Category: U.S. Supreme Court

Counterman Follow-Up: Prosecuting Stalkers

by · Feb 7, 2025 4:00 pm

Two years ago, the U.S. Supreme Court decided in Counterman v. Colorado that if a stalker is prosecuted on the ground that his communications are threats, the prosecution must show a mental state of at least recklessness regarding the threatening nature of the communications. At the time, I thought it was unfortunate that the case went up as a “threats” case because there was a much better basis available. See this post. With stalkers, it is usually not so much the threatening content of the communication that is the problem, but rather the extreme persistence even after they have been told to buzz off. A long series of cases gives the government much more latitude to regulate the “time, place, and manner” of speech. The failure of the majority opinion to address this raised a danger that stalkers could get off when the case cannot be made that the speech amounts to a threat and the stalker knows or should know that.

Sure enough, this happened in Colorado, with the trial judge acquitting the stalker. But in Colorado the prosecution can ask the Court of Appeals to disapprove the trial court’s ruling for future cases, even though this perpetrator cannot be retried. Continue reading . . .

Immigration Enforcement, the Laken Riley Act, and State Standing

by · Jan 11, 2025 10:08 am

The House of Representatives has passed the Laken Riley Act by a whopping 264-159. The bill may set up a constitutional showdown on the question of the standing of states to sue federal officials for failure to enforce federal law, but not any time soon.

The bill adds theft offenses to the crimes for which aliens may be taken into custody. In addition, though, it grants standing to state attorneys general to sue the Secretary of Homeland Security for a variety of failures to enforce several immigration laws. Can Congress do that? Continue reading . . .

Former AG Meese on Trump v. New York

by · Jan 9, 2025 9:02 am

Former Attorney General Edwin Meese, a long-time friend and advisor to CJLF, has filed this amicus brief in the Supreme Court in Trump v. New York, No. 24A666, noted in yesterday’s post. The brief is joined by Professor Steven Calabresi. Gene Schaerr is counsel of record.

The brief discusses long-standing positions taken by the USDoJ Office of Legal Counsel regarding prosecution of sitting Presidents and argues for the case to be dismissed rather than merely stayed. Continue reading . . .

Trump Stay Application

by · Jan 8, 2025 10:30 am

For those following the story, the U.S. Supreme Court docket on President-elect Trump’s stay application is here.

Stay applications are submitted to the individual Supreme Court Justice assigned to the circuit. New York is in the Second Circuit, which is assigned to Justice Sotomayor, who is from New York. In important cases, the circuit justice refers the case to the full court, and I have no doubt Justice Sotomayor will do so for the decision on the merits. Continue reading . . .

Sorry Joe, No Midnight Justice for You

by · Nov 10, 2024 10:55 am

In 1800, Jefferson’s Republicans routed Adams’s Federalists. During the transition period, the Federalists still controlled the government. They created many new judicial positions and filled them quite swiftly. The appointees were called the Midnight Judges, which has been a term of derision for this maneuver ever since.

Some people have been calling on Justice Sonia Sotomayor to retire abruptly in mid-term so that President Biden could replace her with a younger justice during the transition period. Justices rarely step down in mid term, as it would be disruptive to the workings of the Court. Doing so now would be correctly perceived as blatantly political, something the Court surely does not need.

Jess Bravin reports for the WSJ:

Despite calls from some liberal activists for Justice Sonia Sotomayor to step down while Democrats can fill her seat before political power changes hands in January, she has no plans to retire from the Supreme Court, people close to the justice said. Continue reading . . .

SCOTUS’s Unclear Reversal of Capital Case It Deems “Unclear”

by · Nov 4, 2024 10:31 am

The U.S. Supreme Court has finally acted on Alabama’s petition in the case of murderer Joseph Clifton Smith. The high court’s repeated relisting of this case for consideration in an unprecedented number of conferences has drawn considerable speculation as to what was going on.

The high court did not take the case up for full briefing and argument but instead sent it back to the Eleventh Circuit for a do-over. That is most unfortunate, because they failed to clean up a mess of their own creation.

In the 1989 case of Penry v. Lynaugh, the Supreme Court ruled correctly that its precedent in Lockett v. Ohio requires capital sentencing juries to consider mental retardation (as it was then known) as a mitigating circumstance. (Whether Lockett itself was correctly decided is another question. See this article.) In 2002, the high court decided that wasn’t good enough, and it made mental retardation (as it was still known then) a categorical exclusion. Along with the constitutional problems, there is a huge practical problem. The Court tried to draw a bright-line rule with a paint roller.

Intelligence is a continuous spectrum, and the breakdown into categories is entirely a human construction. There are no natural dividing lines set by objective science. The lines are therefore subject to manipulation, as discussed in this post. Continue reading . . .

Supreme Court Takes Up Drug Smuggler Deportation Case

by · Nov 4, 2024 9:11 am

The U. S. Supreme Court issued an orders list today, taking up one case, Riley v. Garland, No. 23-1270. Pierre Riley is a citizen of Jamaica, caught eight years ago smuggling over a metric ton of marijuana. Upon his release from prison, the immigration authorities began deportation on the ground that he had committed an aggravated felony.

An immigration judge granted Riley’s application for asylum, but the Government appealed to the Board of Immigration Appeals, which reversed and reinstated the deportation order.

The case involves technical questions regarding the jurisdiction and timing for a federal court of appeals to review immigration decisions. Continue reading . . .

Prosecutors Taking a Dive

by · Oct 28, 2024 9:51 am

The Anglo-American system of justice has always depended on having adversarial advocates to present both sides of any controversy. But what happens when a prosecutor “takes a dive” and joins a convicted defendant’s efforts to overturn his conviction? U. Utah Law Professor Paul Cassell has this op-ed in The Hill on that subject. He focuses particularly on the Glossip case from Oklahoma presently before the Supreme Court, in which he represents the victim’s family. See this post.

This is not to say that confessions of error are always inappropriate. Sometimes they are the right thing to do. The problem arises when political or ideological considerations enter into the picture. There is a strong basis for suspicion that is happening in the Glossip case, where the AG’s investigator never even asked the trial prosecutor about the meaning of cryptic notes that lie at the heart of the present case. In other cases, there is no doubt at all. Continue reading . . .

U.S. Supreme Court Takes Up Supervised Release Revocation Case

by · Oct 21, 2024 9:27 am

The United States Supreme Court issued an orders list this morning, taking up one criminal case. In Esteras v. United States, No. 23-7483, the high court will ponder what factors a federal district court may consider when deciding whether to revoke the supervised release of a federal convict. It is, once again, a question of interpretation of federal criminal statutes which will have little, if any, impact on the state courts that handle most criminal cases in this country. Continue reading . . .

Glossip Case in SCOTUS Tomorrow

by · Oct 8, 2024 11:11 am

The notorious case of Richard Glossip will be heard in the U.S. Supreme Court tomorrow. With the Oklahoma Attorney General supporting Glossip, the court appointed an amicus, Christopher Michel, to defend the decision of the Oklahoma Court of Criminal Appeals. CJLF’s amicus brief in the case is here. Our press release is here. Utah law professor Paul Cassell has a three-part series of posts at the Volokh Conspiracy titled Glossip v. Oklahoma: The Story Behind How a Death Row Inmate and the Oklahoma A.G. Concocted a Phantom “Brady Violation” and Got Supreme Court Review here, here, and here. Continue reading . . .