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Supreme Court Upholds Execution Drug

In a 5-4 opinion written by Justice Alito, the Supreme Court has upheld Oklahoma's use of midazolam in executions. The reasoning:

Alito said the prisoners failed to identify a “known and available alternative method of execution that entails a lesser risk of pain,” which he said was required under the court’s previous ruling upholding lethal injection. And he said plaintiffs had failed to establish that a massive dose of midazolam “entails a substantial risk of severe pain.”

Some background is here. The opinion is here.

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SCOTUS Rules Constitution Requires Marriage Equality

Decision here.

Discuss.

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Supreme Court Upholds Obama's Health Care Act

In a 6-3 decision, the Supreme Court today upheld the Affordable Choices Act. The opinion in King v. Burwell is here.

The 6-to-3 ruling means that it is all but certain that the Affordable Care Act will survive after Mr. Obama leaves office in 2017, and will give it a greater chance of becoming an enduring part of America’s social safety net

Dissenters: Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.

The Court upheld the Act's tax subsidies intended to assist the ability of the poor and middle-class to buy health insurance. [More...]

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The Silence of Judges on Mass Incarceration

Via Sentencing Law and Policy: U.S. District Court Jed Rakoff gave a speech at Harvard Law School last Friday about mass incarceration in the U.S. and the responsibilities of lawyers and judges. He says judges need to be more outspoken in their criticism. Bloomberg BNA has reprinted it in its entirety. For those who want the short version, here is a portion of the last paragraph.

In many respects, the people of the United States can be proud of the progress we have made over the past half-century in promoting racial equality. More haltingly, we have also made some progress in our treatment of the poor and disadvantaged. But the big, glaring exception to both these improvements is how we treat those guilty of crimes. Basically, we treat them like dirt. And while this treatment is mandated by the legislature, it is we judges who mete it out. Unless we judges make more effort to speak out against this inhumanity, how can we call ourselves instruments of justice?

Judge Rakoff is not suggesting the strides we have made towards racial equality extend to the criminal justice system. To the contrary, he writes [More...]

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Would a public option have eliminated incentive for King v. Burwell?

There is no public option in the Affordable Care Act. On its own merits, as Wendell Potter explains, that's a shame. But there is another reason why no public option in ACA is a bad thing - if ACA included a public option, the challenge to tax credits and subsidies on the exchange, now before the the Supreme Court in King v. Burwell, would never have existed.

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Colorado's "Feisty" Federal Judge

The Denver Post today has a detailed profile of Senior District Court Judge John Kane, who is well-known for challenging authority.

As a boy growing up in Depression-era Denver,John Kane learned to identify with those on the fringes of society, the powerless, those who were forced to sit in the balcony at movie theaters. He also learned to challenge authority — a skill he embraces with gusto as a federal judge.

Judge Kane was our first public defender in 1964. He served as a Deputy Director in the Peace Corps. He was appointed to the federal bench by President Carter in 1977. He's been an outspoken critic of the war on drugs for decades and of the draconian child p*rn sentencing guidelines. Most recently, he's been in the news for his decisive and much heralded rulings in inmate Jamal Hunter's abuse lawsuit against Denver sheriffs at the Denver County Jail. [More...]

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Supreme Court Upholds Michigan Ban on Affirmative Action

In a 6-2 vote, the Supreme Court has upheld Michigan's ban on affirmative action in college admissions. The full opinion in Schuette v. Coalition to Defend Affirmative Action is here.

The opinion holds that Michigan voters had the right to amend their constitution to prohibit public universities from considering race in admissions decisions.

Justices Sotomayor wrote the 58 page dissent, joined in by Justice Ginsburg. The Chicago Tribune discusses the dissent here. [More...]

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Opening SCOTUS Briefs In Hobby Lobby, Conestoga

Via Marty Lederman, the government's opening brief (PDF) in Hobby Lobby and the plaintiff's opening brief (PDF) in Conestoga. The government is the petitioner in Hobby Lobby and the Conestoga plaintiffs are the petitioners in their case.

Bone up as we will be discussing these issues during the week.

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Senior Federal Judge Ends His Popular Blog

Nebraska senior Federal Judge Richard Kopf, whose excellent blog Hercules and the Umpire I've written about a few times here and here, has decided to pack up his keyboard and quit blogging. I'm really sorry to see him go. His blog was immensely readable, sometimes serious, sometimes humorous. He has not been pressured to give up the blog, he's doing it voluntarily.

I'm sure many blogs would be willing to host him if he felt like writing a post or two, TalkLeft among them. I wouldn't care that he's not a "leftist," as he says.

Judge Kopf isn't taking the blog down, he's just not writing any more. If you haven't read him yet, go over and take a look. I think the judiciary would be much more transparent if more judges blogged. We, the public, tend to think of federal judges as being isolated in their ivory towers. It's nice to see a few that show their personality off the bench, and provide us with valuable legal insights while doing so.

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Federal Judiciary to Seek Mandatory Minimum Sentence Reform

The Federal Judicial Conference issued a press release today supporting the Justice Safety Valve Act of 2013 which would give federal judges discretion not to impose a mandatory minimum sentence.

Acting on the recommendation of its Criminal Law Committee, the Conference agreed to seek legislation, such as the Justice Safety Valve Act of 2013 (S. 619), which is designed to restore judges’ sentencing discretion and avoid the costs associated with mandatory minimum sentences.

The judges are also seeking legislation that would early termination of supervision for inmates who have been granted compassionate release.

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Sequester Update: 87 U.S. Chief Judges Write Congress

Via Hercules and the Umpire, the blog of Nebraska Senior District Court Judge Richard Kopf, 87 of the nation's 94 Chief U.S. District Court Judges have written a joint letter to Congress warning of the impending disaster to befall our Judiciary as the result of flat funding followed by sequester cuts.

Judge Kopf reprints the letter (you can read the original here), and adds this comment:

As a former Chief District Judge, I know that you can almost never get 87 Chief District Judges to agree about when the sun comes up. The fact that 87 of them wrote the foregoing letter to Congress ought to make clear that the federal district courts are inches away from disaster. Congress is on the brink of intentionally wrecking the federal trial courts. Will sanity prevail?

Thank you Judge Kopf.

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Federal Courts Seek Emergency Funding

The federal courts are in a state of financial crisis due to sequester. Here is the letter the Federal Judicial Conference sent to the White House yesterday seeking emergency funding.

"The judiciary is confronting an unprecedented financial crisis that could seriously compromise the Constitutional mission of the United States courts," the letter states. "We believe our supplemental request meets the threshold for receiving an emergency designation."

Interesting inclusion on the cost of defending Dzokhar Tsarnaev and other threat cases in New York: [More....]

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Supreme Court Limits Warrantless Forced Blood Tests for DUI Suspects

The Supreme Court today ruled in Missouri v. McNeely (opinion here) that the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant.

The majority opinion was written by Justice Sotomayor. There were two concurring and one dissenting opinions.

While the court didn't say a warrant was needed, it made clear officers shouldn't assume one is not needed. Scotus Blog explains: [More...]

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Supreme Court Rules Against Warrantless Canine Sniffs at Homes

The Supreme Court has taken a step to keep the 4th Amendment from going to the dogs. It ruled today that police may not use the fruits of a warrantless dog search at the front door to a residence as probable cause for a search warrant. The case is Jardines v. Florida and the opinion, written by Justice Scalia, is here.

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Sequester and the Judiciary

Andrew Cohen at The Atlantic has an excellent article on the impact of the sequester on the federal judiciary. Already there are layoffs and furloughs at federal defenders' offices and courts are reducing staff. Law enforcement is also taking a hit.

The Federal Times reports 21,000 court employees could be affected.

U.S. marshals, who furnish courthouse security, and federal prosecutors face furloughs of up to 14 days by the end of September.

There are some exemptions: "Like members of Congress, judges cannot be furloughed. Also exempted are law clerks and other “chambers” staff employees."

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