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July 2, 2024

Surpeme Court grants cert on First Step resentencing, GVRs gun issues, and lots of statements in (final?) order list

I am already way, way behind on my Supreme Court reading, and the Justices this morning via this order list gave us all another 53 pages of SCOTUS copy to process.  As is common for an end-of-term order list, this one starts with a bunch of GVRs (cert "granted," judgment "vacated," case "remanded") based on notable recent rulings, then follows with a few grants and then a bunch of comments on cert denials. 

I saw a big bunch of Erlinger remands along with a number of Loper Bright ones and a few based on Fischer and Diaz.  The most notable of the set, though, are the many Rahimi remands in an array of cases raising Second Amendment challenges to various application of federal criminal gun possession prohibitions under 18 USC 922(g).  In particular, it seems SCOTUS has GVRed all the felon-in-possession cases that the US Solicitor General suggested be taken up right away in light of Rahimi.  I am not really surprised the Justcies are content to kick federal felon-in-possession cases down the road, but it simply ensure a lot more legal churn in lower courts (and perhaps a lot more people unconstitutonally prosecuted) as the Justice go off on their summer vacation and the rest of us try to read Rahimi tea leaves.  There is little doubt in my mind that the Justices will have to resolve the constitutionality of 922(g)(1) sooner or later, but they ultimately get to decided just when and how while the rest of use deal with the legal uncertainty.

But I suppose I cannot be too grumpy at the Justices because, in this same order list, they did grant cert (and consolidate) two cases involving the application of the First Step Act.  Specifically, as explained in this cert petition in one of the cases, the issue taken up by SCOTUS in the new cases of Duffey and Hewitt is:

Whether the First Step Act’s sentencing reduction provisions apply to a defendant originally sentenced before the First Step Act’s enactment when that original sentence is judicially vacated and the defendant is resentenced to a new term of imprisonment after the First Step Act’s enactment.

Last but certainly not least, the lengthy order lists concludes with statements or dissents in a half-dozen cases in which cert was denied authored by a handful of Justices.  A number of these cases are criminal matters of note, so I will cover some of that action in a future post. Whew.

July 2, 2024 at 10:32 AM | Permalink

Comments

The decision to gvr the "nonviolent" felon in possession cases shows the level of concern that this Court has for criminal practitioners. There is a less than zero chance that the eleven circuits (not counting the 50 state high courts) will agree on how the Second Amendment applies to these laws. By postponing taking these cases, we now have another two to three years in which prosecutors do not know when they can validly charge a defendant and defendants do not know if they have been validly charged.

Posted by: tmm | Jul 2, 2024 11:45:29 AM

true that, tmm, and you are leaving out that some (significant?) number of persons are denied their Second Amendment rights and may even sufferent profound personal and professional consequences as a result.

I am inclined to guess that the conservative Justices are so divided over this topic that they are eager to see the lower courts deal with the messiness of Rahimi before they themself need to do clean up. I see this as somewhat akin to what we saw after Blakely and Booker, where the Justcies eventually had to confront the mess they made, but also dodged a lot of issues (retroactivity, mandatory mimimums) for as long as they could in the hope that lower courts would find their way to an (uneven) resolution on various matters before they had to do so.

Critically, Blakley and Booker involved matters of procedure, while the 2A cases are issues of substantive rights. Consequently, I do not see any Teague bars in play (though AEDPA bars still matters), and I assume all sorts of other litigation from all quarters mean that they take this up in 2025, if not sooner. I expect the SG, no matter who is Prez, will keep pressing on this issue.

Posted by: Doug B | Jul 2, 2024 12:25:04 PM

There are no good options here. I guess I have to agree with Doug that allowing further thought and development in the lower courts is the least bad option. Every case and every record will add at least something to the pool of knowledge upon which SCOTUS will ultimately rest its judgment.

Posted by: Bill Otis | Jul 2, 2024 1:47:20 PM

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