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January 22, 2008

Today's notable SCOTUS work includes some more GVRs

FridgeThough there is little for newspaper headlines, true law geeks ought to be intrigued by the Supreme Court's work this morning.  First, in today's Order List (available here), the Court hands down another batch of GVRs based on Gall and Kimbrough (and even has one based on Rtia).

Second, the Justices issued an interesting statutory interpretation decision in Ali v. Federal Bureau of Prisons, No. 06-9130 (available here).  Notably, Ali is a 5-4 decision, but Justice Kennedy is not the swing vote.  Rather, Justice Ginsburg joined the majority opinion penned by Justice Thomas, and Justice Kennedy authored the chief dissent.  But my favorite snippet in Ali comes from Justice Breyer's dissent, where he explains:

The word "any" is of no help because all speakers (including writers and legislators) who use general words such as "all," "any," "never," and "none" normally rely upon context to indicate the limits of time and place within which they intend those words to do their linguistic work.  And with the possible exception of the assertion of a universal truth, say by a mathematician, scientist, philosopher, or theologian, such limits almost always exist. When I call out to my wife, "There isn't any butter," I do not mean, "There isn't any butter in town."  The context makes clear to her that I am talking about the contents of our refrigerator.

January 22, 2008 at 10:51 AM | Permalink


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The Rita GVR concerns a Fourth Circuit case that was decided more than a month AFTER Rita. See US v Nelson, 237 F.App'x 819 (4th Cir. Jul. 30, 2007).

Ironically, the Fourth Circuit affirmed by relying on Rita: "Nelson claims that the district court's reliance on this presumption of reasonableness rendered the guidelines sentence it imposed mandatory in contravention of Booker. We find that Nelson's argument is foreclosed by the Supreme Court's decision in Rita."

The panel obviously paid little attention to Rita's lesson that district courts can't use the presumption. I hope this remand makes them re-read the opinion (and its many lessons) with detail.

Posted by: DEJ | Jan 22, 2008 11:12:27 AM

Wow. That's kind of a slap. A panel decision interprets a Supreme Court case, and the Supreme Court GVRs in light of that same case.

One can imagine more passive-aggressive GVRs out there.

The petition for a writ of certiorari is granted. The judgment is vacated and the case is remanded to the United States Court of Appeals for the Circuit for further consideration in light of [the Bill of Rights / the applicable statute of limitations / Marbury v. Madison / the Chicago Manual of Style]

Posted by: | Jan 22, 2008 3:55:42 PM

Tony Mauro at BLT: "In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: 'The butter is staring me in the face, but because I am a man, I can't find it.'"

Posted by: Kent Scheidegger | Jan 22, 2008 4:34:33 PM

Tony Mauro at BLT: "In the real world, of course, many spouses would give a third meaning to Breyer's proclamation: 'The butter is staring me in the face, but because I am a man, I can't find it.'"

Very nice, and that would also seem to underscore the majority's point. When Congress "speaks" through a statute, it is speaking to a much larger audience, and its words are supposed to be understood and applied many times over, in a variety of settings, for years after it has spoken. Congress's relationship with the public is not the same as Justice Breyer's is with his wife, and in the former relationship, it makes more sense to take things a bit more literally.

That said, I'm not sure which side has the better of the overall argument. Usually when a statute is phrased like the one in this case, the catchall clause reaches fewer situations than the specific clause, and Justice Breyer's reference to Justice Scalia's words about Congress not usually "hiding elephants in mouseholes" seems apt.

Posted by: | Jan 22, 2008 4:51:15 PM

I think Justice Thomas stated it perfectly when he wrote, "by 'any,' not just 'some,' law enforcement officers." The statute seems quite clear to us normal folk in the heartland. Granted a B.S. from a midwestern university probably doesn't prepare one for such in depth semantic analysis as put forth by Justice Breyer.

Posted by: Ol' BC | Jan 22, 2008 9:32:05 PM

I think the footnote regarding administrative remedies for lost property sealed the deal in this case.

Posted by: S.cotus | Jan 23, 2008 6:21:35 AM

I agree with S.cotus.

Posted by: federalist | Jan 24, 2008 1:09:11 AM

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