Today’s Opinions
The Court issued opinions today in the following two cases, which Lyle describes in detail below:
No. 03-750, Small v. United States, reversed and remanded 5-3. Justice Breyer wrote the majority opinion, which Justices Stevens, O’Connor, Souter and Ginsburg joined. Justice Thomas dissented, joined by Justices Scalia and Kennedy. The Chief Justice did not participate.
No. 03-725, Pasquantino v. United States, affirmed 5-4. Justice Thomas wrote the majority opinion, which the Chief Justice and Justices Stevens, O’Connor and Kennedy joined. Justice Ginsburg wrote a dissent that Justices Breyer joined in full and that Justices Scalia and Souter joined as to Parts II and III.
Pasquantino was the only case from the (now-completed) November sitting in which the Chief Justice voted in order to break a tie.
From the December sitting, four opinions are outstanding: three from important constitutional cases — Ashcroft v. Raich (which was actually argued on November 29th, technically at the beginning of the “December” sitting), Granholm v. Heald, and Veneman v. Livestock Marketing — as well as Miller-El v. Dretke (also important, but not technically a constitutional case). Of those four opinions, Justices Stevens, Kennedy, and Souter are likely writing at least one majority apiece, and Justice O’Connor almost certainly is not writing a majority.
From the November sitting, doesn’t Ashcroft v. Raich remain to be decided?
ML responds: Well, technically Raich is in the “December” sitting, although you’re correct that it was argued on November 29th, the beginning of that sitting. From the December sitting, three important constitutional cases remain — Raich, Granholm v. Heald, and Veneman v. Livestock Marketing — as does Miller-El v. Dretke. Of those four opinions, Justices Stevens, Kennedy, and Souter are likely writing at least one majority apiece, and Justice O’Connor almost certainly is not writing a majority. (Perhaps I’ll add that info to the main post, too.)
Comment by Frank — April 26, 2005 @ 10:48 am
Justice Breyer notes: “They would include a conviction from a legal system that
is inconsistent with an American understanding of fairness” (page 4). I don’t quite follow the logic here: if Justice Breyer is concerned with the fairness of rulings of Courts in other countries, and their applicability to legal procedings within the United States, why is Jutice Breyer the Court’s leading proponent of citing foreign case law?
Comment by SimonD — April 26, 2005 @ 11:57 am
Mr. Justice Thomas relies on foreign law!
I doubt I’m the first and am sure I won’t be the last to make this clever observation about two opinions delivered by the Court today. In Small v. U.S., Thomas dissented, joined by Scalia and Kennedy. Federal law prohibits any person “who has been conv…
Comment by New World Man - put your message in a modem — April 26, 2005 @ 2:17 pm
SCOTUS Watch
From Marty Lederman at SCOTUSblog: From the December sitting, four opinions are outstanding: three from important constitutional cases — Ashcroft v. Raich (which was actually argued on November 29th, technically at the beginning of the “December” sitt…
Comment by Law Dork — April 26, 2005 @ 2:51 pm
Is Pasquantino a third first time lineup of justices this term?
Comment by Jacob — April 26, 2005 @ 5:37 pm
SimonD: perhaps because while Breyer is willing to look to foreign case law as persuasive authority, there is no room for mere persuasiveness in interpreting criminal statutes.
Comment by phil — April 26, 2005 @ 6:16 pm
Which Way Will They Go?
SCOTUS Blog gives links to today’s Supreme Court opinions, and, more importantly, alerts us to the opinions still to come. This was the part that intrigued me though
Comment by The Debate Link — April 26, 2005 @ 10:21 pm
It seems like they could have attacked the conviction with Apprendi-style logic here as well – if sentence enhancments based on facts not discovered by a jury are unconstitutional, would it not stand to reason that so would a law that does essentially the same thing, that is statutorily incarcerate people based on part facts not stipulaed to by the defendant or established by a US jury?
Comment by Ben Kennedy — April 27, 2005 @ 9:52 am
Ben Kennedy: There is no Apprendi problem here, as the previous conviction was surely alleged in the indictment, and a jury would have been required to affirm the existence of the Japanese conviction beyond a reasonable doubt. If Small had gone the other way, it would likely have held that a foreign conviction can make gun possession illegal, no matter what jury and due process procedures are used internationally. The finding of fact by the jury would be the simple existence of the forign conviction, no matter how unfair. In this case, the point is moot, as Small pleaded guilty anyway, reserving the right to challenge the legal significance of his Japanese conviction, not its existence.
Comment by Jacob — April 27, 2005 @ 11:40 am
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