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[SCOTUS]: Super Fun Happy Times Edition
AngelHedgie
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So, to start off, here's a link to the prior OP, which has a lot of good information. The rules are worth reposting, however:
To which I'm adding:
7. Scalia is dead, and the Senate is officially blocking any consideration whatsoever on his successor. Unless either of those things changes, or if we get a major case shift because of his death, consider the topic a dead bill.
Now, for the story that made restoring the thread worthwhile: holy fuck, Thomas said something in oral arguments:
Considering this is the first time he's spoken in arguments in a decade, this is shocking.
Expectations for this thread
1. This is not the general politics or lol this party sucks thread.
2. This is a thread about the US Supreme Court, if it doesn't have anything to do with SCOTUS, it doesn't belong here.
3. Not all things about SCOTUS belong here. Some cases dealing with certain issues, already have a thread or their own god damn separate thread that is more appropriate to discuss a certain SCOTUS rulings or cases.
4. In the event that a tangent regarding something involving SCOTUS has it's own thread created after the discussion starts in this thread, then move the discussion over to the new thread. (Also appreciated if people link to the new thread to help others out).
5. In the event that we get a SCOTUS vacancy in the lifetime of this thread, this would probably be the best place to discuss such an appointment given how low traffic this thread is likely to be.
6. Stuff regarding 2016 starts in the primary threads right now.
To which I'm adding:
7. Scalia is dead, and the Senate is officially blocking any consideration whatsoever on his successor. Unless either of those things changes, or if we get a major case shift because of his death, consider the topic a dead bill.
Now, for the story that made restoring the thread worthwhile: holy fuck, Thomas said something in oral arguments:
On Monday morning, the Supreme Court heard oral arguments in Voisine v. United States, a complex and arcane case involving domestic violence and gun ownership. The case initially seemed to revolve around a technical question of criminal intent. Stephen Voisine was convicted of “intentionally, knowingly, or recklessly caus[ing] bodily injury or offensive physical contact” to his girlfriend following a domestic dispute. As a result, he was stripped of his ability to own a gun, because United States federal law indefinitely bars individuals convicted of “a misdemeanor crime of domestic violence” from owning firearms. Voisine now argues that “recklessly” causing violence—as opposed to knowingly or intentionally—shouldn’t disqualify him from possessing a gun under federal law.
Arguments were somewhat dry until the last few minutes, when Ilana H. Eisenstein, an assistant to the solicitor general representing the federal government, was preparing to finish up and take her seat. Just before she left the lectern, Justice Clarence Thomas spoke up, asking his very first question from the bench in a decade. The entire court perked up. Everyone shifted forward in their seats, and there was a look of shock on many spectators’ faces. We in the press section nearly fell out of our seats, though the other justices kept admirably cool, with only Chief Justice John Roberts swiveling his head in evident surprise.
Thomas noted that a conviction under the federal statute in question “suspends a constitutional right”—the right of individuals to own guns, as established in 2008’s decision, District of Columbia v. Heller. The government argues, Thomas explained, that “recklessness” in using physical force against an intimate partner is “sufficient to trigger a misdemeanor violation that results in the suspension of what is at least as of now still a constitutional right.” (Thomas appeared to be extremely aware that Heller was a 5–4 decision, authored by Justice Antonin Scalia, which could be on the chopping block if the balance of the court shifts to the left.)
The justice, speaking calmly but forcefully, then pointed out that under the federal law, a domestic abuser doesn’t actually have to use a gun against his partner to lose his gun rights. He need only commit some form of domestic abuse, with a firearm or without it. Thomas struck a tone of puzzlement with a tinge of irritation. “Therefore,” he said, “a constitutional right is suspended—even if [the domestic violence] is unrelated to the possession of a gun?”
Considering this is the first time he's spoken in arguments in a decade, this is shocking.
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Knock me over with a feather.
The fact that he waited ten years to say something means that everyone is going to stop and listen.
It's hard to say. It depends on how many opinions in the pipeline were 5-4, written by Scalia, or had the dissent written by Scalia.
Most Mondays, I think. Scotusblog has a calendar: http://www.scotusblog.com/events/
There's no set schedule for these so they'll come out as available. The first impact will be on a bunch of cases that get denied a hearing because only 3 judges voted for one, but those aren't labeled.
edit: Actually, some of them might be labeled if we get an angry dissent on the denial of cert.
I'll knock you over on the day Thomas calls for restoring voting rights to every felon not convicted of voter fraud.
Was there ever a good compilation put together of Last Week Tonight's canine supreme court footage?
Re: Thomas' question, I would think the misdemeanor aspect would be of more interest than whether or not firearms are involved. Like, if someone demonstrates that there is a concern regarding their capacity to do violence, surely a potential multiplier of said violence is inherently relevant.
Then the obvious question in response is why single guns out rather than any potential multiplier and then we get into relative effectiveness and other such weedy nonsense.
But anyway! Misdemeanors. How unusual is said situation?
I just see this as opening the door to more ways to take someones right to vote away.
There isn't a lot of dispute over the ability to take constitutional rights away from felons. Also, voting (interestingly) is not a constitutional right. Although the 15th, 19th, 24th and 26th amendments do limit the ways a state can restrict voting.
― Marcus Aurelius
Path of Exile: themightypuck
Unfortunately most DV crimes in this country are charged as misdemeanors. In my state you can beat someone very badly, strangle them, tell them you're going to kill them, and that's not a felony (except in certain carved out situations, like if you can prove a child witnessed it). In my state, you can also slap someone hard in the face, without leaving an injury, and tell her you'll kill her next week when the kids go to grandma's, and that's an even lower level misdemeanor (Harassment, for the slap without injury) and the threat can't be charged (because it is not "imminent" enough).
The law is a recognition of the correlation between DV, gun violence, gun homicides, and the fact that even misdemeanor convictions can cover very dangerous behavior indicating a severe pattern of abuse of the type that often ends in homicide.
Though the court has specifically reserved the direct question of whether "recklessly" is a correct predicate mental state for a DV misdemeanor to qualify under the federal law, I think prior cases point towards them requiring the conviction be with a intentional or knowing mental state to be a qualifying misdemeanor conviction of domestic violence.
*Fun fact - if you are assaulted by a dating partner (i.e. someone who doesn't live with you, and doesn't share kids with you, and you aren't married) then the federal law doesn't apply to them, and they can obtain guns. Whee!
The law was not written as best it could have been, and there have been a couple of decisions by the Court on it over the years trying to clean it up a bit and explain what it actually means.
Here is some stuff about the "physical force" part of the law, that was recently explained by the Court:
"Justice Sotomayor delivered the unanimous decision of the Court in this opinion which reverses the holding of the Sixth Circuit.
United States v. Castleman, 12-1371. Under 18 U.S.C. §922(g)(9), it is a crime for any person convicted of a “misdemeanor crime of domestic violence” to possess a firearm. The phrase “misdemeanor crime of domestic violence” is defined to include any federal, state, or tribal misdemeanor offense, committed by a person with a specified domestic relationship to the victim, that “has, as an element, the use or attempted use of physical force, or the threatened use of a deadly weapon.” Id. §921(a)(33)(A) (emphasis added).
The Court unanimously held that respondent’s Tennessee conviction for misdemeanor domestic assault by intentionally or knowingly causing bodily injury to the mother of his child qualifies as a conviction for a “misdemeanor crime of domestic violence.” The Court reasoned that §921(a)(33)(A) incorporates the common law definition of “force,” which is mere offensive touching. The Court therefore reversed the Sixth Circuit, which had held that Johnson v. United States, 559 U.S. 133 (2010), dictates that “violent force” is required."
How? That's quite a stretch from this statute and the cases that have come before the Court asking them to interpret it.
(g) It shall be unlawful for any person—
(1) who has been convicted in any court of, a crime punishable by imprisonment for a term exceeding one year;
(2) who is a fugitive from justice;
(3) who is an unlawful user of or addicted to any controlled substance (as defined in section 102 of the Controlled Substances Act (21 U.S.C. 802));
(4) who has been adjudicated as a mental defective or who has been committed to a mental institution;
(5) who, being an alien—
(A) is illegally or unlawfully in the United States; or
(B) except as provided in subsection (y)(2), has been admitted to the United States under a nonimmigrant visa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act (8 U.S.C. 1101(a)(26)));
(6) who has been discharged from the Armed Forces under dishonorable conditions;
(7) who, having been a citizen of the United States, has renounced his citizenship;
(8) who is subject to a court order that—
(A) was issued after a hearing of which such person received actual notice, and at which such person had an opportunity to participate;
(B) restrains such person from harassing, stalking, or threatening an intimate partner of such person or child of such intimate partner or person, or engaging in other conduct that would place an intimate partner in reasonable fear of bodily injury to the partner or child; and
(C)
(i) includes a finding that such person represents a credible threat to the physical safety of such intimate partner or child; or
(ii) by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against such intimate partner or child that would reasonably be expected to cause bodily injury; or
(9) who has been convicted in any court of a misdemeanor crime of domestic violence,
to ship or transport in interstate or foreign commerce, or possess in or affecting commerce, any firearm or ammunition; or to receive any firearm or ammunition which has been shipped or transported in interstate or foreign commerce.
pleasepaypreacher.net
Given the amount of unique jurisprudence on each of those different rights, I don't see an argument from one to the other holding much weight with the Court. There's already good precedent for the right in question, analogizing to the other doesn't make much sense in the appellate setting.
This is obviously going to depend on like a thousand factors, I'm just asking for your rough impression on this.
Not in my state. You can add a DV tag to a regular assault and it doesn't change the level of the offense. If it is a DV assault, AND witnessed by a child/victim is pregnant/offender has certain previous DV convictions - THEN it gets elevated to a felony.
In general I'd say the trend is to treat DV assaults/harassment/strangulation etc more seriously in general than if the parties are not in a qualifying relationship, for what I hope are obvious reasons. That doesn't necessarily correlate to increased offense level all the time though. It can mostly affect the sentence/probation provisions.
The biggest factor in what level of assault you are charged with here is what type of injury was caused. There are also elevations to felony for injuring children, vehicular injuries, and using a weapon.
Some states automatically elevate to a felony if the crime is DV. Idaho, I believe, recognizing that Strangulation is almost always something used by DV abusers and is very dangerous criminal conduct in general, just straight made it a felony in all cases.
Is this incorrect?
Violence "tends" to escalate to the level of available weapons. So by showing that you're reckless you show that you're not equipped to handle a firearm.
Additonally we suspend rights not related to their use all the time, the most obvious one being voting.
If Thomas's pointed question was a aim at making it illegal to remove voting rights from felons i would be surprised.
Voting absolutely is a constitutional right. It been interpreted as a privilege but its clearly a right since the government cannot suspend without due process of law and its similarly illegal to modify the general scope of the franchise.
Yes.
I was stating that even that type of egregious conduct does not rise to the level of a felony assault under my states laws. Does not matter who its against, I was just using a typical DV example.
― Marcus Aurelius
Path of Exile: themightypuck
Sure the legislautre can remove that by due process. And take it back to itself* but it is otherwise a right.
* if they did and it was challenged we would probably see Rehnquists opinion here reversed.
I don't think we disagree that the right to vote is protected in many ways by the constitution. I was just noting that it is interesting that it is not specifically identified in the constitution. I'd like an amendment to clear things up but that is unlikely to happen.
― Marcus Aurelius
Path of Exile: themightypuck
chair to Creation and then suplex the Void.
Voting is, oddly enough, not an explicit Constitutional right. You get it on the backend via 5th and 14th Due Process analysis, though.
I'd argue both are in a pretty bad place. While I appreciate the poetry involved in removing franchise for people who fuck with voting, that's not a large enough crowd of convicts (the latter being the key part) to really worry about, and it is pretty bullshit for random other crimes. And, self-evidently, prison systems are wholly incapable of balancing prisoner rights without them having a political voice, ergo, not only is it questionable on a theoretical basis, but it results in consistent practical failure.
Honestly, the 2nd is under nigh constant attack, and while I don't mourn Scalia, it will surely draw out anti- some constitutional rights people like chum draws out sharks. As is, SCOTUS is examining if it is constitutional to ban one of the most popular and best rifles in America, not because it presents an outsized danger, but because politicians are idiots who write bad policy.
I don't really hold any rights as truly sacrosanct given a perfect vision, but with exception of nonsense like giving purely constructed entities the rights to refuse medicine to women and the like, well, the America government has always worked best when told people have more individual rights than less, with very rare exceptions.
That looks to apply only to the electoral college from whats quoted?
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Its not that its "protected in many way" its that its "considered a right and not a privilege". Its the difference for why you can have restrictive licenses and requirements for driving (privilege) but not for owning firearms(right). Edit: its why you can ban blind people from driving but not owning guns
Thomas's argument, from near anyone else*, i would see as a subtle contribution to an attack on felon voter disenfranchisement. But from what i know of Thomas's view of the constitution, it would not allow for such a broad reinterpretation.
*Ok, anyone liberal. Alito is too partisan, Kennedy too clueless, Scalia too dead. Roberts maybe as he does seem interested in the small bit about his legacy, and so a landmark ruling on felon voting rights would secure that. But Thomas is consistent in his adherence to textualism
Rehnquist is essentially weighing in on whether or not a state must decide electors be selected by the people. He is saying that clearly it is not. And that, additionally, simply because states currently decide in that manner does not mean they cannot change it. <- this point is what i thought might be overturned with a more liberal court, but thinking about it more closely it seems too technically daunting.
However, the core of the issue for whether or not voting is a right with regards to this discussion is this quote.
This is a ~A -> ~B statement. "Federal constitutional right to vote" = false implies "state legislatures choose statewide election" = false. From your logic tables you should reflexively know that this is equivalent to B -> A. We can rewrite the statement to "The individual citizen has a federal constitutional right to vote for electors for the President of the United States for as long a period as the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College"
And state legislatures have chosen statewide elections as the means to implement its power to appoint members of the electoral college. Similarly we can go to house and senate races where the Constitution is pretty clear that the people of the states select the representatives and not the states. Since it would be ridiculous that voting for electors would be a right when proscribed by the states, but voting for representatives and senators not, when proscribed directly by the constitution there is similarly is a federal constitutional right to vote for house representatives of your district and senators.
Thus the requirements are met and voting is a right. As a right it cannot be abridged without due process. The current law suggests that due process includes denying felons the right to vote if the states so choose. But if Thomas wrote an opinion that said "A right cannot be abridged unless the right itself has been abused" then any felony not relating to voting could not disqualify you of the franchise since the right itself was not abused.
He's "dealing from strength" as Drumpf would put it. The GOP is likely going to make a sentient strain of rabies its nominee for the next POTUS.
Never have I wanted to be a fly on the wall more.
Yeah, I suspect the earliest McConnell et al. is going to change their position is after July, when the parties' candidates have been chosen and the purple state senators have gotten pass their primaries. If the GOP nominee is bombing hard, and the senators up for election look like they'll follow, that will probably be the only thing that moves to at least having a vote.
And felons can also have their rights to firearms removed. The issue here is the case involves a misdemeanor not directly related to firearms. I agree with the plaintiffs but really Thomas does have some decent points on this.
Could there be an equal protection issue as well? I know that domestic violence convictions are biased towards convicting men. Would this fall under disparate impact?
Depends on how many "anyone but Trump"-ers are on the Senate committee.
I could see Cruz going for Obama's nominee out of spite for Trump, but only after Cruz himself drops out, since otherwise he entertains the illusion that he could pick Scalia's replacement.
Yup the problem in a lot of these cases are the guys being very borderline dangerous/abusive and the actual protection order winds up being the straw that makes them grab the gun and start shooting people. We had a case of this last weekend. I honestly would be okay with denying somebody gun rights along as they have an active restraining order against them. Maybe have to have the conditions of that checked every 6 months or so to ascertain if there is still a danger. Still it is a legit question do you want to try to help the situation before it turns to murder or after. If we had sane gun laws it would not be an actual issue but since we don't we wind up where we are.