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Josh Blackman
@JoshMBlackman
, 5 tweets, 3 min read Read on Twitter
1/ In April, I flagged a CA11 en banc case concerning Terry v. Ohio. The majority (per J. Pryor) said it was controlled by #SCOTUS precedent. The dissent (J. Jordan) said that the original meaning of the 4th Amendment supported the defendant.
2/ I discuss this exchange in my new draft article, "Originalism and Stare Decisis in the Lower Courts" papers.ssrn.com/sol3/papers.cf…
3/ Johnson field a cert petition supremecourt.gov/DocketPDF/18/1… He argues that Terry frisks are contrary to the 4th Amendment's original meaning and that the majority "refused to consider Petitioner’s originalist argument." (I disagree with this characterization of Pryor's opinion)
4/ In my article, I encourage public defenders, in particular, to embrace originalism. Such "Gorsuch Briefs" (@mjs_DC) may help attract conservative votes, and count to 5.
5/ #SCOTUS has called for a response. supremecourt.gov/search.aspx?fi… I will keep an eye on this docket.
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More from @JoshMBlackman see all

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Josh Blackman
@JoshMBlackman
Ramos v. LA considers the incorporation of the unanimous jury verdict requirement. supremecourt.gov/search.aspx?fi… The Petitioners cited my article w/ @brianlfrye & Mike McCloskey on Justice Harlan's lecture notes. And the Respondents replied. #SCOTUS
papers.ssrn.com/sol3/papers.cf…
@brianlfrye And here are the quotes from the Respondent Brief:
@brianlfrye Here is an excerpt from our article based on the lecture notes. papers.ssrn.com/sol3/papers.cf…
Read 3 tweets
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Josh Blackman
@JoshMBlackman
1/ CA3, applying American Legion, finds that Latin Cross on the 75-year old seal of Lehigh Valley, does not violate Establishment Clause. drive.google.com/open?id=1JmxMw… J. Hardiman writes majority, joined by Krause and Bibas (Disc: the Jewish Coal for Relig Liberty filed a brief here.)
2/ The panel notes that J. Gorsuch cast doubt on "offended-observer" standing status, but declines to disturb those precedents
3/ The panel adds that the Lemon Test does not apply in cases involving public monuments. Rather, the court will apply a presumption of constitutionality
Read 5 tweets
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Josh Blackman
@JoshMBlackman
1/ Art. III, Sec. 2 provides "[i]n all Cases . . . in which a State shall be [a] Party, the supreme Court shall have original Jurisdiction." Does the text of the Constitution grant #SCOTUS the discretion to decline jurisdiction of a case in which "a State shall be [a] Party"?
2/ In Nebraska v. Colorado, Justices Thomas and Alito said #SCOTUS could not decline to exercise jurisdiction in a suit between two states. Federal law provides that #SCOTUS has "exclusive" jurisdiction over such suits.
supremecourt.gov/opinions/15pdf…
3/ Thomas and Alito also noted that #SCOTUS has declined to exercise jurisdiction where only one state is a party. They would reconsider this doctrine.
Read 10 tweets

Related threads

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Eric Baxter
@esbax
1/ A diverse group of amici and prominent legal scholars just urged #SCOTUS to take an important new religious freedom case. Here’s the story: [THREAD]
2/ Last term, 4 justices—Alito, Thomas, Gorsuch, and Kavanaugh—suggested it was time to reconsider #SCOTUS precedent that “drastically cut back on the protection provided by the Free Exercise Clause.”
supremecourt.gov/opinions/18pdf…
3/ Last month, @BecketLaw filed a cert petition that offers SCOTUS the chance to do just that: reconsider Employment Division v. Smith, and let a devout man have his career back. The case is Ricks v. Idaho Board of Contractors. s3.amazonaws.com/becketnewsite/…; becketlaw.org/case/ricks-v-i…
Read 13 tweets
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Chris Geidner
@chrisgeidner
#SCOTUS opinions, up to 4, coming in moments.
Sixteen cases remain from this term, including partisan gerrymandering cases and the Census case. #SCOTUS
Justice Kavanaugh has the 7-2 opinion for the majority in Flowers v. Mississippi, siding with Flowers in his case alleging discrimination in how the jury in his murder trial was picked. supremecourt.gov/opinions/18pdf…
Read 9 tweets
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Chris Geidner
@chrisgeidner
#SCOTUS grants five new cases this morning.
#SCOTUS will not hear Moath
Hamza Ahmed al-Alwi's challenge to his detention at Guantanamo. Background: scotusblog.com/case-files/cas… / Breyer wrote:
Here is the full orders list: supremecourt.gov/orders/courtor…
Read 10 tweets
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Steve Vladeck
@steve_vladeck
#SCOTUS's 5-4 ruling in Bucklew, rejecting a prisoner's claim that his execution by lethal injection will violate the Eighth Amendment because of the pain it will inflict on him (due to his medical condition), may, in retrospect, be the true beginning of the "post-Kennedy" Court.
It's not the first 5-4 ruling in a merits case in which the new conservative majority prevailed (that came in the immigration detention case, Nielsen v. Preap).

Nor am I confident that Justice Kennedy would've voted differently here, given his previous votes in Glossip and Baze.
But there are three features of Justice Gorsuch's majority opinion that I doubt Justice Kennedy would have endorsed:

First, the majority's refusal to note (let alone distinguish) the Court's "evolving standards of decency" approach to identifying "cruel and unusual punishment."
Read 6 tweets
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Tim Hogan
@TimInHonolulu
1. #SCOTUS cert petition order today had a fun little bit of Judge humor. Issue involved what happens when a judge votes as part of a large en banc panel and then dies before the decision.
2. From the Per Curium order:

"Because Judge Reinhardt was no longer a judge at the time when the en banc decision in this case was filed, the Ninth Circuit erred in counting him as a member of the majority. That practice effectively allowed a deceased judge to exercise
3. the judicial power of the United States after his death. But federal judges are appointed for life, not for eternity." 😎 @maddow @Lawrence @tribelaw @neal_katyal
Read 3 tweets
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Brad Heath
@bradheath
En banc 5th Cir. rules that prosecutors are not required to reveal exculpatory evidence to defendants before they plead guilty.
The case involved an altercation between a jail guard and a 17-year-old who was charged with assault. Four years after he started serving his sentence, a video of the fight "surfaced." A state court declared him actually innocent and freed him. Prosecutors didn't object.
5th Cir.: There is no constitutional right to find out about exculpatory evidence that the government possesses before you plead guilty to a crime.
Read 8 tweets

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