Author: Gerard Magliocca


Grand Jury Incorporation

I would be interested to hear from attorneys or scholars in criminal law about the following: Is there any policy argument in favor of using a grand jury indictment instead of an information to charge defendants? The only one that I can think of is that using grand juries allows more citizens to participate in the criminal justice system. But are there any others?


Total Incorporation of What?

Suppose you take seriously the comments by Justices Gorsuch and Kavanaugh in Timbs that the entire Bill of Rights applies to the States. Does that not mean that the Tenth Amendment is not part of the Bill of Rights?

To State the obvious, you cannot incorporate a states’-rights against states in any sensible way. One solution is to say that the entire Bill of Rights does not apply to the states, which is the Court’s current position. The other would be to read the 10th out and go with older cases that defined the Bill of Rights as the first 8 or first 9 amendments. It’ll be interesting to see if Timbs addresses this, though it need not.


Winston Churchill and Legislative Chambers

I’ve been doing some research on Winston Churchill. He had many penetrating insights on constitutional law and practice. One of them was that the British House of Commons (and many modeled on that chamber) are rectangles that presume a Government side and an Opposition side. In the United States and many other countries, the legislative chambers are semicircular. Why?

I don’t know the answer, but Churchill observed that semicircular chambers tend to break down partisan barriers. You don’t have to “cross the floor” to talk to other members. You can just mill around. That was probably not the intent, but who knows. Churchill, of course, took the view that parties in the British sense were essential and thus, when the House of Commons was destroyed in 1940, he said it should be rebuilt as it was. Maybe there is an interesting story about why the Capitol was designed in the way it was.


Gamble and Guido

Tomorrow the Supreme Court will bear argument in Gamble v. United States, in which the Justices are being asked to overrule their 1958 decision in Bartkus v. Illinois. I’ll have more to say about the case after the argument, but I did want to note one thing now. The lead dissent in Bartkus was authored by Justice Hugo Black. The clerk who helped him that opinion was Guido Calabresi. Sixty years later, he sits on the Second Circuit. We will see if Justice Black’s dissent becomes law.


Can Congress Pardon the President?

Here’s another interesting tidbit from the old OLC opinions. If you think that that the President cannot pardon himself, then can Congress pardon the President. The claim here is that a congressional pardon or amnesty would not interfere with the presidential pardon power because the President cannot self-pardon. In effect, a presidential pardon is the only one that Congress may grant.

I’m not sure this right. After all, a president can pardon his predecessor, as a Ford did with Nixon. If Ford had decided that pardoning Nixon was not in the national interest, could Congress overrule him? I would think not. Perhaps Congress could pardon the sitting President, though that would be somewhat strange.


Small Claims Court

I think that my earlier post about incorporating the Seventh Amendment was wrong. I’m not sure that any state forces people to go into small claims court and therefore receive no jury trial in a civil case. Looks like small claims court is always just an option for people who want to avoid the expense of ordinary civil courts. But I would need more research to be certain.

Actually, it’s not clear whether incorporating the Seventh Amendment would do anything. If that is correct, then an incorporation case will never arise.



Curiosities From the OLC Opinions

Lately I’ve been reading old OLC opinions as a research exercise. One that I came across raises a fascinating question: Can Congress make attempted presidential assassination a capital crime? Attempted murder is not a capital crime anywhere in the United States. Can an exception be made for presidential assassination? The OLC concluded that the answer was yes, so long as the definition of attempt was sufficiently specific. I’m inclined to agree, though  Congress has never enacted such a statute.


Total Incorporation and Small Claims

I was thinking the other day about the consequences of incorporating the remainder of the Bill of Rights. Take the Seventh Amendment, which remains unincorporated. If that is applied to the states, then would that not mean that most of the small claims courts in this country would be illegal? The Seventh Amendment says (at least under the Court’s current view) that there is a civil jury trial right in cases involving more than $20. Small claims courts, of course, have no juries. And I think that most, if not all, states, require that claims under a certain amount must be heard there.


The Status of the Bill of Rights

Today’s oral argument in Times v. Indiana strongly suggest that the Supreme Court will incorporate the Excessive Fines Clause of the Eighth Amendment. On the eve of Bill of Rights Day, the comments from Justice Gorsuch and Justice Kavanaugh were especially interesting.

Justice Gorsuch said at one point: “[Most of the incorporation cases took place in the 1940s. … And here we are in 2018 still litigating incorporation of the Bill of Rights. Really?” Justice Kavanaugh added: “Isn’t it just too late in the day to argue that any of the Bill of Rights is not incorporated?”

These comments indicate that there is nothing left to selective incorporation except the selective grant of certiorari. In other words, in practice the Supreme Court accepts that everything in the Bill of Rights is fundamental  The few provisions that remain outside of that circle (for example, grand juries and civil juries) will only remain unincorporated because the Court will choose not revisit its nineteenth century cases that so held.  The Bill of Rights has scaled the constitutional heights in the way that John Bingham and Justice Hugo Black foresaw long ago.



Memoir of Justice Stevens

Justice Stevens is publishing a memoir in April. According to a New York Times article on the book, the Justice provides some behind-the-scenes discussion of at least one decision (Heller) from his time on the Court where none of the Justice’s papers are available.

This leads me to make a modest suggestion. Justice Stevens should release (when the memoir comes out in April) any materials from his papers that he relies upon in the book. For instance, he says that he circulated a draft dissent in Heller before Justice Scalia circulated his draft opinion. Let’s see that. He also says he persuaded Justice Kennedy to ask Justice Scalia for changes in Heller. What is that assertion based upon?

I think that these are fair questions. How can the accuracy of his accounts of the Court’s internal deliberations be assessed without access to the primary sources?