I've set the first amendment controversies aside for separate treatment in the final installment.
Today, then, we discuss the right to bear arms, unreasonable search and seizure, the right of confrontation, effective assistance of counsel, and the position of the people of Puerto Rico within the United States vis-a-vis the 5th amendment, drawing on language from the 14th
Yesterday, we found that on a range of matters, the Supreme Court has not been breaking down on the "3 blues versus 6 reds" pattern one might expect. Today we will discover though that, on another range of matters, it has.
Second amendment, the New York decision
Bruen was 6 to 3. The usual suspects, on each side. This is how that looks in the case reports:
THOMAS, J., delivered the opinion of the Court, in which ROBERTS, C. J., and ALITO, GORSUCH, KAVANAUGH, and BARRETT, JJ., joined. ALITO, J., filed a concurring opinion. KAVANAUGH, J., filed a concurring opinion, in which ROBERTS, C. J., joined. BARRETT, J., filed a concurring opinion. BREYER, J., filed a dissenting opinion, in which SOTOMAYOR and KAGAN, JJ., joined.
I remain an anarcho-cap and this means that I tend to side with the 6 on this point.
Would be gun controllers are always saying things like "the framers only knew about muskets and flintlocks. They surely weren't thinking of the as yet uninvented Gatling gun or its successors!" They stuff their own arguments with straw. The framers, in protecting freedom of the press, knew about the old-style Gutenberg presses that Franklin used. They surely weren't thinking of "the as yet uninvented laser printers or of the internet, where hardly anything is EVER printed out!"
The first amendment's freedom of the press is not irrelevant to 21st century bloggers simply because it is a new technology. Likewise with the second.
20-843 New York State Rifle & Pistol Assn., Inc. v. Bruen (06/23/2022) (supremecourt.gov)
And the notion that the "militia" clause is a limitation on the meaning of the rest really "grinds my gears," as Peter Griffin, the Family Guy, would say. But I have nothing to add on the gallons of ink and cyber-ink spilled on this, so unless someone asks me to go further along these lines, I will continue to ....
Fourth Amendment, Unreasonable seizure
I might have included this in yesterday's entry. It involves criminal procedure and section 1983.
Thompson v. Clark - SCOTUSblog But we are here now. Let us proceed.
The fourth amendment prohibits false arrest and malicious prosecution, defined as the "unreasonable seizure" of a person. Section 1983, part of the Ku Klux Klan Act passed during the reconstruction era, authorizes lawsuits against state officials who have violated civil rights.
Larry Thompson sought to prevent police from entering into his home after they had received a false tip that he had abused a child. When it became clear that the underlying charges were wrong, the prosecution moved to dismiss the charges and the New York trial court complied.
Thompson then sued for damages under 1983.
The twist is that one generally has to prove that a case has had a "favorable termination" for the prosecution before one can sue for malicious prosecution. In this case the parties disagreed as to what THAT requirement means.
Thompson won on this point. The dismissal on the prosecution's motion was a favorable termination. The matter was remanded and the court noted several other intriguing questions that are still open on this record: including whether the responding officer, Pagiel Clark, had reasonable cause and whether qualified immunity applies to Clark in any event.
This was a six-three split, with Kavanaugh (who wrote the decision) along with Barrett and Roberts joining the usual blue three to allow Thompson's case to move forward.
Puerto Rico and the Fifth Amendment
This time we go back to the month of April 2022 and look at an appeal by a Puerto Rico resident who wanted to continue to receive the same SS payments that he had received while he was living on the US mainland.
His move should not, he maintained, lead to unequal protection of the laws that violates the fifth amendment.
"But wait," you reply, "I don't see the phrase 'equal protection' anywhere in the fifth amendment. It's in the 14th."
Good eye. But the 14th amendment on its face only limits the states, whereas what is needed for litigation like this is a bar on the unequal protection of the laws imposed by the United States. The Supreme Court has long read the equal protection of the 14th amendment back into the 5th for these purposes -- that goes back to Earl Warren era desegregation litigation. This court did not challenge that.
Kavanaugh wrote for the court in an 8 to 1 decision. I think Kavanaugh makes some fair points. As where for example, he stresses how sweeping a decision the other way would have to be. "For one, Congress would presumably need to extend not just Supplemental Security Income but also many other federal benefits programs to residents of the Territories in the same way that those programs cover residents of the States. And if this Court were to require identical treatment on the benefits side, residents of the States could presumably insist that federal taxes be imposed on residents of Puerto Rico and other Territories in the same way that those taxes are imposed on residents of the States."
The Commonwealth's voters have long abstained from requesting statehood. One reasonable view of this case is that the Justices don't want to undercut the pro-statehood faction in Puerto Rico by making statehood an irrelevant formality for a wide and as yet undefined range of purposes.
The only dissenter was Sonia Sotomayor. She too makes good points, but I have to see the majority decision as the reasonable one on the whole.
The Sixth Amendment right of confrontation
The sixth amendment to the constitution provides the accused with several rights, including speedy and public trial. For the purposes of the case of Hemphill v. New York this term, though, what counts is the right to be "confronted with the witnesses against him." The right, in other words, to conduct or to have someone acting on one's behalf conduct a cross-examination of the witnesses.
The State of New York wanted to introduce into evidence a plea allocution by a fellow named Morris, who had at one point in the course of its investigation been a suspect in the crime for which it was charging Hemphill. Morris was out of the country. There was no good prospect of getting him back to testify and be cross-examined.
The state argued that, even though Morris' allocution had not been subject to cross examination (i.e. confrontation) Hemphill's own argument and evidence had "opened the door" so it should be allowed.
The court decided Hemphill in January 2022. Its conclusion was that there is no "opening of the door" exception to the confrontation requirement. The decision was 8 - 1 with only Thomas dissenting.
One intriguing question here is the extent to which the rule against hearsay testimony is an expression of the confrontation clause. The matter is only glancingly discussed in Sotomayor's opinion for the court.
The Sixth Amendment and Effective Assistance of Counsel
This one was a 6/3 split along blue/red lines. SCOTUS made it more difficult for inmates to prove that they received less than the effective assistance of counsel required by the constitution, because their counsel was incompetent.
Shinn v. Martinez Ramirez came down in May. It seems to limit the enforceability of an "ineffective assistance" claim to the criminal trial itself, or pre-conviction proceeding more generally.
The official report gives the holding as follows: "A federal habeas court may not conduct an evidentiary hearing or otherwise consider evidence beyond the state court record based on the ineffective assistance of postconviction counsel." Of course the evidence will generally be beyond the state court record. If a witness showed up at the lawyers office saying "I perjured myself at the trial, but I'm willing to make things right now. Call me." and if the appellate counsel fails to follow up on that because of his excessive alcohol consumption, always working his way through the collection pictured above ... none of that ineffectiveness will show up on any court record.
So it is bye-bye to the post-conviction ineffective assistance of counsel claim until the composition of this court changes. That sucks.
And on that unhappy note I'm going to break here for the weekend. We'll finish up with my piece on this year's First Amendment decisions next week. That's a big one. You may have heard ... the LEMON test is gone.
The argument that "the framers only knew about muskets and flintlocks" is aimed at the so-called "originalists," who are originalists only when being originalists advances the Republican Party's agenda. When it doesn't, they fabricate their "history."
ReplyDeleteI do not know, so I must be curious: this combining of amendments 5& 14, does that come from some precedent, or is it customary court procedure, handed down over some period of time?
ReplyDeleteHenry would know more about this than I do. But ... I believe the idea dates to 1954, and the famous BROWN v. BOARD decision. I alluded to it quite briefly above. To be more explicit: the Supreme Court said in 1954 that racially segregated schools are inherently unequal schools, and so they deny the non-white students equal protection of the law under the 14th amendment. BUT this raised the question ... what to do about schools in the District of Columbia? The 14th amendment on its face only limits action by "states,' and DC is not a state, so segrgated schools there would not be state action.To avoid an anomalous result, the court found it necessary to do some fancy footwork, reading the equal protection clause into the 5th amendment's due process reference. That, in turn, is what the petitioner in the dispute over social security in Puerto Rico was relying upon.
DeleteChristopher, you're right. The Court refers to the "equal protection component" of the Fifth Amendment's Due Process Clause.
ReplyDeleteThanks to both of you. I guess this 'footwork' comes under the heading of the Court's responsibility to interpret the Constitution, as well as upholding it. Well done, gentlemen.
ReplyDeleteThe case that found an equal protection component in the Fifth Amendment's Due Process Clause was Bolling v. Sharpe (1954). I haven't heard talk of the six Republican politicians on the Court overruling it, but the framers of neither the 5th nor the 14th Amendments included such a component. I expect that Clarence Thomas will lead any effort to allow the federal government to discriminate on the basis of race. Perhaps he will also advocate overruling Loving v. Virginia (1967). It found a constitutional right to interracial marriage, which the framers hadn't considered.
ReplyDeletePerhaps Thomas is an underappreciated genius. Suppose Ginnie is getting on his nerves but he loathes the scandal of a divorce. Or, in his mind perhaps, the stigma. Perhaps he has decided the best way to get rid of her is to undermine the significance of the due process AND equal protection clauses, get your colleagues to go along to the extent of repealing LOVING, then saying to Ginnie. "we had some laughs, but the law is the law -- goodbye babe." And moving on out. the rest of us and our rights might all be collateral damage in this brilliant plan!
DeleteYou may be onto something. It certainly isn't helping him as her efforts to overturn the 2020 election are being revealed, and she may have to testify before the January 6 committee. On a side issue, many people cite the Supreme Court case, in which Thomas was the sole dissenter, that required Trump to turn over papers to the committee. They assert that he must have done so to keep his wife's activities hidden so that people would not say that he should recuse himself in election-related cases. I can't understand why Thomas dissented. It didn't help him or Ginnie. If he'd gone along with the majority, then he could have (falsely) said that it proves his lack of bias--that it shows that his wife's activities do not affect his independent judgment.
DeleteI followed your lead by spelling Mrs. Thomas's nickname "Ginnie." The media spell it without the "e." See also https://en.wikipedia.org/wiki/Ginni_Thomas
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