SCOTUS Arguments - OT Term 2019 Argument Day 1

Lloenflys

"Certainty is an illusion ..."
Honoured Citizen
Citizen
Day 1 at the Supreme Court came and went today with three cases being heard, as the Justices returned to their work schedule following a nice little summer break filled with speaking engagements, trips to Europe, and, if you're Brett Kavanaugh, probably a lot of beer (he really likes beer, in case you've forgotten).

In any case, here are some thoughts on the first three arguments of the year:

Kahler v. Kansas - (Right to Insanity Defense)

Justice Ruth Bader Ginsburg asked the first question of the Term, if you're keeping track. That's not so unusual, as she often opens up the questioning in any given argument. That would be the first of many questions, as the Justices engaged with each of the attorney's involved in the case. While each of the conservatives pushed the Defendant-Petitioner's position, only Justice Alito seemed fully on board with elimination of the insanity defense (in line with my projected 7-2 finish from the preview post). Even Alito, however, got a bit exasperated with Kansas's arguments about mens rea, at one point even asking if any jurisdiction, anywhere in the history of the English-speaking world, had even found murder to be a strict liability crime. Despite seemingly being dissatisfied with some of the presentation, however, he clearly seemed to be on the state's side on the overall merits of the case.

The biggest argument brought up against the Defendant-Petitioner was that he is a terrible candidate for the insanity defense, and there was very little sympathy for his position on the bench. Chief Justice Roberts, for instance, made a joke about how one of the reasons cited as evidence of the Defendant's insanity was a prefence for renting tools instead of buying them. This seemed perfectly reasonable to the Chief. But while the conservative Justices bantered a bit about this, ultimately it is irrelevant to the question of whether the has the right to make an insanity argument as an affirmative defense, and the Court will need to get over focusing on that aspect of the proceedings in order to get to a decision on the merits, which they will reach.

Finally, Justice Breyer can ask some convoluted, ridiculous hypotheticals during oral argument. Today, however, he asked a very cogent one. If you have two patients, both of whom have been determined by the appropriate authorities to be "insane," should they be treated differently if one of them shoots somebody in the belief that the person is a dangerous wild dog, while the other ones shoots someone he is fully aware is a person in the belief that an invisible dog told him to do it? Both of these individuals have been found insane. Both are dealing with an inability to understand the world around them, but under the Kansas rule one goes to prison and bears the stigma of having been convicted of a crime, while the other will go to a mental facility and not have the scarlet letter of a conviction on their record. Breyer simply asked "why?" and counsel for Kansas was unable to answer the question.

Bottom line: I stand by my 7-2 prediction in favor of the Defendant and the insanity defense.

Peter v. NantKwest, Inc. - (Shifting of Attorney Fees in Patent Appeals)

Justice Ginsburg again opened the questioning in this case, but it was Justice Breyer who would be the most frequent interlocutor during the argument. There's not a lot to go into from the discussion, which largely paralleled the discussion that came up in briefing. The most interesting exchanges really centered around the government's decision not to pursue attorney's fees for over 170 years and whether that should have any effect on the Court's interpretation of the statute. Justices Breyer, Alito and Kavanaugh all engaged in a bit of that colloquy toward the end of the argument, an indication that there may be broad agreement in upholding the American Rule. In reality, you could read the tea leaves either way after oral argument here, with some pointed questions for both sides. With nothing to really base a decision to change on, I stick by my previous analysis of this case.

There was really just one amusing thing in this argument. Justice Breyer suggested that he was puzzled about something, and the lawyer at the bar thought Breyer was talking about him and in an amusing bit of snark stated "If I look puzzled, I would like to withdraw my puzzled look." It was at least worth a chuckle for me in the middle of the argument.

Ramos v. Louisiana - (Constitutionality of Non-Unanimous Juries)

In my analysis earlier today I suggested that the Conservative court was unlikely to incorporate a new right that had precedent against it. I probably spoke too soon, and too carelessly, in that regard. The biggest piece of evidence that I missed in my research was that the 6th Amendment has a fairly clear interpretation as requiring unanimity for federal court cases. While I knew this, I thought this was more due to statutory provisions than direct interpretations by the courts of the meaning of the 6th Amendment, but it really was taken largely as a commonplace by the Court that the Amendment requires unanimity in federal trials.

Second, the precedent that seemed so important to uphold the status quo, allowing non-unanimous convictions in state courts, isn't just a bit of an outlier - it's a very, very lonely island of idiosyncratic law. This is especially troubling given that there is essentially only 1 Justice who held the controlling view in the case, but with a 4-4 tie otherwise, that extremely idiosyncratic approach ends up with precedential power here. Certainly this weakens the power of the stare decisis argument that was pushed for so strongly by Louisiana in this case. Indeed only Justice Alito really seemed that persuaded by the importance of stare decisis in this case, and he largely brought it up as a way to snark against the left and their complaints in dissent from a year previously when they lamented the overruling of precedential decisions that favored the left. Really, this was trolling by Justice Alito, something he does regularly.

It was also interesting to see that the only Justice who really brought up the negative racial legacy of non-unanimous juries was Justice Kavanaugh - and that he seemed ready to get rid of non-unanimity on those grounds. Both Louisiana and Oregon originally switched to non-unanamity for discriminatory purposes - in Louisiana to confound the practices of black jury members, and in Oregon to guard against Jewish jury members. This legacy provides a stain on the notion of non-unanimous decisions, it would seem, in Justice Kavanaugh's book.

With Justice Kavanaugh and Gorsuch both seeming pretty skeptical of the government's position in this case, I appear to be wrong about the end result - thankfully! Rather than a loss for the defendant, it now seems likely that the Court will overturn a bad precedent and formally incorporate the 6th Amendment unanimity requirement against the states. This would consitute a genuine victory in a Supreme Court term that is unlikely to produce that many for the Twins.
 
Back
Top