Category: U.S. Supreme Court

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 . . .

U.S. Supreme Court Arguments This Week — Habeas Corpus

by · Oct 13, 2025 3:51 pm

The U.S. Supreme Court has a two-day argument week this week, as today is Columbus Day. Three of the four cases are criminal cases, but none is a blockbuster. We have one case on habeas corpus, one on restitution and retroactivity, and one on the Fourth Amendment and emergency entry to houses. I will discuss the habeas corpus case in this post.

Bowe v. United States, No. 24-5438, on tomorrow’s (Tuesday’s) calendar, relates to a problem interpreting the Antiterrorism and Effective Death Penalty Act (AEDPA) with regard to successive petitions by federal versus state prisoners. An unusual aspect of the case, as far as Supreme Court habeas corpus cases go, is that the petitioner is actually correct, in my opinion. The Solicitors General of both the current and previous administrations think so too on one of the questions, so a special amicus has been appointed to argue in support of the lower court decision. Continue reading . . .

Standing Case in the Supreme Court

by · Oct 10, 2025 11:26 am

One of the requirements to file a civil suit in federal court is “standing.” That is, the plaintiff must have a sufficient interest in the subject matter. Just being against a law on principle is not enough. Determining what interests are sufficient has been a long-standing problem, and the rules are sometimes loosened when they operate, in practice, to completely immunize questionably constitutional laws from any challenge. The case of Bost v. Illinois Board of Elections, which was argued in the U.S. Supreme Court on Wednesday, is a standing case.

CJLF has been involved in standing battles in our work on behalf of victims of crime. When we challenge the early release of a murderer or rapist on behalf of a victim or victim’s family, we are regularly met with an objection that the victim has no standing. California Attorney General Rob Bonta has fought us tooth and claw on this, although he is much milder in his objections to third parties seeking to help murderers. (See pp. 14-15 of this brief.) Continue reading . . .

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 . . .

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 . . .

New Cases at the Supreme Court

by · Jul 3, 2025 8:27 am

This morning, the U.S. Supreme Court took up five cases for argument next term, two of which are consolidated. None are criminal cases. One case, Oliver v. Brandon, Mississippi involves the scope of the rule of Heck v. Humphrey, which prevents the use of civil litigation to do an end-run around the limits on collateral attack on state convictions in habeas corpus law. We will take a closer look at that one, although on its facts it appears that the plaintiff has a valid complaint.

Supreme Court Nixes Nationwide Injunctions

by · Jun 27, 2025 8:09 am

The Supreme Court held today that the statute that grants federal courts authority in “suits in equity” does not empower a court to issue an injunction against enforcement of a statute or executive order that applies nationwide, as opposed to one that only protects the plaintiffs in the case.

The high court based its opinion on the statute only, not Article III of the Constitution as the government had requested. That means that Congress can still enact a new statute spelling out when, if ever, nationwide injunctions can be ordered. Bills are pending in Congress, as I noted in this post. Congress should proceed with that effort. Sometimes such injunctions are needed, but swift review must be provided so that a single judge does not halt enforcement on a dubious theory, especially where the same theory has been rejected by other district judges.

Continue reading . . .