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June 25, 2015
Seeking SCOTUS predictions: what should we now expect in Glossip and Johnson?
I feel like the Supreme Court did me a solid this morning by deciding two non-criminal cases and continuing to keep everyone waiting for the two sentencing cases I have been following most closely this term: Glossip concerning execution protocols and Johnson concerning the constitutionality and application of the federal Armed Career Criminal Act. I say that because I am due to be off-line and out-of-the-office most of the rest of today, and I am somewhat relieved I do not yet need to read and react to the (many divided and lengthy?) opinions to come from the Justices in these two cases.
In part because I am going to be off-line for a while, and in part because SCOTUS gave us a few more tea leaves to read with its rulings today and earlier this week, I am eager to hear from folks about what they are now expecting in Glossip and/or Johnson. I think it is now a near certainty that we are going to get (deeply?) divided rulings in both cases, and I have long assumed Glossip would come down to a 5-4 vote and that Johnson might end up the same. But as the days go by without a ruling, I am getting more and more excited (or should I say concerned) that both Glossip and Johnson will be big, lengthy and consequential.
Do others agree? Do folks expect the rulings tomomrrow? Monday? Later?
Do folks now have predictions about who will be writing for the Court and will be writing the main dissents in each case?
Does anyone share my fear that we might get a badly splintered Court in both cases?
June 25, 2015 at 11:45 AM | Permalink
Comments
With the way this term has gone for conservatives, we should expect a finding that capital punishment violates the 8th Amendment. (Can't really make a joke about Johnson because Scalia has led the charge on the void for vagueness argument.)
Posted by: A Non-E Mous | Jun 25, 2015 11:53:01 AM
Really though, on Johnson I expect a non-traditional 5-4 split that puts Gisburg, Breyer, Thomas, Alito, and Kennedy in the majority against Scalia, Roberts, Kagan, and Sotomayor. Residual Clause survives another day. Justice Breyer writes the majority with a dissent by Scalia and another separate dissent by Sotomayor.
Posted by: A Non-E Mous | Jun 25, 2015 11:56:59 AM
Really though, on Johnson I expect a non-traditional 5-4 split that puts Gisburg, Breyer, Thomas, Alito, and Kennedy in the majority against Scalia, Roberts, Kagan, and Sotomayor. Residual Clause survives another day. Justice Breyer writes the majority with a dissent by Scalia and another separate dissent by Sotomayor.
Posted by: A Non-E Mous | Jun 25, 2015 11:56:59 AM
A mixed ideology split on the residual clause issue would not surprise.
5-4 on Glossip with a narrow ruling upholding, good chance of a more vitriolic concurrence and a strong dissent (if it's by Sotomayor, expect vitriol; but Kagan might be a good choice too).
Posted by: Joe | Jun 25, 2015 1:41:15 PM
Am expecting a split decision in Johnson with the conviction reversed. One faction on majority will say that facts do not fit within residual clause and therefore do not need to reach constitutional issue. Another faction will reach constitutional issue and say statute is void. Dissent will find sufficient evidence to support finding that residual clause is satisfied but may have split on why.
On Glossip, this result has been locked in stone since before the Supreme Court took the case. Other than Oklahoma agreeing to the stay after cert was granted, the Supreme Court has routinely been denying stays of execution on petitions raising lethal injection issue. (It takes tracking back the stay apps to the underlying case to confirm). Five justices do not see a problem with the current protocols, four do. The majority will reaffirm Baze and emphasize deference to factual findings. Question is will dissent argue to revise Baze or simply assert findings not supported by credible evidence. Only real issue is the pleading standard in these cases.
Posted by: tmm | Jun 25, 2015 2:55:08 PM
The states are the father. The federal government is the bullying child. The states may ignore the Supreme Court. If federal thugs are sent to enforce a decision, clasp them in irons, taser them whether they have resisted or not. To deter.
Then torture and draw and quarter a condemned prisoner if the state decides to.
Posted by: Supremacy Claus | Jun 25, 2015 11:28:26 PM
I agree with tmm above on Glossip. I think Roberts will write the opinion with a strong dissent by the Wise Latina. Probably a couple of concurrences. I can't see Kennedy flipping after denying stays on the cases before. But he is leaning left.
They will act on Zink vs Lombardi from the 8th Circuit after Glossip since the cases have some similar issues.
Posted by: DaveP | Jun 26, 2015 8:11:48 AM
Strong ruling on Johnson. 8-1 in judgment (Alito dissent.) 6 votes for a Scalia opinion (Roberts and liberals join) to rule it void for vagueness. Thomas (joined by Kennedy) concurs in the judgment by arguing that mere possession would not follow under the rule, but objects to the void for vagueness.
Posted by: John Thacker | Jun 26, 2015 10:30:02 AM
Increasing sentences under the ACCA residual clause is unconstitutional under due process. Scalia, J. w/ Roberts, Ginsburg, Breyer, Sotomayor, and Kagan. Kennedy and Thomas concurring on statutory grounds. Alito in dissent.
Posted by: Joe | Jun 26, 2015 10:30:07 AM
Obviously, I'm way too late, but I was going to say:
6-3 with Scalia writing the opinion for himself, Ginsberg, Kagan, Sotomayor, Thomas, and Chief Justice Roberts with a dissent written by Alito joined by Kennedy and Breyer.
Obviously, I'm wrong. I did predict Scalia would write the opinion (me and everyone else) and that Alito would dissent. I basically went with formalist vs. functionalist with Sotomayor in the majority because of her pro-criminal rights perspective and Roberts in the majority because of his dislike of Kafka-esque government oppression. I haven't had a chance to read the opinions yet. Thomas is usually the most unpredictable on these kinds of things, so I'm curious to see what the Kennedy/Thomas concurring opinion sounds like.
Posted by: Erik M | Jun 26, 2015 11:55:15 AM
☺ Hello comma all semicolon it is I period
¡ Decades ago during the 1960s I was able to predict decisions with mind boggling accuracy ‼
My in futuro talent soon thereafter self-destructed with exponential speed :(
I predict a divided court , but not an “Affirmed by an equally divided court (4-4)”
Kindly , DJB aka Kind Soul
Nemo Me Impune Lacessit
Posted by: Docile Jim Brady in Oregon | Jun 26, 2015 1:28:24 PM
