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March 22, 2021

Lots of statements about cert denials in criminal cases on latest SCOTUS order list

The big news this morning from the new Supreme Court order list was the Justices' decision to grant cert to reconsider the reversal of the death sentence for Boston Marathon bomber Dzhokhar Tsarnaev.  But also of interest to criminal justice fans are three additional cases in which SCOTUS denied cert, but a few justices issues a statement about the issues in the case. 

One of these cases Longoria v. United States, No. 20-5715, involves a guideline issue that I am eager to discuss in a separate full post.  The other two involve muder defendants, and issues that obviously seemed worth noting by at least on Justice. 

In Thompson v. Lumpkin, No. 20–5941, Justice Kagan authored a concurrence in the denial of cert, joined by Justices Breyer and Sotomayor, flags various problems she see in the Fifth Circuit's application of AEDPA rules leading to its refusal of a state capital defendant's "request for an evidentiary hearing on two claims relating to his capital sentence."  Like many AEDPA issues, this matter is intricate, important and inevitably opaque.

in Smith v. Titus, No. 20–633, Justice Sotomayor issued a solo and lengthy dissent from the denial of certiorari.  Here is how her 13-page opinion gets started:

Because “the Sixth Amendment right to a public trial extends beyond the actual proof at trial,” courts must meet a high standard “before excluding the public from any stage of a criminal trial.”  Presley v. Georgia, 558 U.S. 209, 212–213 (2010) (per curiam).  At Byron Smith’s trial, however, the judge cleared all members of the public from the courtroom before issuing a key evidentiary ruling.  Even though the judge did not justify the closure in accordance with the dictates of this Court’s precedents, the Minnesota Supreme Court found no constitutional error because it concluded that defendants have no public-trial right in so-called administrative proceedings.  That ruling was manifestly incorrect. Because the Minnesota Supreme Court’s decision contravened clearly established federal law, the Court of Appeals for the Eighth Circuit erred in denying Smith’s application for a writ of habeas corpus.  I would grant the petition for a writ of certiorari and summarily reverse.

March 22, 2021 at 11:04 AM | Permalink


I read the opinion regarding dismissal in Longoria and my response is that I believe it entirely inappropriate for SCOTUS justices to weigh in on what they believe a coordinate branch of government should do.

If that coordinate department chooses to act judge by whether that action is within the statutory grant. Beyond that their official pronouncements should remain silent.

Posted by: Soronel Haetir | Mar 22, 2021 3:25:53 PM

Soronel, why do you have your knickers in such a twist over the Justices offering a few words of advice to the USSC, and by extension, the Biden admin? As this very example shows, these kinds of suggestions aren’t limited to Justices of any particular ideological persuasion either. They’ve been offering them since long ago too—it’s not exactly a novel practice.

Again, why is that so beyond the pale? Is it really inconceivable that a SCOTUS Justice would have some well-considered input to make on this kind of subject? Anyway, if the other branch doesn’t want or doesn’t like the advice, it can just disregard it. But it seems to me these kinds of suggestions are helpful because they empower the other branch to come up with its own solutions instead of being at the mercy of what SCOTUS decides.

But maybe I’m missing something and you can enlighten us on what’s so pernicious and inappropriate about these statements.

Posted by: hardreaders | Mar 22, 2021 4:25:33 PM

My particular problem with this example is (1) say the commission acts and decides that withholding the point filing is in fact the correct action (2) say the commission decides otherwise, that a suppression hearing isn't worth withholding the point for acceptance of responsibility but that the AUSA still doesn't file, that still shouldn't be actionable on the part of the courts.

I see this sort of 'advice' as being very close to the line of a forbidden advisory opinion.

Posted by: Soronel Haetir | Mar 22, 2021 4:57:45 PM

This is also very different from opinions respecting denial where the justice says "this isn't the right case to address this issue but we really ought to at some point", possibly with advice on how to frame that clean presentation of the issue. Or even addressing lower court judges with a statement regarding what cases should be examined in a particular context.

In both of those cases the justice is addressing an actor within the competence of the judicial branch. This case is very different.

Posted by: Soronel Haetir | Mar 22, 2021 5:08:10 PM

Soronel, thanks for the response. You make a few points that seem distinct to me, so I'll try to address each one separately.

(1) Whether the gov't's decision to w/hold the point is "actionable" or not just seems like a non sequitur. That would be a separate issue of justiciability, not implicated here AFAICT. And the courts for quite some time seem to have had no problems finding that it is in fact actionable.

(2) Although I'm not sure if advisory opinions are truly "forbidden"—after all, the Court, when it suits its purposes, seems to be fine with issuing decisions in cases that are clearly moot or where the plaintiff lacks standing—this one seems like a strawman. First, this is obviously not an opinion. It's a "statement" with as much formal legal effect as a postcard. Second, it's only issued by two Justices. Thus it would have almost no chance of forming a majority even if part of an actual opinion. Last, I still don't see it as problematic in the situation where it did appear as part of an opinion. That's because it's still just a suggestion to another branch (here the Executive) without any legal effect, in the present case or even future cases.

(3) Your distinction is well taken between this kind of the statement and the ones that—if we're being charitable—offer light "encouragement" to those who might want to bring future vehicles more suitable for deciding an issue. But if anything, as I see it, the latter kind of "encouragement" statements are much closer to being advisory in nature and thus improper. The former, again, are simply recommendations of certain actions to take—not even hints about how a future case might be decided. So in my view they are far more innocuous.

(4) This one is basically the same as (2) and (3). Again, the Court does this all the time, including in actual opinions, both to Congress and the Executive, it's not a big deal, and the practice won't stop anytime soon. There is of course the old adage about the value of free advice, but the other branch in question can always take it or leave it. And just because it is a form of advice doesn't mean it has anything in common with an "advisory" opinion.

Posted by: hardreaders | Mar 22, 2021 5:49:50 PM

FYI Solonel, the Sentencing Commission is an agency located in the judicial branch. I suggest reading Mistretta v. United States if you're interested in learning more about the constitutional peculiarities of the Sentencing Commission.

Posted by: Anon AFPD | Mar 23, 2021 12:44:59 AM

The clarification from Anon is appreciated, even if not directed expressly at me. I don’t think it undermines what I said above either. SCOTUS does the same thing all the time when addressed to a completely different branch, like Congress. And it’s still not objectionable.

Posted by: hardreaders | Mar 23, 2021 9:01:23 AM

The clarification from Anon is appreciated, even if not directed expressly at me. I don’t think it undermines what I said above either. SCOTUS does the same thing all the time when addressed to a completely different branch, like Congress. And it’s still not objectionable.

Posted by: hardreaders | Mar 23, 2021 9:01:24 AM

I don't see any problem with judges or justices noting that a ruling is compelled by a statute or regulation and that any fix is within the authority of another agency.

In this particular case, noting that there is a split that needs to be resolved but that the split could be resolved by the Sentencing Commission clarifying the guidelines language seems to be appropriate.

Posted by: tmm | Mar 23, 2021 1:22:46 PM

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