Category Archives: Judicial

Sentencing — What you need to know to discuss the GOP’s fraudulent charges against Judge Jackson

By tmess2 | Published March 26, 2022

As always, the Party of GnOP has found multiple issues to attack a minority candidate that are based on a gross distortion of realities.  The big charge has to do with how Judge Jackson has been imposing sentences for child pornography.  To understand the allegations, you first need to know the basics.

When Congress or state legislators pass a criminal statute, they establish a penalty for a violation.  With limited exceptions, most statutes do not establish a precise penalty.  Instead, they create a range of punishment.  The concept behind having a range of punishment is to permit individualized punishment.  However, in creating a range, the legislature is attempting to define the penalties that are appropriate for most cases.  Thus, for example, stealing a car might have a penalty of up to seven years.  That’s not a decision that seven years is the appropriate penalty for the offense.  Rather, it’s a decision that a case that merits more than seven years will be so rare that it makes sense to take such a long sentence off the table.  On the other hand, murder might have a range of ten years to life.  Again, that’s not a decision that ten years is the appropriate penalty in any specifc case, but that the cases in which a sentence of lower than ten years will be so rare that it makes sense to take penalties less than ten years off the table.  For some statutes, often referred to as mandatory minimums although that is inaccurate as all offenses have statutory minimums, the law precludes a court from considering probation as an alternative to the authorized sentences.

In addition to the statutes defining range of punishment, most jurisdictions have a set of statutes defining what courts should consider in imposing sentences.  For federal courts, the law requires the court to consider four factors, but those factors are what most scholars have discussed for decades as the four considerations that are appropriate in sentencing.  The first factor is retribution — i.e. what is an appropriate penalty for the conduct.   The second factor is deterrence — creating a disincentive for commission of a crime.  This factor is both individual (what will teach this offender a lesson about the consequences if he reoffends) and collective (what punishment will scare othe potential offenders).  The third factor is incapacitation — what is needed to prevent this offender from reoffending.  The final factor is rehabilitation.   The law further requires the penalty to be no greater than is needed to satisfy those four concerns. Continue Reading...

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The Supreme Court and Voting Rights

By tmess2 | Published February 13, 2022

Parties seeking to challenge a new law have to make a choice between filing a case in federal court (assuming that they have a federal constitutional claim) and filing in state court.  Unless you have a favorable state Supreme Court, the usual tendency is to file in federal court.  However, it is becoming very clear that, if you are challenging an illegal redistricting plan, you really have to file in state court as the U.S. Supreme Court will not be give any assistance to plaintiffs.

This week, the U.S. Supreme Court had what should have been a no-brainer.  When faced with a challenge to the Alabama district lines under Section 2 of the Voting Rights Act, the three-judge panel issued a lengthy order which included detailed analysis of the evidence and tracked the governing precedent under Section 2.  Under the existing law (and the plain language of Section 2), the Alabama maps were and are illegal.  Under the legal standards governing a stay (which takes into account the merits and the interests of the parties), there was no basis for a stay.  The Supreme Court should have denied the stay and summarily affirmed the judgment.

But that’s not what the Supreme Court did,   By a 5-4 vote, the Supreme Court issued the stay and put the case on the argument docket for the fall.  Because there is no requirement for opinions on stays, we only know the reasoning of some of the justices.  And what we do know gives a strong hint that the Voting Rights Act is effectively dead. Continue Reading...

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Covid and the Supreme Court

By tmess2 | Published January 1, 2022

While many of us were enjoying time off for end-of-year holidays, the United States Supreme Court added extra work for several lawyers.   On December 22, the Supreme Court issued two orders in four cases involving two of the Biden Administration’s vaccine mandates — one involving health care workers and one involving large employers.  In these orders, the Supreme Court granted review and set the cases for expedited argument this upcoming Friday (January 7).   There are several issues worthy of comment on this order.  The first comment is a little “inside baseball.”  The other has to do with what is really happening here as oppose to how the media might comment on this case.

Starting with the inside baseball part of this issue, over the past several years, there has been growing criticism of how the Supreme Court is using the “shadow” docket.  The shadow docket is a reference to applications for stays of lower court rulings (or alternatively a request that the Supreme Court issue a temporary injunction that the lower court refused to issue).   If the application is completely frivolous, it can be denied quickly by an order.  If there is some merit, the Supreme Court might request a response.  After receiving the response, the Supreme Court typically resolves the application by an order or a brief unsigned “per curiam” opinion.  Unless some justice opts to file a concurring or dissenting opinion, the order or opinion does not note the votes of the justices.  All that we know is that, at least five justices, agreed with the order or opinion.  These cases are typically resolved without full briefing or argument.  As some significant issues have come through the shadow docket over the past several years, this process has come under some criticism.  This year, we have seen the Supreme Court opt to grant argument on three separate occasions to matters arising from the shadow docket — first on a question about ministers in the execution chamber (argued but still awaiting a decision), second on the ability to challenge the Texas abortion statute, and now on the Biden vaccine mandates.  In the first two cases, the parties did get to submit full briefs on an expedited basis.  That is not so for the vaccine mandates.  While, maybe, the Supreme Court would have gone this right under any circumstances, clearly the fact that the shadow docket is starting to become an issue is something that the Supreme Court has to be concerning to the justices.  Perhaps, the Supreme Court will continue to hold expedited argument on major issues arising on the shadow docket to avoid Congress taking action.  Only time will tell.

Turning to the merits, while the media will focus on these cases being about vaccine mandates, that framing is misleading at best and wrong in many respects.  While the cases do involve a challenge to vaccine mandates, the legal issues have very little to do with vaccine mandates.  There is no claim in these cases that vaccine mandates violate the rights of anybody.   Cases asserting a right to not be vaccinated have uniformly been rejected.  (To be blunt, those cases demonstrate the hypocrisy of the right wing of the Republican Party.  At the same time that they are asking the court to overturn Roe vs. Wade, they are bringing these cases asserting a right to bodily autonomy that depend largely on Roe.)  Instead, these cases involve two other issues. Continue Reading...

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The Day the Constitution Died

By tmess2 | Published December 12, 2021

In the law, there is a concept known as a “chilling effect.”  Put most simply, it means that the potential reach of the law intimidates people into not exercising a potential constitutional right for fear of the severity of the legal consequence if a court finds that the law is constitutional and covers your proposed activity.    The claim of a chilling effect is most often made in the context of the First Amendment when a statute covers speech or expressive conduct.  A person challenging a broad law can claim that — even if their activity could be barred by a valid law and potentially violates the law under some reasonable interpretation — the law is subject to other reasonable interpretations that would bar constitutionally protected speech.  But the concept of a chilling effect exists in other contexts too.

One remedy to preclude the chilling effect of an unconstitutional law is to allow the subjects of regulations raise “pre-enforcement” challenges to the law.  The essence of a pre-enforcement challenge is that the plaintiff: 1) has been doing X; 2) would continue doing X but for the law; 3) is unable to continue doing X because she does not know if the new law is valid; and 4) believes that the law is unconstitutional.  A pre-enforcement action can lead to a “stay” which allows effected individuals to continue with their activities until the challenge is resolved with no legal consequences.   In the absence of a pre-enforcement challenge, somebody has to be brave enough to violate the law and risk the consequences if the law is upheld.  In essence, they volunteer to be the “test” case for the statute.   While test cases are not unusual as the exact operation of any new law or rule is unclear until after a couple of cases have worked their way through the system, the consequences of being wrong in your belief about how the law should be interpreted can be devastating for the person alleged to have violated the law.

After the passage of the Bill of Rights, the next amendment adopted was the Eleventh Amendment.    Article III allows a federal court to hear a case based on “diversity” jurisdiction.  One early case involved a resident of one state to sue a different state.  Now, traditionally, a government was immune from being sued in its own court (commonly referred to as “sovereign immunity”).  The Eleventh Amendment overturned that initial case.  By its plain text, the Eleventh Amendment only eliminates diversity jurisdiction by barring a non-resident from suing a state.  For true textualists, nothing in the text of the Eleventh Amendment bars a suit filed by a resident of a state against his own government.  However, over the years, the court have created their own rules for what the Eleventh Amendment means. Continue Reading...

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A background on the issues in Dobbs vs. Jackson Women’s Health

By tmess2 | Published December 5, 2021

The Supreme Court heard arguments on Wednesday in a case involving Mississippi’s law banning pre-viability abortions after fifteen weeks.  For those not familiar with court terminology, here is a brief primer on the legal terminology that you might hear during coverage of this case.

SUBSTANTIVE DUE PROCESS & THE RIGHT TO PRIVACY

The Bill of Rights contains a rather extensive list of “enumerated” rights.  It also contains a catch-all provision in the Ninth Amendment.  Both the Fifth Amendment and Fourteenth Amendment contain a due process clause which forbids the denial of liberty without due process of law.  Over the years, the courts have had to deal with the limits of the rights contained in the Bill of Rights.  For example, the First Amendment expressly covers two forms of communication — oral (free speech) and written (free press).  But that leaves issues about other forms of expressive conduct (is dancing or painting speech) and whether press was limited to news or does it cover other written publications.  Similarly, there is debated about the due process clause — does it merely require appropriate proceedings (laws being properly passed, cases being properly head) before a person is deprived of their freedom (i.e. goes to prison) or does it also provide substantive protections against the passage of laws that eliminates rights. Continue Reading...

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Senate Bill 8 and the Supreme Court

By tmess2 | Published October 31, 2021

This week, the Supreme Court will take up issues related to Texas’s new abortion law — Senate Bill 8.  There are several key things to know about this case.

First, this case has been expedited.  The Supreme Court turned down the request for a stay and granted review on the  “merits” on October 22.  The  Supreme Court ordered the parties to file the written arguments on the merits by October 27.  The Supreme Court will be hearing argument on November 1, just ten days after granting review.  By contrast, the “normal” schedule set forth in the rules (which is typically condensed somewhat for cases in which review is granted between October and January) establishes a minimum of 115 days between the grant of review and argument.  This expedited hearing, probably represents a compromise between the Justices that wanted to reinstate the trial court’s stay of the law and those that wanted to take this case in the ordinary course of Supreme Court review.

Second, the Supreme Court permitted the parties to bypass the Court of Appeals.  While the Fifth Circuit Court of Appeals (covering Louisiana, Mississippi, and Texas) has issued rulings on the stay entered by the trial court, it has not yet ruled on the merits of the case.  The Rules of the Supreme Court permit parties to ask to bypass the appellate court (a petition for certiorari before judgment), but the Supreme Court rarely grants that request.  Again, this decision probably represents a compromise between those that wanted to grant the stay (which would have been in effect until the Fifth Circuit decided the case) and those that wanted things to proceed in the ordinary course of review.   It may also reflect the view that the Supreme Court has of the Fifth Circuit.  There are several circuits known for their tendencies in litigation.  There are three or four perceived to be ultra liberal with the Supreme Court needing to frequently correct them.  The Fifth Circuit has the same reputation for being ultra conservative and has been frequently reversed on abortion cases.  Given this reputation, the Supreme Court may have decided that there was no need to see what the Fifth Circuit would write. Continue Reading...

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Supreme Court October Term 2021 — Part II

By tmess2 | Published September 26, 2021

Last week, we took a look at the upcoming Supreme Court Term with a focus on the cases scheduled for the October and November argument sessions.  This week, we take a look at the cases set for December and those with no argument date yet (most likely January) with some comments on pending applications.

The big case on the December docket is Hobbs v. Jackson Women’s Health Organization — the Mississippi abortion case.  Putting the media hype to the side, the technical issue is “whether all pre-viability prohibitions on elective abortions are unconstitutional.”   Roe and Casey both allow some pre-viability restrictions on abortion.  What they do not allow is a pre-viability ban on all abortions.  The real issue for this case will be how the majority tries to chip away at Roe and Casey to allow more restrictions on abortion.  My expectation is for some plurality opinion written by the Chief Justice or Justice Kavanaugh that makes it likely that the lower courts will nominally uphold Roe and strike down this statute while making it easier for states to regulate abortion in ways that will make it harder for women to get abortions in red states.

There are a couple of cases involving Medicare reimbursements.  One of these two cases involves issues of Chevron deference — the principle that, if a statute is ambiguous, courts should defer to the interpretation made by agency charged with applying the statute.  Conservatives have been chipping away at Chevron deference for many years.  The typical approach has been to use the tools of statutory construction to find that the statute is not ambiguous.  In this approach, Chevron deference is a tie-breaker at the end of the interpretive process, and you rarely get a tie at the end of the interpretive process. Continue Reading...

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Supreme Court October Term 2021 Preview — Part I

By tmess2 | Published September 19, 2021

Once again, it’s that time of year.  Every year, the Supreme Court starts a new term on the first Monday in October.  This is the first full term for the new alignment of justices.  While one term is not enough to predict the future, it seems that we have a 2-3-1-2-1 court with Justices Thomas and Alito on the far right with the three Trump justices (it is unclear where they line up and there are some weird issues where they flip) on the right,  Chief Justice Roberts on the center-right, Justices Breyer and Kagan on the center-left and Justice Sotomayor on the left.

As noted in pervious years, the Supreme Court follows a routine during their sittings of four week cycles (a/k/a argument sessions).  In Week 1, the Supreme Court issues an “order list” on Monday , holds arguments on Monday, Tuesday, and Wednesday, and meets in a conference on Friday.  The same thing occurs in Week 2.  In Week 3, there is an order list issued on Monday.  Finally, in Week 4, the Supreme Court meets in a conference on Friday.  At the conference, the Supreme Court reviews that weeks arguments (if any) and takes a tentative vote on each of the cases.  Based on that vote, the senior justice in the majority (either the Chief Justice or the longest serving Associate Justice) gets to decide which justice gets the opinion.  Also at the conference, the Supreme Court reviews some of the pending petitions for certiorari (the formal name for an application seeking Supreme Court review of a lower court decision).  (If a justice believes that an application potentially should be granted, it is added to the agenda for the weekly conference.  If no justice believes that an application should be granted, it is denied.)  During the first half of the term, the Supreme Court tends to announce grants of certiorari immediately after the conference to give the parties three more days to complete their written legal arguments (called briefs).   The Monday order list includes any grants not previously announced, some summary reversals (which is supposed to be limited to lower court decisions that are so clearly wrong that further argument is not needed), and, mostly, denials of certiorari.  As noted above, most cases are denied at the initial conference (and the Supreme Court website contains a feature that allows you to run a docket search on a case to see its current status).  In recent years, if the Supreme Court is interested in a case, the justices have typically “relisted” the case for a second conference to make sure that there is no procedural flaw that will prevent consideration of the main issue.  While the Supreme Court typically has a four-week cycle, the December and January sessions tend to have a six week cycle (to push the January sitting past New Year’s Day and to get the February session past the worst part of winter).   If there are opinions on argued cases, they can be announced at any time but usually are announced immediately before the Tuesday and Wednesday arguments.    The Supreme Court calendar features seven argument sessions.  After the last argument session, May and June are spent finalizing the remaining opinions from the year.  After the Supreme Court releases its last opinion, they recess for the summer.  Even during the summer recess, there are still some orders — periodic order lists addressing motions for rehearing (which are routinely denied) and miscellaneous orders on emergency application).

As noted above, during the argument sessions, there are six days set for argument (unless a holiday falls on one of those six days).  On a typical day, there are two arguments (of approximately one hour each) in the morning.  Rarely, there are additional afternoon arguments.  More often, there is only one argument on a day.  The argument docket for a month tends to be released approximately two months prior to the argument.    There are currently nine cases set for October and nine cases set for November. Continue Reading...

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The Texas Abortion Law and the Supreme Court

By tmess2 | Published September 5, 2021

As is typically the case with legal news, it is very possible to follow the main stream media and get a very inaccurate perception of what is happening in the courts.  This misreporting isn’t intentional, it’s just that most reporters are not lawyers and thus miss the details that matter.  This past week, the United States Supreme Court denied a stay application related to a new Texas statute that bars abortion after the sixth week of a pregnancy and allows private individuals to enforce that bar by filing a civil case against anybody who aided the woman in getting the abortion — with the remedy being a $10,000.00 payment from the defendant to the person bringing the case.  Given the news coverage, I have three comments.

First, most of the impact of the law will come from its nuisance value.  The actual age of a fetus is an estimate.  Barring some other method that gives a more accurate estimate, gestational age is estimated based on a woman’s last menstrual period (which assumes a regular menstrual cycle and not all women have a regular cycle).    Even the woman herself may not know the exact date of conception (unless she only had sex once since her last period).    And in the early stages of pregnancy (and most abortions occur in the first trimester), it is impossible for the average person to know the gestational age of the fetus by simply looking at the woman.  So unless the woman tells her friend who is driving her to the doctor’s office that she is ten weeks pregnant, the friend will have no idea that the gestational age is beyond six weeks.  While I haven’t read the full statute, it seems at first glance that it will be hard for plaintiffs to win.  But, particularly for abortion providers, the new statute will mean that they are regularly in court with significant legal expenses and average people might be reluctant to help their friends given the expense of defending against these claims.

Second, the empowering of private citizens to bring claims on behalf of the government is not new.  The exact way that these cases will work might have some new wrinkles, but there is an established legal procedure known as qui tam (a shortened title for a latin phrase that translate as “he who sues in this matter on behalf of the king as well as for himself”).  As the reference to the king in the translation hints, this procedure is quite old.  Usually, in the U,S., qui tam statutes involve allowing those with inside information to bring fraud claims on behalf of the government.    If certain legal requirements are met, the successful qui tam plaintiff splits the recovery with the government.  Even without the precedent of qui tam, however, it is clear that any legal claim is state action for the purpose of constitutional law which is why libel suits are restricted by the First Amendment. Continue Reading...

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A Republic if You Can Keep It

By tmess2 | Published July 4, 2021

While many American today are celebrating the anniversary of the issuance of the Declaration of Independence, the United States Supreme Court spent this week giving a green light to Republican attempts to cook the ballot box.  Forty years ago, both parties supported the Voting Rights Act.  Democrats wanted to increase minority representation in government, and Republicans realized that compliance with the Voting Rights Act made it easier for them to pack Democrats into “minority” districts and, thereby, make swing districts lean Republicans.

But drawing district lines is merely one way to reduce minority influence.  And, most importantly, district lines play no role in state-wide race.  To reduce minority influence in state-wide races, you need to keep minorities from voting.  And, while the Voting Rights Act clearly bars the blatant techniques like literacy tests which can be directed at minority voting, the question has remained about techniques which merely make it more difficult for minorities to vote.

Unfortunately, we now have a generation of Republican lawyers who have been hostile to the Voting Rights Act in the majority on the Supreme Court.  And we saw the results this week in a decision out of Arizona — Brnovich vs. Democratic National Committee.   This is not the first time that the issue of the meaning of Section 2 and the test that Congress wants the courts to use in analyzing Section 2 claims has been before the Supreme Court.  The original version of Section 2 merely barred practices which states were using to abridge the right of minority groups to vote.  After the Supreme Court interpreted that provision as only barring practices upon proof of a discriminatory intent, Congress amended Section 2 bar practices which “result” in the abridgment of the right of minorities to vote. Continue Reading...

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