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October 2, 2018

Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always

On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center.  Here is SCOTUSblog's overview via this round-up post:

Today the eight-justice court will tackle two more cases.  The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine.  Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review.  Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime.  This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here.  Tucker Higgins reports on the case for CNBC.

As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence.  The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons.  But I cannot help but note what seems to me to be relatively small stakes in Madison. 

I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state.  In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."

Prior related preview posts:

UPDATE via SCOTUSblog:  The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?" 

October 2, 2018 at 09:51 AM | Permalink


Just like for Weyerhaeuser yesterday the petitioners today are going to have a more difficult time due to the 8-member court. Madison in particular (Gundy is unusual enough I could well see it producing an atypical split).

Posted by: Soronel Haetir | Oct 2, 2018 10:58:13 AM

Gundy makes me nauseous from whiplash. On one hand I want him to win for reasons other than the non-delegation issue. On the non-delegation issue I am sympathetic that the administrative state has gotten too big but I am concerned about the alternative. When Kavanaugh gets on the court there will be five votes to turn the USA into a free wheeling capitalist society that would make Augusto Pinochet blush. In short, I think the administrative state need to be reigned in I just don't trust Thomas, Alito and company to do it in a way that doesn't significantly increase human suffering.

Posted by: Daniel | Oct 2, 2018 11:14:33 AM

I am not sure that Madison will be that limited. Even if we are only executing thirty to fifty people a year, it is not unusual for the last second flood of filings to include a claim that they are incompetent to be executed. So, if Madison changes the definition, you will see inmate's trying to claim that they fit within the new definition. I am not sure how many inmates on death row have enough of a deficiency to credibly make that claim, but the mental deficiency to make such a claim is almost certainly less severe than the one required under current law (the inability to understand that they are being executed for a murder that a jury found that they committed).

Posted by: tmm | Oct 2, 2018 1:05:15 PM


Amy Howe now offers her view on the oral argument in Madison. I think it is interesting how quickly Roberts has now become the "swing justice" on cases like these.

Posted by: Daniel | Oct 2, 2018 7:02:28 PM

Thank you Doug for that link to oral argument in Gundy. I ead through the whole thing and all I can say is "wow". Public defenders often get a lot of crap but Sarah Baumgartel put on a magnificent performance. She toasted Wall, made Kagan look foolish, did the tango with Gorsuch, all the while cracking jokes and making the audience laugh. She smacked every ball out of the ball park. It was a brilliant effort.

If the case where to be decided based on oral advocacy skill she wins easily.

Posted by: Daniel | Oct 2, 2018 11:43:25 PM


SCOTUSblog's argument recap in Gundy is now posted. She seems to think that Wall performed better than I thought he did.

Posted by: Daniel | Oct 3, 2018 1:52:09 PM

I was reading through Gundy, and I thought the SEC questions were a problem for Gundy's attorney. There are some very broad delegations to agencies that have the power to investigate crimes and refer them for prosecution. Unless the Supreme Court finds that the final charging decision makes the AG sui generis, they are going to have to find someway to distinguish SORNA from these other statutes or run the risk of calling into question a significant number of regulations that have been on the books for decades.

Posted by: tmm | Oct 3, 2018 3:43:26 PM


Yeah, that is the way Breyer was trying to spin it but frankly that is the way that he spins all these kinds of cases. I didn't see him gaining any traction with that argument though among the other judges. The nondelegation doctrine is a hard conceptual road to hoe because, at least as I see it, there isn't an rational way to determine where one draws the line without going into infinite regresses. That's the problem with Kagan's argument: if one looks hard enough one can infer an intelligible principle in just about any Congressional act. What's the difference between cobbling together a bunch of inferences and simply making something up?

Posted by: Daniel | Oct 3, 2018 4:26:22 PM

I don't think that it was just Breyer who was pushing that line. While not using the SEC as an example, several of the justices had questions expressing skepticism of the civil/criminal distinction that Gundy was trying to push.

Posted by: tmm | Oct 3, 2018 5:03:52 PM


You think that but other people don't. Slate has this article, and I quote, "Here’s the thing: Gorsuch is absolutely right. And judging by the other justices’ skepticism of SORNA’s delegation, his view will carry the day in a lopsided ruling against the government."


So Stern certainly thinks that Gundy is going to win big with a ruling based upon the civil/criminal distinction you think many judges were skeptical of. You both can't be right.

Posted by: Daniel | Oct 3, 2018 7:51:16 PM

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