Constitutional Law

The third week of June is a frustrating time to follow the Supreme Court.

If there’s any institution in contemporary America that understands ceremony, it’s the Court. Such a self-consciously dramatic institution is, in no way, going to underestimate the importance of timing in issuing opinions. The Justices know that there’s a big difference between a story — or a history book — that starts “On the last day of the Term, the Supreme Court decided,” versus “On the third to last day of the Term….”

There is, in short, just about zero chance that this close to the end, yet not quite at the end, the Supreme Court is going to issue an opinion in the Texas affirmative action case, the Voting Rights Act case, the challenge to the Defense of Marriage Act, or the California Proposition 8 case.

And yet, the Court still issues opinions. And we still line up to hear them, or push SCOTUSblog’s liveblog viewer-count to even higher numbers, even if we all know, or should know, that the opinions we get are not opinions that will resonate through the ages.

Today, the Supreme Court did issue three opinions. And one of them is important, if only for disaffected teenagers. The rest you may not care about, unless you’re a felon with a gun or you ever signed an arbitration agreement….

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I took Crim Law my first semester in law school. My professor, now the school’s dean, was an imposing fellow to 1L eyes. He looked approximately seven feet tall, with a deep, booming voice, a propensity for cold-calling, and a demanding, often impenetrable teaching style. I loved the class, even though I went into fight-or-flight mode in the minutes before he would stroll down the aisle of the auditorium.

We read the Apprendi line of cases, where the Supreme Court ruled that the Sixth Amendment right to a jury trial prevented judges from enhancing criminal sentences beyond statutory maximums based on facts other than those decided by a jury beyond a reasonable doubt. I thought I grasped the gist, with my nervous 1L brain. Then we got to Harris v. United States. In Harris, the majority held that Apprendi did not apply to facts that would increase a defendant’s mandatory minimum sentence. Judges could apply mandatory minimums on the basis of facts not proved to a jury, without violating the Sixth Amendment. These fact were sentencing factors, the majority held, not offense elements.

Terrified that I had misunderstood something crucial, I visited my crim prof’s office before the class when we would discuss Harris. I recited the cases up to that point, if for no other reason than to show that I had, in fact, been reading and that my ultimate confusion was not because I was totally mentally challenged. (Even if just a little.) I summarized my understanding of the Court’s holding in Harris, why it just didn’t square, how I knew that I must be missing something, because I just didn’t see how Harris properly followed. After way too long, I finally sputtered, “Sir, I’m . . . I’m just . . . confused.”

My prof leaned back in his chair, paused dramatically, sighed, then replied, “Ms. Tabo, of course you are confused. The Supreme Court is confused.”

As of this week, the Court is no longer so confused….

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Well, they give zero f**ks. Not a single one.

They’re wearing a ridiculous piece of fashion because they do not care about your opinion. Remember Gordon Gee? Bill Nye? Donald Duck?

And this universal truism was reaffirmed when the 93-year-old former justice took the stage before a giant gathering of liberal lawyers, jurists, academics, and law students, and patiently told them how wrong they are about DNA and the Fourth Amendment.

This is what happens when you invite Republicans to speak…

double red triangle arrows Continue reading “Justice Stevens Address: Guys Who Wear Bow Ties…”

I told my dad “Fudge you” just once. I was fifteen or sixteen and he was being a real butthole. Saying some crap about the clothes I was wearing. My jeans were too fricking big or something, I don’t know. Style, huh? Anyway, I was standing there with my big fricking jeans literally hanging off my backside, when dad starts in on me. Saying all his crap about my big fricking jeans. So I say it. I just up and say it. “Fudge you.” Life, as it has from time to time since that fateful moment, paused. And not slightly, but for, like, ten fricking minutes. Time just stood freaking still and the moments to come just waited there, I guess. Waiting to freaking happen cause time had stood still and all. Well, when time started up again, I hightailed it back to my room as my dad just stood there silently. Not a freaking word to be said, I guess. I must have sat in my room for two hours, until my mom came home and retrieved me from my self-imposed exile. “Cheese and rice, what did you say to your father? He’s sore as heck over something you said.” I told her and she blushed and I blushed and she told me I ought to apologize. She told me to pull up my pants, too. On account of my butt showing.

There are moments in life that just scream for curse words. For sailors, those moments take up their entire lives! For the rest of us, we must pick our moments carefully. One Connecticut man recently cussed a fudging blue streak all over his speeding ticket, earning the ire of the small town that issued the citation.

And now it’s not just a huge freaking deal, but also a possible crapstorm of constitutional proportions…

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If you’ve been arrested, and the police want to interrogate you, they will tell you that you have the right to remain silent.

How do you assert that right?

One way would be to say something like “I would like to remain silent.” Saying “I want a lawyer” should also stop the questioning.

But today, in Salinas v. Texas, the Supreme Court of the United States held that you do not assert your right to remain silent by remaining silent. If you want to remain silent, you’ll need to be prepared to talk about it.

No one will be surprised that this result came from the Justice least likely to be voted most beloved by those in our nation’s prison systems, Justice Alito.

Sort of….

double red triangle arrows Continue reading “Introverts And The Fifth Amendment: Or, Why You Should Go To Law School”

Way back in the callow, innocent days of, um, February 2013, the U.S. Supreme Court delivered its opinion in Clapper v. Amnesty International. The case stemmed from a challenge of the constitutionality of Section 702 of the Foreign Intelligence Surveillance Act of 1978, 50 U. S. C. §1881a.

If you didn’t pay much attention to the Court’s decision in Clapper back then, you might want to revisit it now that we know we’re all subject to NSA surveillance . . . .

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It used to be, back before 2005, that the federal sentencing guidelines were mandatory. If you were going to be checking into the United States Bureau of Prisons, the sentencing guidelines determined how long your reservation would be for.

And, it used to be, that if you committed a federal crime, and, between when you committed the crime and were sentenced, the sentencing guidelines went up, the judge had to apply the lower sentencing guidelines from when you committed the crime.

To do otherwise would violate the Ex Post Facto clause.

The sentencing guidelines changed, though, with Booker. Now they aren’t mandatory – they’re just something important that a federal judge has to look at and a federal judge may be risking reversal if she doesn’t follow them.

Got that? The guidelines are totally discretionary. But for the appellate review. Also most federal judges follow the guidelines almost every time. But that’s just a coincidence.

So, since the guidelines are no longer mandatory, but, rather, now just followed in the vast majority of cases, what happens to the Ex Post Facto clause?

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Justice Kennedy announced the majority opinion in a long anticipated case today. It was met with a blistering dissent by Justice Scalia.

Unfortunately for most Court watchers, it was not the opinion in Fisher v. University of Texas, the latest in the Court’s attempts to resolve whether affirmative action in higher education is constitutional. Some observers expressed annoyance.

Instead, the Supreme Court issued a ruling in Maryland v. King, which Justice Alito previously identified as potentially the most important law enforcement decision in decades. The Court held that the police can take your DNA any time you’ve been arrested for a “serious” crime.

But the real fun was in the dissent….

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On Tuesday, the Supreme Court released opinions in two habeas cases, McQuiggin v. Perkins and Trevino v. Thaler. The holdings reek of liberal judicial activism, however well-intentioned.

In Perkins, my least favorite of Tuesday’s cases, the Court held that a showing of “actual innocence” is sufficient to circumvent the Antiterrorism and Effective Death Penalty Act’s (AEDPA) statute of limitations. In effect, a narrow majority decided to judicially amend a validly enacted statute, creating an exception that the majority admits that the statute itself does not contain. On top of that, this particular case may have been a pretty defective vehicle for addressing the limitations question anyway. There’s a pesky matter, discussed at oral argument, about the procedural posture of the case, making it pretty dubious whether the Court should have even gotten to the merits here.

(Cases like Perkins make me want to appropriate my own version of Dan Savage’s “DTMFA” — shorthand for “Dump the Mother-F*cker Already.” Too often, it would be useful to just be able to write “DTMFA” for “DIG the Mother-F*cker Already” for cases that I wish that SCOTUS would dismiss as improvidently granted. But, alas, you probably have to be a syndicated sex columnist for the privilege of coining long-but-useful acronyms.)

Dark days for the fair application of AEDPA….

double red triangle arrows Continue reading “Why We Can’t Have Nice Things: The Death Penalty Dilemma”

Amanda Bynes

* Let’s get ready to rumble! Some of the Supreme Court’s most controversial opinions yet are expected to be rolled out in the coming weeks — and maybe even today. Stay tuned for news. [CNN]

* Let’s see what happens when Obama nominates three judges at once to the D.C. Circuit. How many of them will be confirmed as quickly as Sri Srinivasan? Probably not many. [New York Times]

* White House counsel and leading litigatrix Kathryn Ruemmler is best known for her fabulous shoes, but this week, she’s taking some flak for her involvement in the IRS scandal. [New York Times]

* “I don’t know whether the Lord Himself could get confirmed at this point.” It looks like poor Attorney General Eric Holder doesn’t have very many people left to turn to thanks to executive and congressional inaction. [Bloomberg]

* When it comes to recent diversity efforts in Biglaw there’s an ebb, but not really a flow, and it’s all being blamed on the recession. Also, “diversity fatigue” is apparently a thing now. [New York Times]

* The $200 million gender discrimination suit filed against Greenberg Traurig over the firm’s alleged “old boys club” has been settled for an undisclosed amount. You go girl! [Thomson Reuters News & Insight]

* According to Judge Murray Snow, Arizona’s most beloved sheriff, Joe Arpaio, has been violating the constitutional rights of all of the Latinos whom he supposedly “hadn’t” been racially profiling. [Reuters]

* My, how things change: David Blankenhorn, a man who once testified as an expert witness in support of Proposition 8 at trial, has come forward to condemn anti-marriage equality laws. [Los Angeles Times]

* Stewart Schwab, the dean of Cornell Law School, will step down in June 2014. Perhaps the next dean will crack down on the number of cam girls pleasuring themselves in the law library. [Cornell Chronicle]

* Law schools tend to be “bastions of liberalism,” which makes it hard for students to find intellectual diversity. It’s a good thing we’ve got the Federalist Society to balance things out. [Washington Times]

* People who think Washington needs another law school propose one for students “who can’t afford to … go into debt … to get their legal degree.” This won’t sit well with the legal academy. [News Tribune]

* With Lindsay Lohan stuck in rehab, Amanda Bynes decided it was her turn to go wild. The retired actress says she’s suing the NYPD for unlawful arrest and sexual harassment. [New York Daily News]

* Alton Lemon, the Supreme Court plaintiff behind the eponymous Lemon test, RIP. [New York Times]

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