Are Justices Alito and Thomas "activist" judges?

Yesterday, the Supreme Court decided 8-1 (per Justice Sonia Sotomayor) that the automobile exception does not justify police officers intruding onto the curtilage of one's home to conduct a search of a motorcycle. The majority:

This case presents the question whether the automobileexception to the Fourth Amendment permits a police officer, uninvited and without a warrant, to enter the curtilage of a home in order to search a vehicle parkedtherein. It does not.

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Given the centrality of the Fourth Amendment interest in the home and its curtilage and the disconnect between that interest and the justifications behind the automobile exception, we decline Virginia’s invitation to extend the automobile exception to permit a warrantless intrusion on a home or its curtilage.

According to 8 of the Justices, this was a pretty straightforward application of existing law.  Justice Thomas concurred, saying just that.  But he also said that the Court should reconsider whether the exclusionary rule applies to the States (a rule that has been in existence since 1961, when the Court decided Mapp v. Ohio) because: "[he is] skeptical of this Court’s authority to impose the exclusionary rule on the States."

Alito, the most anti-defendant anti-4th Amendment Justice on the Court, is the lone dissenter.  He goes so far as to call the 8 Justice majority unreasonable, assinine, and idiots:

An ordinary person of common sense would react to the Court’s decision the way Mr. Bumble famously responded when told about a legal rule that did not comport with thereality of everyday life. If that is the law, he exclaimed, “the law is a ass—a idiot.” C. Dickens, Oliver Twist 277 (1867).
The Fourth Amendment is neither an “ass” nor an “idiot.” Its hallmark is reasonableness, and the Court’s strikingly unreasonable decision is based on a misunderstanding of Fourth Amendment basics.

Back at it

Hope everyone had a nice and relaxing weekend. We’re nearing the end of the Supreme Court Term, with lots of big and interesting decisions left (like Carpenter). In the meantime, check out this NYT article about a study of Republican vs. Democratic judges. The GOP judges are tougher on black defendants but more lenient with women:

Judges appointed by Republican presidents gave longer sentences to black defendants and shorter ones to women than judges appointed by Democrats, according to a new study that analyzed data on more than half a million defendants.

“Republican-appointed judges sentence black defendants to three more months than similar nonblacks and female defendants to two fewer months than similar males compared with Democratic-appointed judges,” the study found, adding, “These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.”

The study was conducted by two professors at Harvard Law School, Alma Cohen and Crystal S. Yang. They examined the sentencing practices of about 1,400 federal trial judges over more than 15 years, relying on information from the Federal Judicial Center, the United States Sentencing Commission and the Transactional Records Access Clearinghouse at Syracuse University.

Douglas A. Berman, an authority on sentencing law at Ohio State University, said the study contained “amazing new empirical research.”

11th Circuit laments inability to address Brady violations; asks for en banc review; UPDATED — 11th also decides important border search issue of cell phones, noting circuit conflict

This entire Judge Rosenbaum opinion (Scott v. U.S.) is worth reading.  The intro goes like this:

Prosecutors are “servant[s] of the law” and should “prosecute with earnestness and vigor.” Berger v. United States, 295 U.S. 78, 88 (1935). But though the prosecutor “may strike hard blows, he is not at liberty to strike foul ones.” Id.

More than fifty years ago, Brady v. Maryland, 373 U.S. 83, 87 (1963), established that a prosecutor’s suppression of material evidence favorable to the accused amounts to a foul blow. An actionable Brady violation—where the government withholds evidence that reasonably probably changes the outcome of a defendant’s trial—deprives the defendant of a fundamentally fair trial. Yet because of the nature of a Brady violation, a defendant, through no fault of his own, may not learn that such a violation even occurred until years after his conviction has become final and he has already filed a motion for post-conviction relief concerning other matters.
Meanwhile, the Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes limitations on post-conviction relief a prisoner may obtain. This case examines whether under those limitations, a Brady claim can ever be cognizable in a second-in-time post-conviction motion under 28 U.S.C. § 2255 if it does not meet the criteria under the statute’s “gatekeeping” provision, 28 U.S.C. § 2255(h). And that presents a question of first impression in this Circuit.

But that the case involves an issue of first impression does not necessarily mean we are writing on a clean slate. As it turns out, our Circuit has already written all over this slate. Indeed, we decided this issue’s fraternal twin—whether a Brady claim can ever be cognizable in a second-in-time 28 U.S.C. § 2254 petition if it does not meet any of the criteria under 28 U.S.C. § 2244(b)(3)(A)—in Tompkins v. Secretary, Department of Corrections, 557 F.3d 1257 (11th Cir. 2009). Because we cannot distinguish Tompkins’s reasoning from the facts or law at issue here, our Circuit’s prior-precedent rule binds us to apply Tompkins’s rule: a second-in-time collateral motion based on a newly revealed Brady violation is not cognizable if it does not satisfy one of AEDPA’s gatekeeping criteria for second-or-successive motions.
Though we have great respect for our colleagues, we think Tompkins got it wrong: Tompkins’s rule eliminates the sole fair opportunity for these petitioners to obtain relief. In our view, Supreme Court precedent, the nature of the right at stake here (the right to a fundamentally fair trial), and the Suspension Clause of the U.S. Constitution, Art. I, § 9, cl. 2, do not allow this. Instead, they require the conclusion that a second-in-time collateral claim based on a newly revealed actionable Brady violation is not second-or-successive for purposes of AEDPA. Consequently, such a claim is cognizable, regardless of whether it meets AEDPA’s second-or-successive gatekeeping criteria.

Petitioner-Appellant Gino Scott’s Brady claim may or may not be an actionable Brady violation. But we think that the district court in the first instance should have the chance to address that question by determining whether Scott’s Brady claim is, in fact, actionable—a question the district court never had reason to reach. Tompkins’s rule precludes this from happening because it prohibits second- in-time collateral petitions based on all types of Brady claims—actionable and inactionable, alike—simply because they are Brady claims.

Establishing the correct rule and framework for determining whether any particular second-in-time collateral motion based on a Brady claim is cognizable is critically important to maintaining the integrity of our judicial system. No conviction resulting from a fundamentally unfair trial should be permitted to stand.1 And when a petitioner could not have reasonably been expected to discover an actionable Brady violation before filing his first federal collateral- review motion, precluding the filing of a second-in-time petition addressing the newly discovered violation is doubly wrong. It rewards the government for its unfair prosecution and condemns the petitioner for a crime that a jury in a fair trial may well have acquitted him of. This not only corrodes faith in our system of justice, but it undermines justice itself, and it cannot be allowed. So we urge the Court to rehear this case en banc to establish the rule that our Constitution and Supreme Court precedent require.

1. See generally Angela J. Davis, The Legal Profession’s Failure to Discipline Unethical Prosecutors, 36 Hofstra L. Rev. 275, 279-80 (2007) (collecting studies finding alarming rates of Brady violations resulting in criminal convictions).

UPDATE — It’s important decision day at the 11th Circuit. On the other end of the spectrum, Judge William Pryor writes this opinion in U.S. v. Toucet, holding that no reasonable suspicion is required to search a cell phone at the border. Pryor acknowledges that his opinion conflicts with the 4th and 9th Circuits on this issue. Looks like it will be headed up to the Supreme Court as the next big case dealing with cell phones. Meantime, we are still waiting for Carpenter.

Do you like Gorsuch's writing style?

There has been quite a bit made of Justice Gorsuch's writing style (many do not like it). He wrote two opinions today, and even in a pretty straight-forward opinion sending a case back to the lower courts to address some open questions, he writes with quite a unique style:

The dissent is displeased with our decision on this score, but a contradiction lies at the heart of its critique. First, the dissent assures us that the immovable property exception applies with irresistible force—nothing more than a matter of “hornbook law.” Post, at 3–10 (opinion of THOMAS, J.). But then, the dissent claims that allowing the Washington Supreme Court to address that exception is a “grave” decision that “casts uncertainty” over the law and leaves lower courts with insufficient “guidance.” Post, at 3, 13–14. Both cannot be true. If the immovable property exception presents such an easy question, then it’s hard to see what terrible things could happen if we allow state court colleagues are no less versed than we in “hornbook law,” and we are confident they can and will faithfully apply it. And what if, instead, the question turns out to be more complicated than the dissent promises? In that case the virtues of inviting full adversarial testing will have proved themselves once again. Either way, we remain sanguine about the consequences.

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The Vetting Room's take on 11th Circuit Nominee Britt Grant

President Trump has nominated Georgia Justice Britt Grant to the 11th Circuit.  The Vetting Room has a very informative and lengthy post about Grant.  Here's the intro:

Justice Britt C. Grant is President Trump’s third nominee to the Eleventh Circuit. Like Trump’s first nominee, Kevin Newsom, Grant is a former state solicitor general (Grant of Georgia, Newsom of Alabama). Like Trump’s second nominee, Lisa Branch, Grant worked as a BigLaw commercial litigator and subsequently served as a state appeals courts judge (Grant of the Supreme Court of Georgia, Branch of the Georgia Court of Appeals). Like both Newsom and Branch, Grant is a longtime member of the Federalist Society. Although Grant–if confirmed–will be replacing an Obama appointee, Julie Carnes, the replacement will not likely have an immediate effect on the ideological balance of the court because Carnes herself most frequently votes in divided cases with her more conservative colleagues (as did the judge that Lisa Branch replaced, Frank Hull).

In other news, longtime federal prosecutor Dick Gregorie is retiring. The Herald looks at his career here.