Author: Josh Blackman


Coverage and Photos of ACS National Convention #ACS10

I am liveblogging and livetweeting (#ACS10) the ACS National Convention in Washington. So far it has been a great conference, about 1,000 people in attendance. Here are some of the highlights.

  • Liveblog of Attorney General Holder’s Address: The address, which was rather short (about 15 minutes), focused almost exclusively on the trial of terrorists in civilian courts. No mention of DOMA. Holder, taking a rather broad view of executive power, opposed any efforts of Article I to tell Article II where to try terrorists. Prosecutors, and not legislators should make these determinations. The reception, in a fairly friendly crowd, was lukewarm.
  • Liveblog of Plenary Panel on Text, History, and Principle: This morning panel was the most interesting one so far. Joan Biskupic did a great job moderating a panel of Akhil Reed Amar, Pamela Karlan, Geoffrey Stone, Judge Wilkinson, and  Judge Wood. The panel was primarily an assault on originalism as a flawed method of constitutional interpretation that serves as a veneer for ideological views. Amar, in stressing the importance of the text of the Constitution, waved around a Cato pocket Constitution (pic below the jump).
  • Liveblog of Panel on the Independent Judiciary in Peril: The always-entertaining Judge Stephen Reinhardt led an interesting discussion about the threat to judicial independence from elections. Joining him on the panel were a number of former State Supreme Court Justices. Most salient was Chief Justice Ternus, who recently lost retention as a member of the Iowa Supreme Court.
  • Liveblog of Harold Koh Address– This lunchtime address was the highlight of the event so far. He delivered a wonderful talk about serving as an attorney, and following your principles. It was quite uplifting. One of my favorite lines was something to the effect of, life may be easier if you don’t have a paper trail, but life is too short to wait to say the truth. Goodwin Liu was in attendance, and a number of Koh’s points were directed at him.

I posted some pics of Attorney General Holder, Goodwin Liu chatting with Harold Koh, Akhil Amar holding onto a Cato Constitution, and more, below the jump. This is Page 6 for legal types, I suppose (Jack Balkin calls me the Perez Hilton of the legal blogosphere; it fits).

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Today’s 5 New Supreme Court Opinions

The Court decided 5 cases today, still no Brown v. EMA (video game violence case). I will add additional commentary at my blog, throughout the course of the day.

First, in Tapia v. United States,the Court held that 18U. S. C. §3582(a) does not permit a sentencing court to impose or lengthen a prison term in order to foster a defendant’s rehabilitation. Justice Kagan delivered the opinion for the unanimous Court.

We consider here whether the Sentencing Reform Act pre-cludes federal courts from imposing or lengthening aprison term in order to promote a criminal defendant’srehabilitation. We hold that it does.

Justice Sotomayor filed a concurring opinion, in which Justice Alito joined, and wrote “separately to note [her] skepticism that the District Judge violated this proscription in this case.”

Although I am skeptical that the thoughtful DistrictJudge imposed or lengthened Tapia’s sentence to promote rehabilitation, I acknowledge that his comments at sen-tencing were not perfectly clear. Given that Ninth Circuit precedent incorrectly permitted sentencing courts to con-sider rehabilitation in setting the length of a sentence, see ante, at 2, and that the judge stated that the sentenceneeded to be “long enough to get the 500 Hour DrugProgram,” App. 27, I cannot be certain that he did not lengthen Tapia’s sentence to promote rehabilitation inviolation of §3582(a).

In Bond v. United States, the Court held that “Bond has standing to challenge the federal statute on grounds that the measure interferes with the powers reserved to States.” Justice Kennedy wrote for the unanimous Court.

This case presents the question whether a person indicted for violating a federal statute has standing to challenge its validity on grounds that, by enacting it, Congress exceeded its powers under the Constitution, thus intruding upon the sovereignty and authority of the States.

The Court did not address the merits, and remanded it.

Justice Ginsburg concurred, joined by Justice Breyer, and notes that this holding is not limited to challenges under the 10th Amendment, but applies to any challenge to the statute under which a person was convicted.

For this reason, a court has no “prudential” license todecline to consider whether the statute under which the defendant has been charged lacks constitutional applica-tion to her conduct. And that is so even where the constitutional provision that would render the conviction void is directed at protecting a party not before the Court. Our decisions concerning criminal laws infected with discrimi-nation are illustrative. The Court must entertain the objection—and reverse the conviction—even if the right toequal treatment resides in someone other than the defendant. . . . In short, a law “beyond the power of Congress,” for any reason, is “no law at all.” Nigro v. United States, 276 U. S. 332, 341 (1928). The validity of Bond’s conviction dependsupon whether the Constitution permits Congress to enact§229. Her claim that it does not must be considered and decided on the merits.

In Davis v. United States, the Court held that “Searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to the exclusionary rule.”

Justice Alito wrote for Chief Justice Roberts, Justices Scalia, Kennedy, Thomas, and (in an interesting vote) Justice Kagan.

The question here is whether to apply this sanction [the exclusionary rule] when the police conduct a search in compliancewith binding precedent that is later overruled. Because suppression would do nothing to deter police misconduct in these circumstances, and because it would come at a high cost to both the truth and the public safety, we hold that searches conducted in objectively reasonable reliance on binding appellate precedent are not subject to theexclusionary rule.

Justice Sotomayor concurred in judgment, leaving open the question whether “exclusion would appreciably deter Fourth Amendment violations when the governing law is unsettled.”

Justice Breyer dissented, joined by Justice Ginsburg, arguing that this opinion marks a shift from previous precedents, and he fears that.

In sum, I fear that the Court’s opinion will undermine the exclusionary rule. And I believe that the Court wrongly departs from Griffith regardless. Instead I would follow Griffith, apply Gant’s rule retroactively to thiscase, and require suppression of the evidence. Such an ap-proach is consistent with our precedent, and it would indeed affect no more than “an exceedingly small set of cases.”

In J.D.B. v. North Carolina, in a somewhat surprising opinion, Justice Sotomayor wrote for Kennedy, Ginsburg, Breyer, and Kagan, holding that “A child’s age properly informs Miranda’s custody analysis.”

It is beyond dispute that children will often feel bound to submit to police questioning when an adult in the same circumstances would feel free to leave. Seeing noreason for police officers or courts to blind themselves to that commonsense reality, we hold that a child’s age prop-erly informs the Miranda custody analysis.

Justice Alito dissented for the Chief, and Justices Scalia and Thomas, and wrote that this opinion injects subjectivity into Miranda, which should be a bright-line rule. Alito notes, in no uncertain terms, that opinions like this may result in a “modification” of Miranda that will result in Miranda “los[ing] clarity” “bit by bit”:

The Court rests its decision to inject personal characteristics into the Miranda custody inquiry on the principlethat judges applying Miranda cannot “blind themselves to . . . commonsense reality.” Ante, at 1, 8, 10–11, 14. But the Court’s shift is fundamentally at odds with the clear prophylactic rules that Miranda has long enforced. Miranda frequently requires judges to blind themselves tothe reality that many un-Mirandized custodial confessionsare “by no means involuntary” or coerced. Dickerson, 530U. S., at 444. It also requires police to provide a rote recitation of Miranda warnings that many suspects already know and could likely recite from memory.13 Under today’s new, “reality”-based approach to the doctrine, perhaps these and other principles of our Miranda jurisprudence will, like the custody standard, now be ripe for modification. Then, bit by bit, Miranda will lose the clarity and ease of application that has long been viewed asone of its chief justifications.

In Smith v. Bayer, the Court held that “In enjoining the state court from considering Smith’s class certifi-cation request, the federal court exceeded its authority under the “re-litigation exception” to the Act.” Justice Kagan wrote for a unanimous Court, for Parts I and II-A.

In this case, a Federal District Court enjoined a statecourt from considering a plaintiff’s request to approve aclass action. The District Court did so because it had earlier denied a motion to certify a class in a related case,brought by a different plaintiff against the same defen-dant alleging similar claims. The federal court thought itsinjunction appropriate to prevent relitigation of the issueit had decided.We hold to the contrary. In issuing this order to a state court, the federal court exceeded its authority under the“relitigation exception” to the Anti-Injunction Act.

Justice Thomas did not join the remainder of the opinion (but did not write a separate opinion, like he did in Whiting).

Update: I wrote a post about Justice Kennedy’s discussion of federalism and individual liberty in this post.


FantasySCOTUS: Crowdsourcing a Prediction Market for the Supreme Court

In The Path of the Law, Oliver Wendell Holmes, Jr. wrote “The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.” But how are lawyers supposed to predict how the courts will act? As Yogi Berra famously remarked, “It’s tough to make predictions, especially about the future.”

In recent years, the wisdom of the crowds–collective knowledge that can be pooled together to address problems more efficiently and accurately than decisions from individuals–has been used to create so-called prediction markets. These markets can aggregate the opinions of many individuals, pool them together, and generate a more reliable forecast of what will happen. This method, known as crowdsourcing, have accurately predicted the outcome of political elections, winners of the Academy Awards, and other future events.

In November of 2009, I created, a Supreme Court Fantasy League. At first, I thought it would just be a fun game–let law nerds compete and make predictions how the Justices will decide cases. The site went viral, and before I knew it, there were nearly 5,000 Court-watchers making predictions. By analyzing this data, I soon realized that I could use crowdsource a prediction market. During the October 2009 Term, FantasySCOTUS predicted the outcome in more than fifty percent of the cases decided, and the top-ranked predictors forecasted 75% of the cases correctly. We currently offer a prediction tracker to monitor real-time predictions for every case pending before the Court.

I (along with my two co-authors, Adam Aft and Corey Carpenter) have posted an essay to SSRN, titled FantasySCOTUS: Crowdsourcing a Prediction Market for the Supreme Court. This essay explores the wisdom of the crowds in this prediction market and assesses the accuracy of FantasySCOTUS. In this essay we compare our results to the fascinating Supreme Court Forecasting Project, which developed a super cruncher algorithm that could predict Supreme Court cases based on factors, such as circuit of origin and ideology, rather than the merits of the case. Also, we test one of Orin Kerr’s ideas, and show that there is in fact a correlation between the amount of media coverage about a case and accuracy of a prediction. Finally, we consider some of the jurisprudential and practical implications. The abstract is below the fold:

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The Second Amendment as a “Protective Right” and the Scope of “The People” in the Second Amendment

Eugene Volokh links to United States v. Portillo-Munoz, a 2-1 opinion filed today by the 5th Circuit. Judge Garwood found that the SecondAmendment does not apply to an illegal alien because he is not part of “the people.” Garwood further distinguishes the Second Amendment from the Fourth Amendment in Verdugo-Urquidez, where the former is an “affirmative right” and the latter is a “protective right.”

More analysis after the jump.

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Today’s SCOTUS Opinions

In United States v. Flores-Villar, the Court affirmed the 9th Circuit by an equally divided Court. There is no opinion in these cases. With Justice Kagan recused, it seems Justice Kennedy swung to the dissenting bloc. The 4-4 split has no precedential value. This is also the second 4-4 split of the term, following Costco v. Omega.

In United States v. Jicarilla Apache Nation, the Court 7-1 held that “the fiduciary exception to the attorney-client privilege does not apply to the general trust relationship between the United Statesand the Indian tribes.” Justice Alito wrote for the Court. Justice Ginsburg concurred in judgment, joined by Justice Breyer. Justice Sotomayor dissented. Justice Kagan recused.

In Janus Capital Group, Inc. v. First Derivative Traders, the Court 5-3 held that “Because the false statements included in the prospectuses weremade by Janus Investment Fund, not by JCM, JCM and JCG cannotbe held liable in a private action under Rule 10b–5.” Justice Alito wrote for 5 members. Justice Ginsburg dissented, joined by Justices Breyer, Sotomayor, and Sotomayor.

In, Nevada Comm’n on Ethics v. Carrigan, Justice Scalia for a unanimous Court held that “The Nevada Ethics in Government Law is not unconstitutionally overbroad.” Justice Kennedy concurred. Justice Alito concurred in part and concurred in judgment. I have an instant analysis of Carrigan, here. I wrote a post about a comparison between recusal rules for legislators and judges, and another post about a debate between Justice Scalia and Alito about the expressive value of a legislative vote.

I’ll have more commentary on my blog,, throughout the course of the day.

Update: I added a few links above. I also corrected split in Janus.


Statistics, Common Sense, and Social Cost in Sykes v. United States

What role should statistics of social play in judicial decision making? In Sykes v. United States, in order to determine whether a vehicular flight from the police is likely to be dangerous, the majority opinion from Justice Kennedy, as well as the concurring opinion from Justice Thomas, heavily relied on empirical data.

Justice Kennedy noted that “although statistics are not dispositive, here they confirm the commonsense conclusion that Indiana’s vehicular flight crime is a violent felony.” Justice Thomas wrote that “common experience and statistical evidence confirm the “potential risk” of intentional vehicular flight.”  Justice Kagan found that the data was inconclusive, but noted the “majority’s intuition that dangerous flights outstrip mere failures to stop—that the aggravated form of the activity is also the ordinary form—seems consistent with common sense and experience.”

Here, we have 8 Justices who have different views about statistical data supporting social costs from vehicular flight, but in large part due to “commonsense conclusions,” “common experience,” “intuition” and “common sense and experience,” they agree on the outcome. None of these statistics were even introduced at trial, or admitted into evidence. Should courts be able to take judicial notice of these statistics because they conform to common sense?

What is the proper role for courts to consider statistics and common sense to illustrate social costs, such as dangers from vehicular flight?

Justice Scalia, in dissent, disagreed with this reliance on statistics.

Today’s opinion then outdoes Chambers in the volume of statistics that it spews forth—statistics  . . . concerning injuries attributable to police pursuits, statistics from the Department of Justice concerning injuries attributable to burglaries . . .  statistics from the U. S. Fire Administration concerning injuries attributable to fires . . .  statistics . . . concerning injuries attributable to police pursuits. (citations omitted).

Scalia raised a very important point–statistics raised in briefs were not challenged in the typical adversarial process.

Supreme Court briefs are an inappropriate place to develop the key facts in a case. We normally give parties more robust protection, leaving important factual questions to district courts and juries aided by expert witnesses and the procedural protections of discovery . . . An adversarial process in the trial courts can identify flaws in the methodology of the studies that the parties put forward; here, we accept the studies’ findings on faith, without examining their methodology at all. The Court does not examine, for example, whether the police-pursuit data on which it relies is a representative sample of all vehicular flights. The data may be skewed towards the rare and riskier forms of flight.

Further, Scalia laments that courts are free to pick and choose which statistics they like–much like cherry-picking favorable legislative history–without any basis to disagree with them, based on no discernible reason other than “common sense.”

Scalia notes that these “untested judicial fact finding [are]  masquerading as statutory interpretation.”

The Court does not reveal why it chose one dataset over another. In sum, our statistical analysis in ACCA cases is untested judicial fact finding masquerading as statutory interpretation. Most of the statistics on which the Court relies today come from government funded studies, and did not make an appearance in this litigation until the Government’s merits brief to this Court.

So what is the proper role for courts to consider statistics and common sense to illustrate social costs, such as dangers from vehicular flight? As Scalia notes, courts are free to pick whatever statistics they want from a plethora of Brandeis Briefs submitted in every case. These statistics are not challenged in any adversarial process, and frequently stand in dispute. Most importantly, these facts were never introduced at the trial stage. Is this “Statutory Interpretation” or “Untested Judicial Fact Finding” in costume?

The relationship between statistics, common sense, and social costs takes on a higher degree of magnitude when adjudicating constitutional, rather than statutory, issues.

I have written about the selective reliance of statistics in the context of Second Amendment cases, focusing particularly on Justice Breyer’s one-sided reliance on statistics, in my article, The Constitutionality of Social Cost (which should drop in the Harvard Journal of Law & Public Policy in the next month or so).

With respect to Justice Breyer’s opinion in Heller, I noted that “when [he] weighs a relatively one‐sided sample of studies discussing the dangerousness of guns against three restrained interests,it is unsurprising how that scale tilts.” Although Justice Breyer views gun control issues a“highly statistical matter,” the statistics he relies on are far from undisputed.

Justice Scalia affirmed this point during oral arguments in McDonald, in the process of disagreeing with Justice Breyer over the role of statistics in determining constitutional rights:

JUSTICE BREYER: There are two ways [to consider the firearm regulation]. One is that—look at—all you have to do is look at the briefs. Look at the statistics. You know, one sidesaysa million people killed by guns. Chicago says that their—their gun law has saved hundreds, including—and they havestatistics—including lots of women in domestic cases. Andthe other side disputes it. This is a highly statistical matter.. . . .

JUSTICE SCALIA: There’s a lot of statistical disagreement onwhether the Miranda rule saves lives or not, whether it results in the release of dangerous people who have confessed to their crime, but the confession can’t be used. We don’t—we don’tresolve questions like that on the basis of statistics, do we?

I agree with Scalia that although statistics are important “for the legislatures,”they are not important for “the judges.”

Depriving a person of a constitutional liberty, such as the right to keep and bear arms, based on disputed statistics is a flawed analysis. And Breyer’s statistics “show” that someone who has done absolutely nothing wrong, has taken no action other than applying for a permit, and has exhibited no propensity for violence–like Dick Heller or Otis McDonald, unlike Marcus Sykes who fled from the police–may cause harm in the future. This, among other reasons, has contributed in no small part to the currently disjointed state of Second Amendment jurisprudence.

Even the Brandeis Brief from Mueller v. Oregon was littered with controversial statistics, that ultimately proved to be totally false. And, in reliance of that Brief, the Court issued a decision that just about everyone today would disagree with.

More attention should be given to how appellate judges take judicial notice of statistics that were never challenged at the trial level. Statistics, as much as people may wish to believe, are not objective. Courts at the trial level recognize this when introducing evidence, and permit advocates to challenge them before admission. Appellate courts would be well-served to make similar determinations before basing statutory, and even constitutional decisions, on these statistics. Statistics are not evidence until they are admitted as evidence.

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Overview of 4 Supreme Court Opinions Today

Still no Brown v. EMA or United States v. Flores-Villar, though we do have 4 new opinions, including 2 interesting criminal cases.

In Sykes v. United States, Justice Kennedy writing for Chief Justice Roberts and Justices Breyer, Alito, and Sotomayor, held that “Felony vehicle flight, as proscribed by Indiana law, is a violent felony for purposes of ACCA [Armed Career Criminal Act],” afirming the 7th Circuit. Justice Scalia wrote a solo dissent. Justice Kagan dissented, joined by Justice Ginsburg. Very interesting lineup. I started an Instant Analysis here. The lineup in this case is identical to that in Michigan v. Bryant, a confrontation clause case decided this term. I think we may see a new 5-member “law and order” bloc of Roberts, Kennedy, Breyer, Alito, and Sotomayor, in non-4th Amendment criminal procedure cases.  I also wrote a post on Scalia’s views on how deference to vagueness statutes creates perverse incentives for the other branches. I also considered the interaction of statistics, common sense, and social cost in Sykes.

In Talk America, Inc. v. Michigan Bell Telephone Co., Justice Thomas wrote for a unanimous Court, holding that “The FCC has advanced a reasonable interpretation of its regula-tions—i.e., that to satisfy its duty under §251(c)(2), an incumbent LEC must make its existing entrance facilities available to competi-tors at cost-based rates if the facilities are to be used for interconnec-tion—and this Court defers to the FCC’s views.” Justice Kagan recused from this case. Justice Scalia wrote a concurring opinion. Justice Scalia, in a separate opinion, expresses caution for Auer deference, and channels Montesquieu! More from Jon Adler.

In DePierre v. United States, wrote for the entire Court (Justice Scalia did not join one part discussing legislative history), holding that “'[C]ocaine base,’ as used in §841(b)(1), means not just “crack co-caine,” but cocaine in its chemically basic form.” This is the broader definition. Justice Sotomayor has a brief discussion on statutory interpretation, with respect to redundancy and inartful draftsmanship. Further, Justice Sotomayor declines to apply the Rule of Lenity. It seems the Rule of Lenity applies except when it doesn’t apply. Last Term Professor Krishnakumar had an interesting post at Concurring Opinions analyzing the use of the Rule of Lenity on the Roberts Court:

In Microsoft Corp. v. i4i Ltd. Partnership, Justice Sotomayor wrote for Justices Scalia, Kennedy, Ginsburg, Breyer, Alito, and Kagan, holding that “Section 282 [of the Patent Act] requires an invalidity defense to be proved by clearand convincing evidence.” Justice Breyer filed a concurring opinion, joined by Justices Scalia and Alito (odd lineup). Justice Thomas filed an opinion concurring in judgment. Chief Justice Roberts recused.

I will have further analysis of these cases, particularly an instant analysis of Sykes, at my blog,

Update: I added links above to additional posts.


Overview of Four New SCOTUS Opinions Today

The Supreme Court decided four cases today (three of them unanimous). Unfortunately, we still do not have an opinion from Brown v. EMA and Flores-Villar v. United States, the only remaining cases argued in the November sitting that have not yet been decided. I have a column in the National Law Journal’s Supreme Court Insider that explores the possible hold-up in EMA.

First, in Fox v. Vice, a unanimous opinion from Justice Kagan, held that “When a plaintiff’s suit involves both frivolous and non-frivolousclaims, a court may grant reasonable fees to the defendant, but only for costs that the defendant would not have incurred but for the frivolous claims under 42 USC 1983.”  I have an instant analysis of the case here. Justice Kagan’s best line was, “These standards would be easy to apply if life were like the movies, but that is usually not the case.” Also, is it “attorneys’ fees” or “attorney’s fees”? The Supreme Court tends to use the former, but Chief Judge Easterbrook uses the latter.

Second, in McNeill v. United States, a unanimous opinion from Justice Thomas, held “a federal sentencing court must determine whether ‘an offense under State law’ is a ‘serious drug offense’ by consulting the ‘maximum term of imprisonment’ applicable to a defendant’s prior state drug offense at the time of the defendant’s conviction for that offense.” I wrote a brief discussion of how Justice Thomas viewed changing criminal laws, and the permanency of a person’s conviction.

Third, in Eric P. John Fund v. Halliburton, a unanimous opinion from Chief Justice Roberts, held that “Securities fraud plaintiffs need not prove loss causation in order to obtain class certification.

The only non-unanimous opinion was Board of Trustees of Leland Stanford Junior Univ. v. Roche Molecular Systems, Inc., a 7-2 opinion authored by Chief Justice Roberts, with Justice Breyer joined by Justice  Ginsbug in dissent. The Court held “the Bayh-Dole Act does not automatically vest title to federallyfunded inventions in federal contractors or authorize contractors to unilaterally take title to such inventions.” Justice Breyer provides an interesting perspective on patent law, citing the views of Thomas Jefferson (who was no fan of intellectual property) and James Madison.

Update: For a contrary view about Jefferson’s understanding of patent policy, see Professor Adam Mossoff’s 2007 Cornell Law Review article, titled Who Cares What Thomas Jefferson Thought About Patents? Reevaluating the Patent ‘Privilege’ in Historical Context.

For what it’s worth, went 4/4 on these cases, though it tends to do well on unanimous, or near-unanimous cases.

We should have more opinions on Thursday.

0 Predictions for 6/6/2011

I have not yet had time to blog about my article on–a Supreme Court Fantasy League that doubles as a Supreme Court prediction market. As an introduction to FantasySCOTUS, from the Prediction Tracker, here are predictions for all cases argued, but not yet decided, during the October 2010 Supreme Court Term. As we discuss in our article, these predictions are not perfect, but they’re usually fairly reliable.

Please check back on this blog tomorrow shortly after 10:00 a.m. I will post my Instant Analysis of any case decided, and likely write several follow-up posts.

Case Name FantasySCOTUS Prediction Outcome Date Decided Prediction Details
Talk America v. Michigan Bell Affirm Details
Schwarzenegger v. Entertainment Merchants Association Affirm Details
Flores-Villar v. US Affirm Details
Janus Capital v. 1st Derivative Traders Reverse Details
Goodyear Lux. Tires, SA v. Brown Reverse Details
J. McIntyre Machinery v. Nicastro Affirm Details
Sykes v. US Reverse Details
Smith v. Bayer Corp. Reverse Details
Stern v. Marshall Affirm Details
Bond v. United States Reverse Details
Freeman v. US Reverse Details
DePierre v. United States Affirm Details
Board of Trustees of the Leland Stanford Junior University v. Roche Molecular Systems, Inc. Affirm Details
Bullcoming v. New Mexico Reverse Details
Davis. v. United States Affirm Details
Fox, v. Vice Affirm Details
Duryea v. Guarnieri Affirm Details
Turner v. Rogers Reverse Details
J. D. B. v. North Carolina Affirm Details
McComish v. Bennett Reverse Details
Arizona Free Enterprise Club’s Freedom Club PAC v. Bennett Reverse Details
CSX Transportation v. McBride Affirm Details
Wal-Mart v. Dukes Reverse Details
Isiogu v. Michigan Bell Affirm Details
PLIVA Inc. v. Mensing Reverse Details
Actavis Elizabeth, L.L.C. v. Mensing Reverse Details
Actavis v. Demahy Reverse Details
Microsoft v. i4i Limited Partnership Affirm Details
Tapia v. U.S. Reverse Details
American Electric Power Co., Inc. v. Connecticut Reverse Details
United States v. Jicarilla Apache Nation Affirm Details
McNeill v. United States Affirm Details
Eric P. John Fund, Inc. v. Halliburton Co. Reverse Details
Sorrell v. IMS Health Inc. Affirm Details
Nevada Commission on Ethics v. Carrigan Reverse Details

Governor Brown Will Ask for Extension Following Brown v. Plata. Justice Scalia says “See I Told You So.”

A little over a week after the Supreme Court in Brown v. Plata affirmed the Three-Judge Panel’s decision to order California to release 30,000 prisoners, Governor Brown has announced that he will likely need more than the two years the Court provided.

The U.S. Supreme Court ruled last week that California’s overcrowded prisons violate the constitutional rights of state prisoners, and gave officials two years to slash the number of inmates.

The Brown administration has to submit a plan to a three-judge panel by next week, outlining how it intends to move those prisoners out of state facilities.

But Brown said Thursday the timelines offered by the high court were unrealistic.

“It’s going to take more than two years,” Brown told reporters Thursday.

When asked if he planned to ask federal judges for more time to comply with the Supreme Court ruling, he said, “I’m looking at that option.”

This should not come as a surprise to anyone who read Plata. The Three-Judge Panel should take note of this passage from Justice Kennedy’s opinion, where he basically told the judges that they better modify the order, or else.

The three-judge court did not err in providing a 2-year dead-line for relief, especially in light of the State’s failure to contest the issue at trial. The State has not asked this Court to extend the dead-line, but the three-judge court has the authority, and responsibility,to amend its order as warranted by the exercise of sound discretion. Proper respect for the State and for its governmental processes re-quire that court to exercise its jurisdiction to accord the State consid-erable latitude to find mechanisms and make plans that will promptly and effectively correct the violations consistent with public safety. The court may, e.g., grant a motion to extend the deadline if the State meets appropriate preconditions designed to ensure that the plan will be implemented without undue delay. Such observations reflect the fact that the existing order, like all ongoing equitable relief, must remain open to appropriate modification, and are not in-tended to cast doubt on the validity of the order’s basic premise.

I expect a huge “See I Told You So” from Justice Scalia, who criticized this passage as an improper prospective order to a lower court to do something no one had asked for.

I suspect, however, that this passage is a warning shot across the bow, telling the District Court that it had better modify the injunction if the State requests what we invite it to request. Such a warning, if successful, would achieve the benefit of a marginal reduction in the inevitable murders, robberies, and rapes to be committed by the released inmates. But it would achieve that at the expense of intellectual bankruptcy, as the Court’s “warning” is entirely alien to ordinary principles of appellate review of injunctions. When a party moves for modification of an injunction, the district court is entitled to rule on that motion first, subject to review for abuse of discretion if it declines to modify the order.

So perhaps the coda is nothing more than a ceremonial washing of the hands—making it clear for all to see, that if the terrible things sure to happen as a consequence of this outrageous order do happen, they will be none of this Court’s responsibility. After all, did we not want, and indeed even suggest, something better?

I suspect this litigation is far from over.

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