Category: Supreme Court


The NYT on the UCMJ


In today’s New York Times, Linda Greenhouse points out what appears to be a factual error in the Kennedy v. Louisiana majority opinion. Justice Kennedy’s majority said that 30 of the 36 states with the death penalty and the federal government do not proscribe the death penalty for child rape. But the Uniform Code of Military Justice was revised by Congress in 2006 to add child rape to the military death penalty. Greenhouse notes that this provision of military law escaped the attention not only of the members of the Court, but also the attention of the ten parties who filed briefs in the case.

In addition to questioning why no one in the federal government brought the UCMJ provision to the attention of the Court, Greenhouse explores how the parties’ research failed to uncover the provision. Jeff Fisher’s explanation of how his appellate team found an older provision but not this more modern one reads like an ad for Shepards. And lawyers for the state of Louisiana, the party that would have been helped by the information, are obviously ducking the Times’ calls.

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Meet Your Second Amendment: D.C. v. Heller Decided (Updated)


It’s a momentous day. With the Supreme Court’s landmark Second Amendment decision this morning in District of Columbia v. Heller, American constitutional law has just gained a newly enforceable, individual liberty. The imposition by the U.S. government of a U.K.-style system of sweeping gun bans and prohibitions on armed self-defense is now off the table. Such laws are a violation of the U.S. Constitution.

In this post, I want to look back at the issues I discussed in my earlier CoOp post, “What to Watch for in D.C. v. Heller,” and offer some brief thoughts about how they featured in Justice Scalia‘s opinion for the Court. Before I begin, let me recommend Larry Solum’s typically thoughtful analysis of many of the interpretive techniques employed in the Heller opinion.


1. Recognition of an Individual Right to Arms: You bet. The right is recognized as squarely individual; the “militia” referred to in the preface was and is a popular militia. The Court rejects any requirement of participation in the National Guard or another organized militia.

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So Let’s Say Justice Scalia Writes D.C. v. Heller …

Antonin_Scalia,_SCOTUS_photo_portrait.jpg.jpgTomorrow may be the big day. (Or we might have to wait again. At least I’m improving my calcium intake.) Court-watchers have noticed that, with the issuance of yesterday’s opinion by Justice Souter in the right-to-counsel case of Rothgery v. Gillespie County, the only case left from the Supreme Court’s March sitting is D.C. v. Heller, and the only Justice who hasn’t written any majority opinions from that sitting is … Justice Antonin Scalia. Tom Goldstein thinks it’s “exceptionally likely” that Scalia was assigned to write the Court’s lead opinion in the most important Second Amendment case in American history.

What could that mean for the decision in Heller? As I’ll explain, I think a Scalia-authored opinion would be great news for those who are mainly concerned with the Second Amendment as a limit on federal gun control, but somewhat ambiguous news — at least in the short term — for those who hope for the incorporation of the Second Amendment as a check on state and municipal governments.

In the Heller oral argument, Justice Scalia was the clearest voice in favor of the broad individual rights view of the Second Amendment — what pro-rights scholars often call the “Standard Model.” He emphatically rejected the various “collective rights” theories of the Second Amendment, under which it protects only a prerogative of state governments rather than a right of individuals. Justice Scalia also brought up Blackstone’s emphasis on the right to arms as a necessary adjunct of the right of self-defense, and suggested that D.C.’s high crime rates, far from supporting gun prohibition, were instead “[a]ll the more reason to allow a homeowner to have a handgun.” Scalia suggested that under U.S. v. Miller, individuals have a Second Amendment right to keep and use a broad class of firearms in “common use” at this time — though not arms that are “uncommon” for private citizens, such as machine guns.

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What to Watch For in D.C. v. Heller

lookout2.jpgThe Supreme Court’s next scheduled opinion day, Monday, June 16, could yield a decision in the landmark Second Amendment case of D.C. v. Heller. My guess is that we’ll see Heller on or after June 23, at the very end of the Term. I guess that simply because Heller is the biggest case of the year, it raises wide-open constitutional issues, and it was argued late in the Term, in mid-March.

Either way, here are key points to look for when the opinions arrive. As you’ll see, many of them only come into play if a majority of the Court interprets the Second Amendment as securing an individual constitutional right to arms. Since I think this is the more likely (but by no means guaranteed!) outcome, I’ll run with that assumption in much of what follows.

1. Recognition of an Individual Right to Arms? The threshold issue. Will the Court recognize a genuinely individual right to arms, i.e., one that is not contingent upon participation in a state-regulated military organization? Like most observers, I interpreted the oral argument as revealing that there were between five and seven votes among the Justices for a genuine individual right.

2. What Purposes Does the Right Protect? Privately owned firearms can potentially serve a variety of legitimate purposes. Some of these are civic purposes: deterring tyranny; protecting against invasion or internal disorder; promoting military readiness through individual practice with firearms. Others are private, personal purposes: self-defense against criminal violence; hunting; participating in the shooting sports. Assuming that the Court recognizes an individual Second Amendment right to arms, will it interpret that right in a way that stresses protection for the private purposes of citizen arms — as urged by the provocative amicus brief of Professor Nelson Lund? Or will it emphasize the civic purposes of citizen arms — as it seemed to do in the 1939 Miller decision? Or will it (correctly, in my view) embrace both kinds of purposes, as do many state constitutional decisions? The answer to this question will greatly influence the success of future Second Amendment challenges to restrictive gun legislation. …

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Confusion in United States v. Santos

The Supreme Court this past Monday handed down its decision in United States v. Santos, a case that turns on whether the phrase “proceeds of some form of unlawful activity” in the federal money-laundering statute, 18 U.S.C. §1956(a)(1), means “profits” (net income) from the unlawful activity or simply any “receipts” (payments) from the unlawful activity. (The unlawful activity at issue in the case was illegal gambling). In a closely divided ruling, the Court opted for the “profits” construction. But discerning the precedential effect of the Court’s ruling is a little like trying to make sense of Alice in Wonderland. The Justice’s opinions in the case are of the by-now-familiar fractured variety: Justice Scalia authored the plurality opinion, joined by Justices Souter, Ginsburg, and Thomas — except for Part IV, in which Justice Thomas did not join; Justice Stevens concurred in the outcome reached by the plurality, but not in its reasoning; Justice Alito authored a dissenting opinion joined by Chief Justice Roberts, Justice Kennedy, and Justice Breyer; and Justice Breyer issued a separate dissent joined by no one else.

Significantly, Part IV of the plurality opinion, which Justice Thomas refused to join, focuses entirely on the plurality’s differences with Justice Stevens and ends by seeking to characterize “the stare decisis effect of Justice Stevens’ opinion” — given that his vote is necessary to the outcome of the case. Justice Stevens’ opinion parts company with the plurality because Stevens refuses to construe the word “proceeds” in the federal money laundering statute always to mean “profits” from the underlying predicate crime. Rather, he argues that “proceeds” can mean either “profits” or “receipts,” depending on the unlawful activity at issue. Characteristically for Justice Stevens, the determinative factor is Congress’ intent regarding the particular unlawful activity at issue. In the case of illegal gambling, however, Justice Stevens is unable to discover any specific legislative intent about whether “proceeds” was meant to cover merely “profits” or also “receipts.” So, faced with (1) “a lack of legislative history speaking to the definition of ‘proceeds’ when operating a gambling business is the ‘specified unlawful activity’” and (2) his “conviction” that “Congress could not have intended” the four-fold sentence enhancement (from 5 to 20 years) that would result from treating the use of gambling receipts to pay the expenses of operating an illegal gambling business as a separate offense (money laundering) from the operation of the gambling business itself (underlying offense), Justice Stevens agrees with the plurality that the Rule of Lenity should tip the scales in favor of interpreting “proceeds” to mean “profits” in this case. Got that?

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Cross-Examining Film

Thanks for having me here at Concurring Opinions. I haven’t blogged for some time – reminding myself there is life outside of the Web – but for the next month I am excited to reengage my blogging-self and hopefully some readers of this blog.

One of my summer projects is to think about how to turn some of my more theoretical writing on law and film into a practical “how to” piece on lawyering in the courtroom with filmic evidence. To that end, I have been watching lots of police films (a subset of what I have called “evidence verite”). These films can be found without much effort on YouTube or VideoSpider. Anyone else out there know of good sites storing this kind of film footage, I would love to hear about it. I found one piece of footage that is the subject of a recent court case – Jones v. City of Cincinnati, 521 F.3d 555 (6th Cir. 2008) – which can be found here. This film, of the police using a tremendous amount of force to subdue Nathanial Jones (who subsequently died), is an excellent example of how the film frame (what is seen and what is not seen due to the limits of the camera’s size and angle) can affect the viewer’s response to the images. When watching this film, we must imagine the blows delivered and the pain received because both are off-camera. How we imagine them might depend on our experience with police brutality more generally. (We do hear the police and the criminal suspect protesting loudly.) Do we imagine Hollywood violence (which way does that cut for the defendant here)? Do we have any experience seeing this kind of violence first or second hand so that it is hard to imagine anything but the worst? The boundaries of imagination are hard to predict and therefore a formidable opponent in a court of law. Imagination is obviously not evidence in a court of law, although it likely wields mighty influence nonetheless. A former student suggested to me that not seeing the blows Nathanial Jones suffered makes us more callous to the pain he received. I tend to think that is the case.

The Sixth Circuit in Jones v. City of Cincinnati affirmed the district court’s refusal to dismiss the case on defendant’s 12(b)(6) motion and said this in relation to the film: “Where the evidence ‘captures only part of the incident and would provide a distorted view of the events at issue,’ as the district court concluded with respect to the videotape, we do not require a court to consider that evidence on a 12(b)(6) motion.” Id. at 561. To this, I would say “no kidding,” but we will have to wait and see what the trial court does on a Rule 56 motion. Given the Supreme Court’s decision in Scott v. Harris, I remain skeptical that a court can resist the myth of film’s obviousness and objectivity.

For those who need a refresher, Scott v. Harris was the 2007 Supreme Court case concerning a high speed police chase that resulted in the police ramming the suspect’s car causing him to become a quadriplegic. A police camera on the cruiser recorded the chase from the point of view of the police car, and the Supreme Court said that the trial court should have considered the facts in that case “in the light depicted by the videotape” despite contradictory testimony. For an excellent analysis of the flaws of that case, see Howard Wasserman’s short piece here . For an even shorter analysis, see my Op-Ed here . For a longer more empirical analysis of the video in the case, see Kahan et al. here.

How do courts and lawyers deal with filmic evidence in light of film’s inevitably partial nature? That is what my new piece is working through with some practical tips on cross-examining film in a courtroom. The piece should be up on-line soon. For those who want a preview, feel free to email me.


The “Mischief Rule” Rule and the VRA in Riley v. Kennedy

Election law experts have been quick to speculate about what the Supreme Court’s decision in Riley v. Kennedy, handed down this past Tuesday, means for the future of Section 5 (the preclearance provision) of the Voting Rights Act (VRA). Rick Pildes argues that the decision reflects a trend, which began in the 1990s, of “greater skepticism from the Court” “regarding the boundaries of the special coverage regime under Section 5 of the Act.” Rick Hasen worries that the decision bodes ill for the Court’s upcoming review of the constitutionality of the recently-renewed Section 5 in the NAMUDNO case. But what is most interesting to me, as a matter both of statutory interpretation and of election law, is Part IV of Justice Stevens’ dissenting opinion, which employs a classic Hart & Sacks Legal Process approach —the “Mischief Rule”— to argue that Section 5 preclearance should be required in a case such as this.

Before delving into this most interesting argument by Justice Stevens, a little background: VRA §5, of course, subjects certain “covered jurisdictions” (which earned that designation through a history of suppressing minority voting rights) to a presumption of bad faith behavior in election administration. It operates by freezing in place the election administration procedures in such covered jurisdictions, and requiring that such jurisdictions obtain “preclearance” from either the Justice Department (DOJ) or the District Court for the District of Columbia before they may make any changes to voting/election procedure. The typical preclearance lawsuit thus tends to involve a proposal by a state entity to implement some new change to election procedure in a covered jurisdiction, and a challenge by a minority group arguing that the proposed change will have the effect of disenfranchising minority voters. Riley turns that classic procedural posture on its head: In 1985, Alabama passed a law adopting a new election practice (changing the procedure for filling midterm vacancies on the Mobile County Commission from gubernatorial appointment to special election), obtained the preclearance required by Section 5, and held an election (in 1987). Soon thereafter, the Alabama Supreme Court invalidated the law under which the election took place on the ground that it violated the Alabama Constitution. When the next midterm vacancy arose (in 2005), the governor sought to fill it by appointment, prompting litigation. The question presented before the Supreme Court = Whether Alabama must obtain fresh preclearance in order to reinstate the election practice —i.e., gubernatorial appointment— that was in place before the special election procedure, ultimately struck down by the Alabama Supreme Court, was enacted? Does reinstatement of the gubernatorial appointment procedure constitute a change/abandonment of the special election procedure used in 1987, and thus require Section 5 preclearance?

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A Reverse Clear Statement Rule?

Last week the Supreme Court issued an opinion in a seemingly straightforward statutory interpretation case, Gonzalez v. United States. At issue was whether the Federal Magistrates Act (FMA) permits magistrate judges (rather than Article III district court judges) to preside over voir dire and jury selection in a felony criminal trial if defense counsel consents to the arrangement, but absent express consent from the defendant himself. Section 636(b)(3) of the FMA states that: “A magistrate judge may be assigned such additional duties as are not inconsistent with the Constitution and laws of the United States.” The Court concluded that the statutory language and relevant precedents (Gomez v. United States and Peretz v. United States) did not bar delegation of felony jury selection and voir dire to a magistrate. But more interesting, in my view, than the outcome reached by the Court is the argument it brushed aside with little fanfare in getting there: constitutional avoidance.

It is a well-worn if not-exactly-well-loved canon of statutory construction that when a statute is susceptible of two interpretations, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, the Court’s duty is to adopt the interpretation that steers clear of constitutional difficulties. The petitioner in this case argued that the decision to have a magistrate judge rather than an Article III judge preside at jury selection is a fundamental choice, involving a defendant’s fundamental rights, and that interpreting the FMA to authorize waiver of this choice without the express consent of the defendant raised a question of constitutional significance. Given the canon of constitutional avoidance, he pressed the Court to require an explicit personal statement of consent before a magistrate judge may be permitted to preside over felony jury selection. The Court, however, quickly waived away this argument, insisting that no serious constitutional is raised by such a delegation of authority to a magistrate, absent a defendant’s express consent, because: (1) as petitioner conceded, a magistrate judge is capable of competent and impartial performance of the judicial tasks involved in jury examination and selection; (2) the Article III district judge, insulated by life tenure and irreducible salary, is waiting in the wings, fully able to correct errors; (3) requiring the defendant to consent to a magistrate judge by way of an on-the-record personal statement is not dictated by precedent; and (4) such a requirement would burden the trial process. In other words, the Court relied on policy arguments to trump petitioner’s claim that felony defendants have a constitutional right to have an Article III judge preside over their trials, waivable only by the defendant personally.

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Constitutionalism and Legitimacy

constitution5a.jpgOver at Convictions and Balkinization, Orin Kerr and Jack Balkin are having an interesting discussion about Justice Scalia’s constitutionalism versus liberal constitutionalism.

Orin Kerr writes:

Justice Scalia’s view has popular appeal precisely because it is based on populism. His basic theme is that the People created the Constitution, and they can set rules with in it. If the People want to change the Constitution, they can. But it’s up to them. In this view, the People decide: Every citizen is empowered to participate in the rule making that governs us all. I think this resonates not because Justice Scalia is a legal Pied Piper but because the message itself is quite powerful (and to me, I confess, pretty persuasive). At bottom, it’s “we the people.”

Kerr notes that liberal constitutionalism can be defended by arguing that “some limitations on democratic rule making actually enhance democratic rule making.” But, Kerr notes: “This is a very popular move among academics, although it can be hard to sell to the public.” Kerr also contends that another option is “to forget about theory and instead focus on results. . . . The idea is to focus on the bad results that are possible if courts let elected branches run amok, and then ask whether you want to live in a world with good results or the potential for bad ones.”

Jack Balkin contends that “Scalia may say his originalism is respectful of majority rule, but he is perfectly happy to strike down lots of laws for which there is little basis in the original expected application.” Balkin goes on to argue:

By contrast, liberal constitutionalism is far more honest. Its basic principles are simple. First, we must be faithful to the constitutional text and to the basic principles of the Constitution that underlie it. Second, we must apply and adapt these principles in the text to changing times. Liberal constitutionalists from Brandeis to Brennan have made these two basic claims over and over again: Be faithful to the constitution’s text and principles, and apply them faithfully to new circumstances and new challenges.

I have a few thoughts to add to this debate:

1. The quest in theories of constitutional interpretation has often been to find a way to legitimate judicial review. What gives courts the power to stop the will of the majority? The problem is that in a post-realist age, we realize that the Constitution is not very constraining and that justices can interpret it as freely as they can a Rorschach blot. This makes the quest for legitimacy a very difficult one, in at least two senses: (1) we need a theory for why a document written hundreds of years ago can bind us today, even when a large majority of us may want to do something; (2) we need a theory for why judicial interpretations of this document are authoritative and not merely the gussied-up projection of a justice’s preferences. All sorts of valiant efforts have been made to find legitimacy in these two senses.

2. I’m not sure we should be so obsessed with legitimacy, because I’m not sure that we’ll ever come up with a satisfactory way to achieve it. Kerr might very well be right that most theories to find legitimacy might appeal more to theorists than to the general public, and that’s a big problem, for at least one main reason why legitimacy is sought is to convince the public of the validity of the Court’s decisions. Paul Kahn’s Legitimacy and History (1993) makes a very powerful argument for why the quest for legitimacy is futile.

3. Justice Scalia’s populist constitutionalism is also deeply flawed. He says he’s reluctant to overturn the will of the majority, but as Balkin notes, that’s just false. Scalia’s brand of originalism is just one theory among many to claim legitimacy, a way to argue that Scalia’s interpretations are somehow more grounded than other justices’ interpretations, that he somehow has insight into the true meaning of the Constitution. But there is no true meaning of the Constitution. And Scalia’s method of interpretation is no more legitimate than many other methods. The realist in me says that this entire debate is about sloganeering. Everybody wants their vision to be the true meaning of the Constitution, and it devolves into a silly game of “I’m more legitimate than you.”

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Predictions for United States v. Rodriguez

Many thanks to Doug Berman over at Sentencing Law and Policy for his kind words about my last post discussing Begay v. United States. Doug ended his post by noting that “the only thing missing” from my analysis was an assessment of what the Court’s ruling in Begay might mean for the soon-to-be-decided United States v. Rodgriguez. Taking up Doug’s gently-placed gauntlet, here are my thoughts on the likely outcome of Rodriguez, as informed by the Justices’ voting/reasoning in Begay:

First, a little Background: Rodriguez involves clause (i) of the same Armed Career Criminals Act (“ACCA”) sentencing enhancement that was at issue in Begay (and in James). 18 U.S.C. §924(e)(2)(B). Whereas clause (ii) of that section imposes the enhancement if the defendant previously has been convicted of three “violent felonies,” clause (i) triggers the enhancement if a defendant previously has been convicted of a “serious drug offense” — defined as “a state drug trafficking offense for which a maximum term of imprisonment of 10 years or more is prescribed by law.” 18 U.S.C. §924(e)(2)(B)(i). At the time when he committed his latest offense, Rodriguez had three prior convictions in Washington State for delivery of a controlled substance. Under Washington State law, the maximum term of imprisonment for this offense is 5 years for first-time offenders, and 10 years for those committing the offense for a second time (or third, or fourth, etc. time). The statutory interpretation question thus becomes: Whether a state drug trafficking offense qualifies as a “serious drug offense” triggering the §924(e)(2)(B)(i) enhancement if the maximum term of imprisonment starts out at 5 years for first-time offenders, but rises to 10 years for repeat offenders.

Based on their votes in Begay (and James) construing clause (ii) of §924(e)(2)(B), and on their questions at oral argument, here are my speculations (and I want to emphasize that these are just speculations) as to how the Justices are likely to vote in Rodriguez:

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