Will Dobbs lead to the undoing of other rights?

 We've all read Justice Thomas' concurrence in Dobbs by now and it's pretty frightening.  Not only is it way out of touch with our country, our society, and the world -- it threatens to put people in jail for basic things like obtaining contraception.  Hard to imagine...

David Lat wrote this piece at Esquire about whether this will actually happen.  Here's a snippet on why he thinks it won't:

Why isn’t there the same hunger on the right to ban, say, interracial or same-sex marriage that there is for banning abortion? As Justice Alito wrote in Dobbs, the critical difference between abortion and most other rights is that abortion destroys “potential life” or “the life of an ‘unborn human being.’” Or as pro-life advocate Karen Swallow Prior wrote in the New York Times on Friday, she and her fellow pro-lifers believe “that abortion unjustly ends the life of a being that is fully human”—which can’t be said of almost any other right.

In other words, while social conservatives might not view my marriage to another man as a real marriage, they don’t view me and my husband as murderers. In the eyes of social conservatives, abortion is uniquely evil—and Roe, by enshrining that perceived evil in constitutional law, is a uniquely bad decision. According to UC Berkeley law professor Orin Kerr in a thoughtful Twitter thread, “Within the conservative legal movement, Roe is thought to stand pretty much alone.”

For decades, Republican political candidates, including presidential candidates, ran on getting Roe overturned. For just as long, a slew of pro-life organizations devoted themselves to getting Roe overruled. I’m unaware of presidential candidates campaigning on reversing Obergefell v. Hodges, the 2015 decision that recognized the right to same-sex marriage, or of organizations trying to revisit Griswold v. Connecticut, the 1965 decision that recognized the right of married persons to buy and use contraception.

 More:

I think it’s unlikely. First, because Justice Thomas wrote this in a separate concurrence, not in the controlling opinion of the Court, it represents only the views—the academic ramblings, really—of Justice Thomas. He’s fond of floating esoteric or controversial legal theories in solo concurrences, joined by none of his colleagues. And most of the time, they go nowhere. If he actually wants to get these cases “reconsidered,” he’ll need four other votes, which he almost certainly doesn’t have.

Second, contrary to the claims of many commentators, Justice Thomas wasn’t actually arguing for getting rid of all legal protection for contraception, same-sex marriage, and similar rights. Rather, he was calling for reconsidering the legal doctrine called “substantive due process,” which claims that the Constitution’s protection of “due process” doesn’t just guarantee proper “process” (like a fair trial), but also certain “substantive” rights not mentioned in the Constitution (like abortion). Many legal conservatives loathe substantive due process because they believe it gives unelected judges too much power to make up new rights.

But as Justice Thomas explained in his concurrence, if the Court were to heed his call to ditch substantive due process, the question would then become “whether other constitutional provisions guarantee the myriad rights that our substantive due process cases have generated.” So various rights currently protected under substantive due process might still be protected by the “privileges or immunities” doctrine, mentioned by Justice Thomas, or other doctrines or provisions not mentioned by him, such as the Equal Protection Clause.

Third, even if a Supreme Court precedent protecting a certain right gets overruled, the right doesn’t go away overnight; it just gets decided by other institutions, usually state legislatures or the U.S. Congress. As Justice Brett Kavanaugh wrote in his own Dobbs concurrence, “the Court’s decision today does not outlaw abortion throughout the United States. On the contrary, the Court’s decision properly leaves the question of abortion for the people and their elected representatives in the democratic process.”

This is why I’m not as worried as many about the future implications of Dobbs, in terms of either Justice Alito’s opinion for the Court or Justice Thomas’s concurrence. Then again, I might be wrong—and it wouldn’t be the first time. In 2018 and again in 2021, I predicted that Roe would not be overruled. So much for that.

I just expressed skepticism toward Justice Thomas’s solo concurrences, which are often like the mutterings of your crazy uncle at Thanksgiving. You can safely ignore your crazy uncle—but you can’t ignore Justice Thomas, since every now and then, he turns out to be crazy prophetic.

In 1997, in a case called Printz v. United States, Justice Thomas wrote a solo concurrence suggesting that the Second Amendment protected an individual right to keep and bear arms. At the time, this was contrary to Supreme Court precedent, and his view was dismissed by many as kooky. But eleven years later, in D.C. v. Heller, Justice Thomas’s once-fringe view became the law of the land.

Then this past Thursday, in New York State Rifle & Pistol Association, Inc. v. Bruen, Justice Thomas wrote for the Court in extending the reasoning of Heller, which focused on keeping guns for self-defense at home, to the carrying of firearms in public. So sometimes Justice Thomas’s improbable theories wind up getting enshrined in law, even if it takes a few years. And the current Court is far more conservative than it was when it decided Printz, perhaps making Thomas a better barometer today of where the Court might go in the future.

To those worried about post-Dobbs America: don’t panic, but don’t let down your guard. Go out there and win some elections—which is the only way to bring change to the Court, and to the country.

 

Supreme Court Overturns Roe v. Wade

By John R. Byrne

This is a big one. Vote was 6-3. Justices Clarence Thomas, Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett joined Justice Alito's opinion. Justice Roberts did not join the opinion but agreed with the result. He filed a separate opinion.

Scotus blogger Amy Howe discusses the likely effects of the ruling here.

"Head of Miami FBI office Piro retires; Bid-rigging probe of Broward Sheriff Tony returns to Miami"

 That's the title of an interesting article by Florida Bulldog.  The intro by Dan Christensen:

Miami FBI Special Agent in Charge George Piro is retiring, after sources say he was shown the door by FBI headquarters in Washington following a complaint by a subordinate that Piro improperly transferred his office’s bid-rigging investigation of Broward Sheriff Gregory Tony to South Carolina.

Piro’s last day in the office is said to be today, June 17, but he will officially depart June 30. The 23-year FBI veteran was named special agent in charge in November 2018. He also served as head of the Miami office from 2014-2017. In between, he was assistant director of the International Operations Division at FBI headquarters.

Phone and email messages seeking comment from Piro and FBI spokesman Mike Leverock over two days were not returned. The FBI national press office did not respond to an emailed request for comment before publication.

One source said that at a meeting with his agents last year, Piro explained transferring the Tony investigation by making two points: that he was not going to be responsible for the arrest of Broward’s first black sheriff, and that such an arrest would ruin the FBI’s relationship with the sheriff’s office, with which it frequently works.

Piro, who interrogated Iraqi dictator Saddam Hussein, also mentioned in the meeting that Sheriff Tony was responsible for sending $50,000 each to the families of two FBI agents who were killed while serving a search warrant at a Sunrise apartment on Feb. 2, 2021, the source said.

En banc happenings

On Tuesday morning, the 11th Circuit will hear three cases en banc.  Two criminal cases and one false claims case.

Notably, the panel ruled for the government in each of the three cases. 

I get on the 11th Circuit a lot, and one of my complaints is that the court almost never grants en banc review when the government prevails.  So this is nice to see.  

 I didn't find any of the panel decisions earth shattering, but here they are in case you are interested:    

• 19-14650 United States, Appellant v. Julian Garcon

• 19-13776 United States v. Brandon Dupree, Appellant

• 20-10604 United States, et al. v. Murray Farmer, et al., Appellants
  

 

Varsity Blues cases show why our criminal justice system is broken

The Varsity Blues prosecutions is a pretty good representative sample of how our criminal justice system operates.

57 defendants were indicted.

54 pleaded guilty (95%).

3 went to trial (5%).

1 was acquitted (1.75%).

Those numbers very closely track the national averages on federal cases, where about 97% of defendants plead guilty.

You'll be shocked to learn that the two defendants who went to trial and lost received the longest sentences in the case.

Some of the defendants with the best chances of acquittal pleaded guilty and either received no jail time or a few weeks of jail.  There is no question that if some of those defendants had gone to trial, some of them would have been acquitted.  But they saw the risks as too great.

The federal prosecutors who brought these cases are out there saying that winning 56 of 57 cases shows that the cases were righteous.  

But let's assume that 20% of cases went to trial and that more than a third of those were acquitted (to track the numbers that existed in this country pre-sentencing guidelines).  Would the government still be patting itself on the back?

The two defendants who lost at trial are appealing their sentences.  The appellate court will be faced with the question of whether cheating to get into college should be a federal crime.  It's an important question; however, it will be much tougher for the appellate court to reverse where almost everyone has pleaded guilty (for fear of the trial tax).  

Had more defendants challenged their cases and had done so earlier, perhaps the whole investigation would have been shut down as some would certainly have won at trial and perhaps those that lost would have won on appeal.  

Our criminal justice system was built on trials.  On forcing the government to actually prove beyond a reasonable doubt a righteous case.  Not on coercing folks to plead guilty. 

Roy Black gets acquittal in Boston federal court in Varsity Blues case

 Yes for the 3-0-5!  The only acquittal from the Varsity Blues case... this is why more cases need to go to trial.  Almost every single one of the VB cases pleaded out.  People were too afraid of the trial tax.  But there's no tax for an acquittal! Congrats to Roy, Howard, Maria, and Jackie.

From Law360:

A Boston federal jury on Wednesday acquitted a Massachusetts businessman on charges he bribed his daughter's way into Georgetown University through illicit payments to the elite school's tennis coach, upending the government's clean record of convictions in the "Varsity Blues" investigation.

Amin Khoury was found not guilty of participating in a mail fraud conspiracy and bribery scheme for paying $180,000 to former Georgetown coach Gordon Ernst through a middleman, who also received $20,000. Prosecutors said that in exchange, Ernst marked Khoury's daughter, Katherine Khoury, as a recruit to the elite Division I school.

Khoury embraced his legal team after the jury and judge left the room.

The weeklong trial featured evidence that Khoury attended a Memorial Day weekend reunion at Brown University, resulting in an agreement that he would pay Ernst for the recruiting slot.

The alleged middleman in the scheme, Tim Donovan, testified that he met up on Cape Cod with Khoury, who gave him a paper bag filled with $180,000 in crisp bills.

Khoury's defense attorney, Roy Black of Black Srebnick PA, hammered Donovan, who testified under an immunity deal with prosecutors, suggesting he was only saying what the government wanted him to say in order to dodge liability for allegedly not paying taxes on cash fees he took for helping high school tennis players get recruited into colleges.

"It's made up by Tim Donovan as part of his scheme to get immunity," Black said during closing arguments. "Katherine Khoury got into school on her own with the help of her father's best friend from Brown as it was disclosed to the school."

Assistant U.S. Attorney Kristen Kearney, at closing, leaned into the image — offered by Donovan — of the paper shopping bag filled with $180,000 in cash that Khoury allegedly slid across a table to him.

"Brown paper shopping bag of cash," she told the jury Tuesday. "It's not some imaginary evidence the defense is asking you to conjure. It's the actual evidence in front of you. This case is not complicated. The defense had thrown a lot at you to distract you from the simple fact they cannot dispute."

"Man Can't Be Sentenced To Additional 6 Years In Jail For Calling Judge A 'Racist A$$ B*tch' "

 That's the title of this Above The Law article, which details how an appellate court reversed a sentencing court for tacking on 6 years to a sentence because the defendant wasn't happy with the initial sentence.  

In 2019, Manson Bryant was sentenced on robbery, kidnapping, and weapons charges. Bryant spoke on his own behalf at a sentencing pleading with Lake County, Ohio Common Pleas Court Judge Eugene Lucci, saying, “I don’t want to die in prison, sir. I’m not a bad person, sir. I do have a drug problem. I’ve been in front of you multiple times. I respect you. And I respect your decision that you make today.”

Lucci sentenced Bryant to 22 years in jail — significantly more than the 12 years Bryant’s co-defendant received.

And, according to court transcripts, that’s when things went off the rails.

BRYANT: Fuck your courtroom, you racist ass bitch. Fuck your courtroom, man. You racist as fuck. You racist as fuck. Twenty-two fucking years. Racist ass bitch. (CONTINUED OUTBURST BY DEFENDANT, SWEARING, YELLING, MUCH UNINTELLIGIBLE).

COURT: Remember when—

BRYANT: You ain’t shit.

COURT: Remember when I said that you had some remorse?

BRYANT: You ain’t shit. You never gave me probation.

COURT: Wait a minute.

BRYANT: You never gave me a chance.

COURT: When I said that you had a certain amount of remorse, I was mistaken. (DEFENDANT CONTINUES YELLING). The Court determines—

BRYANT: Fuck you.

COURT: The Court determines that maximum imprisonment is needed, so it’s eleven years on Count 1 and eleven years on Count 3.

BRYANT: Fuck that courtroom. You racist bitch. You ain’t shit. (MALE VOICE SAYING “MANSON” REPEATEDLY). Let me out the courtroom, man. (MORE SHOUTING AND SWEARING).

COURT: So, it’s twenty-eight years with credit for two hundred and thirty-one days. Hold on. (DEFENDANT STILL SHOUTING). Does counsel waive your client’s presence for the remainder of the advisements I have to give?

DEFENSE COUNSEL: Yes, Your Honor.

COURT: Alright. You can take him. The Court determines that [Bryant] has shown no remorse whatsoever. I was giving him remorse, a certain amount of remorse in mitigation of the sentence. [Bryant] has shown me that he has no remorse whatsoever, and therefore the Court determines that maximum imprisonment is needed.

But the Ohio Supreme Court held that Lucci’s addition of the six years — on top of the previously imposed 22 years — was improper.

“Bryant’s angry, profanity-laced tirade was, in no uncertain terms, disrespectful to the court,” the decision said. “Not only did Bryant accuse the trial-court judge of being a racist, but he did so using derogatory terms and in open court. As impertinent as this tirade was, however, we agree with Bryant that it is clear from the timing and content of what was said that his outburst was in reaction to the length of his prison sentence. Nothing more.”

 

 

 

"More Weight!"

 That's the start of this must-read article by CATO's Clark Neily.  It starts like this:

“More weight!” Those are the famous—though perhaps apocryphal—last words of octogenarian farmer Giles Corey, who in 1692 was accused of being a witch and then pressed to death by the Commonwealth of Massachusetts when he refused to enter a plea to the charge. You might think we’d have made great progress in the ensuing 330 years when it comes to the government’s use of coercion against recalcitrant defendants, but you’d be wrong. Pressure is still the mainspring of American criminal justice—we just don’t use rocks and gravity to produce it anymore. Instead, we’ve refined our approach to make the application of pressure less bloody but still equally effective.

In this piece, I will explain how the confluence of an ancient Greek paradox and a famous common‐​law maxim ravaged the Bill of Rights and destroyed the moral legitimacy of our criminal justice system in a way that should have self‐​professed constitutional originalists reaching for the proverbial muskets above their mantelpieces. (Spoiler alert: They aren’t.)

But first, let’s get back to the unfortunate Giles Corey. Swept up in the hysteria of the Salem witch trials, Corey was accused of being a “dreadful wizard” who “grievously tormented” various neighbors while appearing to them as an apparition. Arrested and brought before a judge, Corey steadfastly refused to enter a plea of guilty or innocent, which both deprived the court of lawful jurisdiction to try the case and—this part is key from the government’s perspective—the ability to dispossess Corey’s heirs following his virtually inevitable conviction and execution. What to do?

It turns out Corey wasn’t the first person to pull this stunt, and the judiciary had a special procedure for defendants who stubbornly refused to submit themselves (and their estates) to the jurisdiction of the court. It was called peine forte et dure (roughly, “pain, good and hard,”), and it involved placing the defendant under a wooden plank and piling on rocks until they relented. Simple, brutal, and effective; but—disconcertingly from the government’s perspective—not infallible. Thus, Giles Corey expired without ever entering a plea and is said to have taunted his tormentors at the end by calling for “more rocks.” As for his heirs, they got his estate—not the Commonwealth.

So what does this have to do with our modern criminal justice system? In a word, everything. Because when it comes to dealing with obdurate defendants, we use the same basic approach that was inflicted on Giles Corey, namely, the incremental addition of pressure to elicit a desired plea. And that’s where the ancient Greek paradox and the common law maxim mentioned above enter the story. We’ll take them in reverse order.