It’s Time to End the Supreme Court’s ‘Wizard of Oz’ Mystique

Brett Kavanaugh began his Supreme Court tenure by announcing the hiring of four female law clerks. But that doesn’t address the elitism that undermines how we pick the people who staff the nation’s highest court. TCR’s columnist offers a different solution.

The consensus says that the Brett Kavanaugh confirmation process and its narrow outcome pose a crisis of legitimacy for the Supreme Court.

And, within 24 hours of his swearing in, the newly minted justice acknowledged the clamor, and stepped forward to address the situation. He had hired his four law clerks, he announced, and all four are women.

In this way, he seemed to argue, he had expressed his devotion to gender equity. The whole controversy around that issue must have been a mistake.

Putting aside for now the riddle of why anyone might think that hiring female law clerks is a response to the industrialized trashing of a woman who accused you of sexual assault, we still face the question of how the hiring of junior federal employees became a vehicle for judicial self-expression.

And what exactly do these hires express?

Groucho Marx legendarily resigned from the Friars’ Club by writing to the membership committee, “I don’t care to belong to a club that would have someone like me as a member.”

Justice Kavanaugh embodies the polar opposite point of view—or way of life. We can’t ignore the fact that, in the end, membership is what this present moment is all about.

Kavanaugh’s career is a model of its kind—that is, of the kind associated with the distribution of ecclesiastical patronage in the more corrupt days of the Renaissance Church of Rome. Membership is its key.

Justice Kavanaugh wants, has always wanted, sought early, and apparently will pay almost any cost to retain, membership. Now, he is in a position to bestow its gaudy prizes.

He joined the Federalist Society and climbed on the escalator early.  He held the handrail, and the process carried him smoothly through legacy admission to feeder school, where he cultivated “feeder professors” who fed him to “feeder judges,”until he had ripened into a “feeder judge” himself.

The prestige of the Supreme Court has always had a certain manufactured Wizard of Oz quality to it.

All that the Court’s work really requires is office space and a library for nine judges and their staffs. Instead the building where this work now occurs is a grandiose marble temple, a venue suitable for the ceremonial opening of beasts and fowl and the priestly reading of their entrails—a setting intended to awe.

It is not only the Republican versus Democrat partisan divide that threatens the Supreme Court’s legitimacy in the aftermath of the Kavanaugh hearings; it is also the glaring contrast between the Court’s pretensions to Olympian detachment and the reality of its for-the-members, by-the-members, majority that the Kavanaugh confirmation process has stripped bare.

What matters—if membership is to be achieved—is dedication to the simple position that it is essential that “our” team wins.

Membership means inclusion, but it also means that someone has to be excluded. For “our” members to win in any satisfying way, someone has to lose.

Our legacy admissions must survive; their affirmative action must disappear. Our sexual activities must be immune; women’s reproductive rights must be curtailed.

Membership requires maintenance: secret handshakes, tokens of arrival.

Justice Kavanaugh’s life is an unbroken series of these gestures.

When Kavanaugh invoked the appointment of his law clerks for a second time (during his speech at his ceremonial swearing in) it was to defend himself against charges of misogyny.

But that speech crystallized the fact that the confirmation was not a victory for him alone; it was a victory for the membership—for the idea of membership—that was being celebrated. Yes, these clerks were women, but they had been fed to him, and by the authorized feeders, in a process that makes the Freemasons look transparent.

It is worth remembering that while this episode has a right-wing cast of characters, the mechanism was painstakingly constructed over decades in reaction to (even emulation of) what the right saw as a prevailing liberal version of the procedure, with the ACLU and ADA pulling the levers and throwing the switches.

Consider this modest proposal.

Supreme Court and Court of Appeals clerks will be chosen from a diverse pool of qualified applicants, many with clerkship experience, by an eclectic, experienced, rotating committee (or committees) maintained by the Administrative Office of the United States Courts. The best young lawyers will be chosen as a class, and randomly assigned to individual justices and judges.

No “feeder” professors (such as Yale’s egregious “Tiger Mother,” Amy Chua, whose “look a certain way” advice to women aimed to make them delectable to Kavanaugh in his Circuit Court incarnation).

No “feeder” judges (such as the sex-addled Alex Kozinski, whose clerks were induced to accept without complaint his little porn seminars) or are involved in the process. No winks, no nods (for or against) from former clerks. No backs are scratched. No tactical silent acceptance of harassment to maintain one’s place is incentivized.

Throw out the whole corrupt, incestuous process, along with the sale of indulgences.

We might then get a diverse group: maybe, now and then, even someone from a state university! Maybe someone who didn’t know anyone they are supposed to know or exactly what suit to wear will get a clerkship.

I realize that this modest proposal of mine will be greeted as if it were Jonathan’s Swift’s modest proposal to use Irish babies as a food source during the Famine, but the howling will just show you how far things have gone. The protagonists no longer see anything odd about this process.

The professors will scream. Tough. There are law professors with bright students across the country. Distinguish yourself by your scholarship, not by your status as eminence gris.

Won’t the “magical” relationship of justice and clerk be undermined? Good. All of these people have actual families of their own, and the ersatz “family” of the judicial chambers is really a little icky, especially when financed by public funds, and it is saturated with power. These are public employers and public employees.

The clerk and the justice may not be ideological soulmates on their first date? Fine. A little friction might be a good thing. The justice is still the boss, the clerk still has to do the research, and maybe the two will learn from their dialogue. They can form their relationship while doing the work well, not through a grooming and matchmakers’ process preceding the hiring.

The justices will certainly be unhappy too: the incense-infused process of nominating and choosing clerks has become one of the expected perks of their job. An annual parade of interviews with fawning applicants provides a nice break.

They’ll live. There are other perks. Yes, it’s pleasurable. Why do we indulge them?

What I am proposing is not the end of the world. It is one very small step toward reclaiming the Supreme Court’s legitimacy by making it clear that it is a constitutional court that decides cases, not a royal or papal court that manages careers and distributes preferments.

The Court’s best strategy now (as Jennifer Rubin suggested in a recent column) is not to shout more loudly about its sacrosanct status but to take small—really very, very small—steps like this to strip away practices that have become normalized. (Giving up speeches to the members’ “feeder” organizations is another.)

Behave like a court in a democracy. Act as scholars and judges, not as courtiers.

James M. Doyle is a Boston defense lawyer and author, and a frequent contributor to The Crime Report. He welcomes readers’ comments.


Kavanaugh ‘Has Plumbed Deep Well of Anger and Pain’

Even in an era of acute political transformation and “relentless Trumpism,” Nan Aron writes for The Nation, “the battle over Brett Kavanaugh has plumbed a deep well of anger and pain that was waiting to come to the surface.”

Writing for The Nation, Nan Aron says the bruising Senate confirmation process and quick, private swearing-in of Brett Kavanaugh has led to “a moment of reflection and some exhaustion; it’s also the moment when traditionally, progressives have packed up their tents and gone home.” But even in an era of acute political transformation and “relentless Trumpism,” she writes, “the battle over Brett Kavanaugh has plumbed a deep well of anger and pain that was waiting to come to the surface.”

She continues, “I now believe that for a new generation of voters—especially women—the Senate’s catastrophic handling of this nomination and its contempt for Dr. Christine Blasey Ford’s act of national witness is a defining moment, when business as usual will no longer do. For 40 years, the right wing has sent its voters to the polls with the federal courts as a priority. It also built a machine for manufacturing and marketing the kind of nominee exemplified by Brett Kavanaugh: conventionally credentialed, politically connected, and partisan to the core. Progressives will never have an appetite for cookie-cutter nominees or the conformity-imposing systems that build them. But we have the power as voters to make the courts an issue and a matter of real accountability and electability for senators, this year, in 2020 and beyond…We have arrived at this clarity through a painful process, but we have arrived, and with a midterm election right around the corner. And that’s just the beginning.”


Why Sending Bill Cosby to Jail is a ‘Cultural Turning Point’ for Women

The entertainer’s 3-10 year sentence may empower more women to report assaults, but there’s still a long way to go before sexual predators are deterred by the threat of serious prosecution, says a former sex crimes prosecutor. One place to start: an annual “Report Card” from local DA’s about how they dealt with cases of rape and sexual abuse.

The sight of Bill Cosby being escorted from court in handcuffs to begin serving a three-to-ten year prison sentence didn’t make me smile, but it did give me a sense of hope that justice is possible for women in America.

Cosby spent decades brutally violating women’s bodies, and ruining their careers if they dared complain about his sexual demands. Now he looked downtrodden, and dejected, though not ashamed. His feelings about going to prison probably match the feelings his victims had when they woke up from a drugged stupor, in pain from neck to knee, coming face to face with a smirking Cosby, who sent them away like yesterday’s trash.

Cosby, like Judge Brett Kavanaugh during last week’s hearings, seemed incredulous that the word of a credible woman, without corroboration, should be enough to hold a man accountable.

Here’s a newsflash: the requirement of corroboration was abolished decades ago on the grounds that it was sexist, and unjustly prevented prosecution of rape cases. Nonetheless, prosecutors retain discretion to refuse to file charges for any reason, and they often do, especially if the offender is a man of influence.

Thus, if Andrea Constand had been Cosby’s only victim, he would not be in prison because, despite abolition of the corroboration rule, prosecutors, police and, more importantly, jurors, are permitted to discriminate against women. Simply put, the culture of our legal system makes clear to victims that if the only evidence they have against a man is their word, they should stay silent.

Colleges contribute to this sick mindset by treating women as second-class campus citizens when they report sexual assault.

Most schools have policies that subject sex discrimination, including sexual assault, to arduous investigations and unfair hearings that drag on for months and favor offenders, while harms based on race and national origin are resolved in a matter of days, without protracted investigations, and without anyone complaining that the offender needs more “due process.”

Title IX and Title IV of the Civil Rights Act mandate that sex-based harms be subjected to exactly the same gold standard treatment as harms based on race and national origin, but most schools mistreatment women anyway, and point to Education Secretary Betsy DeVos as giving them authority to do so. A landmark lawsuit against DeVos was filed a year ago in federal court in Boston, asking the court to rule that schools must treat sex-based harms exactly the same as race-based harms, and that DeVos has no authority to discriminate against women, or permit schools to subject women to second-class treatment.

College women don’t complain about second-class treatment because they don’t see it. Like women in the “real” world, they accept second-class treatment as normal, often because groups claiming to be “advocates” for victims and proponents of Title IX tell them, falsely, that schools and prosecutors are following the law when they treat women poorly.

Is it any wonder most women never report sexual violence, on campus or in larger society, and that only two percent of rapists spend even one day behind bars; a number that hasn’t changed in decades?

According to the majority staff report of the Senate Judiciary Committee, The Response to Rape: Detours on the Road to Equal Justice, 28 (1993) (only two percent of rapists see even one day behind bars). Additional confirmation of this figure comes from Reporting Rates, produced by the Rape, Abuse & Incest National Network, which also points out that the majority of reported rapes are never prosecuted.

Despite the fact that schools and law enforcement officials too normalize male supremacy by refusing to take action against an offender, Stanford’s Brock Turner and Bill Cosby have been held to account, to some extent. Three months was a woefully inadequate punishment for Brock Turner, and three years (minimum) in prison is not nearly enough for Bill Cosby, but both punishments are much longer than the sentences typically handed out in similar cases against men of similar social status.

Indeed, privileged males at elite universities rarely suffer any campus-based sanctions, much less criminal charges and incarceration. Brock Turner went to jail only because he was caught in the act by two eyewitnesses who were not his buddies, and thus not willing to lie for him. And Bill Cosby went to prison because, although he is a man of significant privilege, he had so many victims.

Both men also got in trouble because their victims were drugged, a factor that helped make it politically impossible for public officials to do nothing.

Most victims don’t realize they were drugged; they think they had too much to drink because they don’t know what being drugged feels like. And they don’t call police because the drugs cause amnesia, so they often cannot recall the details of what happened. Moreover, rape laws and campus rules are vague about what constitutes an offense when a victim is incapacitated.

In Pennsylvania for example, where Cosby was prosecuted, “incapacitation” must result in the woman being completely unconscious, or if the perpetrator secretly caused the victim to consume the drugs, in order for a rape charge to be brought.

Bill Cosby’s trial helped teach the public about the prevalence and effect of rape drugs, while the Brock Turner case managed to hide the fact that the victim was so heavily drugged, she remained unconscious for hours after police brought her to the hospital.

Drugging victims is a convenient tactic that often enables an offender to avoid accountability simply because the victim cannot recall what happened. By the time she realizes she was drugged, the substances have dissipated from blood and urine. Few victims are informed by school or by law enforcement officials that drugging can still be proved by behavioral evidence, and by testing the victim’s hair. Rape drugs never dissipate from hair, and the latest technology can reveal with a high degree of certainty when the drugs entered the victim’s body.

While Cosby and Turner were sentenced to incarceration, other men of influence, such as Les Moonves, Charlie Rose, and Matt Lauer, merely lost their jobs, or faced civil suits. Justice for most women in the form of criminal prosecution has been elusive, with Harvey Weinstein being a notable exception.

Weinstein has been charged, and may well face incarceration when his case goes to trial, but as with Cosby, the pile of victims had to grow very high before the District Attorney paid attention.

This is unacceptable, blatant sex discrimination. One victim is enough.

The criminal courtroom is the people’s courtroom, and when violence against women does not receive its fair share of criminal justice resources, the violence gets worse and the public is denied access to truthful information about the extent of the problem, and the suffering women endure.

Notwithstanding the insidious mistreatment of victimized women in our criminal justice system, Bill Cosby’s incarceration is a cultural turning point, and a byproduct of many factors, including the #MeToo movement. #MeToo has provided a space for women to be heard when responsible officials and school administrators aren’t listening.

Led by an organic groundswell of anger, women have come together like never before around the issue of gender-based violence, and the public is finally starting to understand that a sexual assault against one woman is a sexual assault against all women.

Women have also begun to understand the importance of becoming politically active around the election of District Attorneys. Kevin Steele, the Montgomery County (Pa.,) prosecutor who filed charges against Cosby, ran his campaign on a promise to prosecute Cosby if elected. His incumbent/opponent refused.

Women need to elect prosecutors who value their lives, voices, and autonomous authority over their bodies. Too often prosecutors refuse to file charges out of fear that jurors will find reasonable doubt based on discriminatory ideas about a victim’s behavior or credibility. District Attorney Steele boldly confronted these systemic biases, rather than indulging them, and prosecuted Cosby without fear that jurors might judge Andrea Constand unfairly.

This is how all prosecutors should conduct themselves, but women need to hold them accountable.

For example, women can demand that candidates for District Attorney agree to release annual “Violence Against Women Report Cards,” showing how many rape and domestic abuse cases were reported to police and prosecutors; how many were declined for prosecution, and what happened to the cases that were filed in terms of charges, convictions, and punishments.

Too often prosecutors reveal only the percentage of cases they won, rather than how many cases they accepted and rejected for prosecution. So a District Attorney who says he won 90 percent of his rape cases is actually hurting women if he prosecuted only ten cases, and refused to file charges in 800 more. And what does he mean when he says he “won” a case? If a prosecutor agrees to a plea-bargain and allows a rapist to plead guilty to simple assault and battery, that is a loss, not a win. Unless all the data on violence against women is revealed in an annual Report Card, women have no way of holding prosecutors (and judges) accountable for unequal justice.

Women have been oppressed for a very — long — time, and although Bill Cosby’s conviction will inspire more women to report rape, their reports will fall on deaf ears unless they demand equal access to justice, and equal treatment under the law. Prosecutors must no longer get away with citing tired excuses about the case not being “strong enough” to prove the charges beyond a reasonable doubt.

Victims are entitled to their day in court. Let a jury determine the evidence. Among other benefits, this will help “teach” jurors, hence the public, that all violence against women matters, and all women will be heard.

With prosecutors focused on justice rather than winning, more offenders will start to worry about being held accountable. That men do not expect to be held accountable is derived from male supremacy in the U.S. Constitution, which long ago declared women second-class citizens. The resulting sense of male entitlement is correlated with high rates of sexual assault.

Simply put, the space between equality and inequality is where violence happens with impunity under the law.

When he sentenced Cosby, Judge Steven O’Neill said, “No one is above the law, and no one should be treated differently.”

He was talking about Cosby, but he should have talked about women, and the violence they suffer because they are female. Judge O’Neill should have pointed out that women endure very high rates of abuse because the 14th Amendment’s equal protection clause does not equally protect them, on par with men. To the contrary, women’s constitutionally mandated inferiority allows federal and state officials to discriminate on the basis of sex when they enact laws, enforce (or not) laws, and interpret laws in the courts.

The Equal Rights Amendment (ERA), which aims to repair the problem by establishing women’s equality in the Constitution, was passed by Congress in 1972, but was never ratified by the necessary 38 states. Nevada ratified ERA in 2017, and Illinois ratified earlier this year, making it the 37th state.

This means America is only one state away from full equality for women for the first time in history.

Wendy Murphy

Wendy Murphy

With unprecedented energy now driving the national conversation about violence against women, all people who care about the issue should mobilize and focus on ratification of the ERA because equality, not hashtags, will stop the violence.

And, not for nothing, karma would have a whole new meaning if the ERA made its way into the Constitution before Bill Cosby made his way out of prison.

Further Reading: Amid Kavanaugh Furor, Devos Ponders College Sex Rules

Wendy Murphy is a former sex crimes prosecutor and professor of sexual violence law at New England Law|Boston, where she also directs the Women’s and Children’s Advocacy Project. Follow her at @WMurphyLaw. Readers’ comments are welcome.


Some See Political Nadir in ‘Scorched-Earth’ Senate Hearing

“This was men against women, right against left, a cascade of recriminations, explosions of anger, hours of tears and sobs,” writes Marc Fisher of the Washington Post. “A hearing that was supposed to bring clarity instead erupted in thunderclaps from the nation’s built-up tensions over how the sexes are supposed to behave with each other.”

The subject was supposed to be the selection of a new justice on the Supreme Court. Instead Thursday’s showdown on Capitol Hill was a raw, scorched-earth confrontation across the nation’s most emotionally wrenching divides, writes the Washington Post‘s Marc Fisher. This was men against women, right against left, a cascade of recriminations, explosions of anger, hours of tears and sobs. A hearing that was supposed to bring clarity instead erupted in thunderclaps from the nation’s built-up tensions over how the sexes are supposed to behave with each other. Judge Brett M. Kavanaugh and the woman who accused him of sexually assaulting her came ­before the Senate Judiciary Committee in “the wrong town at the wrong time,” as Sen. Lindsey O. Graham (R-S.C.) put it.

The result was affirmation that Washington is as broken as it has ever been. Based on what the senators in the room said, the result was, once again, people hearing mostly what they were inclined to believe. The result, far from clarity, was a complex rush of emotions adding up to two families left in wreckage and a political system without even a pathway to cooperation. The day ended with discord bordering on dark visions of a hopeless future. Graham heatedly declared that “this is not a job interview. This is hell. . . . To my Republican colleagues, if you vote ‘no,’ you’re legitimizing the most despicable thing I have seen in my time in politics.” Yet many said the hearing was a replay of the 1991 confrontation between Supreme Court nominee Clarence Thomas and his accuser, law professor Anita Hill, similarly appalled and fascinated the nation as senators and witnesses argued over pornographic films and pubic hair. Now, as then, the country is painfully divided. Now, as then, people lament the establishment of new lows.


With or Without Kavanaugh, Court Docket is a ‘Law Prof’s Dream’

If and when Brett Kavanaugh is confirmed for a seat on the Supreme Court, he will join the other justices to rule on cases that could have a far-reaching impact on criminal law. For Court handicappers, here’s a list of what’s ahead, starting next month.

Applying a broad definition, 13 of the 38 cases in which the Supreme Court has granted review for the upcoming October 2018 term raise criminal law and related issues. (A few more are likely to be granted in the “long conference” order list scheduled for release Thursday.)

This is about average: Between a quarter to a third of cases decided by the court every year are criminal-law-related. But this term the docket feels a bit special: As I explained to the American Bar Association in my “Annual Review of the Supreme Court’s Term, Criminal Cases, October Term 2018 might be described as a criminal law professor’s dream.

Below is a list of what’s ahead.

What Are the “Elements” of Burglary and Robbery?

In every criminal case, the prosecution is constitutionally required to prove the “elements” of the crime —that is, the “facts necessary to constitute the crime,” as the court put it in 1970 in In re Winship. “What are the elements of Crime X?” is the stuff of first-year final exams, as well as multiple-choice questions found on the Multistate Bar Exam.

On Oct. 9, the court will spend two hours hearing oral arguments in three cases (two are consolidated) that ask what the “generic” elements of the common law crimes of “robbery” and “burglary” are. The answer to that question is needed in order to apply the Armed Career Criminal Act, a federal law that dramatically enhances prison sentences for persons who unlawfully possess a firearm and who also have been previously convicted of three drug crimes or violent felonies.

“Violent felony” is statutorily defined to include the state-law offense of “burglary,” and also any crime that “has as an element the use … or threatened use of physical force,” which normally includes robbery.

The Supreme Court has ruled that because state-law definitions of crimes may differ among the states, federal courts should use the “generic” definition of burglary or robbery. But what that definition is, precisely, has repeatedly split lower federal courts. On Oct. 9, the justices will wrestle with that question, first as it applies to robbery, in Stokeling v. United States, and then, in two consolidated cases, Stitt and Sims v. United States, in the context of burglary.

The common law distinguished robbery from simple theft by requiring an element of force. Over time, a number of jurisdictions have ruled that even minimal force can count, which allows “snatchings” of purses or necklaces to qualify for the enhanced sentences that a robbery conviction often permits.

Other jurisdictions disagree.

Denard Stokeling was previously convicted under Florida’s robbery law, which defines force as “sufficient to overcome a victim’s resistance.” But should that be the “generic” federal definition? Because the ACCA requires a “categorical” approach to deciding what types of felonies permit its enhanced federal sentences, the court is asked to decide whether “minimal force” suffices and how it should be defined for the national federal statute.

Right after Stokeling, the court will consider similar questions regarding burglary.

Although the common law applied the crime of burglary strictly to invasion of homes, most modern statutes have extended the crime to the entry of a “structure” with the intent to commit a crime inside it. (“Intent to commit a felony therein” is the first introduction of many law students to “legalese” that horrifies and amuses their nonlawyer friends.)

In Victor Stitt’s home state of Tennessee, the statutory requirement of “habitation” has been interpreted to include vehicles. In Jason Sims’ home state of Arkansas, the statutory term is “residential occupiable structure,” which has been interpreted to include a car or a boat if a person is even occasionally living in it. As in Stokeling, the court here must decide whether the “categorical” definition of burglary should encompass the broad modern definitions that have extended the crime beyond its common-law borders.

All three of these cases may be further influenced by the fact that the proper interpretation of the ACCA has troubled the court for decades now, so much so that in 2015, in Johnson v. United States, the court declared a nearby definitional subsection of the statute invalid as unconstitutionally vague.

“Double Jeopardy,” “Excessive Fines” and the Death Penalty

After the first year of law school, most law students have to take criminal procedure, affectionately shortened to “Crim Pro.” I like to call that class “Constitutional Law III: The Fun Parts!” At least four cases to be argued this fall suggest that OT 2018 will be a joy for us Crim Pro professors as well.

In Gamble v. U.S., the court will consider whether to overrule the “separate sovereigns” exception to the double jeopardy clause of the Fifth Amendment, which provides that “[n]o person shall … be subject for the same offence to be twice put in jeopardy of life and limb.” The common understanding of this awkwardly written clause is that a person may not be tried twice for the same offense. But despite the absolute-sounding nature of the constitutional text, the Supreme Court has ruled for well over a century that the clause allows “separate sovereigns” to each try a single defendant for what sure sounds like the “same offense.”

For example, two states may prosecute the same person for a kidnapping-murder in two trials, one after the other, one in each state, and upon conviction impose two independent sentences for the same crime. Similarly, a state may prosecute someone for the same crime that the federal government has already tried the person for, and vice versa: Those of us old enough to recall the 1991 Rodney King police assault case remember the federal government prosecuting the offending officers after they had already been tried and acquitted by the state.

Although there is no lower-court split of authorities on this question, scholars have long criticized this “separate sovereigns” atextual exception to the double jeopardy clause. My guess (and it is only a guess) is that last spring, when the pace of certiorari grants was slow, “textualist” and due-process-oriented justices alike were able to agree to revisit the question this term.

Meanwhile, Timbs v. Indiana will address another persistent question that has appeared on bar exams for years: “[W]hat provisions in the Bill of Rights have not yet been ‘incorporated’ against the States?” “Incorporation” is the legal doctrine developed in the mid-20th century that holds that various protections found in the federal Bill of Rights may also be applied to conduct by the states, by “incorporating” those protections into the “[n]o State shall … deny due process” guarantee of the 14th Amendment.

In McDonald v. Chicago, the court in 2010 ruled that the Second Amendment applies against the states, so now only three provisions in the Bill of Rights have not been incorporated. Timbs will address one of these: the “no excessive fines” provision in the Eighth Amendment. (The other two? The grand jury clause, see 1884’s Hurtado v. California, and the Third Amendment’s rule against quartering troops in times of peace, which has never arisen in a Supreme Court case, although lower courts have suggested that it is “incorporated.”)

Timbs now seeks to eliminate that easy Crim Pro exam question. The context is criminal asset forfeiture. When Tyson Timbs was convicted in Indiana of selling four grams of heroin, the state sought forfeiture of his $42,000 Land Rover because it had been used to transport the drugs. The state trial court ruled that “[w]hile the negative impact of [drug] trafficking … is substantial, … a forfeiture of approximately four times the maximum monetary fine is disproportional” under the Eighth Amendment.

The Indiana Court of  Appeals agreed that the excessive fines clause should be applied (incorporated) against the states. But the Indiana Supreme Court reversed, ruling that it would not “impose federal obligations on the State that the federal government itself has not mandated.” A persistent split on the question, involving at least 18 states’ courts and two federal courts of appeals, led to a grant of certiorari here.

Finally, another aspect of the Eighth Amendment, the constitutional administration of capital punishment, finds a spot on the Supreme Court’s docket almost every year. This term the court will hear argument in two cases involving the death penalty. On the second day of the term, Oct. 2, in Madison v. Alabama, the court will consider whether the Eighth Amendment permits the execution of a prisoner whose severe and deteriorating medical condition leaves him mentally disabled such that he is unable to remember his offense.

Brian Stevenson

Brian Stevenson. Photo by Steve Jurvetson via Flickr

Bryan Stevenson, the founder of the Equal Justice Initiative in Alabama, will be arguing for Vernon Madison. The court has previously ruled that the state may not constitutionally execute the mentally insane (Ford v. Wainwright, in 1986) nor the mentally disabled (Atkins v. Virginia, in 2002). But in 2007, in Panetti v. Quarterman, the court declined to set specific standards for evaluating mental competency-to-be-executed claims.

Madison provides an opportunity to further develop this constitutional concept. (The 2007 decision was written by Justice Anthony Kennedy, who left the court in July — whether he will be replaced by October 2 is presently unsettled.)

In a second death penalty case, to be argued on November 6, the court will consider, once again, the appropriate rules for challenging a “method of execution.” In Glossip v. Gross, the court in 2015 issued a lengthy 5-4 decision attempting to set constitutional standards and litigation rules for lower courts to follow when an inmate contends that the method by which the state proposes to execute him is “cruel and unusual.” Glossip also approved “lethal injection” as a generally acceptable method. Russell Bucklew, however, suffers from an unusual medical condition (cavernous hemangioma) that he alleges “makes it very likely that his execution by Missouri’s lethal injection protocol will be gruesome and involve excruciating suffering.”

In Bucklew v. Precythe, Bucklew argues that an execution by lethal gas will be far more humane for him, and that Missouri is constitutionally required to use that method instead. Missouri law allows execution by either method, although it has no written protocols for gas executions. The Eighth Circuit twice affirmed denials of Bucklew’s challenges, but the Supreme Court twice issued last-minute stays before finally granting review.

The Rest of the Criminal Law Docket This Term

Here are brief descriptions of the other six criminal-law-or-related cases on the Supreme Court’s docket (so far) this term:

  1. Gundy v. United States (Oct. 2 argument): Does Congress’ delegation of authority to the attorney general to set sex-offender regulations, including deciding whether to retroactively apply the criminal statute, violate the Constitution’s “nondelegation” principle? (There hasn’t been a successful nondelegation case since 1935, so this case carries special interest for constitutional law professors.)
  2. Nielsen v. Preap (Oct. 10 argument): Is a criminal alien exempt from otherwise mandatory detention if, after the person is released from criminal custody, the Department of Homeland Security does not immediately take the person into custody?
  3. Garza v. Idaho (Oct. 30 argument): Does the “presumption of prejudice” regarding a lawyer’s ineffective assistance apply, when a defense lawyer was instructed by the defendant to file an appeal but the lawyer did not file an appeal because the plea agreement contained an appeal waiver?
  4. Herrera v. Wyoming: Did Wyoming’s admission as a state, or the statutory establishment of the Bighorn National Forest, abrogate the Crow Tribe’s 1868 federal treaty right to hunt on “unoccupied lands of the United States,” thereby permitting the criminal conviction of Clayvin Herrera, a Crow Tribe member, who was allegedly engaged in subsistence hunting for his family?
  5. Lorenzo v. Securities and Exchange Commission.: May the government’s securities-fraud claim that does not meet the elements that 2011’s Janus Capital Group v. Derivative Traders requires for “fraudulent statements” be filed as a “fraudulent scheme” claim and thereby avoid the bar of Janus?
  6. Nieves v. Bartlett: Is a First Amendment claim for retaliatory arrest automatically defeated because there was probable cause for the arrest? (This is a follow-on to the unanswered question in last term’s Lozman v. Riviera Beach.)
Rory Little

Rory Little

Rory Little is a Professor of Law at U.C. Hastings College of the Law in San Francisco, a former clerk to Justices Potter Stewart (ret.) and William Brennan, and author of the American Bar Association’s “Annual Review of the Supreme Court’s Term, Criminal Cases.” He is also “Of Counsel” to the law firm of McDermott Will & Emery on discrete appellate matters. The Crime Report is pleased to reproduce this essay with the permission of SCOTUSblog. The full essay is available here. Readers’ comments are welcome.