Recently in U.S. Supreme Court Category

Akhil Reed Amar of Yale Law is a rarity -- a prominent legal academic who has his head screwed on straight when it comes to the Fourth Amendment exclusionary rule.  He has this post at SCOTUSblog titled The Court after Scalia: The despicable and dispensable exclusionary rule.  No doubt about where he stands.

I agree with what Professor Amar says about the exclusionary rule, but not so much what he says about the Justices.  He begins by noting the difference between cases where the Court was focused on the substantive Fourth Amendment question and cases where it focused on the exclusionary remedy:

In countless cases over the last forty years, the Court has held that the Fourth Amendment was violated by the facts at hand, and has thus ordered or upheld evidentiary exclusion....   But whenever the modern Court has squarely focused on the exclusionary rule itself - giving express thought to whether the rule's contours should be widened or narrowed - the Justices have almost always ruled against the rule, and have done so in case after case dripping with implied or express contempt for it.
This contempt is well founded:

The exclusionary rule has no sound footing in any originalist legal source material. None. Nothing in the text as originally understood supports it; no framer ever endorsed it; no judge in America for the first century after independence ever followed the exclusionary rule or any genuine prototype of it. On one of the very few occasions when a lawyer tried to argue for exclusion before 1876, the lawyer was laughed out of court by America's preeminent jurists, led by Joseph Story.
A bit of rhetorical exaggeration there.  Laughing wasn't Justice Story's style.  But he did make very clear that the exclusionary argument had no basis in the law at that time.  My brief in Utah v. Strieff has more on this.

Mapp v. Ohio, the case that imposed the exclusionary rule on the states, was wrongly decided as an original matter.  A long string of decisions has chipped away at it, limiting the damage it does to some extent, but the case has not been overruled.  Why not, and what of the future?
Sam Hananel reports for AP:

Supreme Court Chief Justice John Roberts has temporarily blocked a Senate subpoena that seeks information on how the classified advertising website Backpage.com screens ads for possible sex trafficking.

The order Tuesday came hours after Backpage CEO Carl Ferrer asked the high court to intervene, saying the case threatens the First Amendment rights of online publishers.

A federal appeals court ruled Friday that the website must respond to the subpoena within 10 days. Roberts said Backpage does not have to comply with the appeals court order until further action from the Supreme Court. He requested a response from the Senate by Friday.
The order reads in full:

IT IS ORDERED that the August 5, 2016 order of the United States District Court for the District of Columbia, in case No. 16-mc-621, is hereby stayed pending receipt of a response, due by noon Friday, September 9, 2016, and further order of the undersigned or of the Court
The individual Justice assigned to the circuit (the Chief, for DC) is authorized to stay a lower court's order, but they typically refer the application to the full Court for anything more than a brief stay.  I expect that "further order" will come early next week, and it will be from the full Court.
When Hurst v. Florida was decided earlier this year, I wrote a post titled Dangerously Sloppy Language in the Hurst v. Florida Opinion.  Sure enough, four of the five justices of the Delaware Supreme Court have now decided that the state's long-established and thoroughly vetted death penalty statute is unconstitutional.  That would be true only if one sloppy piece of obiter dictum wipes out the distinction between the eligibility decision and the selection decision crafted over decades and clearly set forth in numerous U.S. Supreme Court opinions.

The case is Rauf v. State.  See Justice Vaughn's dissent for the correct answers.

Does Delaware Attorney General Matt Denn have the requisite vertebrae to petition for certiorari?  Let's hope so.
Appellate courts often edit their opinions after release, and usually the edits are not substantive.  The U.S. Supreme Court used to make the changes quietly, without any public notice that a change had been made.  That changed this term.  Adam Liptak has this story at the NYT on the change and its implications.

When you look up an opinion on the Internet, which version are you getting?

Writing for the majority in a case about domestic assault on Indian reservations, Justice Ruth Bader Ginsburg had said a federal law applied to some serious crimes "when both perpetrator and victim are Indians." But what the law itself actually said, quite clearly, was that it applied to all victims, Indians or not.
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The mistake in the domestic-assault case was fairly minor. Nothing in the ruling turned on it, and the error was unlikely to mislead lower courts even had it gone uncorrected, given that the statute it described was clear.

That is lucky, as the unrevised version was still all over the web as of Sunday, on respected sites like Scotusblog, Legal Information Institute, Findlaw and Justia.

I'm not sure about that "unlikely."  The U.S. Supreme Court's position in our legal system is such that even the most ill-considered and obvious obiter dicta can cause damage.

Here at C&C, when we discuss a recent Supreme Court opinion we will generally link to the version on Court's own site, where any changes will be reflected. 

Well, this is different.

One of the big cases, and big disappointments, of the last Supreme Court term was United States v. Texas, 15-674.  Texas challenged the Obama Administration's deferred action program for illegal immigrants.  Texas won in the Fifth Circuit, and the Supreme Court, minus the late Justice Scalia, divided 4-4.  That means the Fifth Circuit decision stands, but no Supreme Court precedent is established.  It is as if the high court had never taken the case up at all.

Now the Acting Solicitor General has filed a petition for rehearing asking for "rehearing of this case before a full nine-Member Court."  But who knows when the Supreme Court will have nine Justices again?  Is this a "springing" rehearing petition, filed now but activated only when a ninth Justice is confirmed?  Sounds like some dimly remembered nightmare from property law class.
One of the ploys that opponents of the death penalty use to try to block it -- given that the American people are solidly against their real position -- is to drag out the appeals process for decades and then claim that it is cruel to keep people on death row for decades.

This is called the Lackey claim for Justice Stevens's solo opinion in Lackey v. Texas, 514 U.S. 1045 (1995).  After Justice Stevens retired, Justice Breyer took up the cause.  He reiterated his position last night in the last minute appeal of Georgia murderer John Wayne Conner.  But he is still alone.  No other justice joined his dissent.

Conner was executed at 12:29 a.m. Friday with the single-drug method using pentobarbital, Rhonda Cook reports for the Atlanta Journal-Constitution.  Georgia can apparently still get pentobarbital, the preferred drug for this purpose, though most states cannot.

The lethal injection drug shortage is entirely artificial and due in large part to the misinterpretation of the Food, Drug, and Cosmetic Act by the D.C. Circuit in Cook v. FDA, 733 F.3d 1 (2013).  Congress can and should correct that misinterpretation with a simple fix.
AP reports:

Ruth Bader Ginsburg says she regrets attacking Donald Trump, according to a statement Thursday from the Supreme Court justice.

"On reflection, my recent remarks in response to press inquiries were ill-advised and I regret making them," reads Ginsburg's statement.

"Judges should avoid commenting on a candidate for public office. In the future I will be more circumspect."

NYT v. RBG

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I felt a great disturbance in the Force.

The New York Times has an editorial (not an op-ed or a column, the newspaper's main editorial representing its position as an institution), headlined Donald Trump Is Right About Justice Ruth Bader Ginsburg.  Wow.  Who would have thought we would read the words "Donald Trump is right"  in a New York Times editorial about anything, but especially about one of the Left's favorite jurists.

Mr. Trump's hands, of course, are far from clean on the matter of judicial independence. It was just weeks ago that he was lambasting Gonzalo Curiel, the United States District Court judge overseeing a case against Trump University, saying that as a "Mexican," the Indiana-born judge could not be impartial.

All of which makes it only more baffling that Justice Ginsburg would choose to descend toward his level and call her own commitment to impartiality into question. Washington is more than partisan enough without the spectacle of a Supreme Court justice flinging herself into the mosh pit.
Disturbance number two:  Your humble blogger agrees with an NYT editorial.  I can't remember the last time that happened.  Another previously reliable contrarian indicator goes awry.
All fifty states utilize implied consent laws to require motorists arrested on suspicion of driving under the influence ("DUI") to submit to a chemical test to determine the amount of alcohol and/or drugs in her/her system.  The blood alcohol concentration ("BAC") results are the best evidence of intoxication level to be used in a subsequent DUI prosecution.  

Earlier this week, the Supreme Court ruled on three consolidated cases brought by three different motorists who challenged the criminal penalty for refusing to consent to a chemical test of their breath, blood, or urine.  The post I wrote summarizing these three cases can be found here.  

In Minnesota and North Dakota (and 11 other states), it a separate crime to refuse to a chemical test.  California does not make refusal a separate crime, but instead it can be used as a sentencing enhancement if the motorist is convicted of a DUI.  Now that Birchfield/Bernard/Beylund hold that a warrant is required for all chemical testing of blood, the California legislature will need to modify the current law (VC 23612) to comport with the Supreme Court's ruling.  
This morning, the U.S. Supreme Court decided three consolidated cases involving the implied consent laws that all 50 states utilize in their efforts to combat the serious problem of drunk driving.  The implied consent laws imply a lawfully arrested motorist's consent to chemical testing as a matter of law and the state uses the test results as probative evidence of intoxication in a subsequent DUI prosecution.  Some motorists, usually repeat offenders, refuse requests for testing because they know that the Blood Alcohol Concentration ("BAC") results would impose harsher penalties than that of simply refusing a test.  The standard legal consequence in most states for test refusal is the suspension or revocation of a motorist's driver's license.  A refusal can also be admitted as evidence of intoxication in a DUI prosecution.  Based on recidivist drunk driver statistics, it does not matter if they have a driver's license or not.  The suspension or revocation of a driver's license does nothing to stop a person from drinking and driving if that person chooses to get into a car and drive while intoxicated.

Thirteen states gave some teeth to their implied consent laws and made it a crime to refuse testing.


Mixed Result in DUI Cases

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In three consolidated cases, of which the lead is Birchfield v. North Dakota, No. 14-1468, the U.S. Supreme Court held today:

Because breath tests are significantly less intrusive than blood tests and in most cases amply serve law enforcement interests, we conclude that a breath test, but not a blood test, may be administered as a search incident to a lawful arrest for drunk driving. As in all cases involving reasonable searches incident to arrest, a warrant is not needed in this situation.
CJLF filed a brief in one of the three, Beylund v. Levi, No. 14-1507, a civil case challenging the suspension of Beylund's driver's license for refusing a blood test after being informed he could be criminally prosecuted for refusing.  In addition to the legality of the requirement, CJLF argued that the suspension was valid regardless, as the federal Fourth Amendment exclusionary rule does not apply to civil proceedings.  The U.S. Supreme Court left that question open for the North Dakota Supreme Court on remand on the theory that state law might "provide a remedy" not required by federal law.

Although we did not get everything we wanted, this is mostly a win for the life-saving cause of getting drunks off the road. 
As noted briefly this morning, the U.S. Supreme Court decided a case on the Fourth Amendment exclusionary rule, Utah v. Strieff, No. 14-1373.  The Fourth Amendment exclusionary rule is the rule that an item of evidence -- regardless of how reliable it may be and much value it may have in guiding the trier of fact to the truth of the matter to be decided in the criminal case -- must be excluded if it is found that the police violated the complex rules governing search and seizures under that Amendment.

The exclusionary rule has no basis in the text of the Fourth Amendment.  It was unknown to American law at the time the Amendment was adopted and for a century thereafter.  It was unknown to the pre-Independence law of England, from which our legal tradition was derived.  The rule was created by the Supreme Court out of whole cloth in the twentieth century and the tail end of the nineteenth, a century after Amendment was adopted.  The question appears in few court decisions before that time because there obviously was no such rule, and the few defendants to raise the proposition merely got decisions stating flatly that there was no such rule.  This history is traced in CJLF's brief in Strieff, along with a rebuttal of the lone academic to advance a contrary proposition.  For an originalist, that is enough to dispose of any case where the Fourth Amendment is relied on as the sole authority for the exclusion of evidence.  There is no such legitimate rule.

However, the Supreme Court decided to the contrary in Mapp v. Ohio (1961), a decision which Justice Harlan noted in dissent was so far in excess of the limits of the Supreme Court's legitimate constitutional powers as to make the Court's voice "only a voice of power, not of reason."  In later years, varying majorities of the Court have been unwilling to overrule Mapp, but Justice Harlan's description of the rule as "so unwise in principle and so inexpedient in policy" was never far below the surface, and numerous limitations and exceptions have been devised to reduce the harsh effects of the rule in its bare form.

Today's decision in Strieff is specifically on the "attenuation" exception, but the influence of the "good faith" cases is also evident, making a clear connection between the two branches of Fourth Amendment jurisprudence.
The U.S. Supreme Court has reversed a decision of the Utah Supreme Court suppressing evidence from a stop conducted in good faith by a police officer.  Utah v. Strieff, No. 14-1373, was decided 5-3.

On a quick scan, it does not appear to be the sweeping decision I was hoping for, but a win's a win.

Update:  A follow-up post is here.  CJLF's press release is here.

Today's SCOTUS Cases

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Today the U.S. Supreme Court issued decisions in three civil cases and no criminal cases.  However, all three of the civil cases have some interesting and potentially relevant aspects.
The United States Supreme Court issued three decisions today, none with major implications.

In Puerto Rico v. Sanchez Valle, No. 15-108, the Court decided that the "dual sovereignty" exception to the Double Jeopardy Clause does not apply to Puerto Rico.  That is, a person who has already been prosecuted for a crime by the United States (in this case, ending in a guilty plea) cannot be prosecuted by the Commonwealth of Puerto Rico for the same crime.  The Commonwealth, unlike like a State, is a creature of the federal government, not a separate sovereign.  As decided, the case is more about Puerto Rico's status than it is about the Double Jeopardy Clause.  Justice Ginsburg, joined by Justice Thomas, concurs but would undertake a broader reexamination of dual sovereignty, another blow to the simplistic, one-dimensional model of categorizing Justices.

Williams
v. Pennsylvania, No. 15-5040, involves Ronald Castille, the District Attorney of Philadelphia who became the Chief Justice of Pennsylvania.  As DA, he signed off on his office seeking the death penalty against murderer Terrance Williams.  The Court holds that his failure to recuse himself from the case as Chief Justice when it reached the Pennsylvania Supreme Court violated the Due Process Clause.  Opinion by Justice Kennedy.  Chief Justice Roberts and Justices Thomas and Alito dissent.

Court watchers will remember that in the first few years after Justice Kagan moved to the Court from the Solicitor General's office she recused in every federal case where her office had been involved, a large number of cases.

In Dietz v. Bouldin, No. 15-458, the court holds that a "federal district court has a limited inherent power to rescind a jury discharge order and recall a jury in a civil case for further deliberations after identifying an error in the jury's verdict."  Probably limited impact on criminal cases, but I thought it was worth noting here.

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