Author: Kent Scheidegger

SCOTUS Softens Limits on Repeat Petitions by Federal Prisoners (But Not Much)

by · Jan 9, 2026 9:03 am

In the landmark Antiterrorism and Effective Death Penalty Act of 1996, Congress cracked down hard on repeated attacks on criminal judgments by state prisoners. It also cracked down on such attacks by federal prisoners, but whether the rules for federal prisoners are quite as severe as those for state prisoners is not clear from the language of the statute. Today the U.S. Supreme Court decided two lingering questions on the state-federal distinction in Bowe v. United States. The defendant won on both points.

The outcome is not too surprising. The Government agreed with the defendant on one of the points, and the court had to appoint an amicus to argue in support of the lower court decision. It is an honor to receive this kind of appointment, but victory is rare.

The crackdown on state prisoners is found in subsection (b) of 28 U.S.C. 2244. Paragraph (1) flatly bars any do-over of a claim made in a previous habeas corpus petition. Paragraph (2) allows new claims, not previously made, only under very limited circumstances. Paragraph (3) requires a state prisoner seeking to file a second or successive petition to first get permission from the court of appeals, and subparagraph (3)(E) forbids petitions for rehearing (by either the panel or full court of appeals) or certiorari (in the Supreme Court) to review the decision on whether to grant it.

Federal prisoners file under a different statute, 28 U.S.C. 2255. Subsection (h) is the repeated attack crackdown. It requires a second or successive motion to be “certified as provided in section 2244 by a panel of the appropriate court of appeals to contain” either newly discovered evidence proving innocence or a new, retroactive rule of constitutional law. The distinction between do-overs and new claims in section 2244(b)(1) and (2) is absent. Does the language “as provided in section 2244” incorporate that section’s flat bar on all do-overs? Does it incorporate the bar on Supreme Court review of the certification decision? No and no. Continue reading . . .

Supreme Court Refuses to Lift Bar on President Using National Guard in Illinois

by · Dec 23, 2025 3:27 pm

Today the U.S. Supreme Court issued a brief decision in Trump v. Illinois, No. 25A443. The Court held that 10 U.S.C. § 12406(3) does not authorize the President to federalize the Illinois National Guard for the purpose of protecting federal personnel and property in Illinois.

I noted in this post some problems with that particular statute, including its requirement that orders be issued through the state governor. The Supreme Court’s decision focuses on a different aspect of the statute, the condition that “the President is unable with the regular forces to execute the laws of the United States.” Today’s opinion holds that the reference to “regular forces” limits the statute to laws that the military can enforce, and those are few and far between given the Posse Comitatus Act.

My previous post noted that using military forces to enforce laws in recalcitrant states is better done under one of the surviving remnants of the Ku Klux Klan Act of 1871.

As is common in these summary cases, the opinion of the court is brief and not designated as authored by any justice. Continue reading . . .

Meese Institute at AAF

by · Dec 22, 2025 9:33 am

Former U.S. Attorney General Edwin Meese III is a long-time friend and advisor to CJLF. His namesake legal institute has long been part of the Heritage Foundation, but he has announced a new one at Advancing American Freedom, an organization headed by former Vice President Mike Pence. AAF’s press release quotes Mr. Meese:

I am proud to announce Advancing American Freedom as the home for the new Edwin Meese III Institute for the Rule of Law. AAF has already established itself as a leader in the conservative movement.

I am confident that the lawyers and staff in the Meese Institute will continue to play a leading role in advancing the conservative legal movement in terms of their scholarship, and by working with allies to achieve our mutual objectives, educating the general public about important legal issues, helping to train the next generation of conservative lawyers, and defending the Constitution and rule of law.

The WSJ has this article. Continue reading . . .

Virginia legislation could release dangerous murderers and tie the hands of the parole board

by · Dec 11, 2025 2:09 pm

In the wake of the November election, with the governor’s veto threat removed, the Virginia legislature is proceeding to pass California-style legislation that takes soft-on-crime to new levels. Hans Bader has this post with the above title at Liberty Unyielding.

In a nutshell, the bill would make the crime that a prison inmate committed irrelevant to the parole decision for those inmates who were under 18 at the time they committed major felonies. Continue reading . . .

SCOTUS Monday

by · Dec 8, 2025 10:17 am

Today’s big SCOTUS news is the oral argument over whether Congress can prevent the President from firing officials of independent agencies. This has been a big debate in constitutional law going back at least as far as the administration of President Andrew Johnson (1865-1869). Update: Most observers of the argument expect the Administration position to prevail. See, e.g., this article in the WSJ.

There is far less action in criminal law. The court’s orders list today took no new cases, criminal or civil. Last Friday, the court issued a short list taking up four cases. The most newsworthy of these is the civil case on how broadly to construe the citizenship clause of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” In particular, which children born to noncitizen parents are “subject to the jurisdiction” of the United States? Continue reading . . .

Supreme Court November Arguments

by · Nov 3, 2025 11:32 am

The U.S. Supreme Court’s November argument calendar begins today. It is Monday, Tuesday, and Wednesday this week and next except for Veterans’ Day, next Tuesday.

Here are the criminal and law-enforcement-related civil cases on the docket:

Today, Nov. 3: Rico v. United States.  Whether the fugitive-tolling doctrine applies in the context of supervised release.

Next Monday, Nov. 10: Landor v. La. Dept. Corrections:  Whether an individual may sue a government official in his individual capacity for damages for violations of the Religious Land Use and Institutionalized Persons Act of 2000.

Next Wednesday, Nov. 12: Fernandez v. United States:  Whether a combination of “extraordinary and compelling reasons” that may warrant a discretionary sentence reduction under 18 U. S. C. §3582(c)(1)(a) can include reasons that may also be alleged as grounds for vacatur of a sentence under 28 U. S. C. §2255.

Next Wednesday, Nov. 12: Rutherford v. United States and Carter v. United States:  Nonretroactive changes in sentencing law as grounds for sentence reduction. Continue reading . . .

Federalist Society Convention — National Guard in Cities

by · Nov 3, 2025 11:14 am

The Federalist Society’s National Lawyers Convention is this week, Thursday through Saturday. It is being held at the Washington Hilton, having outgrown its traditional venue at the Mayflower Hotel. Many of the panels will be live-streamed for free.

Update 11/21: The panel recordings were offline for a time while they cleaned up the audio. The are accessible once again.

The panel for the Criminal Law Practice Group is “Crime, Cities, and the Guard: The Legal and Policy Dimensions of Domestic Troop Deployment.” Cully Stimson of the Heritage Foundation is on the panel. Fifth Circuit Judge Edith Jones is the moderator. The scheduled time is 3:45-5:00 EST pm Thursday, 12:45-2:00 pm PST.

Continue reading . . .

AI Hallucinations in Court Orders

by · Oct 29, 2025 10:31 am

The use of artificial intelligence (and sometimes artificial stupidity) has taken a dangerous turn. It’s deplorable when lawyers use AI to draft briefs with made-up precedents and false “facts,” at least without a thorough, human check. But briefs alone do not have legal effect, and the errors can be found by opposing counsel and the court.

But now there is a horrifying new turn. Daniel Wu reports for the Washington Post:

Two federal judges in New Jersey and Mississippi admitted this month that their offices used artificial intelligence to draft factually inaccurate court documents that included fake quotes and fictional litigants — drawing a rebuke from the head of the Senate Judiciary Committee.

Continue reading . . .

Guns and Drug Users

by · Oct 20, 2025 8:54 am

This morning the U.S. Supreme Court took up yet another Second Amendment case, United States v. Hemani, No. 24-1234.

The wide-ranging federal gun control statute (18 U.S.C. § 922) prohibits gun possession by, among many others, “(g) … any person … (3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802)).”

Does that law sweep too broadly? The federal courts of appeals are divided. Continue reading . . .

Restitution and Ex Post Facto

by · Oct 15, 2025 10:00 am

Yesterday, the U.S. Supreme Court heard argument on whether a restitution order under the federal Mandatory Victim Restitution Act is a criminal sanction, subject to the constitutional prohibition against retroactive legislation in the Ex Post Facto Clause. The case is Ellingburg v. United States, No. 24-482.

The legislation and its history provide enough indications that Congress intended a criminal sanction that the Solicitor General agreed with the defendant, and the court appointed an amicus curiae (friend of the court) to argue in support of the court of appeals’ judgment. Appointed amici do not often prevail in this situation, although it does happen. Not likely in this case. Continue reading . . .