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March 30, 2016

Fascinating SCOTUS Sixth Amendment splintering in Luis v. United States

The Supreme Court this morning handed down an opinion this morning that is fascinating based simply on the line-up of Justices: "BREYER, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., filed a dissenting opinion." This line-up ruled for the criminal defendant in Luis v. United States, No. 14-419 (S. Ct. March 30, 2016) (available here), and here is how Justice Breyer's plurality opinion starts:

A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property “obtained as a result of ” the crime, (2) property“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her frompaying her lawyer.  She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.

March 30, 2016 at 11:09 AM | Permalink


Thomas' opinion is a great read and exceedingly well-done.

Posted by: federalist | Mar 30, 2016 11:42:28 AM

Thomas, as is sometimes his wont, found a special way to decide things.

Kagan was sympathetic but thought the majority's attempt to avoid a precedent unconvincing. If the Court was asked, she was inclined to overrule it.

Alito dissenting against a criminal defendant is not surprising. Kennedy neither - would depend on the case.

Posted by: Joe | Mar 30, 2016 11:59:06 AM

Would Scalia have joined Thomas?

Posted by: Chris | Mar 30, 2016 12:47:58 PM

Chris, I think the answer is yes. Thomas' point is very powerful and echoes Scalia's decision in a choice of counsel case--that the Constitution resolves competing interests and the Court's job is to enforce the bargain (so to speak). In this case, the Constitution said that people get the counsel of their choice--that means they get to use assets that are theirs to hire counsel--thus there is no reason for courts to weigh what courts think the equities are. The Sixth Amendment guarantee means that in some cases the government is NOT going to be made whole and assets will dissipate as a result of expenditures on counsel---but it also means that in others people will be found not guilty where they otherwise would not have. Rules that guarantee rights often have negative consequences, but it's really not up to the courts to come up with ways to soften those negative consequences based on their views of equities or interests.

Posted by: federalist | Mar 30, 2016 1:26:23 PM

Thomas deserves a gold star for this one! Kennedy and Kagan have to sit in the corner.

Posted by: Michael R. Levine | Mar 30, 2016 1:39:43 PM

I agree with Kagan insofar as I think the underlying precedent is wrong. I've always thought the logic is much too circular and simply assumes what it seeks to prove. BUT. I find her strategy here perplexing. If she thinks the precedent is wrong, why apply it anyway? Simply because that is not up for discussion? That seems like a pedantic, overweening approach. Why not just concur with the judgement? I don't get it.

Posted by: Daniel | Mar 30, 2016 2:43:07 PM

She's following standard policy.

The Supreme Court took the case to settle a narrow question, not open up the question for broad discussion. This furthers stare decisis and focuses the Court's effort on examining a specific thing. If the justices were going to overrule precedents, they would more appropriately open things up to allow each side to say why they should not.

It to the courts (and me fwiw) logical to focus their efforts in this respect. Kagan agreed with the other justices to rule on a narrow question. The basic idea of "granting that -- now maybe I think that's stupid, but granting that -- the logic leads me to "x" is standard procedure even outside of judicial decision making.

If the logic of the thing is wrong, she isn't the issue. It is the courts as a whole that follow the process. And, not even them alone.

Posted by: Joe | Mar 30, 2016 6:08:20 PM

Is Justice Thomas's opinion here consistent with his vote in Kaley v. United States?

Posted by: Erik M | Mar 30, 2016 7:39:57 PM

An interesting take on that Kagan dissent:


Posted by: Joe | Apr 1, 2016 10:38:47 AM

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