March 23, 2016

"It seems increasingly clear that the current Supreme Court Term will have to be headlined 'Justice Scalia is sorely missed.'"

"Next Wednesday, March 30, the Court will hear argument in yet another criminal case in which the unexpected passing of Antonin Scalia on February 13 will leave an unanswered 'hole' in the Court’s deliberations. Last June, Justice Scalia wrote the opinion in Johnson v. United States, in which, after an eight-year campaign originating in Justice Scalia dissents, a majority declared the 'residual clause' of a federal repeat-offender statute unconstitutionally vague.
The question quickly arose whether that ruling should be applied to federal cases on collateral review, even though they were 'final' before Johnson was decided. That is, should Johnson apply 'retroactively'?.... Under the Armed Career Criminal Act... if a federal unlawful-gun-possession defendant has three prior 'violent felony' convictions, his sentence is increased from a possible ten-year maximum to a mandatory minimum of fifteen years to life in prison. In Johnson, a majority declared unconstitutional, as too vague, a 'catch all' part of the definition of violent felony, called the 'residual clause.' Justice Scalia’s opinion for the five-to-four majority was quite scathing in critiquing the statutory language, while the dissenters felt it extended the due-process concept of unconstitutional vagueness too far."

Writes Rory Little at SCOTUSblog. Little does a good job of explaining the question of which newly announced rules of constitutional law can be used by prisoners who have been convicted and are past the point of direct appeal. You may think it's just not fair that some people are in federal prison, for gun possession crimes, and are serving 15 years to life, when the Supreme Court has said it's unconstitutional to use the ACCA to give more than a 10-year sentence. But the analysis has to do with whether the newly announced rule is considered "substantive" or "procedural."

Missing Scalia has to do with a dissenting opinion he wrote last January in Montgomery v. Louisiana, in which the 6-3 majority, which looked at the new rule that barred automatic life-without-parole sentences for juveniles and said that it was retroactive. Scalia's dissent in Montgomery as vigorous but "Justice Scalia’s opinion finding the residual clause unconstitutional in Johnson was also vigorous." 

15 comments:

traditionalguy said...

Most cases decided by SCOTUS take 5+ years to get there and be decided. So why can't they wait for 10 months.

Or is this the opportune time for Roberts to steer the 8 into finding that a law imposing a penalty of $1,000,000 per gun possessed and $10,000 per bullet possessed is Deemed Taxation compatible with the Second Amendment since that law would not make our guns illegal at all, but only raise revenue.

David Begley said...

The decision in Nebraska v. Parker shows how significant Scalia's influence was. Justice Thomas wrote the decision.

HoodlumDoodlum said...

This term, and the next term, and the next...

Smilin' Jack said...

You may think it's just not fair that some people are in federal prison, for gun possession crimes, and are serving 15 years to life, when the Supreme Court has said it's unconstitutional to use the ACCA to give more than a 10-year sentence. But the analysis has to do with whether the newly announced rule is considered "substantive" or "procedural."

And there, in a nutshell, is why people hate lawyers.

Chuck said...

One of the great myths going around today is that the Supreme Court can't do its work with just eight justices. That is a stretch to the point of near-nonsense. (As Professor Althouse will catch on, I shall overlook the relatively-unknown task of each Supreme Court Justice to sit in review of certain select matters from each of the federal Circuits; but there have been multiple-circuit assignments for several years now, with the invention of the DC, Federal, Tenth and Eleventh Circuits.)

In any event, they can certainly continue to do their jobs.

This week, an 8-0 ruling was rendered in a significant gun rights case. (In favor, generally speaking, of rights set forth in Heller v District.)

Two Cato-associated lawyers, Josh Blackmun and Ilya Shapiro explained in a Wall Street Journal op-ed recently;

Justice Antonin Scalia’s death leaves the Supreme Court in a tough spot, but it is one for which the institution is prepared. Due to death, retirement or resignation—or recusal in individual cases—the high court has often been short-handed. Since World War II there have been 15 periods when the court had eight justices, and each time the court managed its docket without a hitch.

Even in the rare cases when eight justices split evenly, 25 times the court affirmed the lower-court judgment without opinion (or precedential value) and 54 times the court set the case for reargument. The former approach allowed the issues to be raised again in similar future cases. The latter allowed for proper resolutions once the ninth justice joined—and only 25 of those cases ended up 5-4, meaning the new justice made no difference in over half of the reargued cases.

In other words, rather than making the judicial system grind to a halt, a Supreme Court vacancy merely delays rulings in a small number of cases. A study of the past 60 years of eight-justice rosters reveals that today’s Roberts court can easily handle the current vacancy, however long it lasts...


They went on to review a handful of major periods, with major cases in which the Court was short-handed. No big deal.

http://www.wsj.com/articles/only-eight-justices-so-what-1456272088?cb=logged0.5171561246538044

Bay Area Guy said...

Yup, the Supreme Court will definitely miss the great Scalia. No doubt about that.

Of course, that's no reason to confirm a reliably liberal Justice during political season per President Obama's wishes.

shiloh said...

""It seems increasingly clear that the current Supreme Court Term will have to be headlined 'Justice Scalia is sorely missed.'""

or not, depending on one's point of view ...

Gallup SC approval Sept 2015 ~ Approve 45% / Disapprove 50% ~ of course there are many ways to interpret these results, again, depending on one's point of view ie ACA etc.

Brando said...

"One of the great myths going around today is that the Supreme Court can't do its work with just eight justices. That is a stretch to the point of near-nonsense."

It can do its work, it just means that in key 4-4 decisions it'll have no precedential value.

The bigger issues to me appear to be affirmative action and gun control, as those have usually depended on one or two justices and losing a reliably conservative vote can mean our chances to finally outlaw institutionalized racism and finally affirm the right to bear arms will be delayed indefinitely. And there's not much to be hopeful about--bad as Garland could be on those issues, the way this election is likely to turn out, McConnell and company may regret not confirming him when they had the chance.

James Longfellow said...

I, for one, would prefer to see a 4-4 court for a long time. I've never seen the difficulty in having one circuit be in disagreement with each other. Our majoritarian instincts sometimes seem to go hog wild and we must have every little detail be uniform nationwide. '

When I was growing up some people insulted socially conservative Catholics by saying they wouldn't shit unless the Pope told them too. Well, it seems to me that we have gotten to that same stage with the Court. People won't get off the toilet unless the SCOTUS tells them too, because God forbid it, their neighbor over yonder is still on his potty. We all have to get off our legal toilet simultaneously or the sky will fall in!!

Chuck said...

Brando; about that notion of overruling Heller v District...

I'm not so sure. There are some notable examples of the Court reversing itself in a short period of time.

Lawrence v. Texas (2003) reversed Bowers v Hardwick (1986). In his magnificent dissent, Justice Scalia noted that reversal, and compared it to the adherence to Roe v. Wade found in Planned Parenthood v Casey.

Citizens United v. FEC (2010) reversed Austin v Michigan Chamber of Commerce (1990).

Those time-frames (15-20 years) are sort of typical, for "sudden" reversals of previous major precedent.

And especially so, when there is significant federal case law that has built up around the previous precedents. We've got a large and growing body of federal case law depending on Citizens United. It's been much the same for Heller, and of course as Professor Althouse has noted repeatedly, the federal court beat-down on same-sex marriage is as complete as anyone could ever imagine.

So I think you are exactly right, to wonder about reversals post-Scalia. Heller and Citizens United would top the list for me. Affirmative action is likewise interesting. But reversals are usually built on more than just one swing vote.

Steve Uhr said...

A lot of problems could be simply resolved by doubling the size of the Court. Any single president is unlikely to dramatically impact the direction of the Court. Now it is largly a crapshoot.

Brando said...

"So I think you are exactly right, to wonder about reversals post-Scalia. Heller and Citizens United would top the list for me. Affirmative action is likewise interesting. But reversals are usually built on more than just one swing vote."

Yeah, although in those cases (AA and gun control) I had been hoping the Court would go further--actually flat out determine that any racial preferences by government violate the 14th Amendment, and non "shall issue" states (like my current home state) are violating the 2nd Amendment. Unfortunately, the hope of those advances died with Scalia, and now the GOP is set to let things get worse when Kennedy and Ginsburg are replaced soon.

Bob R said...

Form a layman's point of view, Scalia was the most fun to read of any of the justices. I was glad that a lot of lawyers (even liberal ones) agreed with this. I think that one small consolation is that Thomas will probably write more, and we will see his judicial philosophy more clearly. I can't claim to have read enough to fully understand the differences, but I think I agree with Thomas's approach more. Still, he's a good writer, but no Scalia.

So, for the legal scholars - who are the best writers in the history of the court? Who is the most fun/interesting. Holmes is an obvious candidate, but ... doesn't really do it for me.

Chuck said...

Bob R;

Scalia will forever be, for me, the pinnacle of Supreme Court writers.

Current Court observers favor Chief Justice Roberts and Justice Kagan as being among the best current writers.

Justice Thomas is a good, not great, writer. Justice Kennedy is a poor writer; Justice Sotomayor is a terrible one. My opinions on Thomas and Sotomayor may be unduly colored by their content.

In history, Justice Robert Jackson was for many years thought to be one of the greatest writers in the history of the Court. I think Justice Potter Stewart was a very underrated writer, and so was Justice Byron White. Justice Powell was a disastrously bad writer; Justices Brennan and Blackmun were not good either.

The young Justice Rhenquist wrote some very exciting, and well-crafted opinions. I think his writing style got a bit more cramped as Chief.

Justice O'Connor deserves an Honorable Mention as one of the worst and most undisciplined thinkers and writers on the Court, which would surprise many since she was ideologically such a bland centrist. In fact, that was her problem. She was a mediator, not a judge.

A lot of the famous early Justices are nearly unreadable because early law writing was so filled with jargon and legalisms that are no longer used. You can scarcely read Chief Justice Taney's wretched opinion in Dred Scott; the language is so impenetrable.

And while his opinions were occasionally awful, Justice Oliver Wendell Holmes was a great crafter of legal writing which could actually be read as plain English. His non-legal-opinion popular and academic writing is his best work.

As technically proficient and readable writers, I have always been underwhelmed by the great liberals; Brandies, Murphy and Douglas.

Maybe some other lawyers have different/contrasting/opposing views.

Chuck said...

"Brandeis." Sorry.