Posted by: Patrick Allen Foster | January 3, 2014

Some Law Links for Friday

1. Douglas Berman points to a New York Times editorial, “The Slow Demise of Capital Punishment,” which reads in part:

As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.

Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly.

Prof. Berman says that the title of the editorial “is probably better viewed as wishful thinking rather than a sound prediction.” (He also observes that, for the 3,100 or so convicts who are still on death row in the United States, “their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.” [emphasis in original])

prison1

2. Good news: Alex Tabarrok at Marginal Revolution observes that the US prison population has actually begun to decrease in recent years, after almost three decades of uninterrupted growth. The rate at which new prisoners are entering the system is also declining (see also this post by Keith Humphreys).

Prof. Tabarrok points to this 2012 report (pdf, 10 pages) by the Bureau of Justice Statists at DOJ (from which the above graph is taken).

3. As you have probably already heard, Judge Pauley in the Southern District of New York has issued a ruling upholding the NSA’s bulk collection phone metadata. Read the opinion here (pdf, 54 pages). Orin Kerr accurately notes that “it’s pretty much the opposite of Judge Leon’s recent opinion” invalidating the NSA’s program (about which I blogged here). Tim Cushing at Techdirt has a good, clear rundown of the decision.

So we now have the SDNY saying that the NSA’s program under Section 215 is constitutional, and we have the DC District Court saying that the NSA’s program under Section 215 is unconstitutional. This isn’t a circuit split, yet — we’ll have to see what the respective courts of appeals do — but the presence of two such widely divergent decisions practically cries out for Supreme Court review.

4. The Tenth Circuit Court of Appeals has refused to stay a district court decision invalidating Utah’s ban on same-sex marriage, prompting the Utah Attorney General to seek a stay from the Supreme Court. At Balkinization, Andrew Koppelman says that the Utah AG blew it at the district court level:

Typically, in same-sex marriage litigation, the state accompanies its pleadings with a routine request that, if the trial court rules in favor of the same-sex couples, that ruling be stayed pending the inevitable appeal. That way no licenses can issue until the question is finally resolved. Until now, courts have generally agreed that the question of same-sex marriage is doubtful enough that the status quo should be preserved during the litigation. Everyone agrees that it would be unfortunate for marriage licenses to issue, and couples to order their lives in reliance on them, only to have those licenses voided on appeal.

In Utah, however, the state inexplicably neglected to request a stay before the ruling issued. That led to a bizarre phone conversation between Judge Robert Shelby and the AG’s office, which the judge describes in pp. 5-6 of the transcript of the hearing, here. The AG’s office asked whether a stay would be issued, and the judge properly responded that he had received no request for such a stay and would not consider one until he received a motion in writing.

(So, the Tenth Circuit will not stay the Utah ruling banning same-sex marriages, but Justice Sotomayor will stay the Affordable Care Act contraceptive mandate in a lawsuit brought by some nuns in Colorado — another Tenth Circuit state. And Judge Leon’s injunction against the NSA collection of metadata is also stayed pending appeal.)

Meanwhile, the New Mexico Supreme Court has struck down that state’s laws that limit marriage to opposite sex couples. (Decision is here — pdf, 31 pages.) New Mexico is also in the Tenth Circuit, btw.

5. Rick Hasen has a good post looking at when we can expect SCOTUS to revisit the constitutional issues surrounding same-sex marriage. (tl;dr: soon.) Prof. Hasen does some vote-counting:

It takes only four votes to grant a cert. petition, and it is hard for me to imagine Justices Scalia, Thomas and Alito not wanting to take one of the cases coming up, such as the Utah case, in which a federal court held that the state’s ban on same-sex marriage violates both equal protection and due process guarantees, or the Ohio case, where a federal judge indicated he’s quite likely to reach that same result as to Ohio’s law. If lower courts are going to start siding with same-sex marriage proponents, and start legalizing same-sex marriage as a result of court order in places such as conservative Utah, then it seems hard to imagine Scalia, Thomas, and Alito not urging the Court to take the case.

So where’s the fourth vote? I think Adam is right that Kennedy would rather let the issue percolate for a while (witness his convoluted opinion in Windsor not addressing the issue more straightforwardly). But Chief Justice Roberts is a different story. He appears in Windsor to oppose judicial imposition of same sex marriage. That’s where his sympathies are. The question is whether he pulls the trigger or not and votes to take one of these cases. Strategically, he could decide it is better not to vote to take the cases if he thinks, as many thoughtful observers do, that if Kennedy had to decide the issue, he would side with the right to same-sex marriage.

But that same strategic calculation which might lead the Chief not to vote to grant cert. could lead one of the four Court liberals to vote to take the case. That is, they too may want to force Kennedy’s hand, if they are confident in his vote. If it only takes one of the four to join in a vote for cert., I think it is pretty likely to happen. The way it might not happen happen is if Alito, Scalia and Thomas all decide to vote strategically not to hear these cases. I’m guessing they won’t be able to resist.

If Justice Kennedy or any of the other justices were hoping to “put off the big same-sex marriage question — whether there is a right to same-sex marriage — for a few more years,” it seems that events are likely to disappoint them.

Image Source: Lauren E. Glaze and Erika Parks, “Correctional Populations in the United States, 2011,” Bureau of Justice Statistics, Office of Justice Programs, US Dept. of Justice, November 2012.


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