Part V – Criminal Law and Procedure & Wrap-Up

The last, but certainly not least, panelist was Judge Nathan. She agreed that during this term, the Court swing in favor of criminal defendants, noting that in 14 total criminal cases, the Government won only 5. She expects there is potential of “monumental shifts” in criminal law in coming terms, basing her belief on the language in the Glossip v. Gross (discussed supra) dissent and Justice Kennedy’s concurrence in Davis v. Ayala (not in the course materials).

Discussing Glossip, a sec. 1983 challenge to the Oklahoma lethal injection three-drug mixture, in more detail, Judge Nathan explained that the conservative majority held that advocates of invalidating the current mixture must propose a reasonably available alternative and failed to do so. The Court also deferred to the District Court’s fact-finding regarding the absence of pain when administered the drug in question. Justice Sotomayer, in authoring the dissent, rejected the fact finding from below because it was based on the testimony of a single expert who had relied on drugs.com as his primary. The dissent also rejected the need to propose a viable alternative as “unprecedented.” In further dissent, Justice Breyer’s opinion, joined by Justice Ginsberg, suggested that the death penalty in general may be unconstitutional, Justice Scalia’s concurrence suggested that Trop v. Dulles, the case that has been used for decades to interpret the Eighth Amendment and “evolving standards of decency,” should be overruled.

Judge Nathan was careful, as a sitting jurist, not to opine on the cases; she tried simply to facilitate a conversation. Thus, Mr. Rosenkranz noted that Glossip is far more important as a path to debate the constitutionality of the death penalty than it is about the actual facts of the case, while Mr. Katyal that the case was the “perfect embodiment” of the term, given the complex splits of opinion. Mr. Katyal also suggested that it is within the realm of possibility that the death penalty will be declared unconstitutional by the Court within the next 2-3 years. Judge Nathan highlighted Justice Scalia’s point that all four dissenting justices suggest that the death penalty is unconstitutional.

Judge Nathan also discussed Ohio v. Clark, a case involving a 3 year old’s out of court statement, which she described as “the next case in the Court’s love/hate relationship with the Confrontation Clause and with each other.” She noted that the dissent is one of the angriest she has ever read.

As to Johnson v. United States, Judge Nathan said, “it is the criminal case this term that sends the biggest shockwave through the criminal justice system.” Johnson involves the “three strike” law’s residual clause, of which the Court seems tired. The court held that the residual clause was unconstitutionally vague. Although the dissent suggested that there will be less work because of this decision, Judge Nathan disagreed, noting that at the time of the panel, she already had at least 40 potential cases arising with new challenges because of it.

Wrap-Up

The evening ended with a brief but enlightening question and answer session. Highlights included:

• Discussion of whether Justice Scalia’s dissents are becoming counterproductive and whether he has lost his possible influence going forward.
• Mr. Rosenkranz, a former clerk to Justice Scalia, described Justice Scalia of old as fair-minded and akin to Justice Brennan, but suggested that now Justice Scalia cares more about winning than about relationships, giving an example of how Justice Scalia had alienated Justice O’Connor while she was still on the Court.
• Professor Amar, citing Zivotofsky, noted how Justice Scalia has attacked even usual allies, such as Justice Thomas. He also described Justice Scalia as an academic who likes to answer every point, whether productive or not.
• Mr. Katyal noted that Justice Scalia has led major changes in the past, such as to how oral argument proceeds and to Fourth Amendment and other issues.
• Judge Nathan noted that the result in Johnson was the result of many prior dissents by Justice Scalia in residual clause cases.
• Will the gay marriage decision lead to multiple marriage?
• Mr. Katyal thinks the majority is clear that marriage is for two people only, but foresees litigation as to the issue.
• Professor Amar thinks it will become more of an issue because of Islamic polygamy. He suggested two articles on Slate.com, one of which authored. He also suggested that future litigation on the issue will not use heightened scrutiny because Justice Kennedy’s Obergefell opinion focused more on liberty than equality.
• Directed to Mr. Katyal, where is the fifth vote to invalidate the death penalty.
• Mr. Katyal opined that Justice Kennedy might be the fifth vote.
Overall, this was a powerful, exciting, and extraordinarily informative event. Each and every person who attended must have walked out of the room with new insights and issues to consider. The esteemed panel was thoughtful, considerate, and articulate. We at Counsel Press are proud to have co-sponsored the program.

Tagged: Appellate Practice, Litigation, Supreme Court of the United States