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The Scalia Legacy

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The Constitution Center in Philadelphia yesterday hosted a discussion of the legacy of Justice Antonin Scalia, by anyone's reckoning a genius, a spectacular writer, and one of the most influential Justices of my lifetime.

My wife, Hon. Lee Liberman Otis, was one of the participants, all of whom, I thought, did a first-rate job.

The tape, a little more than an hour, is here.

Kickbacks and Conspiracies

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The U.S. Supreme Court, 5-3, upheld a conviction for conspiracy to violate the Hobbs Act, the federal extortion law, in a case involving a kickback scheme in which crooked police officers referred damaged cars to a particular body shop in return for payments.  The case is Ocasio v. United States.

Justice Alito wrote the opinion of the Court, joined by Justices Kennedy, Ginsbury, Breyer, and Kagan.  Justice Breyer wrote a separate concurrence saying that a key precedent, Evans v. United States, may well have been wrongly decided, but since the defendant did not ask the Court to overrule it, he loses.  Justice Thomas would go ahead and overrule Evans.  Justice Sotomayor, joined by Chief Justice Roberts, would rule for the defendant without overruling Evans.

The next scheduled public session, and therefore the next likely day for release of opinions, is two weeks from today, Monday, May 16.
The U.S. Supreme Court took up once again the issue of the mental element of crime, known in legal Latin as mens reaShaw v. United States, No. 15-5991, is a case from the Ninth Circuit.  The summary of the Ninth's opinion is:

The panel affirmed a conviction for a scheme to defraud a financial institution, in violation of 18 U.S.C. § 1344(1), in a case in which the defendant used PayPal to convince banks that he was a particular bank customer and thus had authority to transfer money out of that customer's bank accounts and into a PayPal account in the defendant's control.

The panel held that for a violation of § 1344(1), the government need not prove that the defendant intended the bank to be the principal financial victim of the fraud, and that the district court therefore correctly refused jury instructions that included such a requirement.
The Question Presented, as phrased by counsel for Shaw, is:

Whether subsection (1)'s "scheme to defraud a financial institution" requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner Lawrence Shaw argued here.
The sentencing appeal case is Manrique v. United States, No. 15-7250.  The unpublished opinion of the Eleventh Circuit begins:

Kansas v. Carr Podcast

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Justice Antonin Scalia's last opinion for the U. S. Supreme Court was Kansas v. Carr, decided 8-1 on January 20.  The Federalist Society has this podcast on the decision, by yours truly.
The U.S. Supreme Court issued two criminal law decisions this week, neither of which is surprising or particularly controversial.

Monday, the Court decided Welch v. United States, No. 15-6418:

Last Term, this Court decided Johnson v. United States, 576 U. S. ___ (2015). Johnson considered the residual clause of the Armed Career Criminal Act of 1984, 18 U. S. C. §924(e)(2)(B)(ii). The Court held that provision void for vagueness. The present case asks whether Johnson is a substantive decision that is retroactive in cases on collateral review.
Answer: Yes.

Today, the Court decided Molina-Martinez v. United States, No. 14-8913, regarding what to do on appeal when the trial court messes up on the often complex Federal Sentencing Guidelines and nobody notices until the appeal.  The Court disapproved the Fifth Circuit's requirement that the defendant "must identify 'additional evidence' to show that the use of the incorrect Guidelines range did in fact affect his sentence."
The Georgia Supreme Court summarized the crimes of Kenneth Fults as follows:

The evidence adduced at Fults' sentencing trial showed that he carried out a week-long crime spree which was centered, at least in part, upon his desire to murder a man who was engaged in a relationship with his former girlfriend. Fults first committed two burglaries, obtaining several handguns. After a failed attempt at murdering his former girlfriend's new boyfriend with one of the stolen handguns, Fults then burglarized the home of his next-door neighbors. After the male neighbor left for work, Fults forced his way through the front door wearing gloves and a hat pulled down over his face. Fults confronted the female occupant of the home, Cathy Bounds, brandishing a .22 caliber handgun he had stolen during one of the burglaries. Ms. Bounds begged for her life and offered Fults the rings on her fingers.  Fults turned Ms. Bounds around toward the bedroom, either taped or forced her to tape her eyes closed by wrapping over six feet of electrical tape around her head, forced her into the bedroom, placed her face-down on her bed, placed a pillow over her head, and shot her five times in the back of the head.
Lance Rogers of BNA Criminal Law Reporter has this article on the U.S. Supreme Court's March 30 decision in Luis v. United States regarding pretrial freezing of assets of the defendant not directly related to the crime but forfeitable in substitution for tainted but expended assets.  The court held that such assets cannot be frozen when the defendant needs them to pay her lawyer.  See also my previous post.
A mostly off-topic note on yesterday's apportionment decision, Evenwel v. Abbott.

USCA6 Summarily Reversed Yet Again

The "massive resistance" of some federal judges (particularly in circuits divisible by 3) continues, and today the U.S. Supreme Court found it necessary once again to summarily reverse a decision of Sixth Circuit for brazenly exceeding the limits Congress has placed on its authority.

In 1996, Congress decided that the opinion of the lower federal courts on disputed questions of federal law was really not more reliable than the opinions of the state courts.  Too many correct judgments were being wrongly overturned, and the Supreme Court could not correct all the errors.  Yet Congress was not willing to let go of the safety valve of federal habeas corpus review of state convictions altogether.  The compromise was that federal courts could overturn a state conviction based on a claim rejected on the merits by the state courts if the state court decision was clearly wrong, beyond the bounds of reasonable disagreement.  If the issue is arguable, the state court decision stands.

Many federal judges are unwilling to let go of their prerogative to substitute their opinions for those of state judges on close questions, and they regularly violate the law governing the limits of their authority in order to "correct" what they see as violations of other rules of law.  The highest-profile incidents tend to be in capital cases, but it occurs in noncapital cases as well, and that brings us to today's Supreme Court decision in Woods v. Etherton, No. 15-723.
After Justice Scalia's death, I wrote this post on his successor and the Great Question.  Today Juan Williams has an op-ed in the WSJ on the same theme:  The Never-Ending Battle Over How to Read the Constitution: Whether Supreme Court nominee Merrick Garland is a 'centrist' distracts from a much bigger issue.

The article concludes:

In today's debate regarding Merrick Garland's nomination to the court, much of the discussion concerns whether or not he is a "centrist." But the real question, for both sides, is how he regards the Constitution. On that point it is clear from his record that Judge Garland is firmly in the "living document" camp. The push-pull over the Constitution and the Supreme Court is a battle without end, and in the current phase with the eight-person bench likely to divide 4-4 on important cases, the contrast between the court with Scalia on it and the court with Judge Garland or any other Democratic nominee couldn't be greater.
Of course, there is no chance whatever that President Obama will nominate anyone on the correct side of the Great Question, and if Hillary Clinton is elected in November there is no chance whatever that she will.  A week ago, Stanford Law Professor and former Circuit Judge Michael McConnell suggested a course of action in this op-ed, also in the WSJ.

Today the U.S. Supreme Court decided Luis v. United States, No. 14-419.  Justice Breyer's plurality opinion begins:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property "obtained as a result of " the crime, (2) property "traceable" to the crime, and (3) other "property of equivalent value." §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her from paying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment "right . . . to have the Assistance of Counsel for [her] defence." We agree.
Justice Thomas concurred in this result, making the decision 5-3.

Merrick Garland, a Matter of Timing

I have argued that the Republicans are correct in refusing to consider any appointment made to SCOTUS by President Obama. Judge Garland is a smart and decent man so far as I have any reason to believe, but that is not the point.  The point is that he is all but certain to be the fifth vote for anything important on the Left's Supreme Court agenda.  To take two examples, the idea that either Heller or Citizens United would survive Garland's elevation is just wishful thinking.

As Steve Erickson has noted, the Court now occupies such an outsized place in American life that its view of its role, of the Constitution, and of democratic self-rule has become too important to just pass over.  This is not a matter of partisan "bickering" or payback.  It's about the direction of American law itself.  

It's quite true that uncertainty abounds about who will succeed Obama, and what that person would do about Supreme Court nominations.  The Republicans are surely taking a risk that HRC will be elected and choose someone farther to the left.  They are also taking a risk with Donald Trump (although Trump's named Supreme Court candidates  --  Judges Diane Sykes and Bill Pryor  --  would be excellent choices).

But hold on there.  The risk is not as big as it's being advertised.

Merrick Garland and Doubling Down, Part II

There is much focus on what the Republican Senate should calculate about the mostly liberal candidate now before it, versus later possibilities of a more liberal candidate (under Clinton) or a more conservative one (under Cruz) or God knows what (under Trump).  Less focused upon is the equally important but reverse calculation the White House was surely doing in deciding its course of action. 

It's hardly news that President Obama is thinking about his "legacy," nor is it news that Supreme Court appointments are a major part of that legacy.

Why then did Obama pick a 63 year-old, left-but-not-far-left white male Harvard grad from inside the now-detested Beltway?  This is the kind of nomination sure to leave Obama's base lukewarm to cool, which is certainly what seems to be happening.

My guess is as crass as all the identity politics that have colored the talk about a replacement since Justice Scalia's death. My guess is that Obama thinks Clinton will be indicted or, more to the point, will lose anyway, making the seat a Republican choice.

Obama is, if anything, a shrewd and in some ways a visionary politician.  It seems to me that he chose Judge Garland, whom he twice passed over, because he thinks that's the best the Left has a realistic chance of getting.  All the focus on Trump has deflected attention from something my more acute Democratic friends have been complaining about for months:  Hillary is a lousy candidate.  She's a distrusted, crony-capitalist, establishment figure in a year in which all those things are electoral poison.

It's not just the Republicans who have to confront disagreeable choices.
Constitutional scholars debate the question in the abstract, but WaPo Fact Checker Glenn Kessler looks at the historical record.

Though the examples are few, they tend to support the right of Republicans to handle -- or not handle --this nomination as they wish.

Merrick Garland and Doubling Down

The Garland choice is certain to the the talk of the legal blogosphere today.  Kent, and now I, will join right in.

Should the Republicans formally consider this nomination?  

To me, there are only two relevant issues.

1. Would Garland move the Court to the Left from what it was with Scalia, a direction opposite from what the country wants?

Yes he would. We don't need hearings to know that.

2. Would acting on Garland now effectively extinguish the citizens' chance to have a say at the election in eight months about the direction of the law?

Yes it would. We don't need anything but the calendar to know that.

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