Who has it right? Kagan or Alito?

 The issue -- Can Congress regulate the Supreme Court.  Alito says no.  Kagan says yes.  Here's the intro from the NY Times, which covers the debate:

As a young lawyer in the Reagan White House, John G. Roberts Jr. was tartly dismissive of the Supreme Court’s long summer break, which stretches from the end of June to the first Monday in October.

“Only Supreme Court justices and schoolchildren,” he wrote in 1983, “are expected to and do take the entire summer off.”

On the other hand, the young lawyer wrote, there is an upside to the break: “We know that the Constitution is safe for the summer.”

These days, members of the court find time to quarrel about the Constitution even in the warm months. The primary antagonists lately have been Justices Samuel A. Alito Jr. and Elena Kagan.

From the body:

The question is timely, of course, as news reports have raised ethical questions about, among other things, luxury travel provided to Justices Alito and Clarence Thomas. Those reports have led to proposed legislation to impose new ethics rules on the court.

Justice Alito, in an interview published in The Wall Street Journal last month, appeared to object, saying that “Congress did not create the Supreme Court.”

He added: “I know this is a controversial view, but I’m willing to say it. No provision in the Constitution gives them the authority to regulate the Supreme Court — period.”

A few days later, at a judicial conference in Portland, Ore., Justice Kagan took the opposite view, though she cautioned that The Journal had not reproduced the question that had prompted Justice Alito’s answer. She indicated, graciously, that he could not have meant what he seemed to say.

“Of course Congress can regulate various aspects of what the Supreme Court does,” she said, ticking off a list of ways in which lawmakers can act. Congress sets the court’s budget. It can increase or shrink the size of the court, and it has over the years done both. It can make changes to the court’s jurisdiction.

Indeed, the Constitution provides that the court has appellate jurisdiction “with such exceptions, and under such regulations as the Congress shall make.”

All of this is unsurprising, Justice Kagan said.

“It just can’t be that the court is the only institution that somehow is not subject to any checks and balances from anybody else,” she said, adding, “I mean, we are not imperial.”

Meantime, if you prefer debates about typography, this NLJ article is for you.  It goes through the various fonts, margins, and line spacing for the different Circuits.  The 7th earns praise.  Not so much for the 11th.

Not the best way to represent a client

 This is nails on a chalkboard, no?  From the Herald:

Something seemed off-kilter when a Florida defense lawyer asked a federal judge in Miami to delay his client’s sentencing the day before the hearing in a health-insurance fraud case. The client showed up in court, but her lawyer didn’t. Then, U.S. District Judge Donald Graham lost his cool when he discovered that Tampa attorney Benjamin Waldo Buck Jr. had abandoned her after an August 2022 criminal trial. “Are you saying that since the trial ended you have not met with Mr. Buck regarding the Pre-sentence Investigation Report?” an incredulous Graham asked the defendant in late October. “No, not at all,” Jaroslava Ruiz responded, saying she went through the process with the probation office on her own.

Graham instantly assigned a seasoned defense lawyer to her Miami case and threatened to hold the no-show Buck in contempt of court. What the judge didn’t know was that Buck had been ghosting clients like Ruiz all over the state, generating more than 30 complaints with the Florida Bar, including allegations of keeping clients’ fees after dropping them. Last Thursday, the Florida Supreme Court revoked Buck’s license for five years — after he had voluntary agreed to surrender it, but then withdrew his motion. The Florida Bar called his reversal “a blatant abuse of the legal process and misrepresentation to this court.” 

On Tuesday, Graham finally held Ruiz’s sentencing hearing, giving her four years and four months in prison for conspiring with others at a Miami-area medical clinic that submitted tens of millions of dollars in false healthcare claims to private insurance companies. But after the longtime federal judge dealt with her punishment, Graham considered whether to hold Buck, her former defense lawyer, in contempt for failing to show up at her original sentencing hearing last October. Graham, who has served on the federal bench in South Florida for 32 years, said he had never seen such misconduct by a lawyer in his courtroom. “Frankly, I was shocked that a lawyer didn’t appear for sentencing,” he told Buck. Buck apologized profusely, saying he couldn’t attend Ruiz’s sentencing because he was representing another client in a criminal trial in another part of the state at the same time. “I’m sorry again, your honor, for my failure to appear,” he said. “I should have been here.” 

 Rather than find Buck in contempt and possibly send him to jail, Graham instead ordered the disbarred lawyer to pay a $1,655.72 fine to Ruiz — representing the personal costs that she incurred while traveling to her original sentencing hearing from North Carolina, where she moved with her family.

3rd Circuit to district judges: Stop guessing people into jail

The guidelines on white collar cases are so out of whack.  Everyone knows it.  They lead to absurd sentences for first time, non-violent offenders.

And even trying to figure out the guidelines is oftentimes based on guesswork.  Some appellate courts are starting to put district judges on blast.  Here's the Third Circuit, reversing a monster sentence in a pill mill case because the district judge's calculations were just speculation:

Yet the evidence did not support a reliable extrapolation. The District Court used the medical expert’s review of twenty four files to infer the illegality of thousands of other prescriptions. In the court’s view, that sample size was not “statistically valid.” JA 2336. Yet it extrapolated anyway. And without much explanation from the District Court, Titus had no chance to “respond meaningfully, or for that matter, at all.” United States v. Nappi, 243 F.3d 758, 766 (3d Cir. 2001). 

Plus, the government never showed that the sample was large enough to be reliably representative of the remaining thousands of prescriptions. (Though statistical evidence can help to show that a sample size is large enough to support reliable inferences, we do not hold that such evidence is always necessary.) Nor did it document proper extrapolation methods. And it never explained how extrapolating from this sample could prove the huge drug weight by a preponderance of the evidence. So the sentencing court failed to “ensure that the Government carrie[d] [its] burden [of proof] by presenting reliable and specific evidence.” United States v. Roman, 121 F.3d 136, 141 (3d Cir. 1997) (internal quotation marks omitted).

11th Circuit upholds Alabama statute limiting puberty blocking medications for transgender youth

The Eleventh Circuit upheld Alabama’s Vulnerable Child Compassion and Protection Act, which makes it a felony to provide transgender youth with puberty blocking medication, hormone therapy or surgery for the purposes of changing their birth sex. More analysis of the various standards of review in the opinion, with the trial court applying strict scrutiny and the Eleventh applying rational basis review. Judge Lagoa wrote: "the plaintiffs have not presented any authority that supports the existence of a constitutional right to 'treat [one's] children with transitioning medications subject to medically accepted standard.'" Media coverage here.

Order by John Byrne on Scribd

SCOTUS uses City map for upcoming election

 From the Miami Herald:

The U.S. Supreme Court ruled on Thursday in a legal battle over which voting map should be used for Miami’s upcoming elections, deciding that a map drawn by the city should be used. The map, approved by the City Commission in June after a federal judge rejected an initial map drawn in 2022, leaves one commissioner in his district and places a candidate outside of the district he’s lived in for 20 years. After several appeals that moved the case through federal courts, the Supreme Court decided that a map drawn by the city be used to determine who can vote and who can run for City Commission seats in districts 1, 2 and 4 in the Nov. 7 elections. Three incumbents are running for reelection: District 1 Commissioner Alex Díaz de la Portilla, District 2 Commissioner Sabina Covo and District 4 Commissioner Manolo Reyes. In the city map, District 3 Commissioner Joe Carollo’s home remains inside his district — the other map placed his home outside of his district, which could have led to a residency issue for Carollo.

What happens when judges get too old to serve but won't step down?

 No, I'm not talking about any particular judge in our district.

I'm talking about Pauline Newman of the Federal Circuit.  She's 96 and members of the court have complained about her bouts of paranoia, memory loss, and confusion.

Here's an article detailing how the court there is trying to deal with it.  And it ain't pretty:

U.S. appeals judge Pauline Newman has committed "serious misconduct" by refusing to cooperate with a mental fitness probe and should be suspended from hearing new cases for one year or until she submits to a court-ordered examination, an investigative panel of the U.S. Court of Appeals for the Federal Circuit said in a report released on Friday.

The report cited statements from "many different staff members describing memory loss, confusion, paranoia and angry rants" by Newman, who is 96 and has been a Federal Circuit judge for nearly four decades. Newman has shown "significant mental deterioration," it said.

Meantime, Judge Edith Jones of the 5th Circuit has written an op-ed in the WSJ defending Newman.  

The conclusion:

But in Judge Newman’s case, it appears that career-ending removal from her judicial duties is being imposed by her court, with no time limit and with little heed for the regulations and case law. At odds with fundamental due process, members of her own court sit in inherently conflicting positions as prosecutors, judges, jurors and witnesses.

To obviate unethical conflicts and provide objectivity, the normal application of judicial misconduct rules requires that a matter about a circuit-court judge be transferred to another circuit’s chief judge and Judicial Council. The chief justice and a committee of the Judicial Conference of the U.S. could enforce this norm. Why the usual practice wasn’t followed here is inexplicable.

FOR THE DEFENSE: BARRY SCHECK FOR THE INNOCENCE PROJECT

 

We have a titan of the criminal defense bar on the show this week -- Barry Scheck for the Innocence Project.  Barry has done it all: from winning the trial of the century, to exonerating innocent defendants, to teaching, to running NACDL.  And he's still going strong, having just cleared another innocent man. It was a real honor to speak with him about how he does it. As always, you can catch this and other episodes on every podcast platform including Apple, Spotify and Google,  All other platforms can be accessed on this website.  Last week was a big one for the podcast.  The interview of John Lauro went viral and was discussed on the news shows as well as in the Wall Street Journal, Politico, Salon, and other outlets. John was gracious enough to spend his time going in depth on a variety of topics, including use of the media, defense strategy, venue, recusal, and so on. If you missed it, you can check it out on audio and I also uploaded it to YouTube as an experiment.  Let me know what you think. Please send me your feedback -- and of course, subscribe, like and comment!  If you have a friend that would like to receive these updates, please have them sign up here. Thank you! --David   Hosted by David Oscar Markus and produced by rakontur   CONTACT: info@rakontur.com, dmarkus@markuslaw.com Copyright © 2023 Markus/Moss, All rights reserved. You are receiving this email because you opted in via our website. Our mailing address is: Markus/Moss 40 NW 3rd St Ph 1 Miami, FL 33128-1838 Add us to your address book Want to change how you receive these emails? You can update your preferences or unsubscribe from this list.

Justice Thomas Seeks Response from City of Miami in Voting Map Case

By John R. Byrne

A few weeks back we covered Judge Moore's order throwing out the City of Miami's voting map plan on concerns of racial gerrymandering and adopting the plan proposed by the plaintiffs. The City got the Eleventh Circuit (with a dissent from Judge Wilson) to stay the order, prompting the plaintiffs to ask SCOTUS for emergency review.

Justice Thomas, who handles emergency appeals from the Eleventh, appears to be seriously considering the request. Last Thursday, he ordered the City to respond to the plaintiffs' appeal by 5 p.m. today. The Herald covers it here.