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June 28, 2021

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.

June 28, 2021 at 09:58 AM | Permalink


I'm sympathetic with Thomas' marijuana statement, but generally speaking I think Raich was rightly decided on Commerce Clause grounds.

Congress as a matter of policy might be somewhat arbitrary but this isn't free speech or something.

Congressional powers can be in a constitutional fashion can be applied more haphazardly. This includes providing states some discretion in fact while still (however badly on policy) not going all the way.

I saw at least some suggestion on Legal Twitter that Lombardo is notable though how much is unclear. It is a bit "shadowy" as that docket is sometimes known.

The Presidential Supreme Court commission will have another meeting on Wednesday and the shadow docket is one thing up for discussion (see, e.g., Prof. Vladeck).


Posted by: Joe | Jun 28, 2021 11:10:26 AM

Lombardo was either a 6-3 or 5-4 decision (since three justices dissented). Probably would have been better as a grant. It does make qualified immunity in excessive force cases a bit murkier.

At some point, Congress needs to bite the bullet on marijuana. The ambiguous status of marijuana (legal under state law and illegal under generally unenforced federal law) is not good for anybody.

Posted by: tmm | Jun 28, 2021 11:28:17 AM


Sorry, but I don't see non-commerce (as in Raich) ever coming within Congress' authority simply because there also happens to be a market for the product and Congress wishes to destroy that market. They could ban the interstate movement of the product, or incentivize states to enact bans, but a federal ban goes much too far.

I believe the Court has been wrong on this point at least back to Wickard. Congress could have constitutionally banned selling beef fed on over-quota grain in inter-state markets but punishing someone for violating the quota itself was a step much too far.

Posted by: Soronel Haetir | Jun 28, 2021 12:49:10 PM

"Sorry, but I don't see non-commerce (as in Raich) ever coming within Congress' authority simply because there also happens to be a market for the product and Congress wishes to destroy that market."

There is plenty of commerce going on.

The regulation of commerce also includes regulation of non-commerce [though push comes to shove, there tends always to be some commerce involved) as part of the complete regulation of commerce as a whole.

The power to destroy a national or international market is within the power to regulate such commerce. There is a complicated structural political system -- two houses, presidential veto etc. to determine the correct policy here in broad ways unless something specifically (such as banning the sale of books) is problematic constitutionally.

There are also other matters, including taxation, involved as well.

Posted by: Joe | Jun 28, 2021 1:27:14 PM

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