Category: U.S. Supreme Court

SCOTUS Thursday

The U.S. Supreme Court has been issuing opinions only on Thursdays this month, with only orders lists on Mondays. That is a departure from past practice. The court issued three opinions today. It was a good day for landowners and homeowners, but no criminal cases.  One law-enforcement-related civil case was decided, but the issue was purely one of civil procedure. Continue reading . . .


The U.S Supreme Court issued a regular Monday order’s list today. No new cases were taken up for full briefing and argument. One civil case was summarily reversed.

We were disappointed that the court declined to take up the case of South Carolina murderer Quincy Allen, No. 22-490. CJLF had filed a friend of the court brief supporting the state’s petition. The case seemed to us to be a good vehicle for reconsidering a particularly egregious old precedent in which the court grafted a constitutional limit on to the Eighth Amendment because a majority of the justices thought it was a good idea, not because it has any basis whatever in the text or history of the Constitution. Continue reading . . .

The “True Threats” Doctrine

On Wednesday the United States Supreme Court heard oral argument in Counterman v. Colorado, No. 22-138 (transcript here, audio here).

The issue in this case involves how courts should determine what constitutes a “true threat.”  True threats are not protected by the First Amendment.  The question before the Court is whether a state may define speech to be a “true threat” if it would be regarded by a reasonable person as a true threat, or whether the First Amendment requires a state to prove beyond a reasonable doubt that the speaker subjectively intended the communication to be a threat.

In this case, Billy Raymond Counterman, was convicted of stalking and was sentenced to 4.5 years in prison for sending thousands of private Facebook messages to a local singer/songwriter named C.W. C.W. found the private messages to be “weird” and “creepy” and did not respond to any of them. She blocked Counterman from her Facebook accounts, but he created new accounts and continued to message her. As time went on without response from C.W., Counterman’s messages became more angry and alarming, causing C.W. to become extremely fearful and scared. Counterman also alluded to making physical sightings of C.W. in public. Continue reading . . .

Forfeiture Procedure

The U.S. Supreme Court today took up a case on forfeiture procedure for full briefing in the coming months and argument next fall.

The Question Presented in Culley v. Marshall, No. 22-585, as framed by the attorney for the petitioner, is:

In determining whether the Due Process Clause requires a state or local government to provide a post seizure probable cause hearing prior to a statutory judicial forfeiture proceeding and, if so, when such a hearing must take place, should district courts apply the “speedy trial” test employed in United States v. $8,850, 461 U.S. 555 (1983) and Barker v. Wingo, 407 U.S. 514 (1972), as held by the Eleventh Circuit or the three-part due process analysis set forth in Mathews v. Eldridge, 424 U.S. 319 (1976) as held by at least the Second, Fifth, Seventh, and Ninth Circuits.

Counterman v. Colorado, No. 22-138, on anti-stalking laws and the First Amendment, will be argued Wednesday. CJLF’s amicus brief is here.

Getting Off Scot Free for a Technical Error?

Paul Larkin and Cully Stimson have this article in the Federalist Society Review previewing the case of United States v. Smith, No. 21-1576, set for argument in the Supreme Court Tuesday, March 28.

Smith was tried in the wrong district, so the Eleventh Circuit reversed his conviction and granted him a new trial in the correct district. He claims that’s not enough; he should get off completely. Larkin and Stimson explain why that is not the law. Continue reading . . .

SCOTUS Monday and Standing

This morning was an order list release day at the U.S. Supreme Court. No decisions were issued and no new criminal cases were taken. The court took up a case on admiralty law and choice-of-forum clauses in contracts.

The court turned down a case on standing in an Establishment Clause case. We are interested in standing here at CJLF because we sometimes represent victims of crime seeking to have the perpetrators punished according to the judgment, and such efforts are frequently challenged by saying the victims have no standing. Continue reading . . .

Sentencing Statutes and Logic for Lawyers

Statutes are generally drafted by lawyers on legislators’ staffs. Unfortunately, too many lawyers did not take basic logic as undergraduates, and it is not generally taught in law school. The U.S. Supreme Court has now taken up a case to unravel the logic of a bit of statutory drafting that could have been written more clearly. Continue reading . . .

Supreme Court Reinstates Review of Arizona Murderer’s Case

The U.S. Supreme Court today vacated an Arizona Supreme Court decision denying a murderer’s challenge to his death sentence. At the time the high court took up the case, CJLF considered filing an amicus brief in support of the state but decided we really couldn’t support the Arizona court’s decision. I am not at all surprised at the outcome but a bit surprised the state got four votes. Continue reading . . .