DailyWrit

I just finished the Term Index, which you can find here.

Number of Opinions Released: 72
Per Curiam Decisions: 5 (7%)
Unanimous Decisions (9-0, 8-0): 24 (33%)
Lone Dissenter(8-1):6 (8%) [Thomas(3), Ginsburg(2), Breyer(1)]
Two Dissenters (7-2, 6-2, 5-2) :19 (26%)
Three Dissenters(6-3, 5-3): 9 (13%)
Five-to-Four Decision: 9 (13%)

More to come as I have more time to crunch numbers.

First, Davis v. FEC came down against the “Millionaire’s Amendment.” Alito read from his majority opinion. Not terribly surprising, but almost certainly an interesting read. Interestingly enough, the Court took down disclosure requirements and contribution limits. Contribution limits went down for not being equally applied across the board and “disclosure requirements, which were designed to implement the asymmetrical contribution limits, are as well.

The opinion in Morgan Stanley v. Public Utility can be found here, thanks to SCOTUSblog.

Now, for Heller: Affirmed, quite naturally. Wow! It came down 5-4, with none of the traditionally ‘liberal’ Justices joining the pro-gun rights majority. Scalia must have written an incredibly strong majority opinion and the ‘conservatives’ must have been unwilling to budge.

Opinions are straight 5-4, one majority and two dissent. No concurring, partials. I’m surprised to see that happen. In a term where we’ve seen a remarkably low rate of 5-4 standard ideological splits, this clear delineation resonates loudly enough that I can hear it a thousand miles away.

HELLER OPINION HERE.

Justice Scalia drops a classic lesson in Second Amendment textual interpretation. According to Justice Stevens, he “discusses the prologue last.” Whatever you want to call it, Scalia talks about the right of individual people first.

It is only on Page 56 that he finally gets to DC’s specific legislation. He declares the ‘inoperable’ requirement to be unconstitutional:

We must also address the District’s requirement (as applied to respondent’s handgun) that firearms in the home be rendered and kept inoperable at all times. This makes it impossible for citizens to use them for the core lawful purpose of self-defense and is hence unconstitutional.

We are aware of the problem of handgun violence in this country, and we take seriously the concerns raised by the many amici who believe that prohibition of handgun ownership is a solution. The Constitution leaves the District of Columbia a variety of tools for combating that problem, including some measures regulating handguns, see supra, at 54–55, and n. 26. But the enshrinement of constitutional rights necessarily takes certain policy choices off the table. These include the absolute prohibition of handguns held and used for self-defense in the home. Undoubtedly some think that the Second Amendment is outmoded in a society where our standing army is the pride of our Nation, where well-trained police forces provide personal security, and where gun violence is a serious problem. That is perhaps debatable, but what is not debatable is that it is not the role of this Court to pronounce the Second Amendment extinct.

Try not to act too surprised, but Stevens talks at length about how the Court’s shouldn’t reverse every decision it makes and that at a certain point, a decision like Miller is set in stone.

Even if the textual and historical arguments on both sides of the issue were evenly balanced, respect for the well-settled views of all of our predecessors on this Court, and for the rule of law itself, would prevent most jurists from endorsing such a dramatic upheaval in the law.

The Supreme Court is set to release DC v. Heller and two other cases this morning. The cases will be announced between 10:00am and 10:15am EST, and the opinions will be online minutes later. I’ll be posting my initial thoughts and opinions here, and I’ll be linking to others around the ‘net as they do the same.

I think I would be most surprised to see Justice Scalia, the likely author of the opinion, incorporated like most of its fellow amendments in the Bill of Rights. Gun Rights advocates would love to see it happen, but I just don’t see it. Even though as a citizen I’m not fond of expansive Second Amendment rights, I would just love to see Justice Thomas succeed in finally getting something incorporated via the ‘privileges and immunities’ clause, a much better vehicle of incorporation in my opinion.

It will also be interesting to see if Scalia goes all-out and loses his majority, reigns in his possibly extreme opinions and keeps his majority, or goes all-out and retains a majority.

The Term Case Index for OT07 is now representative of everything the Court has handed down thus far in the term. As always, you can find it either along the top of the page or here. When the court hands down the remaining three cases from the term, I’ll post a complete statistical breakdown similar to what I did last year with the same statistics (here.)

In the meantime, don’t forget to read up on the cases coming out tomorrow: Heller, Davis, and Morgan Stanley.

Law blogs (or blawgs, if you’re a silly person) are going absolutely nuts over the impending Heller decision. Over at Volokh, the everawesome (and possibly evergreen) Professor Kerr has a post telling everyone to come back tomorrow and one commenter asks:

On what day of the term was Brown v. Board of Education released? This would represent about as big a shift in the law, in my opinion.

Other people said sillier things but I can only pray that they were jokes by virtue of the fact that they were just that ridiculous. I’m at a loss for words. I really am. What do you say to these people?

If you are in search of real insight into the most important opinion ever released and a written work that will go down in the annals of history alongside the Magna Carta and the Holy Bible, check out Professor O’Shea’s analysis over at Concurring Opinions.

Justice Kennedy’s majority in Kennedy v. Louisiana is an interesting, albeit frustrating one. He sets out to splatter every argument he can against the wall in the hopes that at least a few will stick. Whether or not he succeeds is up to the reader and more importantly, future generations of Supreme Court Justices who will no doubt be asked to answer this question and similar ones in the future.

His first splattering:

The evidence of a national consensus with respect to the death penalty for child rapists, as with respect to juveniles, mentally retarded offenders, and vicarious felony murderers, shows divided opinion but, on balance, an opinion against it. Thirty-seven jurisdictions—36 States plus the Federal Government—have the death penalty. As mentioned above, only six of those jurisdictions authorize the death penalty for rape of a child. Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind. That number surpasses the 30 States in Atkins and Roper and the 42 States in Enmund that prohibited the death penalty under the circumstances those cases considered.

Okay. I’m not totally convince yet, but I get the feeling Justice Kennedy will try again.

The Supreme Court today handed down a series opinions on the penultimate day of the term. Major thanks should go to SCOTUSblog for getting these opinions online minutes after the Court announces them. I’ll eventually change the links to redirect to the Supreme Court’s website, but thanks go to SCOTUSblog for letting us read the cases as quickly as possible.

Exxon v. Baker- The Court struck down punitive damages imposed on Exxon to victims of the Exxon-Valdez crash on the grounds that punative damages should not exceed compensatory damages per accepted Maritime common law. Justice Souter penned the majority opinion.

Kennedy v. Louisiana- The Court held that imposing the death penalty for child rape is unconstitutional if death was not the intent of the action in question. Justice Kennedy wrote the majority and the Chief and Justices Scalia, Thomas, and Alito dissented. The case came down straight 5-4 with one majority and one dissenting opinion.

Kennedy’s decision is much stronger than I expected in the sense that he declares:

In most cases justice is not better served by terminating the life of the perpetrator rather than confining him and preserving the possibility that he and the system will find ways to allow him to understand the enormity of his offense.

Really? He made that argument? Oh dear.

Giles v. California- The Court held: “The California Supreme Court’s theory of forfeiture by wrongdoing is not an exception to the Sixth Amendment’s confrontation requirement because it was not an exception established at the founding.” Word on the street is that the Court really meant to say that when a defendant takes means or action specifically designed to prevent an individual from testifying against them (murder,) they forfeit their confrontation clause-given rights. Fascinating stuff.

Plains Commerce Bank v. Long Family Land & Cattle- The Court ruled that Plains Commerce Bank retains standard Article III recourse to a Indian Tribal ruling over its dealings with property held by Indians on reservation ground.

Thats all for today. Heller comes down 100% tomorrow. Stay tuned for more commentary on today’s cases, particularly Kennedy v. Louisian.

The Court is widely expected to hand down the remaining seven opinions from this term today and either tomorrow or Monday. Among the cases to watch are Kennedy v. Louisiana (death penalty for child rape) and DC v. Heller (DC Gun ban.)

Justice Scalia is the only Justice remaining from the March sitting who has yet to write a majority opinion, strongly suggesting that he will be the author of the possibly majority opinion. That majority opinion could very likely be written for only five Justices even though I expect six or seven Justices will ultimately side with Heller in the case. Among the common predictions:

Scalia writes the majority opinion and is joined by the Chief and Justices Thomas, Kennedy, and Alito. Breyer and Stevens concur in judgement but either do no sign on to the majority at all, or join only as to Parts I and II. Ginsburg writes a dissent and is joined by Souter.

Scalia writes the plurality opinion and is joined by the Chief and Justices Thomas and Alito. Kennedy writes a concurring opinion and Justices Breyer, Stevens, and Souter also concur. Justice Ginsburg dissents.

We should find out shortly, but however this plays out, the opinions are sure to be passionate and insightful.

The Court is likely to release quite a few cases this week. There are 10 cases left in the term and the Court will release a few today and more on Wednesday or Thursday.

In case you had noticed, I am in the process of preparing the Term Case Index for the end of the term. I’ll be updating it frequently for the next few days and you can find it here. My goal is to have it complete the same afternoon the last opinions are released. We’ll see how that goes.

The Supreme Court’s landmark public use decision Kelo v. City of New London was handed down three years ago today. On June 23, 2005, Justices Stevens handed down an opinion that held that “there is no basis for exempting economic development from our traditionally broad understanding of public purpose.” Justices Kennedy, Souter, Breyer, and Ginsburg signed on to their eldest colleague’s opinion against dissent from Chief Justice Rehnquist and Justices O’Connor, Thomas, and Scalia. An excerpt from Justice Thomas’ dissent:

The Court relies almost exclusively on this Court’s prior cases to derive today’s far-reaching, and dangerous, result. See ante, at 8—12. But the principles this Court should employ to dispose of this case are found in the Public Use Clause itself, not in Justice Peckham’s high opinion of reclamation laws, see supra, at 11. When faced with a clash of constitutional principle and a line of unreasoned cases wholly divorced from the text, history, and structure of our founding document, we should not hesitate to resolve the tension in favor of the Constitution’s original meaning.

The opinion is a fascinating one and, at only 58 pages, it makes for a quick read. Check it out here.

The Supreme Court released five opinions today, the most interesting of which is the decision in Boumediene v. Bush, the landmark detainee right’s case. The Court held, 5-4, that detainees currently designated as ‘enemy combatants’ have signficant habeus corpus rights and have the right to have them upheld in federal district court.

I’m reading this case at the moment and I’ll update this post as soon as possible.

The next few weeks are sure to be busy ones on the Court. The Court has an astonishing 26 cases left on its docket and all of those will receive an opinion before the end of June. Last year the Court released 22 cases in the same period (second through fourth weeks in June.) The remaining cases are sure to excite; they include Boumediene (Guantanamo Bay detainees), Heller (DC gun ban), and Exxon (punitive damages).

The Supreme Court today announced that they will be hearing three-cases per day instead of the normal two cases during October and November sessions in an effort to curb the late-June onslaught of cases. The Court has already accepted 28 cases for OT08, and if it plans to hear 3-a-day for October and November, it will need at least 33 to cover those two months. Add in another 6-12 for December and the Court will need to accept at least 11 more cases before the end of June (unless it is willing to seriously abridge the briefing process and force council to argue three months after their cases is accepted by the Court.)

The change shouldn’t effect much in the way of substantive Constitutional matters but it is an interesting reflection on the dynamics of the Roberts Court. Chief Justice Roberts is obviously willing and excited about making changes to spread out the docket and make it as fair as possible to all the parties involved. Its hard to say why he finds it so important to avoid the inevitable procrastination of cases to June. I say that it is inevitable because even with the change to the schedule, I wouldn’t be surprised to see a number of the high-profile cases extend well beyond the normal timeframe for deliberation.

The Court is expected to release the official schedule on Monday along with a few cases. I expect at least three to be handed down today.

Justice O’Connor presented at a gamer’s conference and talked about her new game, Our Courts. Check it out here at Wired’s GameLife blog:

That’s why, O’Connor said, she wanted to work alongside University of Wisconsin-Madison professor James Paul Gee to create Our Courts, which will begin rolling out in September 2009.

The game “lets students engage in real issues and real problems,” O’Connor said. It will allow them to “step into the shoes of a judge, a legislator, an executive — teach them how to think through and analyze problems, take action and voice opinions to their elected representatives.”

An early exercise in the game will likely deal with educating students about their First Amendment rights, using examples like Tinker v. Des Moines and the “Bong Hits For Jesus” case.

US v. Williams (opinion) stole the spotlight amongst last week’s decided cases and for good reason. The court narrowed scope of the PROTECT Act and upheld its basic tenants against first amendment claims. Another case, US v. Ressam, struck me as being particularly interesting.

The facts of Ressam (opinion) aren’t terribly complex. Ahmed Ressam tried to enter the United States through Canada and lied about his identity and the contents of his vehicle. Custom officials located explosives in his spare tire well and he was convicted in relation to a plot to trigger the explosives at Los Angeles International Airport. He was charged with a number of crimes, one of which was “carry[ing] an explosive during the commision of” another felony (lying to customs officials) under 18 USC 844(h)(2).

The Court held that possession ‘during’ a felony is defined in as anything with a ‘temporal link’ to that felony. Put another way, carrying explosives during a felony, related or not, is grounds to trigger a charge under this statute. The majority opinion, penned by Justice Stevens, refuses to add a relational condition to a statue that says simply, “during.” The Court accepted the case because while the Third and Fifth Circuits have refused to add relational conditions, the Ninth Circuit did in this case and the Court was asked to give final judgment to the sudden circuit split.

Justices Scalia and Thomas joined only the first part of the opinion that states:

There is no need to consult dictionary definitions of the word “during” in order to arrive at the conclusion that respondent engaged in the precise conduct described in §844(h)(2) (1994 ed.). The term “during” denotes a temporal link; that is surely the most natural reading of the word as used in the statute. Because respondent’s carrying of the explosives was contemporaneous with his violation of §1001, he carried them “during” that violation.

The Chief Justice and Justices Stevens, Kennedy, Souter, Souter, Ginsburg, and Alito moved on to discuss the history of the statute and how that further clarified the meaning of the clause. In 1984, the Ninth Circuit interpreted a similar firearms statute to have an implicit relational assumption. Congress added the phrase “in relation to” to the statute soon afterwards. As their argument goes, if Congress had intended the explosives-related statues to mirror the breadth of the gun-related statute, they would have included the “in relation to” clause of the latter. Their evidence is persuasive.

Justice Breyer’s dissent is interesting and he makes several strong, but ultimately irrelevant, points. He opens Section I with this:

My problem with the Court’s interpretation is that it would permit conviction of any individual who legally carries explosives at the time that he engages in a totally unrelated felony. “Explosives,” the statute tells us, includes not only obviously explosive material such as “gunpowders” and “dynamite” but also any “chemical compounds” or “mixture[s]” or “device[s]” whose “ignition by fire, by friction, by concussion” or other means “may cause an explosion.” 18 U. S. C. §844(j). And that definition encompasses such commonplace materials as kerosene, gasoline, or certain fertilizers. Moreover, the “carr[ying]” to which the statute refers includes carrying that is otherwise legal. Further, the statute applies to the carrying of explosives during “any” federal felony, a category that ranges from murder to mail fraud. See §1111 (2000 ed. and Supp. V); §1341 (2000 ed., Supp. V).

His concerns are valid. If I were to commit murder with a lighter in my pocket, I could be convicted of carrying an explosive while committing a felony. Ultimately, however, it seems as though Justice Breyer is ruling against this law because there is a better alternative. He spent very little time, if any, explaining why the majorities interpretation was wrong.