Lots of criminal justice sound (and fury, signifying nothing?) in latest SCOTUS order list

The Supreme Court is apparently not going to issue the final opinions of the Term today, but it did issue this lengthy order list which has a number of interesting elements for criminal justice fans.

For starters, there is this per curiam summary decision in Lombardo v. St. Louis, with the majority reversing the decision to grant summary judgment on an excessive force claim against St. Louis and police officers who killed a disruptive suspect in a holding cell.  Justice Alito, joined by Justices Thomas and Gorsuch, complains that the majority "unfairly interprets the Court of Appeals’ decision and evades the real issue that this case presents: whether the record supports summary judgment in favor of the defendant police officers and the city of St. Louis."

Though Lombardo makes precedent, I am even more intrigued by Justice Thomas's decision to pen this five-page statement respecting the denial of cert in a tax case, Standing Akimbo v. US,  in order to question whether the Raich decision upholding federal power to prohibit all marijuana activity is still good law. Here are excerpts:

Whatever the merits of Raich when it was decided, federal policies of the past 16 years have greatly undermined its reasoning. Once comprehensive, the Federal Government’s current approach is a half-in, half-out regime that simultaneously tolerates and forbids local use of marijuana. This contradictory and unstable state of affairs strains basic principles of federalism and conceals traps for the unwary....

This disjuncture between the Government’s recent laissez-faire policies on marijuana and the actual operation of specific laws is not limited to the tax context. Many marijuana-related businesses operate entirely in cash because federal law prohibits certain financial institutions from knowingly accepting deposits from or providing other bank services to businesses that violate federal law. Black & Galeazzi, Cannabis Banking: Proceed With Caution, American Bar Assn., Feb. 6, 2020.  Cash-based operations are understandably enticing to burglars and robbers. But, if marijuana-related businesses, in recognition of this, hire armed guards for protection, the owners and the guards might run afoul of a federal law that imposes harsh penalties for using a firearm in furtherance of a “drug trafficking crime.” 18 U.S.C. §924(c)(1)(A).  A marijuana user similarly can find himself a federal felon if he just possesses a firearm. §922(g)(3). Or petitioners and similar businesses may find themselves on the wrong side of a civil suit under the Racketeer Influenced and Corrupt Organizations Act. See, e.g., Safe Streets Alliance v. Hickenlooper, 859 F. 3d 865, 876– 877 (CA10 2017) (permitting such a suit to proceed).

I could go on. Suffice it to say, the Federal Government’s current approach to marijuana bears little resemblance to the watertight nationwide prohibition that a closely divided Court found necessary to justify the Government’s blanket prohibition in Raich. If the Government is now content to allow States to act “as laboratories” “‘and try novel social and economic experiments,’”  Raich, 545 U.S., at 42 (O’Connor, J., dissenting), then it might no longer have authority to intrude on “[t]he States’ core police powers . . . to define criminal law and to protect the health, safety, and welfare of their citizens.” Ibid. A prohibition on intrastate use or cultivation of marijuana may no longer be necessary or proper to support the Federal Government’s piecemeal approach.

Last but not least, in this nine-page dissent from the denial of cert in Hernandez v. Peery, Justice Sotomayor explains at great length why the Ninth Circuit was wrong to refuse to issue a certificate of appealability in a habeas appeal involving a claimed denial of the Sixth Amendment right to counsel.