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July 9, 2018

Criminally exciting start to what will be first SCOTUS Term without Justice Kennedy in a looooooong time

The SCOTUS excitement today is thick, with Prez Trump promising to name his choice for replacing retiring Justice Anthony Kennedy at 9pm EDT tonight.  But hard-core SCOTUS geeks will also be excited to see the Court already making plans for the new Term via today's release of the argument calendar for the Court's October sitting.  More than a few notable criminal cases are on tap for the first two weeks of October (links descriptions from SCOTUSblog):

Scheduled for argument on Tuesday October 2:

Gundy v. United States: Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

Madison v. Alabama: (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Scheduled for argument on Tuesday October 9:

Stokeling v. United States: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

United States v. Stitt & United States v. Sims:  Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Besides being excited by this part of the docket for the first few weeks of the new SCOTUS  Term, I am intrigued by the reality that, for the first time in a very long time, advocates and court-watchers will no longer be trying to figure out how Justice Kennedy is going to vote on a particular issue.  Justice Kennedy has served on the Court for 30+ years, meaning that the last SCOTUS Term without his involvement was way back when Ronald Reagan was Prez, when the Soviet Union still existed, when the federal sentencing guidelines were still not quite operational, when Back to the Future II was still in development, and when Adele and Kevin Durant and Rory McIlroy and Cam Newton and Rihanna and Taylor Swift all had not yet even been born!

Of course, not having Justice Kennedy to figure out does not mean counting SCOTUS votes will necessarily get easier in criminal cases or others.  As I have stressed in prior posts, the Chief Justice and new Justice Gorsuch have been a bit unpredictable on the criminal side of the docket, and I think there could be similarly unpredictability from anyone of the short-listers that Prez Trump has been considering.  Indeed, as we await a name from Prez Trump, I would be eager to hear from readers if they think one or another of the short-listers will be particularly good (or particularly bad) on criminal cases.

I am about to head off-line for the afternoon, but I expect to blog some late tonight about whp Prez Trump taps and his or her record on criminal justice issues.  As of 3:15pm EDT, I am still expecting Judge Kavanaugh to be the pick.  But I suppose I will not be too surprised if Prez Trump surprises us tonight.

Prior posts on Justice Kennedy's retirement and the possible impact of his replacement:

July 9, 2018 at 03:14 PM | Permalink


Ok. I'll go out on a limb and say that Kavanaugh nor Barrett will not be the pick. Among the four so-called finalists I would say Hardiman or Kethledge though I totally won't rule out someone who is not among those four. Of course, I admit that I am biased. I consider those two, from a liberal perspective, to be the "least worst".

BTW, I spent some time this weekend reading Kethledge's opinions. He is another Souter.

Posted by: Daniel | Jul 9, 2018 4:01:48 PM

Yet another Yale indoctrinated, subhuman, piece of filth, pro-criminal scum bag, lawyer dumbass, a swamp creature, a member of the Deep State that will betray the nation and Trump's base. An unmitigated catastrophe.

Posted by: David Behar | Jul 9, 2018 9:14:58 PM

The is the cult member, a total swamp creature, that misled our elected figurehead, and betrayed his country and all future crime victims.


Posted by: David Behar | Jul 9, 2018 9:34:33 PM

Oh my God, Kavanaugh was born in the swamp. He harassed President Clinton, taking up his time to work on impeachment, instead of on Al Qaeda. This lawyer was a factor in the damage done to our nation on 9/11. This rent seeking cult criminal wasted $tens of millions on a frivolous attack on our elected President, because he raised taxes on the rich.


Posted by: David Behar | Jul 9, 2018 9:40:09 PM

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