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The precarious perch for liberal SCOTUS wins

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The precarious perch for liberal SCOTUS wins

Narrow wins in cases on the periphery, even as the court denies other significant cases on individuals' rights. Also: Florida executions. And: A fourth anti-trans bill is set to become law.

Chris Geidner
Feb 23
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The precarious perch for liberal SCOTUS wins

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On Wednesday, the Supreme Court released rulings in three cases, including a 6-3 win for an employee in a labor case and a 5-4 win for a capital defendant in a death penalty case.

Those were wins for the left, to be sure, as Neal Katyal, who argued in the Arizona capital case for the defendant, John Montenegro Cruz, stated on Twitter about his case.

Twitter avatar for @neal_katyal
Neal Katyal @neal_katyal
Yes, it is a win. Justice Sotomayor says the Arizona Supreme Court adopted a novel view of the law to try to deny death row inmates relief. Justice Barrett dissents, joined by Justices Thomas, Alito, and Gorsuch. Justice Sotomayor's majority opinion
3:22 PM ∙ Feb 22, 2023
584Likes36Retweets

The Cruz case addressed the rare circumstance when a state’s claim that its basis for rejecting a criminal defendant’s claim was based on an “adequate and independent” state ground is insufficient and should fail. Here, Justice Sonia Sotomayor wrote the opinion for the U.S. Supreme Court, holding that the Arizona Supreme Court went too far, ignoring its past cases, to deny relief to people sentenced to death in the state.

CRUZ v. ARIZONA Opinion of the Court * * * In exceptional cases where a state-court judgment rests on a novel and unforeseeable state-court procedural decision lacking fair or substantial support in prior state law, that decision is not adequate to preclude review of a federal question. The Arizona Supreme Court applied Rule 32.1(g) in a manner that abruptly departed from and directly conflicted with its prior interpretations of that Rule. Accordingly, the judgment of the Supreme Court of Arizona is vacated, and the case is remanded for further proceedings not inconsistent with this opinion. It is so ordered.

The labor law case, meanwhile, delved into whether a highly paid oil rig employee, who the company identified as an executive and was paid more than $200,000 a year could still get overtime pay. He gets overtime pay, the court ruled, because he is not a salaried employee.

In short, they were both cases addressing issues at the periphery, but, they were wins for the left.

In addition to the decisions, they and Tuesday’s orders — when the court announced dozens of cases that it wouldn’t be hearing — highlighted just how precarious the legal ground is even for cases where the “right” legal outcome might seem obvious.

While there will be occasional wins for the left, they will most often come at the margins. And other marginal cases, even with extreme facts, will get by without Supreme Court review altogether.

First, the justices declined to hear a case out of Ohio, where a man tried to sue the Parma Police Department after the department arrested and jailed him for four days because they didn’t like his Facebook page. The justices left a particularly chilling lower court opinion from Judge Amul Thapar — former president Donald Trump’s first appeals court nominee — in place, a “qualified immunity” win for police that could chill police criticism. (This was the case that prompted The Onion’s brief.)

The justices also declined to hear a closely watched case challenging the NSA’s so-called “upstream” surveillance.

Twitter avatar for @JameelJaffer
Jameel Jaffer @JameelJaffer
The Court denied cert this morning in Wikimedia v. NSA, letting stand a ruling that shields foreign-intelligence surveillance from ordinary judicial review. Disappointed in the Court, but grateful to @Wikimedia for its defense of the constitution.
knightcolumbia.orgU.S. Supreme Court Declines to Hear Wikimedia Foundation’s Challenge to NSA Mass Surveillance
2:54 PM ∙ Feb 21, 2023
40Likes21Retweets

Finally, Jordan Rubin highlighted at MSNBC a third case the justices turned down — the only case on Tuesday in which any justice wrote to express their opposition. Justice Ketanji Brown Jackson, joined by Justice Sonia Sotomayor, dissented from the decision not to hear the case about, as Rubin explained, “plea bargaining and ineffective assistance of counsel.”

JUSTICE JACKSON, with whom JUSTICE SOTOMAYOR joins, dissenting from the denial of certiorari. Our criminal justice system today is “for the most part a system of pleas, not a system of trials.” Lafler v. Cooper (2012). Against this backdrop, this Court has recognized that the loss of an opportunity for a favorable plea  offer due to an attorney’s deficient performance can violate the Sixth Amendment right to effective counsel. Id.; see also Missouri v. Frye (2012). Petitioner Quartavious Davis alleged, and the Eleventh Circuit did not dispute, that he satisfied the first prong of the Strickland ineffective-assistance-of-counsel standard because his attorney failed to initiate plea negotiations with the Government. The question presented, then, is how can a defendant like Davis show “prejudice” as a result of this failure? See Strickland v. Washington (1984) (ineffective assistance of counsel requires a showing of both deficient performance and prejudice).

Here, Jackson wrote, the appeals court below (the US Court of Appeals for the Eleventh Circuit), made it virtually impossible, “because it applied a bright-line rule that prejudice cannot be shown in the absence of a plea offer.” That presented a circuit split, she continued, and the court should have resolved it by taking the case.

In this era, however, such an obvious candidate for Supreme Court review is not taken, Davis gets no relief, and others after him will face similar challenges based solely on the circuit in which their case is heard.

Law Dork with Chris Geidner is independent, reader-supported legal and political journalism that seeks to hold government and other public officials accountable. Support this reporting by becoming a free or paid subscriber today.


FLORIDA EXECUTION SET FOR TODAY: Florida is set to execute Donald Dillbeck at 6 p.m. ET Thursday. It is set to be the first execution carried out in the state since the summer of 2019.

Among Dillbeck’s legal claims is a claim that it should be unconstitutional for Florida to execute people whose jury did not unanimously agree that the defendant should have been sentenced to death. Here, the jury was only 8-4 in support of a death sentence, but the judge nonetheless sentenced Dillbeck to death.

This is the implication of a pair of Supreme Court rulings in recent years, but the Supreme Court has never explicitly ruled on the question — and no states currently allow for new death sentences without a unanimous jury.

Nonetheless, on Wednesday afternoon, the Supreme Court denied Dillbeck’s request for a stay of execution so that the court could hear his case. It gave no reasoning for its decision, and no justices announced a dissent.

Twitter avatar for @chrisgeidner
Chris “Subscribe to Law Dork!” Geidner @chrisgeidner
Breaking: #SCOTUS will not stop Florida from carrying out its first execution since the summer of 2019. Tomorrow, Florida is scheduled to kill Donald Dillbeck. There were no noted dissents.
(ORDER LIST:  598 U.S.)
WEDNESDAY, FEBRUARY 22, 2023
     CERTIORARI DENIED
22-6819 DILLBECK, DONALD V. FLORIDA, ET AL. (22A757)
                  The application for stay of execution of sentence of death
            presented to Justice Thomas and by him referred to the Court is
            denied.  The petition for a writ of certiorari is denied.
9:42 PM ∙ Feb 22, 2023
58Likes62Retweets

Florida Gov. Ron DeSantis — an expected presidential candidate — recently proposed Florida adopting a rule that would only require an 8-4 jury vote to sentence a person to death.

While that was allowed when Dillbeck was tried, it has not been Florida’s practice in recent years — due to both U.S. and Florida supreme court decisions.

Law Dork provides extensive coverage of the death penalty and criminal justice issues at the federal and state level. Subscribe today.


MISSISSIPPI ANTI-TRANS BILL: The fourth anti-trans bill passed in 2023 is set to be signed into law.

On Tuesday, Mississippi's Republican Senate passed a ban on gender-affirming medical care for minors (H.B. 1125). The bill, which already pased the House, will go to Republican Gov. Tate Reeves now. He already has said he plans to sign the bill.

The measure will be the third bill barring gender-affirming medical care to be passed into law this year (along with Utah and South Dakota).


WHO IS BEING HARMED HERE?: Erin Reed and Ari Drennen, two of the people most fastidiously covering the anti-LGBTQ efforts taking place across the country today, highlighted a simple moment of humanity on CNN.

Twitter avatar for @ErinInTheMorn
Erin Reed @ErinInTheMorn
Please, mass media, platform more trans youth. Show the country who transgender people are and who these bills are targeting.
Twitter avatar for @AriDrennen
Ari Drennen @AriDrennen
Finally, CNN has a trans teenager fighting against the proposed Idaho ban on gender-affirming healthcare for minors on air to make a crucial point: going through the puberty of her birth sex is no less irreversible than a medical transition. (h/t @alyssatirrell) https://t.co/bVPiQlMzWr
9:08 PM ∙ Feb 22, 2023
1,332Likes376Retweets
Twitter avatar for @AriDrennen
Ari Drennen @AriDrennen
@alyssatirrell Full clip here:
mediamatters.orgA trans teen and her father discuss the life-threatening effects of youth gender-affirming care bans on CNN
9:02 PM ∙ Feb 22, 2023
136Likes17Retweets

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The precarious perch for liberal SCOTUS wins

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Jillian Weiss
Writes Dr. Jillian T. Weiss's Gender I…
Feb 23Liked by Chris Geidner

In Mississippi, the age of majority is 21. This is codified under the Mississippi Code title 1, S1-3-27. A 20-year old who can join the military, vote, be convicted as an adult, and engage in sexual relations isn’t old enough to determine their gender identity. Parental consent means nothing, although you can drink at the age of 18 with parental consent and get married at 15 with parental consent.

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