by Bill Otis · Jan 26, 2022 11:27 am
Mike has noted the news being reported this morning that Justice Stephen Breyer will retire at the end of the Court’s current Term. It’s true, as Mike observes, that this will give our aging President the chance to solidify the liberal wing on the Court with someone 30 or 40 years younger than Breyer. But there are two other features about today’s news worth noting.
by Michael Rushford · Jan 26, 2022 10:12 am
Pete Williams of NBC News reports that Associate Justice Stephen Breyer plans to retire from the U.S. Supreme Court at the end of the current term. Justice Breyer, 83, has been pressured by progressives to retire after Joe Biden won the presidency last year. Liberal U.C. Berkeley law school dean Erwin Chemerinsky urged Breyer to step down and put “the good of the institution” ahead of his personal interests. The progressive group Demand Justice actually hired a billboard truck to drive around Washington last year with a “Breyer Retire. It’s time for a Black woman Supreme Court Justice,” sign. Recognizing that optics are the priority among liberals Biden has already pledged to do this. Williams speculates that federal judge Ketanji Brown Jackson and CA Supreme Court Justice Leondra Kruger are likely candidates. Breyer’s replacement will not change the conservative/liberal balance on the court, but a young appointee, like Kruger at 45 or Jackson at 51, could serve for decades and be part of a future liberal majority.
by Kent Scheidegger · Jan 17, 2022 1:45 pm
At its conference last Friday, the U.S. Supreme Court took up three cases related to crime and law enforcement. One raises the question of whether a police officer’s failure to give Miranda warnings creates a civil liability, in addition to making the confession inadmissible in a criminal case. A second involves a challenge to a state’s method of execution, offering an alternative not authorized by state law. A third involves proceedings in federal district court to develop evidence for a habeas corpus petition without regard to whether the evidence could even be considered in deciding the case. Continue reading . . .
by Kent Scheidegger · Dec 24, 2021 10:38 am
The U.S. Supreme Court has been criticized for its “shadow docket” — summary orders that grant or vacate stays or preliminary injunctions without oral argument and often without an opinion of the Court. Although these orders are preliminary matters, they often control events for an extended time. Sometimes they determine the outcome as a practical matter, such as denying a stay of execution in a capital case.
In a change from the usual practice, the Court will hold oral argument on Friday, January 7, in two sets of applications requesting stays in matters involving Covid mandates. Continue reading . . .
by Kent Scheidegger · Dec 6, 2021 9:56 am
Not too much criminal law action in the U.S. Supreme Court today. No new cases were accepted for full review, and there are no opinions of the Court.
There is one case on qualified immunity in the Opinions Relating to Orders bin. The case indicates little appetite on the part of the Court to make any major changes in this area. Continue reading . . .
by Kent Scheidegger · Nov 10, 2021 9:07 am
Yesterday after listening to the oral argument in Ramirez v. Collier, the Supreme Court’s clergy-in-the-execution-chamber case, I noted that the most important question is not whether the State or the murderer wins on the details of this case but whether we are going to have a permanent new layer of litigation further delaying already badly delayed justice in these cases.
Now we have the transcript of the argument and Amy Howe’s characteristically thorough and unbiased report. What the justices said during the argument is interesting, but perhaps more interesting is what one justice did not say. Justice Gorsuch is usually active in argument, but in this case he said zilch. Given that the other justices may very well be divided 4-4, the decision in this case may rest on him. Continue reading . . .
by Kent Scheidegger · Nov 9, 2021 10:50 am
The anti-death-penalty crowd hit the jackpot some years back when they discovered that they could add a new layer of litigation to a capital punishment process that already has too many layers. Civil litigation over the method of execution has become routine. It has stopped executions in some states but not others. The promising new tool for obstruction is civil litigation over whether the state has gone far enough to accommodate the inmate’s real or fabricated religious needs during the execution process.
This is the real issue beneath today’s argument in the U.S. Supreme Court in Ramirez v. Collier, No. 21-5592. The case was discussed in this post on October 25. Continue reading . . .
by Kent Scheidegger · Nov 1, 2021 4:05 pm
The President cannot amend the Constitution. Congress cannot by itself. The legislatures of the States cannot, by themselves. Only 2/3 of both houses of Congress and 3/4 of the state legislatures (or convention alternatives) can do that, according to Article V of the Constitution. The Founders made it very difficult on purpose, as our fundamental law should rarely change, and only if there is a genuine consensus to change it.
But does the American Association on Intellectual and Developmental Disabilities (AAIDD), a private organization that the people have no voice in selecting, have the power to amend the Eighth Amendment by itself and widen the class of people that amendment (the Supreme Court says) exempts from capital punishment regardless of how horrible the crime or how clearly premeditated it was? That is one possible interpretation of the Supreme Court’s misguided 2017 decision in Moore v. Texas. See this post. The Supreme Court today turned down a case, over the dissent of Justices Sotomayor, Breyer, and Kagan, presenting that question. Continue reading . . .
by Kent Scheidegger · Oct 25, 2021 1:51 pm
The U.S. Supreme Court had scheduled two murder cases, both involving defendants named Ramirez, for argument on November 1. Last Friday, however, the Court bumped them and scheduled arguments on the controversial Texas abortion law for that date. Yes, Virginia, there really is a Supreme Court issue more controversial than capital punishment. Continue reading . . .
by Kent Scheidegger · Oct 25, 2021 10:43 am
Is the Federal Death Penalty Act’s evidence provision unconstitutional? Does the defendant have a constitutional right to introduce evidence of marginal probative value outweighed by other considerations, which the statute says the trial judge may exclude?
These are the surprising implications of the defense argument in the Boston Marathon Bomber case, argued in the U.S. Supreme Court October 13. I suppose if you are defending the indefensible you have to argue something. But it is surprising when a lawyer barely mentions the primary ground of the decision she is asking to have affirmed. Continue reading . . .
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