New Cases for the New Term

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:

Whether the Ninth Circuit erred in holding, in direct conflict with the Second Circuit, that Hawaii may presumptively prohibit the carry of handguns by licensed concealed carry permit holders on private property open to the public unless the property owner affirmatively gives express permission to the handgun carrier?

The court turned down a second question:

Whether the Ninth Circuit erred in solely relying on post-Reconstruction Era and later laws in applying Bruen’s text, history and tradition test in direct conflict with the holdings of the Third, Fifth, Eighth and Eleventh Circuits?

What is strange, though, is that the high court seems more interested in filling details in Second Amendment law than it is in applying the Bruen principle to other provisions of the Bill of Rights. There are a lot of glaring violations of that principle, where past Justices grafted rules on to the Bill of Rights because they thought they were good policy without a shred of basis in the “text, history, and tradition.”

Every day in courtrooms throughout America, stone cold guilty criminal defendants move to exclude clear, reliable evidence of their guilt on a ground unknown to the law at the time of the Founding and for a century afterward: whether the officer obtaining the evidence stepped over the fuzzy Fourth Amendment line of “unreasonable” search or seizure.

In states with capital punishment, thoroughly deserved sentences go unexecuted for decades while lawyers and courts debate whether the defense lawyer did a good enough job presenting evidence of the defendant’s background that has nothing to do with the crime. States were forced to make that evidence admissible because the Supreme Court just decided that the Eighth Amendment requires it, a wild extrapolation that would never have occurred to any of the people involved in enacting that amendment.

On and on it goes, as the course of justice is blocked with pseudo-constitutional debris handed down by philosopher kings overriding the will of the people. That is not how democracy is supposed to work, but the current court is curiously uninterested in doing anything about it.

Other cases taken today involve sovereign immunity, liability of truck lines for hiring bad drivers, and compensation for a wrongful tax sale of property.