Monday, July 11, 2016

“Now it’s time for us to move to New Zealand.”

That was Justice Ginsburg in an interview with the NYT saying what would happen if Trump won:

Unless they have a book to sell, Supreme Court justices rarely give interviews. Even then, they diligently avoid political topics. Justice Ruth Bader Ginsburg takes a different approach.
These days, she is making no secret of what she thinks of a certain presidential candidate.
“I can’t imagine what this place would be — I can’t imagine what the country would be — with Donald Trump as our president,” she said. “For the country, it could be four years. For the court, it could be — I don’t even want to contemplate that.”
It reminded her of something her husband, Martin D. Ginsburg, a prominent tax lawyer who died in 2010, would have said.
“‘Now it’s time for us to move to New Zealand,’” Justice Ginsburg said, smiling ruefully.
Last week, I posted about the 3-judge concurrence in the 11th Circuit.  Professor Bascuas has criticized the practice in the comments:
By definition, there is no such thing as a majority, much less a unanimous, concurrence. That essay is either the rationale for the holding or obiter dicta. Since we can assume that these judges know what a "concurrence" is, the question is, why deliberately mislabel this writing in a way guaranteed to draw maximal attention to it? The sub-text may be an awakening to the fact that the court has fetishized the superfluous and redundantly named "prior precedent" rule to the point where the first opinion on an issue is treated as legislation rather than as a precedent. The reach of a precedent in a common-law system is limited by the case's facts and the judges' analysis, subject to revision under different facts or a more complete analysis. Given that, what need is there for a "rule"? If the first panel is convincing, its opinion controls. Why should an unconvincing opinion control? The first-panel-makes-law rule is harmful to litigants. It encourages judges to overreach the facts and the law so as to "bind" the whole court (the way Matchett did). In that way, later litigants are "bound" by the first brief on an issue, even if it was not very well researched or presented. Hopefully, this writing is a sign that this insidious and unnecessary rule's days are numbered.

Thursday, July 07, 2016

11th Circuit issues 3 judge concurrence

This opinion is interesting. Judges Jordan, Rosenbaum, and Jill Pryor denied a motion for a second habeas petition based on existing law in the 11th Circuit (which is way out of whack with the rest of the circuits).  But then they issued a 3-judge concurrence saying that the existing law is wrong. From their joint concurrence:

Although the mandatory Sentencing Guidelines operated to cabin the discretion of judges, just like sentencing statutes passed by Congress, a panel of our Court recently held that the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which struck down the residual clause of the Armed Career Criminal Act, 18 U.S.C. § 924(e), as unconstitutionally vague, does not apply to the identical residual clause of the mandatory career offender guideline, U.S.S.G. § 4B1.2(a)(2) (2003). See In re Griffin, No. 16-12012, __ F.3d __, 2016 WL 3002293 (11th Cir. May 25, 2016). The Griffin panel also concluded that, even if Johnson did apply to the residual clause of the mandatory career offender guideline, the Supreme Court’s decision in Welch v. United States, 136 S. Ct. 1257 (2016)—which held that Johnson was retroactive to cases on collateral review—did not make Johnson retroactive in cases involving challenges to the Sentencing Guidelines. Although we are bound by Griffin, we write separately to explain why we believe Griffin is deeply flawed and wrongly decided.

Sad day.

alton sterling, alton sterling baton rouge, alton sterling video, alton sterling baton rouge police shooting videohttp://www.telegraph.co.uk/content/dam/news/2016/07/07/Trump-trending-large_trans++Adw0VrjqLWSqJHfZ45Ae0UPhGu3d8eCxEbnX1CfWC0c.jpg


http://media.cmgdigital.com/shared/img/photos/2012/03/31/c3/bb/pat-riley_486697a.jpg

Tuesday, July 05, 2016

Welcome back.

We start year 12 with this cool article from the Herald about Fane Lozman, who has this message for his town:  Fane Lozman returns, Thank you... U.S. Supreme Court 

From the article:
“I want to make a statement,” he said. “I want people to see who I am and then they can look up the case to find out more.”
Lozman’s troubles began when Riviera Beach “arrested” his houseboat in April 2009 and later destroyed it. Lozman, a former Marine Corps officer, argued that the city couldn’t regulate his home as a maritime vessel.
His houseboat had been moored at the Riviera Beach marina after Hurricane Wilma destroyed his former marina in North Bay Village in 2005. The structure did not have an engine and was equipped to be connected to sewer lines on dry land.
In 2013, the Supreme Court, by a 7-2 vote, overturned an 11th Circuit Court of Appeals ruling, deciding that Riviera Beach didn’t have the jurisdiction to have his boat seized. He said he still hasn’t recovered his financial losses — including the cost of the boat — from the city, and hopes he will soon.

Meantime, Justice Sotomayor is kicking some ass (via NYT):


The Supreme Court term had barely gotten underway in early November when Justice Sonia Sotomayor issued her first dissent. A police officer’s “rogue conduct,” she wrote, had left a man dead thanks to a “‘shoot first, think later’ approach to policing.”
Justice Sotomayor went on to write eight dissents before the term ended last week. Read together, they are a remarkable body of work from an increasingly skeptical student of the criminal justice system, one who has concluded that it is clouded by arrogance and machismo and warped by bad faith and racism.
Only Justice Clarence Thomas wrote more dissents last term, but his agenda was different. Laconic on the bench, prolific on the page and varied in his interests, Justice Thomas is committed to understanding the Constitution as did the men who drafted and adopted it centuries ago.
Justice Sotomayor’s concerns are more contemporary and more focused. Her dissents this term came mostly in criminal cases, informed as much by events in Ferguson, Mo., in 2014 as by those in Philadelphia in 1787.
She dissented again in January, from Justice Antonin Scalia’s final majority opinion. Joined by no other member of the court, she said the majority in three death penalty cases might have been swayed by the baroque depravity of the crimes. “The standard adage teaches that hard cases make bad law,” she wrote. “I fear that these cases suggest a corollary: Shocking cases make too much law.” 




Read more here: http://www.miamiherald.com/news/local/community/miami-dade/miami-beach/article87493917.html#storylink=cpy

Friday, July 01, 2016

Happy 11th birthday to the blog

Tomorrow the blog turns 11 years old, which is very old in blog years!  It's been pretty cool covering the District ... we are at 3000 posts and counting. 

The very first post 10 years ago asked for President Bush to appoint a Floridian to the Supreme Court.  Although the Court did get its first Hispanic jurist, it did not get a Floridian.  Hopefully one day soon!

Thanks to all of you for reading, sending me tips, and commenting.