsel for defendant, occupies an entire page and is a fine example of how not to write a Question Presented.   However, the fact that the Court took it anyway is an example of why that may not matter as much as some of us think.
Bill noted earlier this morning the renaming of George Mason's law school as the Antonin Scalia Law School.  As he and Justice Kagan note, Justice Scalia was a giant of the law and a leader in producing an important change in direction for our judicial system.

The fundamental principle, too often forgotten, is that the rightful power belongs to the people "to institute [their] Government, laying its Foundation on Principles, and organizing its Powers in such Form, as to them shall seem most likely to effect their Safety and Happiness."

The Declaration is not just a decorative backdrop for debates.  It is the guiding light of our government.

When the judicial branch of government imputes new principles into the Constitution that the people never put there and when it usurps to itself decisions that the form established by the people assigned to another branch it violates both the Constitution and the fundamental principle on which it is based.

Judges who commit such acts of usurpation may have the best of intentions.  They may genuinely believe that different principles and different forms would be more just.  But that is not their decision to make in a democracy.  The sole legitimate way to make those changes is through the amendment process in Article V of the Constitution.

Originalism is not merely a philosophy or a theory.  It is nothing less than the defense of the democratic bedrock of our government against autocracy.

Justice Scalia understood this.  A great many more judges understand this now than did when he joined the Supreme Court, but still not enough.

Certiorari Grants from the Long Conference

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The U.S. Supreme Court Justices met Monday for their annual pre-term conference to consider petitions built up over the summer asking them to take cases from lower courts for full review.  As usual, they released an orders list today, the Thursday after the Long Conference, announcing the cases they have taken up, so briefing can begin immediately.  Expect a much, much longer list Monday of cases they turned down.

Pretty slim pickings for criminal law.  Nelson v. Colorado, No. 15-1256, is a quirky case about refunding restitution and fees when a conviction is reversed on appeal.  Lynch v. Dimaya, No. 15-1498, is a crime-related immigration case diving once more into the definition of "crime of violence."

From the Cases You Have to Look Up Just for the Name File comes the civil case of Lewis v. Clarke, No. 15-1500.  No, Sacagawea is not the Real Party In Interest, but the Mohegan Tribal Gaming Authority was a party early in the proceedings.

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