Oyez Oyez Oyez! (UPDATED)

UPDATE -- Clarence Thomas asked the first question today in open court... so it wasn't just that he was going to ask questions telephonically.

SECOND UPDATE -- Oral arguments are live-streamed this Term!

  It's the First Monday in October, which means the Supreme Court Justices are coming back from their summer vacations.  (In addition to term limits as SCOTUS reform, I think it's time to do away with their three month break in the summer.)  So what's on tap for this Term?  Here's a good summary of the biggest cases, which address abortion and guns, from Vox:

For four decades, anti-abortion activists have dreamed of the day when the Supreme Court would overrule Roe v. Wade. That day could be just months away, as the Court will hear a case this winter asking it to destroy Roe.

The National Rifle Association, like other, even more strident gun rights groups, spent those decades dreaming of an expansive Second Amendment that sweeps even the most venerable firearms regulations into the trash bin. This fall, the Court will hear a challenge to a 108-year-old law laying out who may obtain a license to carry a firearm in New York.

A more obscure issue, but one that could have even more sweeping consequences, is the question of when federal agencies — acting pursuant to a statute enacted by Congress — may regulate private businesses and individuals. The conservative Federalist Society has long obsessed over plans to strip federal agencies of this regulatory power. This month, right-wing groups flooded the Supreme Court with briefs asking the justices to overrule a seminal precedent preventing judges from sabotaging agencies such as the Environmental Protection Agency.

It remains to be seen whether the Supreme Court, with its 6-3 conservative majority, will make all these groups’ dreams come true. But Republican advocacy organizations of all stripes appear convinced that now is the time to shoot for the moon, and so these issues — along with a host of others ranging from anti-discrimination law to partisan gerrymandering — are on the docket this coming Supreme Court term, which starts Monday, October 4.

In other SCOTUS news:

1.    Justice Alito is fired up over the shadow docket criticism.   From the NY Times:

In a combative speech on Thursday, Justice Samuel A. Alito Jr. defended several of the Supreme Court’s recent rulings on what critics call its “shadow docket,” saying the news media had created the impression that “a dangerous cabal is deciding important issues in a novel, secretive, improper way in the middle of the night, hidden from public view.”

He addressed the recent decisions in unusual detail, rejecting, for instance, what he said was the “false and inflammatory claim that we nullified Roe v. Wade” in early September by allowing a Texas law that bans most abortions after six weeks to come into effect.

“We did no such thing, and we said so expressly in our order,” he said, quoting from it. Indeed, the majority in the 5-to-4 ruling said it based its decision on procedural grounds and did not address the constitutionality of the Texas law.

The effect of the ruling, however, has been to deny abortions to most women in Texas. In dissent, Justice Elena Kagan wrote that the majority’s unsigned order “illustrates just how far the court’s ‘shadow docket’ decisions may depart from the usual principles of appellate process.”

“Without full briefing or argument, and after less than 72 hours’ thought,” she wrote, “this court greenlights the operation of Texas’ patently unconstitutional law banning most abortions.”

Justice Alito’s speech, at the University of Notre Dame, was largely devoted to addressing the “shadow docket,” which he called a loaded and misleading phrase.

“The catchy and sinister term ‘shadow docket’ has been used to portray the court as having been captured by a dangerous cabal that resorts to sneaky and improper methods to get its ways,” he said. “This portrayal feeds unprecedented efforts to intimidate the court and to damage it as an independent institution.”

2.      Justice Kavanaugh has COVID.

3.      So he couldn't go to Justice Barrett's investiture.

Linda Lopez nominated in S.D.Cal.

 Wahooo! Really happy to post this one.

Miamian Linda Lopez, who is now a Magistrate Judge in San Diego and was an assistant federal defender before that, has been nominated to the district court in S.D. Cal.  From the White House:

Linda Lopez: Nominee for the United States District Court for the Southern District of California
 
Judge Linda Lopez has served as a Magistrate Judge on the U.S. District Court for the Southern District of California since 2018. From 2007 to 2018, Judge Lopez worked as a federal public defender in San Diego. From 2003 to 2007, Judge Lopez worked as a criminal defense attorney in Miami as a solo practitioner, where she served on the Criminal Justice Act Panel and represented indigent defendants in federal court on a court-appointed basis. Judge Lopez began her career as a criminal defense attorney in private practice from 1999 to 2003. Judge Lopez received her J.D., magna cum laude and Order of the Coif, from the University of Miami School of Law in 1999 and her B.A., magna cum laude, from Florida International University in 1996. She also received her A.S. in 1994 and her A.A. in 1992, both from Miami Dade Community College.

San Diego Superior Judge Jinsook Ohta, left, and U.S. Magistrate Judge Linda Lopez have been nominated by President Joe Biden for district judge seats for the Southern District of California.

(Courtesy of U.S. Courts and San Diego Superior Court)

Judge Beverly B. Martin

By Michael Caruso:

 

Today is Judge Beverly B. Martin’s last day of service on the Eleventh Circuit Court of Appeals. She’ll be missed.

 

I’m limited by both ability and space to do justice to Judge Martin’s work on the Court. But, I offer two brief opinions.

 

First, I’d note her work—with former Chief Judge Ed Carnes—in effectuating systemic change for the men and women on Florida’s death row. In United States v. Lugo, Judge Martin concurred in the result but wrote separately to note the “alarming” number of cases where state-appointed lawyers missed their federal habeas filing deadlines. As Judge Martin pointed out, these missed deadlines have many negative consequences, including barring a federal court from reviewing the death row inmate’s claims on the merits. Her concurrence is well worth reading to see how she addresses this issue with thoroughness, compassion, and humility. And, as a result of this opinion, we now have two Federal Public Defender Capital Habeas Units in Florida to represent these men and women in federal court.

 

Second, although Judge Martin grounded her opinions on the facts and law of the case, I believe she never forgot that these cases are about people and not abstract legal questions. Again, my space is limited, but one recent example is United States v. Bryant. In Bryant, Judge Martin dissented from the Court’s holding that limited a person’s ability to obtain a  compassionate release from incarceration solely to those “extraordinary and compelling” reasons that are pre-approved by the Bureau of Prisons. I acknowledge that the majority’s holding has negatively impacted our clients, but I think Judge Martin was right on the law. Beyond her legal analysis, however, her opinion captures the hopes and struggles that Mr. Bryant experienced while in prison. This combination of rigorous analysis and human understanding is the mark of a great judge and person. 

Like I wrote, Judge Martin will be missed.

Sentencing Commission releases "Compassionate Release Data Report"

It's a very interesting read.  For 2020 and the first half of 2021, there were over 20,000 compassionate release motions filed.  

Our district had the highest number of filed motions (879) and right behind us was the Middle District of Florida.

However, we fell below the nationwide grant rate.  Nationwide, about 17.5% of CR motions were granted.  In our district, it was only 15.4%.  

Come on, judges... we shouldn't be lower than the national average when our sentences are traditionally higher than the national average!

Just to give a sense, the SDNY is 4th in filed motions, but their grant rate is over 20%.

Maryland is 5th, and their grant rate is 34%.

What do you think of this govt exhibit in R. Kelly case?

 As has been widely reported, R. Kelly was convicted yesterday of racketeering and sex offenses.  Racketeering?  Well, the government used the below exhibit, which has been flying around some of the listservs and has garnered lots of debate.  Do you think it was proper for the judge to admit this gov't exhibit?