by Kent Scheidegger · Nov 20, 2020 10:38 am
The U.S. Supreme Court today took up two cases for full briefing and argument. United States v. Cooley, No. 19-1414, is an exclusionary rule case involving the authority of tribal officers to stop non-Indians on tribal land. Caniglia v. Strom, No. 20-157, is a civil suit regarding whether the “community caretaking” exception to the search warrant requirement extends to entry into a home. Continue reading . . .
by Bill Otis · Nov 10, 2020 10:54 am
In the wake of last week’s election, Republicans currently have 50 Senate seats and Democrats have 48. Depending on the results of two special elections to be held in Georgia on January 5, Democrats could conceivably get to a 50-50 tie, with VP-elect Harris holding the tie-breaking vote. That could mean the passage of radical measures such as defunding the police or packing the federal courts, in particular the Supreme Court. But we now know that, regardless of the outcome of the special elections, those things will not be happening in the upcoming Congress.
by Kent Scheidegger · Nov 3, 2020 4:18 pm
Today, the U.S. Supreme Court heard oral argument in Jones v. Mississippi, No. 18-1259, its third case in eight years on the subject of life in prison without parole for murderers who kill before their 18th birthdays. (Transcript here; audio here; docket here.)
Most of the discussion involved two precedents: Miller v. Alabama (2012), which held that LWOP for juvenile murderers must be discretionary, not mandatory, and Montgomery v. Louisiana (2016), which held that Miller was fully retroactive and, in the process, announced that Miller categorically exempted from LWOP all juvenile murderers except those “whose crime reflects irreparable corruption,” whatever that means.
The most interesting development in the argument, to my mind, was when Justice Elena Kagan, the author of Miller and a member of the Montgomery majority, characterized Montgomery as “an aggressive reading” of Miller. I would use stronger language, but considering the source “aggressive” is pretty strong. Might the high court backpedal on Montgomery and return to what Miller actually holds? Continue reading . . .
by Kent Scheidegger · Nov 2, 2020 8:55 am
When is a protest organizer liable under state tort law for injury to a police officer when the protest turns violent? When is such liability blocked by the First Amendment?
The U.S. Supreme Court today summarily vacated and remanded a decision of the U.S. Court of Appeals for the Fifth Circuit. The Court of Appeals had ruled on the constitutional question without first adequately resolving the state law question. Continue reading . . .
by Kent Scheidegger · Nov 2, 2020 8:18 am
The U.S. Supreme Court released two summary opinions today. One case involves a suit by a prisoner against corrections officers. A second is a suit by a police officer is against a protest organizer for violence by a protester. Both cases were sent back for further consideration. This post addresses the prison case. Continue reading . . .
by Kent Scheidegger · Oct 28, 2020 3:46 pm
Appellate court opinions and news reports about cases often begin with a brief statement of the facts of the case. Too often, though, those “facts” are not facts at all. Sometimes they are merely allegations in a case that has not yet been tried, assumed by the court due to the procedural posture of the case. Sometimes they are representations by an attorney on one side. The public is often left with a seriously distorted view of what really happened in the case.
Jones v. Mississippi, to be argued in the U.S. Supreme Court on election day, is a widely misreported case. The brief by Jones’s lawyers recite his own self-serving testimony about the circumstances of his murder of his own grandfather as if they were actual facts. Continue reading . . .
by Kent Scheidegger · Oct 27, 2020 2:40 pm
The following is a transcript of Justice Barrett’s remarks at her swearing in yesterday. It was created by copying the automated captioning from CSPAN and then editing while listening to the recording. Continue reading . . .
by Bill Otis · Oct 22, 2020 4:56 pm
That may be the question, but Joe Biden won’t be giving us the answer. Instead, he’s going to create a commission to “study” the issue of court packing, and other supposed judicial “reforms,” and get back to us.
Creating a commission is one of the oldest dodges in DC, so I suppose I shouldn’t be surprised that Mr. Biden would recur to it — he having been in this town since the War in Vietnam. But it’s still just a dodge. Continue reading . . .
by Kent Scheidegger · Oct 21, 2020 4:49 pm
This term the Supreme Court seems to be interested in the law of arrests. Last week, the Court held oral argument in the case of Torres v. Madrid on the subject of what is a “seizure.” (My FedSoc podcast is here.) The common law rules on what is an “arrest” figured prominently in the argument, although there is some question of whether an arrest is necessarily a seizure.
On Monday, in an order that attracted little notice among more politically hot potatoes, the Court took up the case of Lange v. California, No. 20-18. Lange raises the question of whether a person evading arrest for a misdemeanor can thwart the pursuit, at least for the time being, by running into his home.
Continue reading . . .
by Kent Scheidegger · Oct 13, 2020 3:46 pm
What do statutes of limitations and the constitutional ban on “cruel and unusual punishments” have to do with each other? The logical answer is “nothing.” But the law follows strange paths, and the two issues crossed in today’s Supreme Court argument on the statute of limitations for rape in the military justice system. Continue reading . . .
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