Author: Kent Scheidegger

New Cases for the New Term

by · Oct 3, 2025 7:29 am

The U.S. Supreme Court’s term begins Monday. As usual, the court held a conference the Monday before to discuss which cases to take up from the long list that accumulated over the summer. A short list of cases taken was released this morning. A long list of orders from the conference will be released Monday. In past years the opening Monday orders list has typically had a long list of denials and no additional grants. Update (10/6): As expected, the Monday orders list has no additional grants.

Today’s list has five cases taken up, all civil cases, and only one even tangentially related to crime. This continues a disturbing pattern of disinterest in fixing the massive number of precedents in criminal law and procedure that are clearly wrong under the current doctrine of interpreting the Constitution according to its original understanding.

The tangentially related case is Wolford v. Lopez, AG of Hawaii, No. 24-1046. This is a gun control case regarding controlled carry on private property. Three years ago, the Supreme Court issued a major decision regarding the Second Amendment and original understanding (or “text, history, and tradition”) in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). Major decisions always involve a lot of detail-filling in the years following. In Wolford, the petitioner asked the high court to review two questions. It took one of them: Continue reading . . .

Walters: Newsom Delusional on Cal. Mask Law

by · Sep 24, 2025 11:35 am

Dan Walters has this column at CalMatters on California Governor Newsom, masked ICE officers, and the recently enacted state statute on masking. “Newsom and any other critics of ICE tactics are delusional if they believe federal officers will be arrested and prosecuted for wearing masks after SB 627 takes effect.” The column headline, probably written by an editor and not by Walters, is oddly equivocal: “Court rulings cast doubt on California mask ban for federal officers.” Walters doesn’t say the ban is in doubt. He says there is no way it will be enforced. Continue reading . . .

Guardsmen as Cops

by · Sep 22, 2025 12:59 pm

Barry Latzer and Peter Moskos have this article in the National Review. Sending in the National Guard for law enforcement has some benefits, but it is not an optimum solution.

But there are limits to what soldiers can do.

First, troops do not have police powers and cannot enforce laws or arrest lawbreakers. They are not trained in the chain-of-custody protocols needed for evidence preservation. Nor can they do the detective work needed to track down suspects.

Second, national guardsmen cannot prepare a case for the prosecutor. This is a vital job for which the police have training. Cops are taught how to interview victims and other witnesses, gather physical evidence, and preserve the chain of custody, and then testify in court to help obtain a conviction. Soldiers can’t do this, and without convictions, offenders cannot be sentenced and incarcerated for their crimes.

Continue reading . . .

Back-from-the-Dead Attack on Habeas Corpus Reform

by · Sep 3, 2025 5:03 pm

Like a bad horror movie, a monster we thought we had killed in a past episode is back. The monster is the notion that the most important element of Congress’s 1996 reform of federal habeas corpus violates Article III of the Constitution because it binds federal courts to state courts’ interpretation of the Constitution, precluding the federal court from exercising independent judgment. In a nutshell, the law requires that when a defendant’s constitutional claim has been decided on the merits in state court, a federal court is precluded from nullifying that judgment on habeas corpus unless the state court was clearly wrong based on U.S. Supreme Court precedent.

In 1998, Columbia Law Review published an issue devoted to habeas corpus. James Liebman and William Ryan advanced the thesis described above in “Some Effectual Power”: The Quantity and Quality of Decisionmaking Required of the Federal Courts, 98 Colum. L. Rev. 696. I wrote the response article, Habeas Corpus, Relitigation, and The Legislative Power, 98 Colum. L. Rev. 888.

The Supreme Court resolved the issue in Williams v. Taylor, 529 U.S. 362, 411 (2000). The resolution left a lot to be desired, but the result was that 28 U.S.C. § 2254(d) was enforced as the major reform it was intended to be, not watered down to a minor change based on the supposed constitutional limitation. Continue reading . . .

Compulsory Drug Treatment

by · Aug 21, 2025 1:15 pm

As I have noted before on this blog (see, e.g., this post) a major part of the homelessness problem is addiction. Charles Lehman has an article at City Journal titled Compulsory Drug Treatment Works: Activists who say otherwise hide their views behind a cloak of scientific objectivity.

The actual state of the research is not as definitive as that title implies. A big part of the difficulty in evaluating efficacy is the lack of a good comparison group, and there is disagreement as to what comparison is appropriate. Do people compelled to accept treatment do as well as those who seek it out? A “no” answer to that question would prove nothing, as the seekers had a better attitude out of the gate. The actual evidence is mixed.

Is compulsory treatment better than no treatment at all? Lehman cites a couple of studies that find an improvement while conceding that there is a selection bias problem in these studies as well. Random and quasi-random assignment studies are better, and they provide some evidence of a benefit. Continue reading . . .

Studies Confirm Leftward Bias in Higher Education

by · Aug 17, 2025 9:15 am

Anyone who is both honest and paying attention has known for a long time that higher education in the United States is tilted sharply leftward, and the bias has only gotten worse over the years. Two recent studies confirm how bad it has gotten.

Jon Shields and Yuval Avnur have an op-ed in the WSJ with the unfortunate title, Evidence Backs Trump on Higher Ed’s Bias: A massive database shows college courses dealing with race and the Middle East lean sharply left. I say unfortunate because any mention of President Trump triggers vehement reactions among people with TDS, and the issue is not about him. It existed long before he was President, and any solution will take time well beyond his departure.

The study uses a database that scrapes college syllabi from the web, including the assigned reading. The authors look particularly at the issue of race in the criminal justice system, and the result confirms what I have observed over years of hiring recent graduates. Continue reading . . .

San Francisco’s Summer of Tough Love

by · Aug 16, 2025 10:36 am

Maggie Grether reports in the WSJ:

Last year, the U.S. Supreme Court granted cities more power to penalize people for sleeping outside, handing city leaders a new tool with which to clear homeless people from the streets.

Since then, San Francisco has been among the most aggressive in wielding it.

Wow. For over 30 years, it has been an article of faith on the political left that taking any action against people who live on the streets and refuse to take any of the steps needed to be functional and self-supporting members of society was mean, cruel, heartless, and possibly Nazi. I wish I had a dollar for every time I’ve been called one of those names in this regard.

And now the epicenter of the American left is “among the most aggressive” in cracking down. There is nothing like the convert zeal. When decades of so-called “progressive” mismanagement has given a city a problem that is among America’s worst, it becomes the strongest in the opposite direction. Continue reading . . .

Combining IQ Scores in Atkins Cases

by · Aug 8, 2025 3:24 pm

When the U.S. Supreme Court decided in Atkins v. Virginia in 2002 that people who are mentally retarded (now called intellectually disabled) can’t be executed no matter how heinous the crime, it opened a can or worms regarding deciding who actually qualifies for that category. The line between that condition and the next level up (borderline intellectual functioning) is a matter of convention, not really science, so there is a range of disagreement.

A case now being briefed before the court, Hamm v. Smith, deals with the question of how to assess the IQ of someone who has been tested multiple times. The court briefly touched on that issue in 2014 in Hall v. Florida. The year before, Joel Schneider of Temple University proposed a method in a chapter of an edited book. The opinion of the court cited that chapter but brushed it off with the comment that his method is “a complicated endeavor.” Really? It’s not all that complicated. I ran the numbers myself on the data in the Smith case. It wasn’t simple, but it was simpler than computing my 2024 income tax return.

As a preliminary matter, the makers of IQ tests regularly publish a “standard error of measurement” (SEM). That number represents, in a statistical way, the scatter one could expect in giving a test multiple times to the same person or to multiple people with identical true IQs. It doesn’t account for a host of other possible errors such as incorrect administration of the test, poor testing conditions, transient mental or physical problems of an examinee having a bad day, or–the big one in criminal cases–malingering.

So, putting those aside, here is how we do the math on the Smith case with the Schneider method. Continue reading . . .

Exceptionally Bad Reporting on the Glossip Case

by · Jul 24, 2025 9:29 am

Reporting on court cases is often bad, but NBC has an exceptionally atrocious report on the Glossip case here. The article says:

The witness, Justin Sneed, admitted killing Van Treese but told prosecutors that the killing was at Glossip’s direction in exchange for $10,000. Sneed, a motel handyman, was sentenced to life for the crime, while Glossip was given the death penalty.

In the Supreme Court’s majority ruling, Justice Sonia Sotomayor wrote that prosecutors “knew Sneed’s statements were false” and that “because Sneed’s testimony was the only direct evidence of Glossip’s guilt of capital murder, the jury’s assessment of Sneed’s credibility was necessarily determinative here.”

Anyone reading that who did not already know the facts of the case would take it to mean that the Supreme Court held that the prosecutors knew Sneed’s statements about the crime were false. That is, a reader would naturally read it to say that the statements referred to in the second paragraph are those described in the first.

But that implication is false. No court has ever held that Sneed’s statements about the crime are false. The statements in the Supreme Court case involved collateral matters about Sneed’s treatment with lithium while in jail. Continue reading . . .