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April 27, 2020

A dozen GVRs based on Ramos (with Justice Alito always commenting along the way, and Justice Thomas dissenting in a few)

Of criminal justice interest on this order list released by the Supreme Court this morning are a series of orders sending cases back to lower courts for reconsideration in light of the Court's unanimous juries ruling last week in Ramos v. Louisiana (basics here).  I count 12 total cases being remained, nearly all from Louisiana and one from Oregon.  Here is how the first of these orders reads:

The petition for a writ of certiorari is granted.  The judgment is vacated, and the case is remanded to the Court of Appeal of Louisiana, First Circuit for further consideration in light of Ramos v. Louisiana, 590 U. S. ___ (2020).  Justice Alito, concurring in the decision to grant, vacate, and remand: In this and in all other cases in which the Court grants, vacates, and remands in light of Ramos v. Louisiana, I concur in the judgment on the understanding that the Court is not deciding or expressing a view on whether the question was properly raised below but is instead leaving that question to be decided on remand.  Justice Thomas would deny the petition for a writ of certiorari.

Notably, this comment by Justice Alito appears with every remand order, but Justice Thomas indicates he would deny the petition in only five of the twelve cases.  (I would guess that the five cases that Justice Thomas would deny are in a distinct procedural posture from the other seven.)

Prior related posts:

April 27, 2020 at 09:50 AM | Permalink


Why does it make a difference if the claims were properly preserved below? Under Johnson v. US and Henderson v. US, defendants win on plain error review as long as the error is plain when heard on appeal; they need not have argued below that binding precedent should be overturned. Justice Thomas disagrees with this and wouldn't apply the precedent, but Justice Alito's hinting to the lower courts to pay attention to see if the anti-Apodaca/Ramos argument was preserved makes no sense as the lower courts are bound by Johnson and Henderson. Perhaps you can shed light on this...

Posted by: Jacob Berlove | Apr 28, 2020 12:22:39 AM

I assume, Jacob, that these cases are in the state system which might not have the same plain error rules as the federal system

Posted by: Doug B | Apr 28, 2020 2:03:34 PM

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